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Cross v. Sisto

United States District Court, Ninth Circuit

October 24, 2013

TERRELL CROSS, Plaintiff,
v.
D.K. SISTO, Defendant.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY

WILLIAM ALSUP, District Judge.

INTRODUCTION

Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas corpus challenging his conviction pursuant to 28 U.S.C. 2254. Respondent was ordered to show cause why the writ should not be granted based upon petitioner's claims. Respondent has filed an answer and a memorandum of points and authorities in support of it, and petitioner filed a traverse. For the reasons set forth below, the petition is DENIED.

STATEMENT

Petitioner was charged in Alameda County Superior Court of murder, possession of a firearm by a felon, and two counts of assault with a deadly weapon. See Cal. Pen. Code §§ 187, 12021(a), 245(a)(2). The assault charges were not included in the original preliminary hearing, but were later added by information. See Cal Pen. Code § 739. The charges stemmed from an incident in which petitioner shot and killed John McClendon.

The basic facts of the incident are not in dispute. At around 10:45 p.m. on December 24, 1999, petitioner met McClendon and several other men on a street corner in Oakland, California. McLendon and the others insulted and argued with petitioner, then they left and came back about 45 minutes later. Petitioner asked McClendon for "2 for 15, " which meant two $10 bags of marijuana for $15, and McClendon refused and walked away. Petitioner shot McClendon in the back of the head from close range with a pistol, and McLendon's friend Ronald Salter shot petitioner in the arm. Eyewitness accounts differ on who fired first, but McClendon was unarmed at the time of his death.

At trial, petitioner asserted that he killed McClendon in self-defense, claiming that he was scared of McClendon because he had a history and reputation of violence. A jury convicted petitioner of second-degree murder, possession of a firearm by a felon, two counts of assault with a deadly weapon, and enhancements for six prior convictions. The trial court sentenced petitioner to a term of 54 years-to-life in state prison. The California Court of Appeal affirmed the conviction, and the California Supreme Court summarily denied a petition for review.

ANALYSIS

I. STANDARD OF REVIEW

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

Under 28 U.S.C. 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. 322 at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir. 2000). In this case, the last reasoned opinion to address petitioner's claim is that of the California Court of Appeal.

II. PETITIONER'S CLAIMS

As grounds for federal habeas relief, petitioner has eight remaining claims: 1) the trial court's exclusion of evidence regarding a handgun violated his right to due process, 2) denial of petitioner's motion to dismiss the two assault charges not originally included in the preliminary hearing violated his Fifth Amendment and due process rights, 3) petitioner's constitutional right to a jury of his peers was violated by the absence of African-Americans on the jury, 4) trial counsel's failure to investigate and call certain witnesses violated his Sixth Amendment right to effective assistance of counsel, 5) prosecutor's statement to the newspaper violated his due process rights, 6) appellate counsel's failure to raise the previous five claims on appeal violated petitioner's Sixth Amendment rights, 7) the trial court's exclusion of evidence ...


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