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Duran v. Long

United States District Court, Ninth Circuit

December 13, 2013

JOSEPH DURAN, Petitioner,
v.
DAVID LONG, Warden, Respondent.

MEMORANDUM DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE

SUZANNE H. SEGAL, Magistrate Judge.

I.

INTRODUCTION

On December 11, 2012, Joseph Duran ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 and a Memorandum of Points and Authorities ("Pet. Mem."). On March 27, 2013, Respondent filed an Answer to the Petition and a Memorandum of Points and Authorities. Respondent also lodged the relevant portions of the record from Petitioner's state court proceedings, including a two-volume copy of the Clerk's Transcript ("CT") and a three-volume copy of the Reporter's Transcript ("RT") from Petitioner's trial. On May 17, 2013, Petitioner filed a Reply. All parties have consented to the jurisdiction of the undersigned Magistrate Judge for final disposition of this matter. Accordingly, for the reasons discussed below, the Petition is DENIED and this action is DISMISSED with prejudice.

II.

PRIOR PROCEEDINGS

On March 10, 2011, a Los Angeles County Superior Court jury convicted Petitioner of second degree robbery in violation of California Penal Code ("Penal Code") section 211, second degree commercial burglary in violation of Penal Code section 459, attempted second degree robbery in violation of Penal Code sections 211/664, and assault with a firearm in violation of Penal Code section 245. (CT 308-11, 328-30; RT 1201-03). The jury also found it to be true that a principal was armed with a handgun during the commission of the offenses. (CT 308-11, 328-30; RT 1201-03). On April 8, 2011, the trial court sentenced Petitioner to eleven years in state prison. (CT 370-73, 378-79; RT 1509-11).

Petitioner appealed his conviction and sentence to the California Court of Appeal, which affirmed the judgment in an unpublished decision filed on April 25, 2012. (Lodgments A-D). Petitioner then filed a petition for review, which the California Supreme Court summarily denied on July 25, 2012. (Lodgments E-F).

III.

FACTUAL BACKGROUND

The following facts, taken from the California Court of Appeal's written decision on direct review, have not been rebutted with clear and convincing evidence and must, therefore, be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009).

On April 6, 2011, Albert Garcia met with [co-defendant Kekai] Larsen and [Petitioner] in Rosemead. They asked Garcia to drive them to the Santa Anita Mall. [Petitioner and Larsen] got into Garcia's car, along with a female. As the vehicle passed a business on Gidley Street in El Monte, [Petitioner and Larsen] told Garcia to stop because they wanted to "check it out." [Petitioner] got out of the car and looked at a large air compressor in the parking lot in front of the business. He unhooked a hose from the compressor. Larsen got out of the car. The business owner, Henry Franco, came outside and confronted them. [Petitioner] and Larsen approached him aggressively. Larsen demanded Franco's wallet. When Franco refused, Larsen lifted his shirt and showed him a handgun in his waistband. Franco handed over his wallet, and asked if he could have his wallet and identification cards back after the money was removed. He wrestled with Larsen to retrieve them. In the meantime, [Petitioner] went into the building and into Franco's office. When [Petitioner] emerged from the building, he and Larsen ran back to the car and Larsen told Garcia, "Take off." Garcia saw that Larsen had a pistol on his lap. Franco wrote down the license plate number of the car, and took the compressors inside the building. He discovered that his office had been ransacked and his cell phone was missing. In addition, $153 was taken from his wallet.
Garcia continued to drive the car to Arcadia. As they were driving on a residential street, they saw Qiu Qim Sheng walking her dog. [Petitioner] said, "I want to get that dog." Garcia made a U-turn and drove past Sheng. [Petitioner] jumped out of the car, grabbed the leash out of Sheng's hand, and ran down the street with the dog. John Gibbs was exiting a residence on the street and saw [Petitioner] take the dog. Gibbs chased [Petitioner] for 50 or 60 yards and [Petitioner] let go of the leash and continued to run. Garcia pulled the car up. According to Garcia, Larsen got out of the car to assist [Petitioner]. Garcia heard gunshots coming from behind the car. Both [Petitioner] and Larsen got in the car and Garcia drove off. Gibbs said he saw [Petitioner] dive into the rear seat of the car and then a person in the front passenger seat leaned out of the car and fired at Gibbs, striking him in the leg. Walter Quintanilla, who was driving down the street, saw a man running towards a car. The man dove into the rear passenger seat and then an arm came out of the car. Quintanilla heard a gunshot. He could not tell whether the person who jumped in the car was the one who put his arm out of the window. He wrote down the license plate number of the car.
Larsen and [Petitioner] told Garcia to drive them to El Sereno. [Larsen, Petitioner] and the female got out of the car and Larsen threw a bag of methamphetamine towards Garcia.
When Garcia arrived home at approximately 7:10 p.m. that evening, he was detained by police. They found a glass methamphetamine pipe in the car and methamphetamine in his pocket. Garcia admitted that he had used methamphetamine that day. Garcia told a detective that when he first picked up [Petitioner and Larsen, Petitioner] sat in the front passenger seat and Larsen sat in the rear seat on the driver's side. After [Petitioner and Larsen] took Franco's wallet, [Petitioner] got in the front seat again. Larsen was the only one with a gun. Garcia told police that [Petitioner] and Larsen were staying at a hotel about five miles away from where the dog had been taken. Officers responded to the hotel and detained [Petitioner and Larsen]. Franco identified both of them at a field showup and said that Larsen was the one with the gun. The next day at a photographic lineup, Franco did not identify either one. Police performed gunshot residue tests on [Petitioner and Larsen's] hands and the results were consistent with firing, touching, or being around a firearm.
At the preliminary hearing, Franco identified [Petitioner] but not Larsen. At trial, Franco identified both men and Larsen as the one with the gun. He said he did not identify Larsen at the ...

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