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Weddle v. Biter

United States District Court, C.D. California

February 18, 2014

M.D. BITER, Warden, Respondent.


DAVID T. BRISTOW, Magistrate Judge.


On February 25, 2013, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") along with a supporting attachment ("Pet. Att.") herein. In accordance with the Court's Order Requiring Response to Petition, and after two extensions of time, respondent filed an Answer to Petition for Writ of Habeas Corpus on June 12, 2013. On August 13, 2013, after one extension of time, petitioner filed his Reply thereto. The parties also consented to proceed for all purposes before the undersigned United States Magistrate Judge.

Thus, this matter is now ready for decision. For the reasons discussed hereafter, the Court denies the Petition and dismisses this action with prejudice.


On June 25, 2010, a Los Angeles County Superior Court jury found petitioner guilty of one count of first degree murder and three counts of willful, deliberate, and premeditated attempted murder.[1] The jury also found true various firearm allegations and that the crimes were committed for the benefit of, at the direction of, or in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. (3 Clerk's Transcript on Appeal ["CT"] 481-88; 8 Reporter's Transcript on Appeal ["RT"] 1437-44.) On July 16, 2010, the trial court sentenced petitioner to three consecutive life terms plus an additional 125 years-to-life in state prison. (3 CT 595-96; 8 RT 1496-99, 1513.)

Petitioner appealed his conviction and sentence to the California Court of Appeal raising, inter alia, a claim generally corresponding to the sole claim alleged in the Petition herein. (Respondent's Notice of Lodging ["Lodgment"] No. 4.) In an unpublished decision issued on February 1, 2012, the Court of Appeal affirmed the judgment. (Lodgment No. 7.) Petitioner's ensuing Petition for Review to the California Supreme Court raising a similar claim was summarily denied without comment or citation to authority on April 25, 2012. (Lodgment Nos. 8, 9.)

Meanwhile, petitioner sought to collaterally attack his conviction, filing a habeas petition in the California Court of Appeal on May 12, 2011 (Lodgment No. 10), in which he raised an unrelated claim, which was denied on May 24, 2011. (Lodgment No. 11.)[2]


Since petitioner is not challenging the sufficiency of the evidence to support his convictions, the following summary is taken from the "Factual and Procedural Background" section of the California Court of Appeal opinion (Lodgment No. 7 at 2-6) (emphasis in original):[3]

The Shootings. [¶] On December 31, 2007 at approximately 5:00 p.m., Oscar R., his older brother Alfredo (footnote omitted) and two of their friends were walking through an alley behind Pine Avenue in Long Beach. All four individuals were 15 to 17-year-old male Hispanics. After exiting a building next to the alley, Desmond and one or more African-American males approached the four and asked "Where are you guys from?" Interpreting the question to refer to gang affiliation, Oscar responded "Nowhere. I don't bang." One of the African-American men then said they were from "Babies, " meaning the "Baby Insane" gang, and lifted up his shirt to show that he had a revolver tucked in his waist area. He also accused the four of being affiliated with "ESL" or "Chongos, " references to the East Side Longos gang. At that point, the groups separated without further incident. [¶] A few hours later, Oscar and Alfredo attended a New Year's Eve party at the Rosales home on Pine Avenue in Long Beach. The Rosales family included siblings Jose, attempted murder victim Francisco and Veronica, then ages 21, 20 and 17, respectively. The approximately 60 party guests included non-gang affiliated family, friends and coworkers, though some coworkers invited other guests who the Rosales family did not know. Among the guests were murder victim Jonathan Fernandez and attempted murder victims Jessica Lopez and Savannah Malcolm. [¶] While he was at the party, Alfredo saw five or six African-American men walking around in a courtyard area near the Rosales home. He recognized Desmond and another man from the alley confrontation. He left the party approximately 10 minutes before midnight to wish his mother a happy new year. While at his mother's home nearby, he heard gunshots. [¶] Francisco also saw three African-American men in the courtyard area at approximately 11:00 p.m. He recognized Desmond and observed that he was wearing a red sweater. Cox was wearing a gray sweater and the third individual was wearing a black or blue sweater and a black or blue bandana which covered the lower half of his face. [¶] Shortly before Alfredo left the party, Veronica returned home with her boyfriend who drove her and two others through the alley. She saw three African-American men standing in the alley; at that point they were wearing bandanas covering part of their faces and one man lifted his shirt to reveal a gun. Veronica's boyfriend sped quickly out of the alley, parked in front of the house and went into the party. She saw the three men looking over the fence periodically to observe the party. [¶] Kurtland Livingston lived in an upstairs apartment next to the Rosales home. (Footnote omitted.) A few minutes before midnight, [petitioner and his co-defendants] knocked on his front door, but he did not let them in. [¶] Just before midnight, Oscar saw Desmond again, crossing the street toward the party. As Oscar turned to go back inside the house, he heard at least four gunshots. Jose heard three to five gunshots. When the shots were fired, the party guests screamed and ran in different directions. When Veronica looked in the direction of the shots, she saw the same three individuals who had been in the alley, and then saw Fernandez and Lopez fall to the floor. [¶] Immediately after the first gunshot, Francisco saw Desmond's clasped hands move downward. He also saw murder victim Fernandez fall to the ground. Though Veronica and Jose saw Cox (or a man in a gray shirt) shoot four or five shots randomly, Francisco and Malcolm observed the man wearing black or blue fire several shots. [¶] When he returned to the party, Alfredo saw a man and woman lying on the ground, bleeding. Malcolm had been shot in the arm and ran to hide inside the Rosales garage. Francisco chased and tackled Cox after he stopped shooting, but let Cox go when he was shot in the back by the man in black or blue. [¶] Long Beach police officers arrived at the scene just a few minutes after the shootings. They investigated for several hours, but were unable to recover any ballistic evidence from the area. The absence of casings led officers to believe that the weapon used was a revolver. [¶] On January 4, 2008, Long Beach Police Officer Abel Morales arrested Desmond and retrieved a hat bearing gang writing on it. Two days later, Long Beach Detective Gary Hodgson arrested [petitioner] and recovered cell phone "SIM" and memory cards which contained photographic images that had been created on New Year's Eve, including a photograph of Cox in the possession of a revolver. Subsequently, in a March 2008 police interview, Livingston identified Desmond as the person he saw shooting during the New Year's Eve party at the Rosales home. [¶] Gang Evidence. [¶] Gang expert Long Beach Police Department Homicide Detective Todd Johnson was familiar with the Insane gang, as well as its cliques, one of which was the Baby Insane gang. The gang's primary activities were murder, attempted murder, possession of weapons, terrorist threats and possession of narcotics for sale. Baby Insane members were virtually all African-American males and their primary rivals were Hispanic individuals, regardless of whether they were gang members. He opined that [petitioner] was a Baby Insane gang member on the basis of his self-admission and his association with other Baby Insane gang members. He also opined that Desmond was a Baby Insane gang member on the basis of his self-admission and the gang tattoos that appeared following the shootings. Finally, he opined that Cox was a Baby Insane gang member on the basis of his previous contact with Cox where he admitted his gang membership. Detective Johnson found it significant that Cox's tattoos included a Cleveland Indian (the "I" serving as a symbol for "Insane"); the initials "B.I.G." and "23" standing for Baby Insane gang, 23rd Street; the initials "L" and "K" standing for Longo (or Hispanic) killer; and the name "Norman Cox, " Cox's brother who was killed by East Side Longo gang members in November 2006. [¶] When posed with a hypothetical that mirrored the evidence of the events that preceded the shootings, Detective Johnson opined that the shootings were committed for the benefit of and in association with the Baby Insane gang. [¶] Evidence Offered Only Against [Petitioner]. [¶] After expressly waiving his constitutional rights, [petitioner] answered questions during a recorded interview with police officers on January 5, 2008. Initially, [petitioner] stated that he was unaware of the shootings. He then described the confrontation with Oscar, Alfredo and their friends during New Year's Eve afternoon. Later that day, he, Desmond and Cox smoked some marijuana and drank some alcohol. Much later that evening, the three walked though the alley toward Livingston's apartment when a car drove by toward a party and they took turns firing Cox's gun in the air. [Petitioner] was wearing a black shirt. They reloaded the gun and then returned to the alley where [petitioner] grabbed the gun from Cox to keep him from shooting at a car with two Hispanic female passengers. Cox retrieved the gun and at that point [petitioner] put a blue bandana over his face because he knew Cox was going to do something stupid. Cox then fired shots over a wall into a party and, as he ran away, threw the gun to [petitioner] who fired shots to scare the individual who began chasing them. Cox told [petitioner] that he shot a "dude" and a girl in the head. The three disposed of the gun the next day. [¶] Defense Case. [¶] [Petitioner] did not offer any defense evidence. On Cox's behalf, his father testified that he had been married to a Hispanic woman who helped raise Cox and that he had not heard Cox make negative references about Hispanic individuals. He conceded that Cox's brother was killed by Hispanic gang members. On behalf of Desmond, Baby Insane gang member Darnell Harris denied his earlier statements to the police about Desmond being at his house on New Year's Eve around the time of the shootings and about seeing Desmond running right after shots had been fired. He further denied knowing [petitioner and his co-defendants].


The trial court violated petitioner's Sixth Amendment right to an impartial jury by failing to grant a mistrial after several members of petitioner's jury overheard or were the subject of inappropriate comments by court spectators. (Pet. at 5; Pet. Att. at 1-10.)


The standard of review applicable to petitioner's claims herein is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 proceedings.

Under the AEDPA, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor , 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Greene v. Fisher , 565 U.S. ___, 132 S.Ct. 38, 44, 181 L.Ed.2d 336 (2011); Carey v. Musladin , 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).

Although a particular state court decision may be "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Williams , 529 U.S. at 391, 413. A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Brown v. Payton , 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005); Early v. Packer , 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Williams , 529 U.S. at 405-06. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)." Williams , 529 U.S. at 406. However, the state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Packer , 537 U.S. at 8.

State court decisions that are not "contrary to" Supreme Court law may only be set aside on federal habeas review "if they are not merely erroneous, but an unreasonable application' of clearly established federal law, or are based on an unreasonable determination of the facts.'" Packer , 537 U.S. at 11 (citing 28 U.S.C. § 2254(d) and adding emphasis). A state court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams , 529 U.S. at 406-10, 413 ( e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti , 537 U.S. 19, 24-27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an "unreasonable application, " a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Visciotti , 537 U.S. at 24-27; Williams , 529 U.S. at 413. An "unreasonable application" is different from an erroneous or incorrect one. See Williams , 529 U.S. at 409-11; see also Visciotti , 537 U.S. at 25; Bell v. Cone , 535 U.S. 685, 699, 122 S.Ct. 1843, ...

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