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Cornish v. Attorney General of State of California
United States District Court, E.D. California
April 9, 2014
JESSE CORNISH, Petitioner,
ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondent.
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on July 16, 2010 in the Sacramento County Superior Court on charges of attempted murder and discharge of a firearm, with firearm use enhancements. He seeks federal habeas relief on the ground that his trial counsel rendered ineffective assistance by failing to investigate and present a defense of voluntary intoxication. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On the night of March 12, 2008, defendant Jesse Cornish shot Jabarie Mike in front of Mike's home and continued firing as Mike retreated into his residence. Defendant was convicted of attempted murder (Pen. Code, §§ 664/187, subd. (a)) and discharging a weapon at an inhabited dwelling (Pen. Code, § 246). The jury also found that defendant personally used and discharged a firearm (§§ 12022, subd. (b)(1), 12022.53, subds. (b), (c) & (d)) and caused great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to an aggregate term of 32 years to life in state prison.
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Defendant shot Mike as the result of a verbal altercation between Mike and defendant's girlfriend, Arika Shaw. Mike worked with Shaw at an Applebee's restaurant in Elk Grove. On March 11, 2008, Mike complained to Shaw about a coworker, Kjerstie Montgomery. When Shaw defended her, Mike stated she should not be so quick to do so because Montgomery was not a good friend to Shaw. In support of his claim, he related that Montgomery inappropriately had shared with him a confidence about Shaw's sex life. Shaw became angry with Mike and went outside. Defendant was in the parking lot waiting to pick up Shaw when her shift ended. Shaw told defendant about the altercation and then went back inside.
Mike left to run an errand. Defendant confronted him and asked if he had a problem with Shaw. Mike denied having a problem and cut off the conversation to go run his errand. Shaw finished her shift and left work with defendant. Thereafter, Mike telephoned her repeatedly and complained about defendant's conduct. Mike said he wanted to fight defendant and Shaw hung up on him. Mike called back again and defendant took the phone from Shaw and spoke with him. Mike yelled at defendant about the confrontation at work but defendant remained calm.
Thereafter, defendant decided he wanted to fight Mike, asked Shaw to show him where he lived, and she complied. When they arrived at Mike's house, defendant pulled out a gun, claiming it was only for self-defense if necessary. Defendant got out of the car but then changed his mind about fighting with Mike, telling Shaw he did not "want to do that in front of [her]."
The next night, Mike worked the night shift with Shaw and Montgomery, and the atmosphere was "flat." Montgomery told Mike her boyfriend had just been released from jail and Mike should not have "opened up [his] mouth." Mike also felt threatened by defendant's conduct the day before. Because he feared for his safety, Mike called his girlfriend's brother, Frederick Coner, to come to Applebee's and escort him home after work. Coner arrived and the two men drove to Mike's home in their respective cars after Mike's shift ended around 9:00 p.m.
Mike lived nearby in a house he shared with his girlfriend, her mother, and three other people. When Coner decided to leave he discovered his car would not start. Around 10:30 p.m., Mike was helping Coner jump his car battery when he noticed a small red car do a U-turn and stop across the street. Two men exited the car and approached Mike, who was still wearing his Applebee's uniform. One of the men, who Mike later identified as defendant, had a "mean mug" expression. Defendant walked toward Mike, raised his arm, and began firing the gun he was holding. Mike turned and ran towards the house, but was shot through the thigh before he reached safety. Defendant continued shooting at the house after Mike went inside.
Neighbors heard multiple gunshots about 10:30 p.m., witnessed a red car speeding away, and called 9-1-1 to report a shooting. When the police responded, they found Mike wounded and several slugs in the structure of the house.
Mike spoke briefly with the police before being transported to the hospital and spoke with them again at the hospital. He did not remember exactly what he said because he was in pain and in shock. Mike recalled telling a police officer that a light skinned black man shot him and he was accompanied by a Hispanic male. At that time he did not tell the police he thought the shooter was defendant. However, when a detective visited him at home midday the next day, Mike told the detective that he thought Shaw's boyfriend shot him and that if he saw him he could identify him. A few days after the shooting, Mike viewed a photographic lineup and selected defendant as his assailant. Mike could not identify the man who accompanied defendant, and Coner was unable to identify anyone from the lineup. At trial, Mike adamantly identified defendant as his assailant.
Detectives Sanchez and Bearor questioned defendant, who waived his Miranda rights. Defendant denied shooting Mike and claimed he did not know where he lived. Defendant stated that on the night of the shooting, he drove from his mother's house in Rancho Cordova to the Applebee's in Elk Grove to return Shaw's car around 7:00 p.m. Then he went to Fresno with his brothers, Meshach and Ammiel, and Ammiel's girlfriend in her car. According to defendant, a trip to Fresno takes about 90 minutes. When they reached Fresno, they ran a few errands for about 30 minutes before returning to his mother's house in Rancho Cordova. They arrived back about 10:00 or ...
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