United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY
JON S. TIGAR, District Judge.
Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Eric Houston, challenging the validity of a judgment obtained against him in state court. Respondent has filed an answer to the petition, and petitioner has filed a traverse. For the reasons set forth below, the petition is denied.
I. PROCEDURAL HISTORY
On June 27, 2008, an Alameda County jury found petitioner guilty of one count of first degree murder (Cal. Penal Code § 187 (a)) with enhancements for use and intentional discharge of a firearm and infliction of great bodily injury (§§ 12022.5(a); 12022.7(a); 12022.53(b), (c), (d)); one count of assault with a firearm (§ 245(a)(2)) with enhancements for use of a firearm and infliction of great bodily injury on a child (§§ 1203.06 (a)(1); 12022.5(a); 12022.7(d)); one count of shooting at an occupied motor vehicle (§ 246) with enhancements for use and intentional discharge of a firearm and infliction of great bodily injury upon a child (§§ 12022.7(a), (d); 12022.5(a); 12022.53(b), (c), (d)); and one count of possession of a firearm by a felon (§ 12021 (a)(1)). (Ex. 1 at 439-42.) Petitioner was sentenced to an aggregate term of 57 years and 4 months to life. (Ex. 3 at 1122.)
Petitioner directly appealed the judgment in the California Court of Appeal. On January 13, 2010, in a reasoned opinion, the California Court of Appeal affirmed. (Ex. 7.) On March 30, 2010, the California Supreme Court summarily denied the petition for review. (Ex. 9.) The instant petition was filed on June 28, 2011.
II. STATEMENT OF FACTS
The following background facts describing the crime and evidence presented at trial are from the opinion of the California Court of Appeal.
On December 11, 2006, around 9:30 a.m., Daniel Leon picked up Luis Martinez from the home of their mutual friend, Joshua Ropati, on 101st Avenue near Birch in Oakland. Leon was driving a purple Buick Regal. Leon was a known narcotics dealer, and his "turf" was 100th Avenue and above. Leon and Ropati sold heroin in this neighborhood. After Leon picked up Martinez, they drove around the neighborhood and "hit some corners" to sell heroin.
At around noon on that date, Jose Rodriguez and his family were driving on 101st Avenue. Carlos Rodriguez, Jose's brother, sat next to Jose in the front seat while Jose's wife sat in the back seat with their four-year-old daughter, Jane Doe. Leon was driving behind the Rodriguez family, and Luis Martinez was in the passenger seat. The Rodriguez family stopped at a stop sign at the intersection of 101st Avenue and Plymouth Street.
As the Rodriguez's vehicle drove into the intersection, [petitioner] exited the passenger side of a vehicle parked near the intersection. He began shooting at Leon. [Petitioner] fired at least 13 shots from a semiautomatic AK-type rifle using 7.62 millimeter ammunition.
Jose Rodriguez heard the shots behind him and pulled his car to the side of the road. Leon's car drove past Rodriguez on his left. Another friend of Leon, Sarah Ropati, was driving toward the intersection at that time from the opposite direction. Ms. Ropati saw a single shooter standing in the middle of Plymouth firing a gun with a banana clip at Leon who had at that point driven past the shooter. [Petitioner] ran forward, continuing to shoot, and then entered a waiting vehicle and fled.
Leon was hit twice in the back and began to swerve. His car eventually crashed through the fence of a home a couple blocks away from the shooting, at the corner of 101st Avenue and Birch, near the Ropati's home. He died at the scene. Martinez was not hit and subsequently identified [petitioner] as the shooter.
Rodriguez's four-year-old daughter, Jane Doe, was struck in the lower back by two bullet fragments that penetrated the tailgate and backseat and which lodged less than an inch from her kidney, large intestine, and spinal cord. The bullet fragments could not be removed and remain in her back.
No shell casings, guns or other weapons were found inside Leon's vehicle or near the area where his car came to rest. Tar heroin was found in the door ...