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 William Charles Johnson, 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 Superior Court jury found petitioner guilty of attempted first degree murder (Cal. Penal Code §§ 187(a), 664(a)), assault with a deadly weapon (Cal. Penal Code § 245(a)(2)), infliction of injury on a cohabitant (Cal. Penal Code § 273.5(a)), being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)), making criminal threats (Cal. Penal Code § 422), and mayhem (Cal. Penal Code § 203). The jury also found true sentence enhancement allegations for use of a firearm and infliction of great bodily injury. At a bench trial on the sentence enhancement allegations for prior convictions, the court found that petitioner had suffered two prior serious felony convictions (Cal. Penal Code § 667) and, at the People's request, struck allegations of four prior prison terms. On December 5, 2008, petitioner was sentenced to 60 years to life in prison.
Petitioner appealed his conviction. The California Court of Appeal affirmed the judgment of conviction in People v. Johnson , 185 Cal.App.4th 520 (Cal.Ct.App. 2010). The California Supreme Court summarily denied his petition for review.
Petitioner filed two petitions for writ of habeas corpus in the state courts. The Alameda County Superior Court denied his habeas petition in a reasoned decision. The California Supreme Court summarily denied his habeas petition.
In his federal petition for writ of habeas corpus, petitioner asserts: the statute that permits evidence of prior acts of domestic violence to show propensity violates a defendant's rights to due process and to present a defense, the admission of evidence his particular prior acts of domestic violence violated his rights to due process and to present a defense, and, he received ineffective assistance of counsel.
II. STATEMENT OF FACTS
The California Court of Appeal described the evidence presented at trial:
Defendant, whose nickname was "Mookie, " and the victim, Nicole Henderson, had grown up in the same neighborhood in Oakland and had been friends since Henderson's teenage years in the late 1980's. By 2004, they had become romantically involved, and defendant had moved in with Henderson and her two sons about two years before the events in question. The relationship was deteriorating by late 2006 because Henderson could no longer tolerate defendant's drug abuse and his threats against her. She told him that if he could not get off drugs she would leave him. He said if she left, "somebody was going to die." Somebody almost did.
While Henderson was driving defendant to work on December 28, 2006, defendant threatened to shoot her, saying, "I should blow your mother fuckin' head off." He stretched out his left arm and pointed it at her, and she thought he might have a gun. That night Henderson left the house with her son and went to her mother's house to stay, fearing what defendant might do. She knew he had injured a former girlfriend named Amanda, and she had seen him with guns before. The next day Henderson went to court and applied for a restraining order, but one was not issued immediately because of the holidays.
Defendant called Henderson's cell phone several times over the next few days, but she did not answer. She did, however, record the calls, which were played for the jury. Defendant left a message for Henderson on January 1, saying that if she did not apologize to him, he would come to her workplace, would "check [her] ass there, " and would "put one in [her]." After receiving that threat, Henderson returned home, changed the locks on the door, and then spent the night at her cousin's house in Richmond. While she was at her house, Henderson noticed that some of defendant's possessions had been moved out, but some were packed up and still sitting in the living room.
Defendant called Henderson early the next morning and told her he wanted to get the rest of his things out of her house, and that he needed some papers he had left there so he could get into a drug treatment program. She told him she would bring the papers to the childcare center where she worked, and he could pick them up there when she arrived at work at 9:00 a.m.
Defendant did not show up until a little after 5:00 p.m., having called to say he was on his way. Henderson went outside and saw him arrive alone in an unfamiliar car.
Defendant parked his car at an odd angle in the daycare parking lot, blocking Henderson's car from exiting. Henderson immediately retrieved the documents from her car and gave them to defendant. People were coming and going through the parking lot as parents picked up their children from the childcare center.
Defendant then asked for the return of some of his fishing gear from Henderson's car and began carrying his possessions from the trunk of her car to the trunk of his car. When he spent time rooting around in Henderson's trunk, trying to find a fishing knife that she told him was not there, Henderson got the feeling defendant was "stalling." Throughout this time, he kept repeating, with increasing anger, "So this is how you want it, huh?" Henderson assured him she was serious about breaking up with him.
Defendant "kept looking around" during this time, inferably waiting for the parking lot to empty. He was wide-eyed and appeared agitated. By the time he finished rummaging through Henderson's trunk, he and Henderson were the only ones left in the parking lot. Finally, defendant returned to the trunk of his car (about ten feet behind where Henderson was standing). Henderson thought he was preparing to leave, and she turned her back to defendant to close the trunk of her own car.
Just then she heard a loud noise that deafened her temporarily. She then heard two or three more shots in rapid succession. (Footnote omitted.) She felt the back of her neck get warm, but did not realize she had been shot until she hit the ground, forehead first. She never saw a gun in defendant's hand, but she knew he owned two guns. Henderson and every other percipient witness testified there was no one else in the car defendant was driving, no one else in the parking lot, and no one else in close proximity at the time of the shooting. Henderson testified she had no other enemies.
After Henderson collapsed, defendant returned to his car, closed the trunk, and drove off. Another witness said he "sped off, " "burning rubber." While Henderson lay in the parking lot, she told both a coworker and the responding police officer that her boyfriend "Mookie" had shot her, and she named him at trial as the shooter.
Two shots hit Henderson, one in her arm, and one in her back. The shot to her arm left a ten-inch scar and required surgery in which nerves from her leg were removed and transferred into her arm. Though she had previously been left-handed, that arm was badly mangled after the shooting, forcing her to switch hands to write. She had been in physical therapy ever since, but had not recovered full sensitivity or use of her left arm at the time of trial.
The shot to her back was just inches to the right of her spine, and the doctors initially told her she might be paralyzed from the neck down. Fortunately she was not. The bullet fractured two of the wings of her vertebrae on the left side and one of her left ribs, bruised her left lung, and lodged near her left collarbone. It was surgically removed some three weeks later.
Two witnesses-Tara Simpson, who was picking up her son at the daycare center, and her friend, Bonnie Durr, who had driven her there-confirmed that defendant was the man they saw in the parking lot with Henderson just before she was shot. They testified there was no one else in the immediate vicinity. No one, however, saw defendant with a gun.
The defense appeared to be one of mistaken identity. Defense counsel emphasized that neither Simpson nor Durr had confidently identified defendant in photographic lineups.FN3 Members of defendant's legal team were called as witnesses, evidently to cast doubt on Simpson's and Durr's identification testimony.FN4 Defense counsel claimed Simpson and Durr were "mistaken in their identification" and were unwittingly biased.FN5
FN3. Durr testified that two of the photos looked familiar, and she did not want to accuse the wrong person, so she told the police it was none of them. But when she saw defendant at the preliminary examination she was "certain beyond doubt" he was the man she had seen in the parking lot. Simpson chose two photos as possible suspects, including one of defendant. She also recognized him at the preliminary examination.
FN4. The lawyer who had represented defendant at the preliminary examination testified that although he had subpoenaed Simpson and Durr, neither had ever told him they recognized defendant when they saw him in court, even though he had since seen both women on several occasions. Defense counsel insinuated that if these witnesses really had recognized defendant at the ...