United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 6]
BARBARA L. MAJOR, Magistrate Judge.
This Report and Recommendation is submitted to United States District Judge Barry T. Moskowitz pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On July 9, 2013, Petitioner George Berardi, a state prisoner, commenced these habeas corpus proceedings pursuant to 28. U.S.C. § 2254. ECF No. 1. ("Pet."). On July 15, 2013, Petitioner filed a First Amended Petition ("FAP"). ECF No. 6. Petitioner challenges his conviction of one count of conspiracy to commit murder and one count of first degree murder with a firearm allegation. Id. at 2. Respondent filed an answer on March 7, 2014 [ECF No. 21-1] and Petitioner filed a traverse on June 9, 2014 [ECF No. 28] and a supplemental traverse on July 4, 2014 [ECF No. 29].
This Court has considered the Petition, Answer, Traverse, Supplemental Traverse, and all supporting documents filed by the parties. For the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the California Court of Appeal's opinion in People v. Berardi, Appeal No. D056544, slip op. (Cal. Ct. of App. Jan 12, 2012). Lodgment 12. This Court presumes the state court's factual determinations to be correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell , 537 U.S. 322, 340 (2003); see also Parke v. Raley , 506 U.S. 20, 35 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).
A. The Kegler-Winchell-Berardi Love Triangle
The victim, Marcus Kegler, met Desiree Winchell when they were in junior high school together, and they became good friends. However, in 2000 Kegler left California and moved to Mississippi.
After Kegler left California, Winchell became romantically involved with Berardi. By 2004, Winchell and Berardi had begun living together. May, who was Berardi's best friend, lived in the same house with Winchell and Berardi.
By the end of 2004 or the beginning of 2005, the Winchell-Berardi relationship had deteriorated, and they fought frequently. In January 2005, Winchell decided to end their relationship and told Berardi of her decision. Berardi asked her to give him until July to show the relationship could work, and she agreed, but the arguing persisted.
In January 2005 Winchell received an unexpected phone call from Kegler and they resumed their friendship. Berardi was aware of their communications and these contacts became another source of conflict between Berardi and Winchell.
At the end of April 2005, Winchell moved out of the house she was sharing with Berardi. As Winchell was moving out, Berardi tried to stop her. He smashed her cell phone on the ground, physically pinned her down, and told her she was not going to leave. Winchell nevertheless moved out and began living with her mother.
Around the time she began living with her mother, Winchell also purchased an airline ticket for Kegler to visit her in San Diego. Kegler arrived in early May 2005 to visit. Although Kegler initially planned to stay for only a week, he decided to stay indefinitely in San Diego and moved into his uncle's home on Castle Glen Drive in San Diego. Winchell and Kegler began a romantic relationship, and he stayed on occasion with Winchell in her apartment.
When Winchell left Berardi, she took some possessions belonging to him and Berardi later went to Winchell's apartment to collect them. Kegler was present when Berardi arrived. Berardi became angry, said Kegler should not be there, and sped away. Berardi called a few minutes later and argued with Winchell on the telephone. Kegler took the phone from Winchell and argued with Berardi, and the two men threatened each other.FN2
FN2. After Kegler arrived in San Diego and his relationship with Winchell deepened, Berardi threatened to kill him on more than one occasion.
At the end of May 2005, Berardi went to Los Angeles accompanied by Winchell. While in Los Angeles, Berardi tried to convince her to marry him, but she refused. After a short stay in Los Angeles, Berardi returned to San Diego in late June or early July 2005. Berardi (along with May) began staying at the apartment of Nathaniel Green (a friend of Berardi) and Anna Tong (Green's girlfriend). The apartment was approximately one block east of Castle Glen Drive.
B. The Murder
In the early evening of July 8, 2005, Kegler was shot in a cul-de-sac near his uncle's home. He later died from this injury. The shooting site was near Green's apartment. The events of the day leading up to the shooting formed a significant aspect for the prosecution's case against Berardi and May.
Kegler's Planned Meeting With Berardi
Kegler and Winchell were scheduled to go to Ms. Wiggins's home on the evening Kegler was killed. Earlier during that day, Kegler called Wiggins to tell her he was trying to buy some marijuana to bring with him to Wiggins's home. He told Wiggins he was planning to meet with Berardi around 3:00 p.m. that afternoon to acquire the marijuana. Wiggins expressed concerns to Kegler about dealing with Berardi because Berardi was unhappy about Kegler's relationship with Winchell.
In the two hours before the scheduled meeting between Berardi and Kegler, Berardi's cell phone records showed repeated calls from Berardi's cell phone to Green (the apparent source for the marijuana) but Green did not answer. FN3 The records also showed several phone calls from Kegler to Berardi during that afternoon. The planned mid-afternoon rendezvous between Berardi and Kegler did not occur because Berardi was unable to obtain the marijuana for Kegler
FN3. Berardi had spoken to Green about getting a quantity of marijuana to sell to Kegler, but Green was reluctant to help because he had heard Kegler had threatened Berardi.
However, when Kegler left work around 4:00 p.m., a coworker (Mr. Zanina) gave him a ride to Kegler's residence on Castle Glen Drive. On the way, Kegler told Zanina he planned to buy some marijuana later that day from his girlfriend's ex-boyfriend. After Kegler got home, phone records showed several more calls were placed between Kegler and Berardi between 4:00 and 6:00 p.m.
Berardi Establishes His Alibi
Around 5:30 p.m., Winchell arrived at Kegler's apartment. Kegler told Winchell he was almost ready to leave for Wiggins's residence, and Winchell phoned Wiggins at 5:35 p.m. and left a message for Wiggins that they would be leaving soon. However, at 5:41 p.m., Berardi phoned Kegler, and at 5:51 p.m., Kegler returned Berardi's telephone call. Ms. Tong, who was with Berardi when he received the latter phone call, FN4 overheard Berardi mention a quarter pound of marijuana, a price, and the cul-de-sac, and Berardi told Kegler they would meet immediately and that Berardi would be at the meeting.FN5 FN4. Tong and Berardi were en route to a pizza restaurant together when the 5:51 p.m. call came. Tong testified the genesis of their trip to the restaurant began when she was at her apartment with May, Berardi, Green and another man. Berardi asked Tong to accompany him to a restaurant for beer and breadsticks, and Tong thought the invitation was unusual because she and Berardi had typically gone out together with other friends. However, she accepted Berardi's invitation and they left the apartment around 5:45 p.m.
FN5. When interviewed by a defense investigator in 2008, Tong allegedly told the investigator that Berardi did not tell Kegler that he would meet Kegler to do the transaction, but instead told him that Kegler "would be met on the cul[-]de[-]sac."
Berardi did not go to the meeting with Kegler. Instead, after stopping briefly at a 7-Eleven Store, Berardi and Tong went to the restaurant. While there, Berardi told Tong that May was going to shoot Kegler because Berardi wanted Kegler dead, and that Berardi planned to keep the receipts from their visits to the 7-Eleven Store and the restaurant for his alibi, and that Tong (as well as a friend of Berardi's who worked at the restaurant) would verify his alibi. While still at the restaurant, Berardi received a call from May, and Tong overheard May report that the "pizza has been delivered." Berardi decided they could leave because the "coast was clear" and told Tong that, if anyone asked, Tong should tell them that Berardi had been with her at the 7-Eleven Store and the restaurant.
May Meets With and Shoots Kegler
Meanwhile, Kegler (apparently in response to his last phone conversation with Berardi) woke Winchell up around 6:15 p.m. and told her he was leaving the Castle Glen Drive apartment but would be right back. He did not say where he was going or what he needed to do, and Winchell fell back asleep.
At Green's apartment, after Berardi and Tong left for the restaurant, May asked Green to supply him with a quarter pound of marijuana that May was to sell to someone. Green did not know the identity of May's customer. May took the marijuana and left to meet with Kegler. He returned about 15 to 20 minutes later, and Green overheard May speaking on the phone and saying something about "the pizza." Mr. Cameron testified he was at the apartment when May left with the marijuana and that, when he returned, May was calm.FN6
FN6. A defense investigator testified she interviewed Cameron in 2008 and that Cameron told the investigator May was distraught when he returned, and that Berardi seemed shocked when he learned Kegler had been killed. The investigator also interviewed Tong, who told her that May was fearful of Kegler and felt threatened when he shot him.
At 6:17 p.m., a local resident discovered Kegler lying on the ground and called 911. Police and paramedics arrived, and Kegler was taken to a hospital, where he later died from a gunshot wound to the head.
C. The Investigation and Subsequent Events
After police arrived and questioned Winchell, they went to Green's apartment and separately questioned Tong and Berardi. Tong did not reveal the events at that time because she did not want to get involved. Police did not arrest Berardi because he denied any knowledge of the shooting and his proffered alibi was corroborated by Tong. After police left, Tong went to her room to shower. She found May hiding in a closet, and May later told Tong that he had shot Kegler at close range in the head.
May decided to leave town because he was scared. Surveillance tapes from the Greyhound Bus depot in San Diego showed May was at the ticket counter at 12:45 a.m. on July 9 purchasing a ticket for Las Vegas and showed May in line to board the bus at 6:26 a.m. that morning.
Berardi subsequently told police May was in Las Vegas, and Las Vegas authorities arrested May at the request of San Diego police. Detective Young interviewed May on August 26, 2005, but later released him. However, on August 31, 2005, Detective Young again interviewed May by phone, and during this interview, May confessed to shooting Kegler. May claimed that he went to sell marijuana to Kegler and, after giving it to him, May "freaked out" when Kegler reached into his pocket. May claimed he thought Kegler was reaching for a gun, and reacted by shooting Kegler. When Young informed him that no gun had been found, May began to cry and ended the phone call.
In September 2005, when May was in custody in San Diego, he agreed to do a video reenactment of the shooting, and the video reenactment was played for the jury. The jury also viewed a videotape, taken by a security camera from a nearby business, which was running during the shooting.
D. Defense Evidence
The defense attacked Tong's credibility through several avenues. First, the defense relied on her admissions that she did not tell police about her conversation with Berardi at the restaurant FN7 or about May's involvement when she was initially interviewed, and did not tell police about the conversation until many months later, and that she asked for immunity from any possible charges arising from the events. Second, the defense called Lucas Irwin, Tong's former husband, who testified she lied about him in court during a prior custody dispute and that she was a vindictive person. Third, the defense showed Tong bore animosity towards Berardi and was willing to do anything, including lie, to get Berardi out of Green's life.
FN7. The defense also called Mr. Ahmu, Berardi's friend who worked at the restaurant that night. Ahmu testified neither Berardi nor Tong seemed to be under any stress and that Tong left the restaurant smiling. The time stamp on the receipt from the restaurant, which was off by about 40 minutes, indicated they paid for their food at about 6:24 p.m.
The defense also introduced the testimony of Mr. and Mrs. Burkheart, May's employers in Las Vegas, who testified he was an honest, nonviolent person. Mrs. Burkheart also testified she was present when May had the telephone interview with a San Diego detective concerning the shooting. Mrs. Burkheart testified that, after May hung up, he was distraught because the detective told May that Kegler had been unarmed and May said he thought Kegler had a gun.
Lodgment 12 at 2-9.
On November 21, 2008, the People of the State of California filed a second amended information charging Petitioner with murder and conspiracy to commit murder. Lodgment 1 at 338-341. Following a trial, the jury found Petitioner guilty of first degree murder and conspiracy to commit murder. Id. at 1042. The jury also found true an allegation that "at the time of the commission and attempted commission of the above offense, [Petitioner] was vicariously armed with a firearm, to wit a handgun, within the meaning of Penal Code section 12022(a)(1)." Id. at 341, 1042. On December 29, 2009, the trial judge sentenced Petitioner to an indeterminate term of twenty-five years to life. Id. at 1041-1042.
On November 16, 2010, Petitioner appealed his conviction, arguing that the trial court abused its discretion by denying his motion for a new trial due to juror bias and joining all of the arguments raised by Daniel May, his co-defendant and co-appellant. Lodgment 7. On January 12, 2012, the court of appeal published a written opinion affirming the judgment of the trial court. Lodgment 12. On February 24, 2012, Petitioner filed a petition for review in the Supreme Court of California, raising the sole claim that the "trial court abused its discretion by denying Petitioner's motion for a new trial based on juror bias, " which was denied on April 11, 2012. Lodgment 13.
On July 10, 2013, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court arguing that his appellate counsel was ineffective for failing to brief the issue of Petitioner's trial counsel's refusal to allow Petitioner to testify. Lodgment 13. Petitioner also argued that the trial judge used the wrong standard to assess prejudice based upon the denial of his right to testify. Id . The California Supreme Court denied the petition without comment or citation of authority on January 21, 2014. ECF No. 19-1 at 1.
Petitioner began federal habeas proceedings on July 9, 2013, when he filed his Petition for Writ of Habeas Corpus. Pet. Petitioner filed the currently-operative FAP on July 15, 2013. FAP. In his FAP, Petitioner alleges that his constitutional rights were violated when he did not receive a new trial due to actual juror bias and when he received ineffective assistance of counsel from his appellate attorney who failed to brief the issue of Petitioner's trial attorney's "refusal to allow Petitioner to testify and the use of [sic] the trial judge of the wrong standard to assess prejudice." FAP at 9, 22. On July 12, 2013, Petitioner filed a motion to stay asking the Court to hold his FAP in abeyance while he exhausted his ineffective assistance of counsel claim in the California Supreme Court. ECF No. 4. On September 18, 2013, the Court issued a Report and Recommendation recommending that Petitioner's motion to stay be granted in part and denied in part. ECF No. 13. On January 21, 2014, Petitioner filed a notice informing the Court that Petitioner's California Supreme Court petition was denied, rendering all of his claims exhausted. ECF No. 19. On February 14, 2014, Judge Moskowitz filed an order declining to adopt the Report and Recommendation on the motion to stay and denying the motion to stay since the state court remedies were exhausted and the motion was moot. ECF No. 20. Judge Moskowitz ordered Respondent to respond to the FAP on or before March 17, 2014 and stated that Petitioner could file an opposition or traverse on or before March 31, 2014. Id . Respondent filed an answer on March 7, 2014 and Petitioner filed a traverse on June 9, 2014 and a supplemental traverse on July 4, 2014. ECF Nos. 21, 28 and 29.
SCOPE OF REVIEW
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in ...