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Lee v. Rackley

United States District Court, E.D. California

September 16, 2014

DIA LEE, Petitioner,
v.
RON RACKLEY, Warden, Folsom State Prison, [1] Respondent.

MEMORANDUM DECISION

JAMES K. SINGLETON, Jr., Senior District Judge.

Dia Lee, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. ยง 2254. Lee is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Folsom State Prison. Respondent has answered, and Lee has not replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On September 12, 2006, Lee, along with Gerald Vang, Nou Vang, and That Xiong, was charged with the attempted murder of Chong Vang and discharging a firearm at an occupied motor vehicle. Attached to both charges and as to all defendants was the special allegation that the offense was committed for the benefit of a criminal street gang. The information further alleged that each defendant was a principal in the attempted murder and that, in commission of that offense, a principal intentionally and personally discharged a firearm causing great bodily injury.

On February 14, 2008, Lee and his co-defendants proceeded to trial. During jury selection, Nou Vang raised a Batson/Wheeler [2] objection that was joined by the other defendants. The court denied the motion.

On direct appeal of their conviction, the Court of Appeal recounted the following facts underlying the trial:

The Prosecution's Theory of the Case
The prosecution's theory was that, on September 8, 2006 (further undesignated calendar references are to that year), the four defendants, members of the South Sacramento Junior Criminal Crips (the JCC) criminal street gang, shot Chong Vang (Chong V.), a member of the rival Masters of Destruction (the MOD) gang, in retaliation for his having shot at three other JCC members on August 31.
Events of September 8 Prior to the Shooting
To prevent retaliation stemming from the August 31 shooting that targeted the JCC, gang detectives Jeffrey Beezley and Binh Vu, on September 8, around 5:20 p.m., went to Susan B. Anthony Park (the Park), a known hangout of the JCC, to contact JCC members.
At the Park, the two detectives spoke with and searched the four defendants, who were together, but found no weapons, contraband or bandannas. The detectives noticed, however, a red Honda Civic in the parking lot, which resembled defendant Nou V.'s car. The officers did not search the car.
Witnesses of the September 8 Shooting
Four such witnesses testified.
M.C., who is defendant Dia L.'s cousin, was playing basketball at the Park in the late afternoon of September 8. He saw the four defendants there along with other JCC gang members.
While at the Park, M.C. saw a white Honda CRX drive slowly down Detroit Boulevard bordering the Park, and heard loud hip-hop music blaring from the car. The driver and the group of JCC gang members stared at one another.
When the white CRX turned onto Ann Arbor Way, a dead-end street, M.C. saw the JCC members, including the four defendants, run toward Detroit Boulevard. With his friends, M.C. walked quickly the other way.
M.C. then saw defendant Gerald V., carrying a black handgun, run to the corner of Detroit and Ann Arbor (M.C. told the police he merely assumed that defendant Gerald V. had a gun). Gerald V. hid behind a bush; he was adorned with a blue or white bandanna below his eyes, cowboy style.
M.C. also saw defendant That X., carrying a black-gripped handgun and wearing a red bandanna, run toward Detroit Boulevard.
M.C. had also seen defendants Nou V. and Dia L. run toward the red Honda in the parking lot. Shortly thereafter, he noticed the red Honda parked at the intersection of Detroit and Shraeder/Fallis Circle, a block from Detroit and Ann Arbor (and about 300 feet away from his vantage point). M.C. saw defendants Nou V. and Dia L. exit the red Honda, with Dia L., and possibly Nou V., holding a gun. Although he did not see the shooting, M.C. heard about 10 gunshots from at least two guns.
A second witness, J.L., saw the white Honda CRX drive from Ann Arbor onto Detroit, and heard, seconds later, the CRX's blaring music abruptly end, followed by six or seven gunshots. J.L. did not see the shooters, but his testimony, combined with a statement he made to Detective Vu, echoed much of M.C.'s testimony about the route the white CRX took by the Park while "gangster rap" MOD-lyric music blared from the car, the "gangster stare" exchange between the driver and the men in the Park, and the red Honda's involvement in the shooting, which, J.L. reported, was driven by defendant Nou V.
A third witness, T.T., saw a man, wearing a white bandanna over his nose and mouth, shooting a black handgun at a white Honda CRX at the intersection of Detroit and Fallis/Shraeder Circle. A second man, taller than the shooter, was standing across the intersection. T.T. heard at least 10 rapidly fired shots. The CRX sped off, and the shooter ran across the street to the second man.
The fourth witness, R.A., was watching television when he heard three to four gunshots come from the direction of Detroit and Shraeder Circle. He looked out his window and saw two young Asian men running down Shraeder away from Detroit. The shorter of the two was wearing a white bandanna over his nose and mouth and carrying a chrome-plated, nine-millimeter handgun (R.A. identified a photograph of the gun at trial). The taller man had a red bandanna over his nose and mouth. The two men ran to a nearby vacant ("hub") house, where they left the gun, their bandannas, and their sweatshirts. Although R.A. contacted the police, the two men returned and retrieved the discarded items before the police could apprehend them; then off the two went as passengers in a red Honda Civic (J.L. noted that defendant Nou V.'s red Honda Civic looked like the car he saw that day).
Two of these witnesses, M.C. and J.L., were later threatened by JCC members; this evidence was admitted, as the jury was instructed, solely for its effect, if any, on the credibility of these witnesses.
Police Investigation
Evidence showed that Chong V. was the driver of the white CRX and had been shot in the upper left back.
Broken glass and six expended shell casings were found at the scene of the shooting.
A search of Chong V.'s white CRX revealed several bullet holes to its rear exterior, and, inside, broken rear window glass and two different expended bullets.
Defendants Gerald V., Dia L. and That X. tested positive for gunshot residue on their hands. Although Detective Beezley requested a gunshot residue test on Chong V., that test was never performed.
The four defendants were arrested following police surveillance of an apartment on Nedra Court where one S.V. resided, among others. (During the early afternoon of September 8, S.V. had seen defendants That X. and Dia L., along with S.V.'s brother and another individual, pass around two black handguns at this apartment.) Outside a window of this apartment, officers found a silver, nine-millimeter Luger caliber handgun, which defendant That X. had tossed there around 7:30 p.m. on the evening of the shooting. The six shell casings found at the shooting scene and the two expended bullets found in Chong V.'s CRX were not fired from this gun, but all six shell casings were fired from the same gun.
In a subsequent in-field showup, witness J.L. identified defendant Nou V. as the driver of the red Civic used in the shooting.
Gang Evidence
The lead investigator in this case, gang detective Beezley, also testified as an expert concerning the gang enhancement....
Defense
The defense centered on mistaken identification and self-defense/defense of others (with Chong V. shooting first).
As for mistaken identification, defense investigators measured M.C.'s vantage points of the incident at between 200 and 300 feet, and noted some visual obstructions. The defense also extensively questioned M.C.'s credibility.
As for self-defense/defense of others, a materials science expert opined that, since there was apparently more broken glass outside Chong V.'s CRX than inside, the bullet that shattered the glass was shot from inside the car; moreover, the defense noted, the bullet damage to the CRX was only to its rear section. Furthermore, Chong V. did not go to the hospital-which was less than a 10-minute drive from the shooting site-until about an hour after the shooting and only after apparently stopping at a fellow gang member's house; displaying, the defense argued, suspicious behavior (e.g., weapon disposal; story concoction).

People v. Vang, No. C060682, 2011 WL 4840950, at *1-3 (Cal.Ct.App. Oct. 13, 2011).

At the conclusion of trial, the jury found the defendants guilty of attempted murder and discharging a firearm at an occupied motor vehicle. The jury also found true the gang enhancement allegation as well as the allegation that a principal personally and intentionally discharged a firearm during the commission of the attempted murder. The jury found not true the allegations that a principal personally and ...


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