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Pouncey v. Miller

United States District Court, C.D. California

November 13, 2014

AMY MILLER, Warden, Respondent

Elijah Demitrice Pouncey, Petitioner, Pro se, Imperial, CA.

For Amy Miller, Warden, Respondent: William Norton Frank, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.



This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.



On July 23, 2013, Elijah Demitrice Pouncey (" Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition") pursuant to 28 U.S.C. § 2254.[1] On October 11, 2013, Respondent filed an Answer to the Petition. Petitioner filed a Reply on November 8, 2013. For the reasons discussed below, it is recommended that the Petition be DENIED and that this action be DISMISSED with prejudice.



On December 16, 2010, a Los Angeles County Superior Court jury found Petitioner guilty of one count of possession of a firearm by a felon in violation of California Penal Code (" P.C.") § 12021(a)(1) and one count of possession of ammunition by a felon in violation of P.C. § 12316(b)(1). (Clerk's Transcript (" CT") 178-79, 182-84; Reporter's Transcript (" RT") 1811-15). On December 22, 2010, the trial court found that Petitioner had two prior strikes within the meaning of California's Three Strikes law, P.C. § § 667(b)-(i) & 1170.12(a)-(d). (CT 185-86; RT 2145). On December 23, 2010, the trial court sentenced Petitioner to 25 years to life in state prison. (CT 187-90; RT 2418-20).

Petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment on March 8, 2012. (Lodgments 4-7). Petitioner then filed a petition for review in the California Supreme Court, which denied the petition on May 23, 2012. (Lodgments 8-9).



The following facts, taken from the California Court of Appeal's decision on direct review, have not been rebutted with clear and convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

[Petitioner] dated Cindy Palmer for about four years between 2004 and early 2009, and thereafter they remained friends. On March 18, 2010, Palmer and [Petitioner] spent most of the day together. [Petitioner] left Palmer's house on San Pedro Street by 5:00 p.m. He came back at about 8:00 p.m. Palmer was sitting on her porch with a neighbor when [Petitioner] returned. She went into her house as [Petitioner] walked up the driveway because she did not want " any problems." [Petitioner] spoke to Palmer through a locked safety/screen door, and asked her if she had seen his cell phone; she had not. [Petitioner] searched the ground around Palmer's car which was parked in the driveway, and opened the door to look inside. Palmer dialed the phone's number, but neither she nor [Petitioner] could hear his phone ring. Palmer asked [Petitioner] to leave.
[Petitioner] came towards the door and asked Palmer to come outside. She refused and asked him to leave again. [Petitioner] lit a cigarette, stepped off the porch and walked toward Palmer's car, reaching under his jacket with his right hand. He then extended his right arm at shoulder height, and his hand was clenched as though holding something pointed at Palmer's car. Palmer saw flashes and heard four shots. She ran to the back of the house to check on her daughter. As she returned to the front of the house she heard two more shots in the front yard. Palmer called 911, left the house and saw [Petitioner] walk south on San Pedro.
Los Angeles Police Department (LAPD) Officers Marin and Reyes were patrolling the area in an unmarked police vehicle when the shots were fired. Officer Marin drove south on San Pedro and saw Palmer waving from a porch. She directed the officers toward [Petitioner], whom she said was " in the white car." [(##RefNum=Fn. 3 FootnoteNum=2##)] The officers drove south on San Pedro and, saw a man inside a white car parked at the curb. The man appeared " startled" when he saw the officers, and quickly drove west on 75th Street, then turned and headed north on San Pedro at a high rate of speed. The officers followed the man for several blocks while Officer Reyes broadcast information about the pursuit. Palmer was still on the phone with the 911 operator when [Petitioner] sped past her house followed by the unmarked police car. He turned east onto 74th Street and then south on Avalon. Officer Marin lost sight of [Petitioner] after he turned onto Avalon.
[Fn. 3] [Petitioner] drove a white Oldsmobile Alero.
LAPD Officer Paz and his partner were in the area and heard the other officers' broadcast. Officer Paz saw the white Alero headed south on Avalon near Manchester at a high rate of speed, and turned to pursue the car. He followed the Alero south on Avalon and east on 87th Street. By the time Officer Paz caught up with the Alero, it had crashed into another vehicle on 87th Street and the driver was gone. Bystanders told the officers the driver had run south. A perimeter was set up and the driver was detained after a 20 minute search. In a field show-up, Palmer identified the driver as the man who had earlier fired a gun outside her house. Palmer also showed police bullet holes she had found in her car, and in a shed in front of her house. A .45 caliber shell casing and a spent bullet were recovered from Palmer's yard.
Police recovered a loaded .45 caliber semi-automatic handgun from the crashed white Alero. The gun was wedged between the floorboard and the frame rail of the driver's side door.
Firearms analysis established that the shell casing and spent bullet recovered from Palmer's yard were fired by the handgun recovered from the Alero. The parties stipulated that no latent fingerprints of value were found on the handgun, the spent casing, or the live rounds, and also stipulated that [Petitioner] was previously convicted of a felony.
[Petitioner] did not testify and presented no evidence in his defense.

(Lodgment 7 at 3-4).



In his Petition, Petitioner raises the following claim for federal habeas relief:

Ground One: Petitioner was denied his Sixth Amendment right to the effective assistance of counsel when defense counsel failed to inform him of a state's plea offer until after the offer expired.

(Petition at 5).



The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). " By its terms [AEDPA] bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in § § 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law or was based upon an unreasonable determination of the facts. 28 U.S.C. § 2254(d). " This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]'" Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (citations omitted).

Petitioner raised his claim in his petition for review to the California Supreme Court, which denied the claim without comment or citation to authority. (Lodgments 8-9). The Court " looks through" the California Supreme Court's silent denial to the last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (" Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (" [W]e conclude that Richter does not change our practice of 'looking through' summary denials to the last reasoned decision -- whether those denials are on the merits or denials of discretionary review." (footnote omitted)), as amended, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2014). Therefore, in addressing ...

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