United States District Court, Eastern District of California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to the jurisdiction of the undersigned. (ECF Nos. 8, 10.)
Petitioner challenges his 2009 conviction for dissuading a witness (Cal. Penal Code § 136.1(a)), with enhancements for committing the crime for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1)) and for being an active participant in a criminal street gang (Cal. Penal Code § 186.22(a)). Petitioner is serving a sentence of 7 years to life.
On December 18, 2014, a hearing was held before the undersigned regarding respondent's motion to dismiss. (ECF No. 33.) Respondent moves to dismiss on the grounds that not all of petitioner's claims are exhausted. Jennifer M. Sheetz appeared on behalf of petitioner. David Andrew Eldridge appeared on behalf of respondent. For the reasons stated herein, the undersigned finds that petitioner has filed a mixed petition. However, respondent's motion to dismiss is denied without prejudice, and petitioner is granted thirty days to file a motion to stay pending exhaustion of additional claims in state court. If petitioner does not file a motion to stay within this time, the undersigned will grant respondent's motion to dismiss.
This action is proceeding on the first amended petition filed May 9, 2014. (ECF No. 31.) Petitioner raises four claims: 1) trial counsel was ineffective for failing to file a motion to suppress (ni at 13); 2) trial counsel was ineffective for failing to challenge juror 5 for cause (id at 13-14); 3) there was insufficient evidence to support petitioner's conviction for dissuading a witness (id at 14); and 4) there was insufficient evidence of petitioner's active participation in a street gang (id.).
The facts underlying petitioner's conviction are set forth in the opinion of the California Court of Appeal:
In July 2008, a group of four teenagers beat the victim. He knew two of them by sight from his neighborhood, and did not have any history of animosity with them. He knew one of them was involved in a gang active in the neighborhood. He was scheduled to testify against them in a juvenile court proceeding on August 14, 2010.
At some point between the attack and the scheduled court proceeding, the victim bought some cigarettes at a market and was going to walk to his girlfriend's home around the corner. Two men intercepted him at the corner. One of them asked him to wait and talk with them for a minute. They flanked him as they walked with him across the street to the front of a duplex where defendant lived with his girlfriend and children.
The speaker made a reference to the previous attack on the victim and the imminent juvenile court date, and said the juveniles should not be going back to court. The speaker said that what happened in the street should stay in the street. He said, if the victim stayed out of court, "the whole incident with [the four guys] would be dropped and everything would be squashed" without any further repercussions. However, he said, "[I]f [the victim] went to court, [he] didn't know what would happen." The victim identified defendant as the spokesman for the duo. FN3 His silent partner was tall and muscular. As he had with two of the four juvenile assailants, the victim had previously seen defendant around the neighborhood (and was aware that he lived in the duplex), and there had not been any past conflicts with him. The victim had not previously associated defendant with the attackers or the neighborhood gang, but it was clear to him that defendant was making reference to the attack on the victim and the imminent court date involving it. The victim saw a tattoo on defendant that he associated with the gang that was active in the neighborhood.
FN3. Defendant does not challenge the sufficiency of the victim's identification of him. We therefore omit any disputes in the testimony regarding this issue, or regarding his defense of alibi.
The victim "looked at both of them and said yeah. Because I really didn't want to sit there and tell them no." The victim felt threatened because the two men had approached him in such a way that he did not feel he had any choice about talking to them, and then they walked on either side of him. The victim believed that there would be physical action against him "[i]f not on that day, later...." The two men then went into defendant's duplex.
The victim could not recall the exact date of the incident. He was certain it had happened in the late afternoon, and it was likely a weekday because he did not recall any children running around.
He first reported the incident to an officer who had come to bring him to the juvenile court on August 14 after he failed to appear. He told the officer that defendant's conduct made him think that defendant was a "shot caller" for the gang. The victim told the officer he was reluctant to testify as a result, and testified he was also reluctant to testify in the present criminal proceedings. He was aware that people who testified against gangs got beaten. When the officer appeared at the hearing with the victim, the two juveniles entered pleas.
An officer testified that one of the juveniles was a self-admitted member of the gang active in the neighborhood; another was an active gang member as well. He also offered the opinion that defendant was a member of the gang, based on his observations over the course of more than 10 years of things such as defendant's "[f]attoos. [His] history with the Ripon Police Department. The attire he wears. His haircut. And the way he presents himself and who he hangs around with on the streets." The officer was aware that defendant associated with at least one of the juveniles who attacked the victim. Defendant told the officer that he was not an active gang member in August 2008, and the officer could not ...