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Sherman v. Miller

United States District Court, C.D. California

February 5, 2015

TERAL SHERMAN, Petitioner,
v.
A. MILLER, Warden, Respondent

Teral Sherman, Petitioner, Pro se, Imperial, CA.

For A. Miller, Warden, Respondent: David C Cook, Susan S Kim, LEAD ATTORNEYS, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HON. KENLY KIYA KATO, United States Magistrate Judge.

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

I.

SUMMARY OF RECOMMENDATION

Petitioner Teral Sherman, a California state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus (" Petition") pursuant to 28 U.S.C. § 2254, challenging his convictions for burglary and robbery. Petitioner claims his Fourth Amendment rights were violated, he was wrongfully denied a suppression hearing, and his pre-trial counsel and appellate counsel were both ineffective. For the reasons that follow, the Petition should be denied.

II.

PROCEDURAL HISTORY

On August 7, 2012, following a jury trial in Los Angeles County Superior Court in which Petitioner represented himself, he was convicted of two counts of second-degree burglary, in violation of Cal. Penal Code § 459, and one count of second-degree robbery, in violation of Cal. Penal Code § 211. Lodged Document (" Lodg.") 5 at 1, 3.[1] On September 10, 2012, the trial court sentenced Petitioner to an aggregate term of 15 years in state prison. Id. at 4.

In a brief dated August 2, 2013, Petitioner appealed his conviction to the California Court of Appeal. Lodg. 3. Petitioner's appellate counsel found no legitimate issues to appeal and filed the brief pursuant to People v. Wende, 2 Cal.3d 436 (1979), asking the court to independently review the record for valid claims. Lodg. 3 at 9; see also Hebbe v. Pliler, 627 F.3d 338, 340 n.1 (9th Cir. 2010). Petitioner filed a pro se supplemental brief and pro se state petition for writ of habeas corpus, both of which were dated August 28, 2013. Lodgs. 4, 8.

On September 10, 2013, the California Court of Appeal summarily denied the state habeas petition. Lodg. 9. On January 15, 2014, the court denied Petitioner's appeal and affirmed his conviction in an unpublished opinion. Lodg. 5.

Petitioner then filed a pro se petition for review, dated February 11, 2014, in the California Supreme Court. Lodg. 6. In addition, on February 26, 2014, Petitioner filed a pro se state petition for writ of habeas corpus in the California Supreme Court. Lodg. 10.

On March 26, 2014, the California Supreme Court summarily denied the petition for review. Lodg. 7. On May 14, 2014, the court summarily denied the state habeas petition. Lodg. 11.

On May 30, 2014, Petitioner filed the instant Petition. On November 21, 2014, Respondent filed an Answer to the Petition. On December 22, 2014, Petitioner filed a Traverse. This matter is now ready for decision.

III.

FACTUAL BACKGROUND

For a summary of the facts, this Court relies on the California Court of Appeal's opinion:[2]

On October 8, 2011, at approximately 6:00 p.m., Oscar Iniguez was working in the ice cream department of a Rite-Aid store in the City of Lynwood. The store was equipped with surveillance cameras that recorded activity at the store's entrance and in the ice cream department. Appellant entered the store wearing sunglasses that sat on his forehead and a white T-shirt with a logo in the middle. Appellant ordered ice cream from Iniguez. When the ice cream was ready, appellant came around the counter to the area restricted to employees only. Appellant punched Iniguez in the face and told him to open the cash register. Appellant's sunglasses fell to the floor behind the counter. Iniguez did not know how to open the cash register and moved to the far end of the ice cream department. Appellant dropped the cash register onto the floor, breaking it open. He then grabbed some bills that had fallen from it and left the store.
Los Angeles County Deputy Sheriff Andrew Wyse arrived at the Rite-Aid store and recovered the sunglasses from the floor behind the counter in the area restricted to employees. The sunglasses were submitted to the crime lab for DNA analysis. Salvador Silva told Deputy Wyse that appellant pointed a handgun at Silva when he tried to stop appellant from leaving the area after the robbery.
On December 11, 2011, at approximately 5:00 p.m., Los Angeles Police Department Officer Cody Halchishak and his partner Officer Juan Martinez, responded to a burglary in progress at a 7-Eleven store. The store was boarded up with plywood and was not open for business. The officers saw that a piece of plywood had been pried open. Officer Halchishak looked inside and saw appellant placing cigarettes and alcohol inside two black trash bags. The officers set up a perimeter outside the store and saw appellant exit the store where the plywood had been pried away. Appellant was arrested and approximately 15 cartons of cigarettes and 25 to 30 bottles of alcohol were recovered from the black trash bags.
In January 2012, the DNA extracted from the sunglasses found behind the Rite-Aid counter was entered into the Combined DNA Index System (CODIS), and appellant's name was returned as a matching profile. Detective Boisvert arrested appellant outside appellant's mother's home. A T-shirt with writing resembling the T-shirt worn by the perpetrator in the Rite-Aid surveillance video was among the items recovered during a search of the residence. Iniguez did not select appellant's photograph when shown a photographic lineup consisting of six photographs. At trial, when shown the surveillance video of the robbery he identified appellant as the perpetrator. Christopher Lee is a senior criminalist with the sheriff's department. He conducted a technical review of the DNA analysis performed in this case. The DNA profile developed from appellant was compared with the DNA profile obtained from the sunglasses recovered from the Rite-Aid store. Lee opined that the two profiles matched with a random match probability of one in 33 quadrillion.
. . .
On January 5, 2012, an information charged appellant with one count of second degree commercial burglary, in case No. BA391680.[3] In case No. TA121872 appellant was charged with one count of second degree commercial burglary and one count of second degree robbery.[4] On May 8, 2012, appellant filed a " Notice of Motion to Suppress Evidence" in case No. TA121872. After the trial court granted the People's motion for joinder, an amended information was filed on May 31, 2012, that combined case No. BA391680 and case No. TA121872. On July 27, 2012, the trial court relieved defense counsel as counsel of record and granted appellant's request to proceed in pro. per.
On August 2, 2012, a jury was selected and testimony commenced the following day. On August 3, 2012, appellant's motion to suppress evidence was denied. On August 7, 2012, the jury returned guilty verdicts on all three counts. On September 7, 2012, appellant filed a " Motion for a New Trial." Appellant alleged that he was " denied his due process right to a full litigated suppression hearing on illegally obtained evidence from an (sic) warrant/illegal search." On September 10, 2012, the trial court denied appellant's motion for new trial and sentenced appellant to a ...

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