United States District Court, C.D. California
For Dion Durrell Hayes, Petitioner: Richard Jay Moller, LEAD ATTORNEY, Richard J Moller Law Offices, Redway, CA.
For W. L. Montgomery, Respondent: Robert M Snider, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO DENY PETITION FOR WRIT OF HABEAS CORPUS AND DISMISS ACTION WITH PREJUDICE [28 U.S.C. § 636; General Order 05-07]
Hon. Jay C. Gandhi, United States Magistrate Judge.
PROCEDURAL AND FACTUAL BACKGROUND
On May 18, 2011, a jury convicted Dion Durrell Hayes (" Petitioner") of one count of first degree murder and two counts of attempted murder. (Lodg. No. 1, Clerk's Transcript (" CT"), at 289-90, 330.) The jury further found true certain firearm and gang enhancement allegations. (Id. at 289-94.) Petitioner was sentenced to state prison for fifty years to life. (Id. at 330.)
Petitioner appealed. In a reasoned decision, the California Court of Appeal reversed Petitioner's attempted murder convictions due to a Confrontation Clause violation, but otherwise affirmed the judgment. (Lodg. Nos. 3-6.) The California Supreme Court summarily denied petition for review. (Lodg. Nos. 7-8.)
The Court has reviewed the record, and the evidence is accurately summarized in the Court of Appeal's decision on direct review, which is attached as Exhibit A. (Lodg. No. 6); see also 28 U.S.C. § 2254(e)(1) (facts presumed correct). The Court discusses facts below as are pertinent to habeas relief.
DISCUSSION AND ANALYSIS
Petitioner asserts three grounds for relief, all of which fail on this record. See 28 U.S.C. § 2254(d) (Antiterrorism and Effective Death Penalty Act) (" AEDPA"); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).
A. Confrontation Clause Violation
First, Petitioner contends that the admission at trial of eyewitness Spencer Thomas's preliminary hearing testimony violated Petitioner's Sixth Amendment right to confrontation. (Pet. at 5; Pet. Att. 8A at 5-28.) Moreover, Petitioner argues that Thomas's testimony was essential to his murder conviction because it improperly corroborated Blow's less consistent identification testimony. (Id.; Pet. Att. 8A at 7-13; RT at 1314-30.)
As a general matter, the Sixth Amendment's Confrontation Clause provides in part that a criminal defendant has " the right . . . to be confronted with the witnesses against him." Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause thus bars " testimonial statements of a witness who [does] not appear at trial unless [the witness is] unavailable to testify, and the defendant . . . had a prior opportunity" to cross-examine the witness. Id. at 53-54, 68. But even where constitutional error is found, a federal habeas court must also " assess the prejudicial impact of constitutional error" under Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007); Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011). Under ...