Flenory-Davis v. Peery

          MEMORANDUM DECISION

          JAMES K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE

         Jaivonne Flenory-Davis, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Flenory-Davis is in the custody of the California Department of Corrections and incarcerated at the California Correctional Center in Susanville. Respondent has answered, and Flenory-Davis has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On June 13, 2012, Flenory-Davis was charged with murder (count 1) and attempted murder (count 2). The information alleged as to both counts that Flenory-Davis used and intentionally and personally discharged a firearm causing great bodily injury or death. The information also alleged as to both counts that Flenory-Davis committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. It was additionally alleged as to count 2 that Flenory-Davis personally inflicted great bodily injury and intended to inflict such injury. The information further alleged that Flenory-Davis had suffered a prior serious felony conviction for first-degree burglary. Flenory-Davis pled not guilty to both counts and denied the allegations. Flenory-Davis proceeded to a jury trial on July 9, 2012. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Flenory-Davis and the evidence presented at trial:

On July 11, 2010, a gang fight broke out at a party for teenagers at a rented venue on Auburn Boulevard, and two wholly innocent bystanders were shot, 14-year-old Lanajah Dupree, who died at the scene, and C.M., an older teenage girl who survived.

The defense theory was to concede the shootings were heinous and unjustified, but contend that [Flenory-Davis] was innocent, and Nikko Alexander, the alleged accomplice, blamed [Flenory-Davis] to avoid Alexander's own liability for shooting the girls.

A number of teenagers went to a club party advertised online. There were security guards present. At some point, people started running and yelling "fight" and "gun" and then pepper-spray was deployed; when everyone rushed outside, gunshots were fired. A friend saw Dupree die on the ground near the doorway.

Alexander testified his girlfriend told him she was at the party, and he called [Flenory-Davis] ("Jay") and they went together to the party, with Alexander driving. Alexander's car was white with a black fender and gray bumper. Alexander did not have a gun in the car and did not know [Flenory-Davis] had one. He parked at the far end of the nearby Tradewinds Motel, and they walked to the club. [Flenory-Davis] was wearing a long black T-shirt, extending below his pants pockets. After paying a fee, Alexander was "patted down" by security before he could enter. At some point, Alexander saw some men from Gunz-Up, a rival gang, in the club. Alexander was affiliated with the Guttah Boyz gang in Sacramento. He disclaimed knowledge of any "beef" with the Gunz-Up gang. The Gunz-Up members asked [Flenory-Davis] where he was from, to which he responded "G-Mobb." This led to a fight, in which Alexander and [Flenory-Davis] were overmatched by 10 to 15 Gunz-Up members, and there were no "south area" affiliates (from Guttah-Boyz, Stick-Up Starz, or G-Mobb gangs) to assist the duo. Eventually they were pepper-sprayed, Alexander's girlfriend pushed him through and out of the club, and as he ran up the driveway of the hotel toward his car, he saw [Flenory-Davis] coming back from the same direction. Alexander followed [Flenory-Davis] toward the club, thinking they were going to fight, and then [Flenory-Davis] started shooting. [Flenory-Davis] fired about six times, but Alexander did not see where he was shooting. Alexander ran to the car and drove off with [Flenory-Davis]. He testified that he asked [Flenory-Davis] no questions, was afraid, and just wanted to get away. When Alexander learned two girls had been shot-one fatally-he felt responsible, though he had been "surprised and shocked" [Flenory-Davis] had a gun and could not have stopped him.

The jury was shown a video recording from the motel and Alexander testified the car seen therein was his car. He identified himself and [Flenory-Davis] as the two people seen leaving the car and walking toward the club; he was wearing a white shirt and [Flenory-Davis] had on a black shirt. The recording later shows Alexander returning to the car; he testified that he returned to leave his jacket in the car.

The video, which we have reviewed, is not of good quality. It shows a white car with a dark fender and bumper park (backing in) on the side of the motel farthest from the club. Two men, in white (Alexander) and black ([Flenory-Davis]) T-shirts, respectively, walk toward the club. Alexander returns to the car and runs back to the club, again returns to the car, then again runs back toward the club. Several minutes after that, [Flenory-Davis] runs to the car, followed by Alexander, but before Alexander even reaches the car, [Flenory-Davis] runs back past him towards the club and Alexander turns and follows. Soon after, both run back to the car and quickly leave the parking lot.

Alexander admitted that when he first spoke to the police, he lied and said he left the party before the shooting began, and he may have said he was by himself. The second time he spoke to the police, with the assistance of counsel, he told the truth, because he did not want to "do life" for something [Flenory-Davis] did, and his parents had urged him to be honest. He testified that the third time he spoke with the police, an investigator, the prosecutor, and his father were present, and he told the truth that time, too. He agreed to testify truthfully in exchange for an eight-year prison sentence, based on his plea to being an accessory to murder, with a gang enhancement.

The jury watched a DVD recording of the third interview between Alexander and the police. In it, Alexander said [Flenory-Davis] shot toward the club, where the people from the club were standing, shooting into the crowd, but Alexander could not see any of the people they had fought with. He heard "probably" eight shots. After the shooting made the news, [Flenory-Davis] told Alexander not to say anything.

Bianca B. testified she heard Alexander being confronted by another person at the party, which made Alexander look scared. After the shooting, she saw Alexander running and jumping over a gate between the motel and a car dealership. M.M. testified she felt tension when some men in the club pointed to another man and used profanity, so she and her friends went to tell a guard, but then people started to run out of the club. Later, while outside the club, she heard seven or eight gunshots, and one of her friends yelled "gun." A Black man wearing a black shirt, bandana, and "dreads" ran past her. She told the police the man had a black semi-automatic, but explained that is what she learned from her friend Skye.

Skye B. saw several males confront Alexander in the club, and they "swarmed" him, so she and her friends got scared and went to tell a guard. They ran out towards a car dealership and saw two "boys" running toward the motel. Then one ran back, carrying a gun, then Skye B. heard multiple gunshots fired soon after. The man with the gun was wearing a dark shirt, a bandana, and had short dreadlocks, and she described him to an officer as Black, with a "big black shirt" and "blonde tips" on his dreadlocks. The gun was a black handgun. She was not "a hundred percent sure, " but [Flenory-Davis] had a "familiar face" to that of the man with the gun. She had picked him out as the shooter in a live line-up before trial, but she had not been positive then, either, writing that "I'm not sure but I think No. 2 [Flenory-Davis] was the person" with the gun. A detective testified that [Flenory-Davis] had the same general appearance as the description of the shooter that emerged from Skye B. and the other witnesses-a Black male, about 5'10" and 150 pounds, with dreadlocks that had colored tips.

J.G. was Alexander's girlfriend. She was at the club that night and saw him "in the middle of a lot of boys, " grabbed him, and then the guards "pepper sprayed." She saw [Flenory-Davis] but could not remember whether he, too, was fighting in the club. Alexander did not discuss the shooting with her.

One of the guards testified that about eight to 10 guards were working that night. He and another guard broke up the indoor fight, and after the other guard used pepper spray, "everybody began to run outside." While he was standing behind his patrol car, he heard gunshots coming from the front of the car, and when he lay on the ground, he could see the shooter's legs, and then saw the shooter-a Black man with braided hair-run towards an alleyway, with another Black male. Another guard testified he saw "about five young men beating and kicking two other men"-all Black-and tried to stop the fight, and eventually used his pepper spray. Outside, he saw muzzle flashes, about two or three into the air, and four of five directed lower, where the bullets ricocheted off the ground toward the building. He saw three to four Black males running from where he had seen the flashes. The one he thought was the shooter had a black T-shirt and "dreadlocks about shoulder length." Dupree was shot through her heart. A criminalist examined six cartridge casings and a bullet. The casings were all fired from the same gun, a nine-millimeter gun, consistent with the bullet. That bullet was found just inside the front door of the building, and the six casings had been grouped together on the ground, showing the shooter was stationary.

Detectives were told by several witnesses that they had heard the name "Nikko Alexander" spoken at the party, and they learned of a white car with black front fender involved with the shooting. Alexander's photograph was used to confirm his presence at the club. They interviewed him and seized his car. During the first interview, Alexander identified "Jay" as the shooter, and the description the detectives developed was that of a Black male, about 5'10", with dreadlocked hair, wearing a black T-shirt. Alexander's relatives identified a photograph of [Flenory-Davis] as Alexander's friend "Jay." The detectives arranged a live line-up which they showed to nine witnesses, but only one, Skye B., picked [Flenory-Davis] as the shooter. Alexander's and [Flenory-Davis'] fingerprints were found in Alexander's car.

A gang expert testified [Flenory-Davis] was a member of the G-Mobb street gang, which is affiliated with the Starz or Stick-Up Starz and Guttah or Guttah Boys subsets. In 2007 to 2008, some members of the Guttah Boys broke away and called themselves Gunz or Gunz-Up and allied with the local Bloods, who dominate Sacramento gangs, and are G-Mobb enemies. [Flenory-Davis] was a member of the Starz-Up subset of G-Mobb, but lived in Blood territory, his house was shot up once, and he also had been shot in the leg while in his neighborhood. Alexander is also a member of Starz-Up. The shooting at the club was gang-related. The failure to respond to a challenge or disrespect by a rival gang member would cause a loss of face, hence, a challenged gang member "must retaliate" to maintain his status.

People v. Flenory-Davis, No. C072000, 2014 WL 4088105, at *1-3 (Cal.Ct.App. Aug. 20, 2014).

         At the conclusion of trial, the jury found Flenory-Davis guilty of both counts and found true all of the corresponding allegations. The trial court sentenced Flenory-Davis on count 1 to an indeterminate term of 25 year to life imprisonment plus 25 years to life on the corresponding firearm enhancement plus a determinate term of 10 years on the corresponding gang enhancement. Flenory-Davis was also sentenced to an indeterminate term of 7 years to life imprisonment on count 2 plus 25 years to life on the corresponding firearm enhancement plus 10 years on the corresponding gang enhancement. He was also sentenced concurrently on a pending burglary case.

         Through counsel, Flenory-Davis appealed his conviction, arguing that: 1) no substantial evidence corroborated the testimony of an accomplice; 2) the trial court misinstructed on the "kill zone theory"; 3) the prosecutor committed misconduct in argument; 4) the trial court made two sentencing errors; and 5) the trial court erred in not awarding actual custody credits. The People conceded the sentencing claims but otherwise opposed the appeal. The Court of Appeal modified the judgment to correct the sentencing errors and remanded for resentencing on count 1, but affirmed the judgment against Flenory-Davis in all other respects in a reasoned, unpublished opinion issued on August 20, 2014. Flenory-Davis, 2014 WL 4088105, at *8. Flenory-Davis petitioned for review in the California Supreme Court, which was denied without comment on October 29, 2014.

         Flenory-Davis timely filed a pro se petition to this Court on February 17, 2015. See 28 U.S.C. § 2244(d)(1)(A).

         II. GROUNDS RAISED

         In his pro se Petition before this Court, Flenory-Davis argues that: 1) the accomplice testimony was not sufficiently corroborated; 2) the trial court erred by using an inflammatory "kill zone" instruction that it failed to define; and 3) the prosecutor committed misconduct in a number of ways.

         III. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially ...