Manafov v. Muniz

          MEMORANDUM DECISION

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

         Vusal Manafov, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Manafov is in the custody of the California Department of Corrections and incarcerated at Salinas Valley State Prison. Respondent has answered, and Manafov has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On August 15, 2011, Manafov and his co-defendant, Eugene Rice, Jr., were charged with second degree robbery (count 1). The consolidated information further charged Manafov with another count of second degree robbery (count 2) and with personally using a firearm during the commission of the robberies in counts 1 and 2. Manafov and Rice proceeded to a joint jury trial before two different juries. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Manafov and the evidence presented at trial:

         August 7 Robbery at Penryn Valero (Manafov only)

Sukhwant Grewal was working as a cashier at the Valero gas station in Penryn early in the morning of August 7, 2010. At about 1:45 a.m., Manafov entered and robbed him. Manafov wore a sports cap covered with a black hood. He took a burrito from the freezer, put it on the counter, and handed Grewal money. When Grewal made change, Manafov showed Grewal a gun and demanded he hand over all the money, in a bag. A video surveillance camera captured the robbery.

Grewal called 911 and the police arrived in about five minutes. Grewal was unable to select the robber from a lineup, but was able to identify a similar gun. The robber did not appear intoxicated.

         August 10 Robbery at Colfax Chevron

         On August 9, 2010, Rice, Manafov, and Jarnee Rivers^FN2 left Oakland and went to Sacramento. While there, Rice said they were going to "hit a lick, " meaning commit a robbery. They drove on Interstate 80 towards Reno.

FN2. At the time of the robberies, Rivers was in a romantic relationship with Manafov and was pregnant with his child. At trial, she testified she was still in love with him, although by the time of trial she was pregnant with another man's child.

         Just after midnight on August 10, 2010, the clerk at the Penryn 76 gas station and his girlfriend saw a car approach and slow down. It first stopped near the entrance and then drove to the back where it stopped near an open door and the car's occupants looked inside. The car was red with no license plates. There were three occupants who all appeared to be male. The driver wore a fur-lined hood and the person in back wore black. The car sputtered off, as if the driver were unskilled in driving a manual transmission, and entered the freeway going east. The clerk and his girlfriend thought it was suspicious and called the police.

         Charles McIntyre was working at the Colfax Chevron station that morning. The station is about 100 yards from the interstate. A male customer, Manafov, entered around 1:00 a.m. and selected a beverage. As McIntyre took his money and opened the cash drawer, Manafov produced a revolver. He pointed it at McIntyre and told him to empty the registers, giving McIntyre a small black plastic bag for the money. The robber was in his 20's and wore a black-hooded sweatshirt over a cap with red on it. He repeatedly told the clerk to hurry up, that he was not fast enough. The robber had a foreign accent. As the robber turned to leave he told McIntyre to "have a nice day." The robber took $1, 377. McIntyre identified Manafov as the robber from a photographic lineup.

         Officer Jack Hickey was on patrol and responded to the early morning call from the Chevron station. He watched the surveillance video of the robbery. It showed a vehicle pull in the north end of the station and park. A white male passenger walked to the store. The driver wore a white baseball cap. The car was red with no license plate. It had a DMV sticker on the left rear window, and a sunroof. Hickey gave a description of the suspect vehicle to dispatch. The suspect was wearing a red Oakland A's cap, a black-hooded sweatshirt, and black pants and had a large wristwatch. He had a black revolver and a black plastic bag for the money.

         Almost a half hour after the dispatch, a CHP officer saw a red sedan with no license plates, a sunroof, and three people inside. He followed it, waiting for backup. The car took the Kingvale exit and stopped, and then got back on Interstate 80.

         When backup arrived, the officers conducted a felony stop. Manafov was the driver, Rice the front passenger, and Rivers was in the rear seat. All three were arrested. Rice was wearing a white tank top with a blue outer shirt; both Rivers and Manafov were dressed in black. Manafov did not appear to be under the influence of drugs.

         Red and white baseball caps were seized from the car. The white cap was later found to contain hairs consistent in length to Rice's hair. There were multiple items of clothing in the trunk, including a jacket with a fur hood, as well as license plates. A loaded, black revolver was found under the hood of the car. A black plastic bag with money was under the rear seat. An employee time card and a traffic ticket, both in Rice's name, were also found in the car.

         Rivers testified that she was asleep during part of the drive, but awoke when Manafov and Rice changed places. She heard the trunk and the hood slam. Rice got in the passenger seat and handed her a black bag and told her to put it under the seat.

         Interview of Rivers

         Detective Bill Summers interviewed Rivers. In the first interview, Rivers said she fell asleep outside Sacramento. At one point, the car pulled over and she heard the trunk slam. Rice was wearing a white shirt. She called him "Bra" (meaning brother) as he was like a brother to her. Someone passed her a black bag with money. Both Rice and Manafov drove; she did not see who went in the gas station.

         Just before this interview ended, Rivers asked what was going to happen to her. The detective said she would be held for investigation of armed robbery. When the tape was turned off, Rivers told the detective that she saw Manafov, whom she referred to as Babe, come out of the Chevron. The tape was turned on and Rivers repeated it. She said Rice drove; she did not see anything until he pulled off and he and Manafov switched places and she heard the slamming. Rice passed her the bag. After this interview, as Summers walked Rivers to booking, she said she remembered something. Summers turned on the tape again and Rivers said that while in Sacramento, Rice said they were going to "hit a lick."

         Uncharged Robberies

         At trial, the parties stipulated to two uncharged robberies committed by Manafov; this evidence was before only Manafov's jury. On July 26, 2010, at 4:20 a.m., Manafov entered a Valero gas station in West Sacramento and brought merchandise to the counter. He pointed a black revolver at the clerk and demanded money. After the clerk gave Manafov money, he left. Manafov's fingerprints were on the merchandise.

         At 4:43 a.m. that same day, Manafov entered a AM/PM minimart in Davis and brought merchandise to the counter. Again, he pointed a black revolver at the clerk and demanded money. The clerk gave him money from the register and Manafov left. His fingerprints were on the merchandise he took to the counter.

         The Jail Note

         About two months after the robberies while Manafov and Rice were in jail, an officer saw Rice approach a door between housing units and put a piece of paper through the door. Another inmate approached and pulled out the note. He set it on a table and ...