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Thompson v. Fox

United States District Court, N.D. California, San Jose Division

July 28, 2016

DAMARCUS ANTHONY THOMPSON, Petitioner,
v.
ROBERT W. FOX, Warden, Respondent.

          ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS RE: DKT. NO. 14

          LUCY H. KOH UNITED STATES DISTRICT JUDGE

         On September 6, 2011, Petitioner Demarcus Thompson (“Petitioner”) was convicted by a jury of gross vehicular manslaughter, driving under the influence of alcohol and causing personal injury, and leaving the scene of an accident involving injury. Petitioner was sentenced to 16 years and 10 months of imprisonment. On August 28, 2015, Petitioner filed an amended petition for a writ of habeas corpus before this Court. ECF No. 14 (“Pet.”). Having considered the submissions of the parties, the relevant law, and the underlying record, the Court DENIES the amended petition.

         I. BACKGROUND

         A. Factual Background[1]

         On August 15, 2009, Petitioner was involved in an automobile accident in San Leandro, California. Exh. 8 at 4. The incident resulted in the death of one passenger and injuries to the other passengers. When police arrived at the scene of the accident, Petitioner was not present. Id. at 6. However, both a witness and responding police officer reported seeing someone walking with a limp from the crash site. Id. at 4-5. After the accident, an arrest warrant for Petitioner was issued, and Petitioner was apprehended in March 2011. Id. at 6 n.3.

         On June 14, 2011, the Alameda County District Attorney filed an information charging Petitioner with gross vehicular manslaughter, driving under the influence of alcohol and causing personal injury, and leaving the scene of an accident involving injury. Id. at 2. At trial, the prosecution presented evidence that Petitioner, Petitioner’s co-defendant Cheleia Swayne (“Swayne”), and other individuals were drinking on August 14, 2009. Id. at 2-3. At some point that night or in the early morning of August 15, 2009, Petitioner, Swayne, and the other passengers drove to pick up Jalisha Harris (“Harris”) in Petitioner’s Lexus. “When Harris came outside to be picked up, she saw the Lexus in the parking lot with the right rear passenger door open.” Id. at 3. “The driver’s seat was pushed all the way back and leaned so far back that no one could sit directly behind it in the back seat.” Id. Petitioner sat in the driver’s seat with Swayne on his lap. One individual, La’Camii Ross (“Ross”) sat in the front passenger seat, and Harris sat next to another passenger, Everett Jackson (“Jackson”) in the back seat.

         At trial, Harris testified that she “did not have a clear recollection of whose hands”- Petitioner’s or Swayne’s-“were on the steering wheel and . . . whose feet were on the pedals.” Id. Although Harris “recalled testifying previously that she saw Swayne’s hands on the wheel, ” she explained at trial that “she had suffered memory loss and memory changes, ” and was uncertain as to whether Petitioner or Swayne had control of the Lexus. Nonetheless, Harris stated that she remembered the vehicle traveling at “freeway speed.” Id. Around 3 A.M. on August 15, 2009, Petitioner’s vehicle crashed into a pole at [a] gas station” in San Leandro. Id. at 4. The crash resulted in the vehicle catching fire, with witnesses reporting “a lot of smoke in the car.” Id. As a result of this accident, Swayne injured her right ankle, Harris suffered a broken neck and fractured hand, Jackson suffered a broken leg, and Ross died at the scene. Id. at 6-7.

         In addition to various witness testimony, the prosecution also called forensic experts, police officers, and traffic investigators at trial. These individuals testified that Petitioner’s vehicle was traveling significantly above the speed limit and that Swayne’s blood alcohol level was above the legal limit. Id. at 7-8.

         During Petitioner’s trial, the court instructed the jury that Petitioner and Swayne, his co-defendant, could be found guilty in two ways. Id. at 9. First, the jury could find that Petitioner acted as the perpetrator of the crimes in question. Id. Alternatively, the jury could find that Petitioner acted as an aider or abettor. Id. For aiding and abetting liability, the prosecution needed to prove that:

One, the perpetrator committed the crime; two, defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and, four, the defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime.

Id. The state trial court further stated that the jury “need not unanimously agree . . . whether a [particular] defendant is an aider and abettor or a direct perpetrator.” Id. at 6. The only requirement was that the jurors be “convinced of [a defendant’s] guilt” as either an aider and abettor or as a perpetrator. Id.

         After considering the foregoing evidence, the jury convicted Petitioner and Swayne of all counts on September 6, 2011. On October 21, 2011, the state trial court sentenced Petitioner to 20 years and 10 months of imprisonment, which as explained below was later reduced to 16 years and 10 months of imprisonment. Id. at 8.

         B. Procedural History

         On November 15, 2011, Petitioner timely appealed his conviction and sentence to the California Court of Appeal. On May 28, 2013, the California Court of Appeal affirmed Petitioner’s conviction but remanded the case for resentencing. In the wake of the California Court of Appeal’s decision, Petitioner filed a petition for review to the California Supreme Court. ECF No. 20-2 (Exh. 9). The California Supreme Court denied this petition on August 28, 2013. ECF No. 20-2 (Exh. 10). On October 18, 2013, Petitioner was resentenced to a term of 16 years and 10 months of imprisonment.

         On November 21, 2014, Petitioner filed a petition for a writ of habeas corpus before this Court, which sought relief on three claims. ECF No. 1. Petitioner contended (1) that the state trial court “failed to adequately inform the jury of the necessary elements of the offense, ” (2) that there was “insufficient evidence to support [P]etitioner’s conviction, ” and (3) that the prosecutor’s arguments violated due process. Id. at 10.

         Respondent moved to dismiss this petition on February 2, 2015. ECF No. 7. In lieu of responding to this motion, Petitioner filed a motion for leave to amend and a motion for a stay. ECF No. 8; ECF No. 9. The crux of both Respondent’s motion to dismiss and Petitioner’s motion to amend was that, of the three claims presented in Petitioner’s original habeas petition, Petitioner’s third claim-that the prosecutor’s arguments violated due process-had not been exhausted in state court. Consequently, Petitioner’s motion to amend sought to eliminate Petitioner’s third, ...


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