United States District Court, N.D. California, San Jose Division
ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS
CORPUS RE: DKT. NO. 14
H. KOH UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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, ...