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Fullmore v. McDonald

United States District Court, E.D. California

March 28, 2017

DAVID EDWARD FULLMORE, Petitioner,
v.
McDONALD, Warden, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS[1]

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on May 20, 2011, in the Sacramento County Superior Court (No. 09F06445) on three counts of second degree robbery and one count of false imprisonment, with findings that he personally used a firearm. Petitioner seeks federal habeas relief on the grounds that (1) the trial court's failure to declare a mistrial deprived him of his right to a fair trial, and (2) the trial court erred by imposing a consecutive sentence on counts three and four.[2] Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

         I. Background

         In its unpublished opinion affirming petitioner's judgment of conviction, the California Court of Appeal for the Third Appellate District provided the following factual summary:

         Facts and Proceedings

         Defendants and Antonio Howard spent the night of August 25, 2009, at the apartment of defendant Fullmore's sister, Nycquia Fullmore. At the time, Nycquia and defendant Nesbit were dating. Howard is the half brother of three of Nycquia's children. Although not actually related, Fullmore and Howard were close and referred to each other as “cousins.”

         The apartment complex was located next to a liquor store and a Payday Loans. A Chevron gas station was located across the street. A Round Table pizza was also located nearby.

         Around 11:00 a.m. the next morning, on August 26, Nycquia and Nesbit showered together. After showering, Nycquia asked Nesbit to go to the liquor store to get her some candy. Nesbit left alone but returned a few minutes later because he needed more money. Nesbit and Fullmore then left the apartment together. A short time later, Howard left the apartment to catch up to Nesbit and Fullmore.

         When he left the apartment, Nesbit was wearing a brown and white checkered shirt and reddish jeans. Fullmore was wearing a white shirt and jeans.

         All three men returned to the apartment about 10 minutes later; although Nycquia testified her time estimates the day of the robberies were not absolutely precise. Upon their return, defendants and Howard watched television. Later, Nycquia walked outside to the mailboxes to collect the mail, which was usually delivered to the apartment complex between 11:00 or 11:15 a.m. While outside Nycquia saw several police officers questioning people in the apartment complex. Nycquia called Nesbit, who was still inside the apartment, and told him about the police. Nesbit seemed agitated over the phone. A few minutes later, the police knocked on Nycquia's apartment door to investigate two robberies that occurred at the Payday Loans and Chevron earlier that day.

         A. Count Two-Payday Loans Robbery

         At approximately 11:20 a.m., M.W. was walking to work at the Round Table near the apartment complex. Before going to work, M.W. stopped at the Payday Loans to cash a money order.

         As M.W. approached the Payday Loans, he saw two men standing beside a garbage can. The taller man called out, asking M.W. to come over to where they were standing. M.W. declined. The taller man followed him into the Payday Loans and stood looking over his shoulder before leaving. After cashing the money order, M.W. walked out of the building. Once outside, the taller man grabbed his arm while the shorter man pulled a silver gun with a black handle from the right front pocket of his jeans, shoved it in M.W.'s ribs, and said, “If you move, I'm going to shoot you.” The shorter man grabbed between $60 and $80 from M.W.'s pocket. The shorter man then walked away and the taller man followed a few seconds later.

         M.W. called police to report the incident. He described the man with the gun as a black man approximately five-foot-six or five-foot-seven, weighing about 150 to 160 pounds. He had short hair, hazel eyes, and was wearing a red shirt and a white shirt and blue jeans. M.W. described the taller assailant as a black man approximately five-foot-ten to six feet tall and weighing between 140 to 150 pounds. The taller man had a mustache, wore a brown shirt and had dread locks in his hair, which M.W. later clarified meant braids. M.W. described the gun as a silver and black .32-caliber revolver.

         While interviewing M.W. around 11:40 a.m. that morning, the officer heard a dispatch report about a second robbery that had just occurred at the Chevron. The suspects were two black males generally fitting M.W.'s description of the two men who accosted him at the Payday Loans moments earlier.

         B. Count Three-Chevron Robbery

         Because Fullmore does not challenge his conviction for the count three robbery of D.R. at the Chevron, and Nesbit challenges his conviction only to the extent that insufficient evidence shows he aided and abetted Fullmore in the robbery, the facts regarding count three are recounted in the light most favorable to the judgment. (People v. Snow (2003) 30 Cal.4th 43, 66.)

         At approximately 11:30 a.m. that day, D.R. was at the Chevron gas station across the street from the Payday Loans purchasing some items in the convenience store. D.R. walked outside to her car where Fullmore approached her. While D.R. sat in her car, Fullmore stood between the door and the car to prevent D.R. from closing the door. Fullmore demanded D.R.'s money and pulled up his shirt to reveal a silver gun in the right front pocket of his jeans.

         After rifling through her purse and locating only loose change, Fullmore ordered D.R. into the convenience store to withdraw money from an ATM machine. Nesbit followed them inside. Once inside, Fullmore stood beside D.R. while she withdrew $200 and Nesbit talked to the cashier. Fullmore took the money directly from the machine and left. Nesbit immediately followed Fullmore out the door. Before leaving, either Fullmore or Nesbit told D.R. not to call police.

         When officers arrived a short time later, D.R. said she could not describe the men very well because she did not look too closely at their faces since she was scared. She did say, however, that the man with the gun was black, 18 to 20 years old, five-foot-six to five-foot-ten with curly hair and that he was wearing a white shirt and dark jeans. She said the gun was silver and that the man had light brown eyes.

         C. Surveillance Video

         Surveillance video taken inside the Chevron store shows D.R. in the store purchasing items at 11:38 a.m. The video also shows Fullmore, Nesbit, and Howard in the store moments earlier. Both Fullmore and Howard are wearing white shirts; Nesbit is wearing a brown and white checkered shirt.

         Five minutes later, the surveillance video shows D.R. back in the store at the ATM machine with Fullmore. The surveillance footage also shows Nesbit talking to the clerk while D.R. and Fullmore were at the ATM machine. Nesbit exits the Chevron store almost immediately after Fullmore takes the money from the ATM machine and leaves. The surveillance video does not show Howard in the store at that time.

         There was no surveillance video showing the events at the Payday Loans.

         D. Police Investigation

         Due to its proximity to both robberies, police searched the apartment complex where Nycquia lived and where defendants and Howard had stayed the previous night. The apartment manager directed officers to Nycquia's apartment.

         The police knocked and announced their presence at Nycquia's apartment but no one answered. Police stationed at the rear of the apartment saw what appeared to be a black man's hand frantically trying to open a back window through the blinds.

         Nycquia finally walked over from the mailboxes where she had been observing the police activity and gave officers a key to the apartment. She told officers that Fullmore, Nesbit, and Howard were inside, but only Nesbit and Howard came out once the door was opened. Fullmore was gone.

         When Howard left the apartment, he had long hair pulled back in a pony tail. Howard was approximately six feet tall and weighed over 200 pounds. Nesbit had a mustache, curly hair, and was wearing a blue basketball jersey. Nesbit stood six feet tall and weighed about 195 pounds.

         Police conducted separate field show ups for both victims with Nesbit and Howard. After commenting the men looked like they had changed their hair or clothes, M.W. identified Nesbit as the taller assailant and Howard as the gunman. D.R. did not identify either man.

         Nesbit was arrested and gave a statement to police placing most of the blame on Fullmore for the robberies. Police subsequently determined Howard was not involved and he was released from custody.

         While searching the apartment, the police found a brown and white checkered shirt. The police also found a silver and black .32 revolver loaded with four live rounds, stuffed in a sock, and hidden in the bedroom closet under some towels. Although she later denied it at trial, the day of the robberies Nycquia told ...


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