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Montes v. Macomber

United States District Court, S.D. California

April 10, 2017

GERARDO MONTES, Petitioner,
v.
JEFF MACOMBER, Warden, Respondent.

          ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; (2) ADOPTING REPORT AND RECOMMENDATION; AND (3) DENYING CERTIFICATE OF APPEALABILITY

          MARILYN L. HUFF, DISTRICT JUDGE UNITED STATES DISTRICT COURT

         On October 19, 2015, Petitioner Gerardo Montes, a state prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction for first degree murder. (Doc. No. 1.) On December 23, 2015, Respondent Jeff Macomber filed a response to the petition. (Doc. No. 5.) On March 15, 2016, Petitioner filed a traverse. (Doc. No. 11.) On September 19, 2016, the magistrate judge issued a report and recommendation, recommending that the Court deny the petition for writ of habeas corpus. (Doc. No. 12.) On October 30, 2016, Petitioner filed objections to the magistrate judge's report and recommendation. (Doc. No. 16.) After careful consideration, the Court denies the petition for writ of habeas corpus, adopts the magistrate judge's report and recommendation, and denies a certificate of appealability.

         Background

         I. Factual History

         The Court takes the following facts from the California Court of Appeal's opinion in Petitioner's direct appeal:[1]

In the morning of August 29, 2010, a dove hunter scouting locations for the upcoming season discovered the body of 25-year-old Adrian Chee in an agricultural field near Winterhaven, California. Chee had been shot twice, once in the chest and once in the chin. The chest wound was fatal and caused Chee's death. Tire tracks were observed in the area surrounding the body, and Chee's leg appeared to have been run over. A vehicle also appeared to have damaged a nearby concrete canal wall. Near Chee's body, sheriff's department investigators found an open pack of Marlboro Red cigarettes.
Investigators also found a used Marlboro Red cigarette butt between Chee's legs. The cigarette butt contained DNA from at least two male contributors. After testing, Montes could not be eliminated as a contributor to the DNA found on the cigarette butt. Such a situation would be expected to occur at random in 1 in 2.1 billion African Americans, 1 in 75 million Caucasians, and 1 in 46 million Hispanics.
A witness living near the field in Winterhaven reported hearing a gunshot two nights prior to the discovery of Chee's body. Earlier on the night of the gunshot, Montes's house in Yuma, Arizona, was burglarized. Montes's wife, Sonia, called police and reported the burglary. When officers arrived, the door to Montes's house had been forced open and the interior was ransacked. The officers spoke with Montes's wife; Montes himself was not present. Electronics, jewelry, and some amount of cash had been stolen. Montes's wife later provided an itemized list to police for insurance purposes.
Montes had been in prison with a man named Ernesto Valera, and after prison they remained friends. According to Valera, Montes called him on the night of the burglary. Valera asked Montes for some drugs, and Montes said he could get methamphetamine. A few hours later, Montes picked up Valera at Valera's house. Adrian Chee was with Montes in his Cadillac when Montes arrived at Valera's. Montes, Chee, and Valera bought some methamphetamine and proceeded to get high. They then drove in Montes's Cadillac to Paradise Casino in Winterhaven to meet Valera's girlfriend, Melissa Barraza. Barraza had additional methamphetamine, but the men had broken the pipe they used to smoke methamphetamines earlier. Montes, Chee, and Valera, along with Barraza, went to the house of Shavon Mendez, also in Winterhaven, to get another pipe. Mendez confirmed to investigators that Montes had been at her house that night between 2:00 a.m. and 5:00 a.m., but at trial she testified she was at her mother's house all weekend and did not see Montes.
After leaving Mendez's house, Montes asked Valera to drive and directed him to a nearby agricultural field. After they parked, Montes accused Chee of burglarizing his house and wearing his watch. They stepped out of Montes's car and began to argue. Valera got out as well, but Barraza remained in the car. Montes pulled out a gun and aimed it at Chee. Chee said that he was not scared and that Montes would not shoot him. Montes fired, first at Chee's chest and then, as Chee was falling, at Chee's face. After Chee fell, Montes knelt down and took the watch from Chee's wrist.
Montes told Valera to get back in the car. Valera got in the driver's seat, and Montes got in the back seat. Valera backed up, ran over Chee, and hit a concrete irrigation canal. Montes angrily told Valera that he would drive. Montes then drove to Barraza's house, and the group used methamphetamines again. Montes changed into clothes provided by Barraza, and Valera and Montes buried the gun in Barraza's backyard. Montes called his wife, and she came to Barraza's house. Montes told her what happened. Eventually they drove away, with Montes driving his Cadillac and his wife in a pickup truck.
The following day, Valera and Montes removed the tires from Montes's Cadillac and replaced them with used tires. Valera and Montes went to a local Walmart to look for tires, where they were captured on security cameras. Montes gave the old tires to Barraza to settle a drug-related debt. Barraza was later arrested on drug charges after trying to sell the tires to an undercover police officer. When questioned by investigators, Barraza recounted events of the evening, including that Montes had shot Chee. She said she did not report the murder because Montes had threatened her and she was afraid.
Valera and Montes eventually retrieved the gun from Barraza's backyard, and Valera broke it into pieces. Valera and Montes contacted two cousins, Delia Hayes and Meredith Barley, and offered them drugs to take the gun to Mexico and throw it away. Barley agreed and attempted to drive Montes's Cadillac across the border with the gun. Valera and Montes followed her in a separate car. Valera and Montes were going to Mexico to escape the country. Barley was turned back at the border because the Cadillac had only temporary “paper” license plates. After exiting the other car, Montes and Valera made it to Montes's brother's house in San Luis, Mexico on foot.
Valera left the house at some point, and Montes's wife later convinced Montes to return home to Arizona. Valera, Hayes, and Barley eventually disposed of the gun in a ditch on the U.S. side of the border. When investigators recovered the gun, they found two long black hairs on the handle, but no useful forensic testing could be performed on the gun or the hairs. With information about his involvement, investigators interviewed Montes for approximately two hours. Montes confirmed that the Cadillac was his car and that no one other than he and his wife drove it. Montes denied knowing anyone in Winterhaven, and he said he had only been there in the morning to look for automotive parts at a junkyard. Montes was evasive when asked whether he knew Valera or Chee, but Montes eventually acknowledged that Chee looked familiar and that he knew Valera. Montes was also evasive when he was asked if he was at Paradise Casino at Winterhaven on the weekend of the murder. He initially said no, but then claimed he could have been there but been passed out. He reported drinking heavily. Montes denied that Chee had ever been in his car or that he was involved in Chee's murder.
Montes was arrested and charged, along with Valera, with Chee's murder. Barraza was charged with being an accessory after the fact. Valera later reached a cooperation agreement with the prosecution.
Valera agreed to testify at trial against Montes and plead guilty to being an accessory. The prosecution agreed to dismiss the murder charge against Valera. Barraza pled guilty to her accessory charge. At Montes's trial, the prosecution called Valera and Barraza, among other witnesses. While Valera provided substantive testimony in accordance with his cooperation agreement, Barraza claimed not to remember the events surrounding Chee's murder. She was therefore impeached with her prior statements to investigators. Following Barraza's testimony, the prosecution uncovered a recorded telephone call between Montes, who was in custody, and an unknown female caller. The caller said she was in Salinas, California, and the conversation concerned a female witness who was being forced to come to testify at Montes's trial. Montes told the caller to tell the witness not to say anything. At the time of trial, Barraza lived in Salinas and was compelled to attend. Montes's defense at trial argued that Valera had murdered Chee.
Montes's wife, Sonia, testified that Montes was with her the night of Chee's shooting. She previously told investigators that she had some doubt as to where Montes was that night; he sometimes left during the middle of the night while she slept. She said she knew Chee, but she did not suspect Chee of burglarizing their house. She said that none of Montes's watches had been stolen and that she did not list any watches on the list of stolen items she submitted to police. She confirmed that Montes smoked Marlboro Red cigarettes, the brand found at the scene of Chee's murder. An accident reconstruction expert also testified that Montes's Cadillac could not have made the tire tracks found at the scene of the murder. Montes did not testify.

         II. Procedural History

         On September 13, 2012, a jury convicted Petitioner of first degree murder in violation of California Penal Code § 187(a), and returned a true finding on the allegation that he personally used a firearm within the meaning of California Penal Code § 12022.53(b)-(d). (Lodg. No. 2-29 at ¶ 2318-19.) The ...


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