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Rice v. Tampkins

United States District Court, E.D. California

May 14, 2017

EUGENE RICE, Petitioner,
v.
CYNTHIA Y TAMPKINS, Respondent.

          ORDER [1]

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

         Introduction and Summary

         Petitioner Eugene Rice was convicted of second degree robbery on October 17, 2011 in Placer County Superior Court and was sentenced to 9 years. His appeal to the Third District Court of Appeal was denied on 6/26/14. A petition for review with the California Supreme Court raising three claims was denied on December 18, 2013.

         A federal petition for habeas corpus was filed on March 27, 2015-adding many more claims than had been previously exhausted with the California Supreme Court. In response to the Motion to Dismiss based on exhaustion, petitioner voluntarily struck his unexhausted claims, and filed an amended petition on December 23, 2015, along with a simultaneous request to strike his unexhausted claims (ECF #s 16, 17. The amended petition contains the following claims, which all parties agree are exhausted:

1. The trial court violated due process by failing to instruct on consciousness of guilt;
2. Insufficient evidence for second degree robbery conviction;
3. Erroneous harmless error standard used by the state courts.

         After independent review of the record, and applying AEDPA standards, the undersigned denies the Amended Petition.

         Factual Background

         The facts as related by the California Court of Appeal are accurate:[2]

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 [footnote 2 omitted] 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. 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 ...

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