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Sharonoff v. Warden

United States District Court, E.D. California

May 15, 2017

KENNETH A. SHARONOFF, Petitioner,
v.
WARDEN, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the petition filed on April 15, 2013, [1] ECF No. 1, which challenges petitioner's 2010 conviction for second degree murder and related offenses. Respondent has answered the petition. ECF No. 11. Petitioner did not file a traverse. For the reasons that follow, the undersigned recommends that the petition be denied on the merits without an evidentiary hearing. The court will also deny petitioner's motions for an evidentiary hearing. ECF Nos. 82 & 83.

         BACKGROUND

         I. Trial Court Proceedings

         The following statement of the case is taken from the unpublished opinion of the California Court of Appeal on direct review:[2]

Defendant Kenneth Allen Sharonoff was living at a homeless camp in Placerville when he shot to death another resident of the camp, 68-year-old Clark McCabe. A jury convicted defendant of one count of second-degree murder, one count of elder abuse resulting in death, two counts of possession of a firearm by a felon, and one count of possession of ammunition by a felon. The jury also found various enhancement allegations to be true, including the personal discharge of a firearm resulting in death and the personal infliction of great bodily injury. Following a bifurcated hearing, the trial court found that defendant had been convicted of two prior strike offenses within the meaning of the three strikes law (Pen. Code, §§ 667, subd. (b)-(i), 1170.12). The trial court sentenced defendant to an indeterminate term of 70 years to life plus a consecutive determinate term of 10 years in state prison and imposed other orders.
On appeal, defendant contends the trial court prejudicially erred and violated his constitutional rights by (1) admitting into evidence two prior convictions for assault with a deadly weapon for the limited purpose of establishing defendant's intent to kill, and (2) failing to instruct the jury on the theory of imperfect self-defense as a means of mitigating murder to voluntary manslaughter. We disagree and affirm.

         FACTS

In January 2010, defendant lived in a homeless camp behind Prospector's Plaza in Placerville. The makeshift camp was set up in a field of manzanita and other scrub vegetation. Several worn paths led to the various campsites. The “mayor” of the camp was a 68-year-old man named Clark McCabe, who also went by the name “Otto.” According to Tommy Aldrich, another camp resident: “Otto was like the senior of the camp. He was everyone's-he had, you know, like authority like who could go, who could stay, and he was just like the peacekeeper of the camp.” Paul Oakes and his mother also lived at the camp; Oakes went by the name “Cody” and was one of defendant's friends. The camp was also home to Jeremiah Rands and his girlfriend Heather Whitney.[3]
On the evening of January 23, 2010, Tommy was visiting Jeremiah and Heather at their campsite when defendant arrived carrying an old, rusted, single-action black powder revolver. Defendant appeared to be drunk and waved the gun around while “ranting and raving about something.” The weapon was cocked and ready to fire. When defendant put his arms around Tommy, resting the gun on his shoulder, Tommy asked defendant to put the gun away. Defendant apologized and complied with the request, placing the gun in his pants.
Later that night, defendant was at his campsite when Cody arrived and asked if he wanted to watch a movie. Defendant declined, explaining that Otto had his crossbow, and that he wanted to get it back so he could sell the weapon. Cody agreed to meet defendant at Otto's camp, but first needed to get some water from his campsite. Both defendant and Cody were wearing head lamps to allow them to navigate the dark trails through the camp. A few minutes later, as Cody approached Otto's campsite after retrieving a water jug, he heard defendant and Otto arguing over the crossbow. Defendant demanded: “I want my crossbow back.” Otto responded: “No, you can't have it. You owe me money.” By this point, Cody could see defendant pointing a gun at Otto's head. Defendant pulled back the hammer and said: “Oh, yeah?” Otto replied: “You just made the biggest mistake of your life.” And as Otto pulled what appeared to be a cell phone out of his pocket, defendant pulled the trigger. He then pulled back the hammer and fired a second shot as Otto fell to the ground.
Each round delivered a fatal wound. The first round struck Otto in the chest, penetrating both lungs and lodging behind his shoulder blade. This wound caused Otto to begin to convulse and slowly collapse. The second round entered Otto's lower back as he doubled over, penetrated the spleen and left lung and lodged beneath the collarbone. Otto died as a result of these injuries.
Defendant then ran up a hill through a nearly impassable trail. Shaken up by what he had seen, Cody slowly walked to defendant's camp to find out what “actually happened.” When he arrived a few minutes later, defendant was rustling around in his tent. Jeremiah then showed up and asked if they wanted to hang out at his campsite. Defendant said that “he'd be right over, ” so Cody and Jeremiah walked to Jeremiah's campsite together. After Cody told Jeremiah about the shooting, they decided to wait for defendant to arrive at the campsite, and then Jeremiah would walk down to Cody's mother's campsite to inform her of the situation. Defendant arrived 10 to 15 minutes later. Jeremiah excused himself to use the restroom and walked to Cody's mother's campsite. Acting on her advice, Jeremiah walked to Otto's camp to make sure this was not a prank. Finding Otto motionless on the ground, Jeremiah ran back to his campsite to make sure Heather was safe. He then took her cell phone, again pretended he needed to use the restroom, and called Cody's mother on her cell phone to tell her Otto was dead.
Deputies from the El Dorado County Sheriff's Department responded to a 911 call reporting the shooting. The camp was cleared early the next morning and its inhabitants detained for questioning. Otto's body was also recovered. Later in the day, Cody assisted the officers in an unsuccessful search for defendant's revolver. Cody resumed the search the following day with four camp residents and eventually found the gun in the manzanita field near a place defendant had previously used to stash drugs. Leaving the gun in place, Cody called the sheriff's department and deputies came out to retrieve the weapon.
Defendant's campsite was searched pursuant to a search warrant. Deputies recovered several lead balls, five of which were covered with black powder, some .38 caliber cartridges, a spent shotgun shell casing, and a homemade zip gun.

People v. Sharonoff, No. C066292, 2012 Cal.App. Unpub. LEXIS 1453, 2012 WL 637076, at * 1-2 (Cal.Ct.App. Feb. 27, 2012).

         II. Direct Appeal

         Petitioner timely appealed and the California Court of Appeal affirmed the judgment of conviction on February 27, 2012. Id. at *2, 2012 WL 637076 at *1. The California Supreme Court denied review on May 9, 2012. Lodged Doc. 8.

         III. State Habeas Proceedings

         Petitioner did not file any state habeas corpus petition challenging his convictions until after he had filed the instant § 2254 petition in federal court. His first state habeas corpus petition was filed in the El Dorado Superior Court on February 24, 2014 and denied on April 3, 2014. See ECF No. 24-1 at 95-100. Petitioner filed a separate state habeas petition in the California Supreme Court on May 6, 2014, which was denied on June 25, 2014. See ECF No. 33 at 2-11 (state habeas petition); ECF No. 31 at 2 (postcard denial issued by the California Supreme Court).

         IV. Federal Habeas Proceedings

         The instant federal petition was constructively filed on April 15, 2013.[4] ECF No. 1. Respondent answered on June 7, 2013. ECF No. 11. Petitioner did not file a traverse.

         On January 27, 2014, petitioner filed a “motion to quit claim.” ECF No. 13. This court denied petitioner's motion without prejudice to refiling either a motion for voluntary dismissal or a motion for stay and abeyance. ECF No. 15. In response, petitioner filed a motion to stay, ECF No. 19, which he renewed one month later, ECF No. 22. Petitioner also filed two amended § 2254 petitions, ECF Nos. 21 and 24.

         On June 3, 2014, the undersigned issued findings and recommendations on petitioner's motions for a stay and his amended § 2254 petitions. In light of the objections filed by petitioner, the court vacated the findings and recommendations on July 17, 2014 and ordered petitioner to file a copy of the habeas petition that he had filed in the California Supreme Court. ECF No. 32. Petitioner complied with the court's order on July 28, 2014.

         On September 3, 2014, the undersigned issued findings and recommendations denying petitioner's motions for a stay and directing petitioner to file either a notice electing to delete the unexhausted claims from his original petition and to proceed on the merits of his remaining exhausted claims, or a notice of voluntary dismissal of the case without prejudice.[5] ECF No. 36 at 11. In the same order, the court recommended that petitioner be denied leave to amend and that his amended petitions, ECF Nos. 21 and 24, be stricken from the docket. Id. Petitioner filed objections and supplemental objections to the findings and recommendations. ECF Nos. 38, 39.

         On September 22, 2014, petitioner filed a motion to amend his §2254 petition. ECF No. 37. Respondent did not oppose the motion. Petitioner then filed a motion for an evidentiary hearing and request for release, ECF No. 41, and a motion for discovery, ECF No. 42. Respondent opposed both motions, ECF No. 44, and petitioner replied, ECF No. 47.

         On October 31, 2014, the district judge adopted the September 3, 2014 findings and recommendations in full. ECF No. 43. In response, petitioner filed a letter to the court, apparently requesting reconsideration of the October 31, 2014 order. See ECF No. 45 at 8. Approximately one week later, the court received petitioner's timely notice to amend his mixed petition to delete the unexhausted claims from his original petition. See ECF No. 46. In his notice, petitioner also appeared to request that the court “reattach” his “now fully exhausted claims.” See ECF No. 46 at 1.

         On July 17, 2015, the undersigned issued an order and findings and recommendations recommending that petitioner's request for release and motion to amend be denied. ECF No. 52 at 11. The court also denied petitioner's motion for an evidentiary hearing, his request to “reattach” claims, and his motion for discovery. Id. In addition, the court acknowledged petitioner's notice electing to delete his unexhausted claims from his original petition, ECF No. 46, and clarified that as a result of this election, the original petition, ECF No. 1, consists of only two claims: petitioner's challenge to the trial court's admission of prior bad act evidence from 1986 and 1994 and the challenge to the trial court's failure to instruct on imperfect self-defense. See ECF No. 52 at 4. Accordingly, these are the only two claims presently before the court.

         On July 30, 2015, petitioner filed objections to the July 17, 2015 order and findings and recommendations. ECF No. 55. On August 26, 2015, petitioner filed a motion to vacate the July 17, 2015 order and findings and recommendations, ECF No. 57, which the court construed as a motion for reconsideration. Upon reconsideration, the undersigned affirmed the July 17, 2015 order and findings and recommendations. ECF No. 58.

         On September 16, 2015, petitioner filed a notice of interlocutory appeal of the July 17, 2015 order and findings and recommendations. ECF No. 60.

         On September 22, 2015, the district judge adopted the July 17, 2015 findings and recommendations in full and denied petitioner's request for release and motion to amend his federal habeas petition. ECF No. 63.

         On October 26, 2015, petitioner filed a notice of interlocutory appeal of the September 22, 2015 order adopting the July 17, ...


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