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Bradshaw v. Montgomery

United States District Court, E.D. California

June 21, 2017

SHAWN G. BRADSHAW, Petitioner,
W.L. MONTGOMERY, Respondent.


         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I. BACKGROUND

         On June 20, 2013, Petitioner was convicted after a jury trial in the Kings County Superior Court of attempted murder and two counts of robbery. The jury also found true multiple firearm enhancements. (CT[1] 95-97). On September 5, 2013, Petitioner was sentenced to a total imprisonment term of sixty years and four months. (CT 174). On April 28, 2015, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Bradshaw, No. F068007, 2015 WL 1917208, at *22 (Cal.Ct.App. Apr. 28, 2015). The California Supreme Court denied Petitioner's petition for review on July 8, 2015. (LDs[2] 11, 12).

         On October 13, 2016, Petitioner filed the instant federal petition for writ of habeas corpus in the Sacramento Division of the United States District Court for the Eastern District of California. (ECF No. 1). On October 17, 2016, the petition was transferred to the Fresno Division. (ECF N. 4). In the petition, Petitioner raises the following claims for relief: (1) insufficient evidence to sustain an attempted murder conviction; (2) ineffective assistance of counsel; and (3) instructional error. Respondent has filed an answer. (ECF No. 14).


         Mellie's Market is a liquor store on Sixth Avenue in Kingsburg. There are two structures behind the store: A building with a kitchen and bathroom, and a separate structure where Jorge Morales lived. A small patio was between the store and the rear structures.

         At the time of the robbery, Morales had been involved in a relationship with Garcia for a few weeks. Morales knew her as “Angelica.” Morales frequently gave her money to help her. Morales testified he loaned Garcia about $500 so she could return to her family in Texas. Garcia promised to repay the loan after she returned to Texas.

         Morales testified Garcia asked for more money because she claimed she was pregnant and Morales was the father. Morales believed she was lying. About a week before the robbery, Garcia introduced Morales to Jacob Herrera, and said Herrera was her “brother.” Garcia asked Morales for $50 to give to her “brother.”

         Garcia, Herrera and Defendant

         Garcia testified Morales gave her $200 for a plane ticket to Texas. He also gave her money for other things when she asked for it, and Garcia thought he was very generous. However, Garcia testified she wanted even more money from him. She falsely claimed she was pregnant and needed more money. Morales refused.[4]

         Garcia testified Herrera was her cousin. Garcia told Herrera that Morales gave her money whenever she asked for it. Herrera urged her to get more money from Morales if she could do it. They had a couple of conversations when Herrera told her to get whatever she could out of Morales.

         Garcia testified that on July 30, 2012, she got into Herrera's maroon truck because they were going to Morales's house. Herrera's girlfriend and another girl were in the truck. Herrera was driving, and he stopped to pick up defendant. Garcia knew defendant was Herrera's friend and had met him before.

         Garcia testified that the original plan was that she was going to ask Morales for more money rather than rob him. However, Garcia also testified that when she got into Herrera's truck, she knew they were going to rob Morales. “I mean when you go-how do I explain it. When you go to rob somebody, I mean, you have an idea of what's going to happen. You just already know.” “I knew we were going to rob him. Well, I was going to ask for it. If he didn't give it to me, we were going to take it.” Garcia testified defendant had a gun when he got into the truck. As Herrera drove to the market, Garcia testified they talked about the “situation, ” and she said that she would rob Morales. Garcia was ready to do it on her own. Instead, Herrera told her to knock on the door and they would take care of it.

         Garcia was concerned about defendant's gun and told the others that she did not want anything stupid to happen or things to get out of hand: “I didn't want nobody to die or nothing.” Herrera told her: “‘We already know, cuz, just chill.'” Garcia was under the influence of methamphetamine that night.

         During the drive, Herrera told Garcia to call Morales. Garcia called and Morales said he was taking a shower. Garcia told Morales she was going to visit him, and he said that was okay and they could talk.

         The Patio

         On the evening of July 30, 2012, Lindsay Constant (Constant) and her husband arrived at Mellie's Market with their friend, Kenneth Mullins. They sat in the patio area and visited with Morales and his friend, Perez. Constant had soft drinks while the men drank beer.

         Sometime around 9:00 p.m., Morales left the patio, went into the rear building, and took a shower. Perez borrowed Morales's cell phone and went to the adjacent garden to call his family. Constant and her companions remained on the patio.

         Garcia and Herrera Arrive on the Patio

         Garcia testified that when they arrived at the market, Herrera parked on the side of the building. There were two other cars there. Garcia got out of the truck and headed to the house. Herrera and the others initially stayed with the truck. Herrera raised the hood on his truck and pretended something was wrong with the engine.

         Constant testified that she was still sitting on the patio with her husband and Mullins when Garcia arrived. Garcia asked for Morales. Constant said Morales was in the house. Garcia went into the house, and Constant never saw her again. However, Constant heard Garcia ask Morales if she could borrow his cell phone.

         Garcia testified she went inside the house and entered the bathroom. She briefly spoke to Morales, who was still in the shower, and asked if he was almost done. Morales said yes, and Garcia left the bathroom. Morales heard Garcia leave through the door, and he never saw Garcia again that night.

         Constant testified that about two minutes after Garcia went into the house, Herrera arrived on the patio. He was talking on his cell phone. Constant's husband said: “What's up, man. [Morales] is inside.” Herrera remained on the cell phone and walked into the house.

         Garcia testified that after she left the bathroom, she went into Morales's bedroom. She put down her cell phone and looked around for his wallet. Garcia heard “a ruckus” outside. Herrera entered the room, told her to leave, and said they “got it.” Garcia walked out and mistakenly left her cell phone in Morales's bedroom.

         Defendant Arrives on the Patio

         Constant testified that a few minutes after Herrera went into the house, he returned outside and walked out of the patio gate. Shortly afterward, however, Herrera walked back to the patio, and defendant was with him.[5]

         Constant testified that when defendant arrived, he immediately started to grab at his waist “like he had a gun in his waistband, ” but Constant never saw a weapon. Defendant told Herrera: “‘What the f**k? You never said anything about these people being here, '” referring to Constant and her companions. Herrera told defendant not to worry about them, “‘They're cool, let's just go.'” Defendant and Herrera walked into the house.

         Constant and Her Companions Leave

         After defendant and Herrera went into the house, Constant heard the two men bang on the bathroom door and tell Morales to come outside. Constant heard the sound of the shower but did not hear Morales make any reply. Constant became afraid and told her husband they should leave. Constant, her husband, and Mullins left the patio and walked to their cars, which were parked in front of the store.

         Constant testified defendant and Herrera walked out of the house toward a burgundy truck parked near the store. Garcia was not walking with them. Constant thought there were three more people in the truck. Defendant and Herrera said their truck's battery had died, and asked Mullins for a jump start. Mullins drove his car up to their truck, but no one had jumper cables. Mullins drove away in his car, and Constant and her husband left in their own car.

         Constant testified they left about 10 to 15 minutes after Garcia, defendant, and Herrera had arrived. Constant never saw a gun or heard any gunshots while they were there. Defendant and Herrera were standing by the truck when Constant drove away.

         Robbery of Perez (Count II)

         In the meantime, Perez was still standing outside the building, using Morales's cell phone and talking to his family. Defendant and Herrera approached him. They asked Perez where Morales was. Defendant and Herrera went into the house, and Perez continued with his cell phone conversation.

         Perez testified the men suddenly returned outside. Herrera hit Perez in the ear and knocked him down. Perez dropped Morales's cell phone and fell to the ground. Both men got on top of Perez. Herrera put a knife to his chest. Defendant pulled a gun from his waist and placed it against Perez's chest. One of the men told Perez to “‘give me everything.'” The two men took Perez's wallet, which contained $120 in cash, a check for $430, his bank cards, and his identification.[6] They picked up Morales's cell phone from the ground, and took two other cell phones from Perez's pockets.

         Perez testified the men told him not to get up or move or they would shoot him. “They said if you move we will shoot you.” The two men went back into the house, and one man stood near the door.

         Robbery of Morales (Count III)

         Morales testified that after he briefly spoke to Garcia, he got out of the shower, got partially dressed, and walked out the bathroom holding the rest of his clothes. Morales discovered Herrera and an African-American man were waiting for him. Morales recognized Herrera as Garcia's “brother, ” but he did not know the second man. Defendant was subsequently identified as the second man.[7]

         Morales testified Herrera pulled a folding knife with a six-to-eight inch blade, and pointed it at his chest. Defendant had a gun, which appeared to be a nine-millimeter semiautomatic weapon. Defendant placed the muzzle on Morales's forehead. Defendant told him not to move and took his wallet, which contained $700. Herrera hit Morales in the face.

         Attempted Murder of Perez (Count I)

         As Morales was being robbed, Perez was still lying on the ground in the garden area. He decided to escape. He got up and ...

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