United States District Court, E.D. California
SHAWN G. BRADSHAW, Petitioner,
W.L. MONTGOMERY, Respondent.
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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 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 11, 12).
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.
STATEMENT OF FACTS
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
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.
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.”
Herrera and Defendant
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
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.
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
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.
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.
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.
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.
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.
and Herrera Arrive on the Patio
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.
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
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.
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.
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.
Arrives on the Patio
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.
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.
and Her Companions Leave
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.
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.
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.
of Perez (Count II)
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.
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. They picked up Morales's cell
phone from the ground, and took two other cell phones from
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.
of Morales (Count III)
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.
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.
Murder of Perez (Count I)
Morales was being robbed, Perez was still lying on the ground
in the garden area. He decided to escape. He got up and