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Collins v. Perry

United States District Court, C.D. California, Western Division

July 5, 2017

ARTERO COLLINS, Petitioner,
v.
SUSAN PERRY, Warden, Respondent.

          MEMORANDUM DECISION AND ORDER

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE.

         I. SUMMARY OF PROCEEDINGS

         On March 30, 2011, a Los Angeles County Superior Court jury found petitioner guilty of two counts of assault with a firearm, in violation of California Penal Code section 245, and not guilty as to a third count of assault with a firearm. (Clerk's Transcript [“CT”] 132-34). The jury also found that petitioner personally used a firearm (Cal. Penal Code § 12022.5). (Id.). Subsequently, the trial court found that that petitioner had been convicted of a serious felony, that he had suffered a prior conviction under California's Three Strikes Law, and that he had served a prior prison term (Cal. Penal. Code §§ 667, 1170.12, 667.5). (Id. at 156-57). The trial court sentenced petitioner to twenty-four years in state prison. (Id. at 183-87).

         Petitioner appealed his conviction. (Respondent's Notice of Lodging Nos. 2-5). On October 16, 2012, the California Court of Appeal affirmed the conviction. (Lodgment No. 6). Petitioner did not file a petition for review in the California Supreme Court. On April 10, 2015, however, he filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on May 1, 2015. (Lodgment Nos. 7-8). Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on September 30, 2015. (Lodgment Nos. 9-10).

         Petitioner then filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, which was denied on May 3, 2016. (Lodgment Nos. 12-13). Next, he filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on June 10, 2016. (Lodgment Nos. 14-15). Petitioner subsequently filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on October 12, 2016. (Lodgment Nos. 16-17).

         Meanwhile, on November 13, 2015, petitioner filed his Petition in this Court and consented to have the undersigned Magistrate Judge conduct all further proceedings in this matter. (Docket Nos. 1, 2). Respondent, likewise, consented to have the undersigned Magistrate Judge conduct all further proceedings and, thereafter, filed an Answer and a supporting Memorandum of Points and Authorities (“Answer”). (Docket Nos. 15-16, 30). Petitioner then filed a Reply. (Docket. No. 33). Subsequently, petitioner filed a First Amended Petition (“FAP”). (Docket No. 38). Accordingly, on March 16, 2017, respondent filed a Supplemental Answer. (Docket No. 42). On May 8, 2017, petitioner filed a Supplemental Reply. (Docket No. 46). This matter has been taken under submission, and is ready for decision.

         II. STATEMENT OF FACTS

         The Court adopts the factual summary set forth in the California Court of Appeal's Opinion affirming petitioner's conviction.[1]

         Prosecution Evidence

         On April 18, 2010, John McGhee was working as a security guard at The Social Club on Normandie in Los Angeles. [Petitioner], who appeared intoxicated, was escorted out of the club by McGhee because of his rude behavior, “calling out his set, ” and repeatedly called out his gang's name, “B.P.”

         Derwin Gibson was working with McGhee at The Social Club. At approximately 5:30 a.m., Gibson and McGhee saw [petitioner] banging on the door of the club, demanding to be let back in. Gibson heard [petitioner] yell, “You better watch your back, that's on Black P Stone, ” and then saw him walk away. Gibson and McGhee went outside to make sure that [petitioner] had left the premises. They saw [petitioner] walking back toward them carrying a gun. Gibson grabbed McGhee, ran into the club, and locked the door behind them. Gibson and McGhee then heard a gunshot.

         After the shooting, Sandra Davis, another security guard at the club, called 9-1-1. Deputy Lawrence Laughlin responded to the scene and interviewed McGhee, Gibson, and Davis. Davis told him the shooter was known as “Poppy” or “Bobby.” She also said the shooter had been kicked out of the club, but returned with a gun and pointed it at her and her coworkers. After being kicked out, the shooter was banging on the door and saying, “Let me in. This is P Stone gang.” Davis described the shooter as a light-skinned African American male, approximately 5'8" to 5'10" and 180 pounds, with braids like corn rows, wearing a black T-shirt with designs on it.[2]

         Gibson told Laughlin that the shooter was wearing a red button down shirt and a red cap. He described the shooter as a light-complected African American with braids in his hair, around 23 or 24 years of age. He stated that he was able to see the shooter's face through the screen door of the club.

         Gibson saw [petitioner] return to the club a week or two after the incident. Gibson recognized him, but did not call the authorities because he “was worried about what would possibly happen again if [the shooter] knew that [he] was on the phone calling the police.”

         On July 11, 2010, Gibson saw [petitioner] at the club again with other men. One of the men with [petitioner] apologized to Gibson for his “homeboy's actions.” Gibson told the man that he would not allow someone who shot at him into the club. When [petitioner] and the other men began to disburse, Gibson got the attention of a sheriff's deputy who was patrolling the street and told him that [petitioner] had fired a shot at him in April. [Petitioner] was then arrested.

         On July 9, 2010, Detective Phil Rodriguez of the Los Angeles Police Department gang unit assisted fellow officers in updating gang photographs, including photographs of [petitioner]. Detective Rodriguez testified with respect to his personal knowledge of [petitioner], including that [petitioner] had admitted his gang affiliation and his moniker to the detective and his partners. Detective Rodriguez also gave expert testimony with respect to the Black P Stone gang.

         In telephone calls recorded while [petitioner] was in jail, [petitioner] referred to himself as “Pop” or “Poppy.”

         Defense Evidence

         Patricia Triplett, also a security guard at the club, testified that she recalled four or five African-American men being kicked out of the club that night, but she did not recall whether [petitioner] was among them. She was in the lobby of the club with McGhee, Gibson, and Davis when she heard a gunshot. She did not see the person who fired the gun.

         Chester Waingo was collecting recyclables near the club early on the morning of the shooting, when he saw a man with a gun walk past him quickly. The man was approximately six feet away from Waingo. He did not look at the man's face because he was focused on the gun. When he saw the gun, he ran away. Later, Waingo heard a gunshot. Waingo was interviewed by authorities approximately ten months later and was unable to pick out the man carrying the gun from a six-pack photo line-up.

         Rebuttal

         On November 2, 2010, Davis spoke with defense investigator, Craig Peters, regarding the shooting. In the interview, Davis said that she heard one of the shooter's friends say, “Bobby, come on.” She heard the same friend say either “Black Keystone” or “P Stone.” She described the shooter as a light-complected African American male with corn row braids.

         (Lodgment No. 6 at 3-6 (original footnote renumbered)).

         III. PETITIONER'S CONTENTIONS

         1. Appellate counsel deprived petitioner of his Sixth Amendment right to effective assistance of counsel by failing to conduct a sufficient investigation into the trial record before filing petitioner's direct appeal. (FAP at 5, 9-14).[3]

         2. Appellate counsel deprived petitioner of his Sixth Amendment right to effective assistance of counsel by asserting a claim on direct appeal that relied on facts outside of the trial record. (Id. at 5, 15-18).

         3. The trial court contravened California Penal Code section 1170.1 by imposing multiple sentencing enhancements based on petitioner's use of a firearm. (Id. at 6, 40-45).

         4. The trial court violated petitioner's right to due process and violated his rights under the Fifth Amendment's Double Jeopardy Clause by imposing punishments for both the crime of assault with a deadly weapon and for the alleged sentencing enhancement based on using a firearm. (Id. at 6, 46-64).

         IV. STANDARD OF REVIEW

         The Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”). Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of this action. See ...


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