United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a petition for a
writ of habeas corpus pursuant to 28 U.S.C. section 2241. ECF
No. 1. However, state prisoners must utilize section 2254 to
challenge their convictions, White v. Lambert, 370
F.3d 1002-1005-06 (9th Cir. 2004), overruled on other grounds
Haywood v. Marshall, 603 F.3d 546 (9th Cir.
2010), and the court will treat the petition as
was tried, convicted and sentenced by the Sacramento County
Superior Court for attempted murder, assault with a firearm,
first degree burglary of a residence, felon in possession of
a firearm, willful discharging a firearm at an inhabited
dwelling house, and discharging a firearm in a grossly
negligent manner. Lodged Document (Lod. Doc) No. 4 at
The last conviction was reversed on appeal as it duplicated
the conviction on Count 5.
challenges his conviction on five grounds, counting two for
ineffective assistance of counsel. For the reasons that
follow, the petition should be denied.
issues here are divided by what petitioner contends went
wrong at his preliminary hearing, and two trial errors. As
will be discussed, the alleged errors occurring at
preliminary hearing are simply not actionable regardless of
their merit. Thus, the undersigned will rearrange the issues
set forth in the petition as follows: Petitioner seeks relief
on the grounds that: (1) the prosecution committed a
violation of Brady v. Maryland, 373 U.S. 83, 87
(1963), when it failed voluntarily to produce the interview
notes of the police officer who testified at petitioner's
preliminary hearing; (2) ineffective assistance of counsel in
(a) failing to call and or confront a witness at the
preliminary hearing, and (b) failing to challenge or to
successfully challenge a police officer's testimony at
preliminary hearing as being “unqualified under state
law, ” i.e., qualification of the testifying police
that would permit his testimony at preliminary hearing
regarding the victim's hearsay statement pursuant to
enactment of California Proposition 115; (3) petitioner was
unconstitutionally disallowed admission (at trial) of the
prior convictions of two witnesses for use as impeachment;
and (4) that two of his convictions were on counts not
included in the document giving petitioner notice of the
charges against him.
Third District Court of Appeal summarized, the facts
underlying the challenged conviction, found in Lodged
Document 4 (see also People v. Davidson, 2015 WL
226133 (2015)), as follows.
In July 2012, Tucker and her partner, Monica Carter, lived in
an apartment complex off Mack Road in Sacramento.
Tucker's cousin, Malika, also lived in the complex,
directly above the apartment of Connie Vallejo.
Early in July 2012 Tucker and her daughter were at
Malika's apartment for a birthday party. Tucker's
daughter mistakenly tried to enter Vallejo's apartment.
Vallejo's five-or six-year-old granddaughter pushed
Tucker's daughter out. Tucker, who saw the push, told
Vallejo's granddaughter there was no need to do that.
Vallejo came to the door and exchanged words with Tucker.
Two or three weeks later, Vallejo's daughter, Alisha
Hunt, accused Tucker of putting her hands on Hunt's child
and challenged Tucker to fight. They fought briefly.
Afterward, Tucker thought the matter was over.
On July 24, 2012, Tucker, her friend Sparkle Johnson, and
others were sitting outside Johnson's apartment in the
complex. Hunt walked by them and went upstairs. Five or 10
minutes later, she came back with defendant, who wore a red
After Hunt said something to defendant, he asked Tucker if
she had hit his daughter. Tucker, who did not know defendant
or what he was talking about, said “No.” They
exchanged a few words; then defendant punched her in the face
knocking her into a wall.
Defendant pulled out a gun and started shooting at Tucker.
She ran into Johnson's apartment, but he followed her
there, put his gun hand through the front door, and continued
to shoot as Tucker hid behind a table; Johnson's
boyfriend, her four-year-old daughter, and another woman were
also in the apartment. Hearing gunshots outside, Tucker
realized defendant had left.
Carter was in the apartment she shared with Tucker when she
heard the gunshots. She headed toward Johnson's apartment
looking for Tucker. A Black man wearing a white T-shirt and a
red cap moved quickly past her. He jumped into a car driven
by Connie Vallejo, which sped away.
Police came to the complex and interviewed Tucker and
Johnson. Based on what they were told, they then went to
Vallejo's apartment, looking for her or Hunt. Vallejo was
not home. The police found Hunt trying to jump over the back
The police found a shell casing inside the front door of
Johnson's apartment and three others on the walkway
leading to it. They also found a bullet hole inside the
Calls made from defendant's cell phone shortly after the
incident showed that the phone traveled from the Mack Road
area toward downtown Sacramento. At 6:06 p.m., a call was
made using a cell tower on J Street.
An Amtrak surveillance video showed defendant at the downtown
train station at 6:11 p.m. A ticket for a 6:15 p.m. train to
Richmond was purchased in his name.
Tucker and Johnson identified defendant in a photo lineup as
Defendant, the only defense witness, testified that he came
from his home in Oakland to Sacramento by train on July 24,
2012, to visit his daughters and take them to the state fair.
Vallejo's niece drove them all there. Vallejo picked them
up at the fair between 4:00 and 5:00 p.m. and took them back
to her apartment, then drove defendant to the train station.
Defendant claimed he did not know Tucker, although he had
seen her in the apartment complex on prior visits. He had
never heard that she hit his daughter. He had heard from
Vallejo that Tucker and Hunt had had a fight, but he did not
learn what it was about and thought it was settled. No one
asked him to come to the complex and resolve anything. He did
not speak to Tucker on July 24, 2012. He did not have a gun.
He did not hit or shoot anyone.
Defendant initially told the detective who interviewed him
that he did not come to Sacramento in July 2012 because he
thought the detective was questioning him about Vallejo or
Hunt getting hurt in a shooting and he feared he might be
blamed for it. Eventually, the detective told defendant that
he could be placed in Sacramento on the date of the crime by
evidence from cell towers, GPS, cameras in the apartment
complex and the Amtrak station, and eyewitnesses; the
detective also showed him the photo lineup and said someone
had circled his picture. However, defendant never told the
detective that he committed any crime.
Defendant had two prior convictions for crimes involving
was convicted on July 5, 2011, and judgment was entered on
November 11, 2011. Lod. Doc (unnumbered) Augmented
Clerk's Transcript on Appeal at 4. He filed a notice of
appeal with the Third District Court of Appeal on October 4,
2013. Lod. Doc. (Unnumbered) Clerk's Transcript on Appeal
at 247. That appeal was denied in an unpublished opinion on
January 16, 2015, rejecting his claims that the court erred
in failing to allow introduction of Tucker's prior felony
conviction thereby violating his constitutional right to
confrontation, and that his attorney was ineffective for his
failure to object effectively, Lod. Doc. No. 4. The court
reversed the Count 6 conviction as duplicative, and it
remanded for correction of sentencing. Id. at 3-4.
filed his petition for habeas corpus with the California
Supreme Court on November 30, 2015, Lod. Doc. 5, and it was
denied without opinion on March 9, 2016. Lod. Doc. No. 6. In
this pleading he raised ineffective assistance of counsel for
failing to demand witnesses at his preliminary hearing,
failing to challenge the testimony of the sole prosecution
witness, officer DeLeon, for non-qualification under
California Proposition 115, that the prosecution's
failure to disclose notes of interviews taken by officer
DeLeon constituted a violation of the holding in Brady v.
Maryland, 373 U.S. 83 (1963). He also sought habeas
relief on the ground that he was convicted of 2 Counts not
raised in the felony complaint filed against him.
does not contend that the issues ...