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Davidson v. Davey

United States District Court, E.D. California

July 11, 2017

DAVID DAVEY, Warden, Respondent.



         Introduction and Summary

         Petitioner 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)[1], and the court will treat the petition as such.

         Petitioner 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 1-2.[2] The last conviction was reversed on appeal as it duplicated the conviction on Count 5.

         Petitioner challenges his conviction on five grounds, counting two for ineffective assistance of counsel. For the reasons that follow, the petition should be denied.


         The 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.

         Factual Background

         As the 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.

         Prosecution Case

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.[3]
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 baseball cap.
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.[4]
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 fence.
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 apartment.
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 the shooter.
Defense Case
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 moral turpitude.

         Procedural History

         Petitioner 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.

         Petitioner 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. Id.

         Respondent does not contend that the issues ...

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