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West v. Adams

United States District Court, N.D. California

July 21, 2017

SHEILA I. WEST, Petitioner,
v.
DERRAL ADAMS, Acting Warden,[1] Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DENYING CERTIFICATE OF APPEALABILITY

          YVONNE GONZALEZ ROGERS United States District Judge.

         Petitioner Sheila I. West (“Petitioner”), a state prisoner incarcerated at Central California Women's Facility, brings this pro se habeas action under 28 U.S.C. § 2254 relating to a March 16, 2012 incident in which she fired several gunshots at Sequoia Cutrer during an argument.

         In an amended information filed in the Alameda County Superior Court on March 4, 2013, the District Attorney charged Petitioner as follows: count one-attempted murder (Cal. Penal Code §§ 187(a), 664), with allegations that Petitioner personally and intentionally discharged a firearm causing great bodily injury (Cal. Penal Code § 12022.53(d)) and personally inflicted great bodily injury on the victim (Cal. Penal Code § 12022.7); count two-assault with a firearm (Cal. Penal Code § 245(a)(2)), with allegations of personal firearm use (Cal. Penal Code § 12022.5(a)) and great bodily injury (12022.7(a)); count three-possession of a firearm by a felon (Cal. Penal Code § 29800(a)(1)). 1 Clerk's Transcript (“CT”) 280-284.

         On March 21, 2013, the jury found Petitioner guilty as charged on possession of a firearm by a felon and assault with a firearm (counts two and three), and guilty of the lesser included offense of attempted voluntary manslaughter (Cal. Penal Code §§ 192(a), 664) on count one. 2CT 339-344; 7 Reporter's Transcript (“RT”) 1023-1026. The jury also found true the allegations of personal firearm use and personal infliction of great bodily injury on both counts one and two. 2CT 339-344; 7RT 1023-1026.

         In the instant habeas action, Petitioner challenges her aforementioned conviction and her resulting ten-year sentence. See Dkt. 1.

         Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES all claims in the petition for the reasons set forth below.

         I.BACKGROUND[2]

         A. Factual Background[3]

         1. Introduction and Generally Agreed-Upon Background Facts

         Prior to March 16, 2012, Petitioner and Cutrer had known each other for a few years because they met through a mutual friend, Kim Watson. 1RT 57-58. Petitioner and her wife, Dominque Handy, as well as Cutrer and Watson frequented Club 21, a bar located at 21st Street and Franklin Street in downtown Oakland. 1RT 62; 3RT 490; 6RT 783-784. Moore worked as a dancer at the club, as did another mutual friend, Danielle Hill, who worked as a promoter and put on special events there. 1RT 59, 66-68; 2RT 141, 149-150, 163-164; 3RT 490-493; 6RT 741, 743-744, 757, 773-774, 779. At some point prior to the incident, Watson and Petitioner had a falling out after Petitioner allegedly “snitched” on Watson. 1RT 58, 73; 2RT 160-162; 4RT 573; 6RT 744-745, 776. Cutrer blamed Petitioner for her role in Watson's arrest and stopped speaking to her. 1RT 59, 63-64, 70-71, 74; 2RT 144-145, 156, 160-162; 3RT 273; 6RT 745, 780.

         On the evening of March 15, 2012, Petitioner and Handy met at Club 21. 6RT 775-777. Cutrer and Moore arrived at Club 21 around the same time that night. 1RT 59-63, 67-68; 2RT 148-149; 3RT 492; 6RT 777-778. After arriving at the club, Petitioner, Handy, Cutrer, and Moore spent the next several hours independently dancing, drinking, and mingling with other club patrons. 1RT 63, 68-69; 2RT 147-149, 159; 3RT 494-495; 4RT 577. At some point, Petitioner and Cutrer encountered each other, and Petitioner attempted to speak to Cutrer. 1RT 70-75; 3RT 495-497; 6RT 835-836. Cutrer asked that she not talk to her after which they separated. 1RT 71-75; 2RT 153, 155-156. Following this interaction, Cutrer told a few of her friends, including Moore and Hill, that she was upset by Petitioner's attempt to make conversation. 2RT 94-97, 98-99, 154-155; 3RT 495-498, 500; 6RT 778-780. Cutrer then called another friend, Marianne Johnson, and asked her for a ride home from the club. 1RT 75-76; 2RT 92-94; 3RT 311-312, 392-394, 499. Johnson agreed to drive from her Vallejo home to come pick up Cutrer from the club. 2RT 94; 3RT 314-315. Johnson's adult daughter, Topaz Sanders, and another friend, Crystal Thompsen, came along for the ride. 1RT 77; 3RT 315-316, 391-395.

         Johnson, Sanders, and Thompsen arrived at Club 21 at around 2:00 AM. 2RT 213-216; 3RT 313-314, 393-395, 399. Cutrer and Moore left the club and met Johnson and the other women outside where they spent a few minutes talking and smoking cigarettes. 2RT 99-104, 219; 3RT 316-319, 399-402, 499-502. Around the same time, Petitioner and Handy also left the club and walked down the street to Petitioner's car. 6RT 789. Petitioner and Handy got into Petitioner's car and drove past the club where Petitioner dropped off Handy at her car. 2RT 102, 219, 225-228; 3RT 286, 320-322, 403, 502-504. Upon seeing Petitioner and Handy drive past them, Moore ran toward Petitioner's car. 2RT 104-105, 179, 182, 219, 228; 3RT 285-287, 322, 402, 404, 502, 504-507. Cutrer followed close behind. 2RT 106-107, 190-192, 219; 3RT 288-289, 323, 402, 404. Johnson, Sanders, and Thompsen ran after them shortly thereafter. 2RT 183; 3RT 290-293, 299-300, 323-325, 405-407.

         When Moore and Cutrer arrived at Petitioner's car, they reached through the open driver's seat window and punched or slapped Petitioner multiple times. 2RT 107-114, 135, 187, 190-191, 193; 3RT 262, 323-326, 422-423, 507-511, 514-515; 4RT 590-591. Upon seeing Cutrer and Moore at Petitioner's car, Handy ran over and attempted to pull Moore and Cutrer away from Petitioner. 2RT 197; 3RT 290, 324-325, 422-423. Petitioner fought back for a few moments before she displayed a small revolver and fired two or more gunshots. 2RT 111-116, 197-198; 3RT 292, 302-304, 324, 326-328, 336, 407-408, 411, 512, 514-516; 4RT 590, 598. Cutrer was struck by the gunshots and fell to the ground, following which Moore ran away from Petitioner's car. 2RT 116, 200-201; 3RT 262-263, 292-293, 304-305, 328, 332, 336, 411-412.

         2. The Testimony by the Prosecution Witnesses About the Number and Nature of the Gunshots

         The following witnesses testified that Petitioner, after firing gunshots at Cutrer, also exited her car and fired additional gunshots at Cutrer, who lay wounded on the ground.

         a. Cutrer

         Cutrer testified that her last memory before losing consciousness after being shot by Petitioner (from inside the car) was seeing Petitioner exit the car and stand above her. 2RT 118-119.

         b. Thompsen

         Thompsen testified that after hearing two gunshots fired and seeing Cutrer fall to the ground as Moore ran away, she saw Petitioner get out of the car and fire two or three additional gunshots at Cutrer as she attempted to crawl away to safety. 3RT 295-303. Thompsen also testified to seeing Petitioner kick Cutrer and say, “Now what?” 3RT 302.

         c. Johnson

         Johnson testified that she saw Petitioner fire two or three gunshots, following which Cutrer fell to the ground. 3RT 327-334, 380. Johnson then observed Petitioner get out of her car and fire two more gunshots at Cutrer as she lay on the ground trying to “scoot away.” 3RT 332-334. She also recalled that it appeared as though Petitioner was speaking to Cutrer as she fired the final gunshots and that Cutrer's body seemed to “jerk” after the fourth or fifth shot, as if she had been struck by another bullet. 3RT 333-338.

         d. Sanders

         Sanders was twenty-five years old at the time of trial. 3CT 391. Sanders testified that she heard two gunshots and then saw Cutrer (her mother) lying on the ground. 3RT 408-409, 411. She then observed Petitioner get out of her car, stand over Cutrer, and fire three more gunshots. Sanders also saw Petitioner kick Cutrer and overheard her say, “Now what?” 3RT 411-412, 416-419, 430, 470.

         e. Moore

         Moore also testified that, after running away upon hearing the first two gunshots fired, she witnessed Petitioner fire several more gunshots at Cutrer, including three shots while Cutrer was lying on the ground. 3RT 518-519; 4RT 548-550; 5RT 618-619. Moore then observed Petitioner kick Cutrer and say, “What now?” or “Now what, bitch?” 4RT 551-554; 5RT 619.

         3. The Police Investigation

         The police investigation recovered a video recording of the incident from a nearby building, which the jury watched several times and that conclusively showed the initial attack by Moore and Cutrer, a gun firing, Cutrer lying on the ground, Petitioner getting out of her car, and Petitioner standing over Cutrer and kicking her and pointing a gun at her. 5RT 666-668. The manager of security at the nearby building from which the video footage was received, Derek Gaskin, testified to the events as he had seen them on all four videotapes that recorded footage of the incident. 5RT 703-714. Only one of which was saved permanently, however. 5RT 703-704. His testimony was entirely consistent with that footage presented to the jury in the one remaining video. 5RT 703-737.

         4. Defense Witnesses

         The defense theory at trial was that of self-defense-that Petitioner had fired only two, defensive gunshots from inside her car while she was under attack by Moore and Cutrer. 1RT 45-54; 4RT 542; 7RT 953-956, 971-974. The only witnesses the defense called to testify at trial in support of its theory were Hill and Handy.

         a. Hill

         Hill testified that she had been aware of the unpleasant encounter between Petitioner and Cutrer not long before the shooting occurred. 6RT 744-747. She also observed that Cutrer was upset prior to the time that she and Moore left the club, and she recalled Cutrer saying that Petitioner “was going to get hers.” 6RT 747-753, 768.

         b. Handy

         While Handy testified that only three gunshots were fired while Petitioner was still inside her car, her testimony nonetheless had inconsistencies and she made allegations that she had Thompsen “pinned” against Petitioner's car at the time the gunshots were fired, which the prosecutor told the jury in his closing argument was inconsistent with what the videotape showed. 6RT 785-787, 780, 848-849; see 7RT 984. Handy's credibility was challenged further when the prosecutor elicited admissions from her regarding her prior statements to a prosecution investigator. 6RT 811-816, 819-820, 827-829. Handy admitted that she told the investigator that she knew Petitioner had inherited a revolver from an uncle some time before the shooting, she had heard three gunshots while Petitioner was under attack by Moore and Cutrer, she had seen Petitioner get out of her car and kick Cutrer twice after firing the gunshots, and that Petitioner seemed “really angry” at the time. 6RT 811-820, 829, 831, 849-851, 853-859.

         5. Prosecution Rebuttal Evidence

         The prosecution called Tai Nguyen, the investigator for the Alameda County District Attorney's Office who had interviewed Handy, to testify regarding Handy's statements during their interview. 6RT 862-863. Nguyen testified that during this interview, Handy said the following: (1) she saw a gun in Petitioner's hand when Petitioner was attacked by Moore and Cutrer; (2) she tried to stop Thompsen from joining the attack by Moore and Cutrer by pinning Thompsen to a car; (3) she heard three gunshots during the incident; (4) she saw Petitioner standing over Cutrer after the shots were fired; and (5) she heard Petitioner say to Cutrer, “Bitch, I was about to leave.” 6RT 863-865.

         B. Procedural History

         1.Conviction, Sentencing and State Court Proceedings

         Petitioner's case was tried before a jury in the Alameda County Superior Court. She was represented by trial attorney Kellin Cooper, Esq. 1CT 8. As mentioned above, on March 21, 2013, the jury found Petitioner guilty of the lesser included offense of attempted voluntary manslaughter (count one), assault with a firearm (count two), and possession of a firearm by a felon (count three). 2CT 339-344; 7RT 1023-1026. The jury also found true the allegations of personal firearm use and personal infliction of great bodily injury on both counts one and two. 2CT 339-344; 7RT 1023-1026.

         On April 24, 2013, the trial court sentenced Petitioner to an aggregate prison term of ten years. The court stayed count two and the enhancements attached thereto, pursuant to California Penal Code § 654, and imposed a concurrent term for count three. 2CT 406, 425.

         On January 10, 2014, Petitioner challenged her convictions on direct appeal, and through her appellate counsel, Victoria H. Stafford, Esq., argued that errors in the jury selection process and at sentencing tainted her trial. Dkt. 13-13 at 3-32, 63-72.[4] On August 14, 2014, the California Court of Appeal affirmed Petitioner's convictions, but remanded to the trial court to correct sentencing errors concerning counts two and three. Dkt. 13-13 at 74, 80; People v. West, No. A138978, 2014 WL 3960044, *1-4 (Aug. 14, 2014).

         On September 16, 2014, Petitioner filed a petition for review in the California Supreme Court, which reiterated Petitioner's prior claim of error in the jury selection process. Dkt. 13-13 at 83-99. On October 22, 2014, the California Supreme Court summarily denied review. Dkt. 13-13 at 102.

         On November 26, 2014, the trial court resentenced Petitioner to correct its prior sentencing errors as to counts two and three. Dkt. 13-13 at 108.

         On November 25, 2015, Petitioner filed a state habeas petition in the Alameda County Superior Court, asserting multiple trial errors and related claims of ineffective assistance of trial and appellate counsel for failure to challenge properly the trial court's errors. Dkt. 13-13 at 111-125. On January 25, 2016, the state superior court denied the petition as untimely, adding that even if not procedurally barred, the petition failed to state a prima facie case for relief. Dkt. 13-13 at 127-128.

         On March 16, 2016, Petitioner filed a state habeas petition in the California Supreme Court, which reiterated the prior claims of ineffective assistance of counsel and further argued that she timely presented such claims to the Alameda County Superior Court. Dkt. 13-13 at 130-148. On May 18, 2016, the California Supreme Court denied the petition “on the merits, ” citing to Harrington v. Richter, 562 U.S. 86, 99-100 (2011), and Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Dkt. 13-13 at 150.

         2. Federal Court Proceedings

         On June 6, 2016, Petitioner filed the instant petition, in which she raised her claims of ...


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