United States District Court, N.D. California
SHEILA I. WEST, Petitioner,
DERRAL ADAMS, Acting Warden, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND
DENYING CERTIFICATE OF APPEALABILITY
GONZALEZ ROGERS United States District Judge.
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
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.
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
instant habeas action, Petitioner challenges her
aforementioned conviction and her resulting ten-year
sentence. See Dkt. 1.
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.
Introduction and Generally Agreed-Upon Background
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.
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.
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.
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.
The Testimony by the Prosecution Witnesses About the Number
and Nature of the Gunshots
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.
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
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
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.
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.
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.
The Police Investigation
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
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.
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.
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,
Prosecution Rebuttal Evidence
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.
Sentencing and State Court Proceedings
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.
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.
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. 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,
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
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.
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.
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.
Federal Court Proceedings
6, 2016, Petitioner filed the instant petition, in which she
raised her claims of ...