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Newsome v. Paramo

United States District Court, E.D. California

February 20, 2018

KEVIN DEVON NEWSOME, Petitioner,
v.
D. PARAMO, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE

         Petitioner is currently serving a 54-year sentence in state prison for multiple convictions related to a jewelry store robbery in Bakersfield, California. He filed the instant habeas action challenging the conviction and sentence. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         On May 22, 2013, Petitioner was found guilty in the Kern County Superior Court of: attempted murder (Cal. Penal Code §§ 664/187(a)); second degree robbery (Cal. Penal Code §§ 211/212/5(c)); assault with a firearm (Cal. Penal Code § 245(a)(2)); and unlawful possession of a firearm by a felon (Cal. Penal Code § 29800(a)(1)). People v. Newsome, 2016 WL 409787, at *1 (Cal.Ct App. 2016). The jury found true enhancements that Petitioner personally and intentionally discharged a firearm (Cal. Penal Code § 12022.53(c)), and personally used a firearm (Cal. Penal Code § 12022.5(a)). Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA affirmed the judgment on February 3, 2016. Id.

         Petitioner then filed a petition for review in the California Supreme Court. (LD 20.[1]) The petition was summarily denied on April 20, 2016. (LD 21.)

         On June 22, 2013, Petitioner next filed a petition for writ of habeas corpus in the Kern County Superior Court. (LD 22.) The petition was denied on August 16, 2013. (LD 23.) He filed another habeas petition in the Kern County Superior Court on September 25, 2013, and that petition was denied on December 16, 2013. (LD 24, 25.)

         On July 24, 2017, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. 1.) Respondent filed an answer on December 19, 2017. (Doc. 13.) Petitioner did not file a traverse.

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:

A. Prosecution facts relating to counts 1 through 10.
On September 13, 2012, three masked men entered the Southwest Coins & Jewelry store in Bakersfield, California. The owners, Douglas and Katharina Jarvi, were present, along with four customers. Suspect 1, later identified through fingerprint analysis as appellant, held a raised handgun. Appellant yelled for everyone to get down. Katharina testified that appellant's gun was pointed towards the back of the store and not at anything in particular. She described appellant as “tall and slim.” She laid down behind a display case and she did not see anything further. She activated the store's alarm system from a panic button she carried.
Douglas testified he was aware that appellant held a gun, but believed appellant panned or waved it around without pointing it directly at anyone. As the intruders walked into the middle of the store, Douglas ran towards the back, pulling out a .22-caliber pistol from his pocket. An intruder (suspect 2) chased after Douglas, jumping over a back glass counter to reach him. [FN2.] Appellant followed closely behind and touched that glass counter with his bare left hand. Douglas fired a single shot at suspect 2 at close range, but the shot missed. Suspect 2 grabbed the gun from Douglas's hand, threw Douglas to the ground, and jumped back across the counter. Douglas went into a back storage area where he kept another gun, a .38-caliber revolver. He retrieved it and peeked back into the showroom. An intruder (suspect 3) was hammering at a glass case near the front door while appellant and suspect 2 stood nearby. Three customers lay on the ground while a fourth customer stood frozen near a display case away from the intruders. Near the front door, appellant raised his gun and fired twice at Douglas, who returned two shots. No. one was struck. Suspect 3 broke open the case and grabbed a tray of diamond rings worth approximately $30, 000. The intruders fled.
[FN2.] Appellant was tried concurrently with his codefendant, Randon McQuiller, who was also charged in counts 1 through 10. It was the prosecution's theory that McQuiller was suspect 2. The jury could not reach a unanimous agreement regarding the charges against McQuiller and a mistrial was declared as to him. The third suspect was not involved in this trial.
Douglas called 911. Neither Douglas nor Katharina saw any of the intruders' faces and neither could identify anyone from photographic lineups. The robbery lasted less than a minute and was recorded by the store's surveillance system, which was played for the jury. Upon viewing the video, law enforcement tested for fingerprints the area where suspect 1 had touched the glass. A useable print was located in that area, which was an exact match to appellant's left ring finger and partial left palm print. The prints were consistent with the video where suspect 1 placed his left hand on the glass countertop.
After appellant's fingerprints were discovered, law enforcement asked Douglas and Katharina if they knew why appellant's prints would be there, but they did not know. Neither Douglas nor Katharina recalled ever seeing appellant in their store before the robbery. At trial, Douglas estimated that around 50 customers entered the store on a daily basis, and he recalled that Katharina cleaned the glass cases the night before the crime. Katharina testified that she was “99 percent” certain and “pretty sure” she had wiped down the glass counters the night before the robbery. The prosecution's fingerprint expert noted that latent fingerprints could remain on a glass surface for many years without any cleaning.
Jonathan Villegas was in the store with his girlfriend, Michelle Mendez, and his young child, Victor Villegas. Jonathan heard a commotion from the store's door and turned to look. He saw someone pointing a gun at him, and he heard, “Get on the ground.” Jonathan laid down, covering his son while Mendez laid down next to them. Jonathan was unable to identify any of the intruders.
Peggy Dodge was in the store when the robbery occurred. She remained standing during the crime, including as shots were fired. She later told a law enforcement officer that she froze during the events. The officer described Dodge's demeanor afterwards as “physically upset or shaken.”
A few hours after the robbery, Bakersfield police received a 911 call from Ebone King, the girlfriend of codefendant Randon McQuiller, who also participated in the call. McQuiller reported that he had been shot during a dice game and he was driving to a particular hospital. King said he was driving a silver Buick Regal.
Police arrived at the hospital shortly thereafter but were unable to locate McQuiller. Police located and seized his silver Buick Regal, which contained his wallet. Based on surveillance video, police knew that a silver four-door vehicle was used in the robbery, but they could not determine a license plate number, or determine the year, make or model of the vehicle involved.
The morning after the robbery, police located items from the robbery in a dumpster near a Starbucks. Three black ski masks, five gloves, a white shirt with blue sleeves, dark blue pants, a black T-shirt, and the price tags from the stolen jewelry were recovered. The blue-and-white shirt still had a price tag on it, which allowed police to identify where it was purchased, which was from a clothing store directly across the street from the jewelry store. Police learned that McQuiller purchased that shirt, as well as three black ski masks, on the day of the robbery. Video recorded McQuiller in the clothing store as he made the purchases, which was played for the jury. A detective opined that the blue-and-white shirt which McQuiller purchased was the same shirt worn by suspect 2 in the video from the robbery.
B. Facts relating to counts 11 and 12.
Appellant was arrested the day after the robbery at a convenience store in Bakersfield. He had arrived at that location as a passenger in a vehicle, riding in the back seat. [FN3.] Appellant was with Christopher Davis, who was arrested along with appellant. After the arrests, police searched the vehicle and located two firearms hidden under the trunk liner, which were not linked to the robbery. One of the weapons, a revolver, had been stolen approximately three days before from the residence of Cecil and Rose Tackett. Surveillance video showed that appellant had accessed the trunk in the parking lot prior to his arrest.
[FN3.] At the preliminary hearing, a law enforcement officer had opined that appellant drove this vehicle based on a review of surveillance video.
The Tacketts testified at trial regarding the burglary of their home. On the morning of their burglary, Rose was working at her place of business, which is located close to her home, and she saw three men walking down an alley towards her residence. The three individuals were of three different sizes, with one being “really tall” and “pencil skinny.” About thirty minutes later, she saw the three men returning in the alley carrying items, including a box that she recognized from her home. She went home a short time later and confirmed that her home had been burglarized. Law enforcement subsequently showed photographic lineups of potential suspects to both of them, but neither Cecil nor Rose were able to identify anyone. In court, neither Cecil nor Rose were able to identify either appellant or McQuiller as individuals who may have been involved in the burglary of their home.
Approximately two weeks after the jewelry store robbery, police searched Davis's house. The search was prompted by a recorded jail call between appellant and an unknown female, who referred to “something” being found at “somebody's” house. Appellant responded that it did not matter because his stuff was at “Chris mama house.” The search of Davis's home yielded nothing of significance.
C. Defense evidence.
Appellant rested following the prosecution's case. McQuiller provided a defense and testified on his own behalf. He explained that he purchased the ski masks and shirt at the request of a friend, known to him as Mississippi, on the day of the robbery while Mississippi waited outside the clothing store. McQuiller said Mississippi wanted “beanies” but Mississippi said he was okay with the ski masks as a substitute. McQuiller and Mississippi parted ways, and Mississippi took the shirt and ski masks. McQuiller went to several smoke shops and the mall, and then eventually to the hospital. He said he was high that day, and he could not recall why he drove to the hospital. McQuiller denied knowing appellant, but admitted knowing Davis and spending time with Davis's brother. The prosecutor confronted McQuiller with telephone records indicating that McQuiller was in phone contact with Davis's brother just after McQuiller purchased the ski masks. McQuiller said he could not recall whether he contacted Davis's brother that day or not.

Newsome, 2016 WL 409787, at *1-3.

         III. DISCUSSION

         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         C. Review of Claims

         The petition presents the following nine grounds for relief: 1) The evidence produced at trial was insufficient to establish his identity as perpetrator of the crimes; 2) The prosecution knowingly presented false evidence; 3) Defense counsel was ineffective and wholly incompetent; 4) Defense counsel violated Petitioner's constitutional rights by failing to dismiss a juror that had information not introduced a trial; 5) The evidence was insufficient to support the assault with a firearm conviction; 6) The trial court's denial of a motion to sever was erroneous and prejudicial; 7) The trial court committed prejudicial error by instructing the jury on flight; 8) The trial court committed prejudicial error by failing to instruct the jury on brandishing a weapon as a lesser included offense of assault with a deadly weapon; and 9) The trial court violated Petitioner's rights under the Fourteenth Amendment during sentencing.

         1. Insufficient Evidence

         Petitioner claims his conviction is based solely upon his fingerprints being found inside the jewelry store. He alleges this evidence was insufficient to sustain his conviction. He claims that the fingerprint evidence merely established that he had left a print there, but it was not established when those prints were left. He states he had been to that store on two prior occasions. He points to the fact that other prints were discovered in the same vicinity, and that his prints were not found anywhere else in the store despite having placed his hand on various objects. He also claims that he has tattoos on his forearms and wrists, but the surveillance video showed the entire left arm of the perpetrator without tattoos.

         Petitioner raised this claim on state habeas to the Kern County Superior Court. He did not however raise it to the California Supreme Court. Respondent correctly argues that the claim is unexhausted and must be dismissed. Nevertheless, the claim may be denied on the merits if Petitioner has failed to present a colorable federal claim. 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In this case, Respondent is correct that Petitioner's insufficiency of the evidence claim is not colorable and should be denied.

         a. Legal Standard

         The law on sufficiency of the evidence is clearly established by the United States Supreme Court. Pursuant to the United States Supreme Court's holding in Jackson v. Virginia, 443 U.S. 307, the test on habeas review to determine whether a factual finding is fairly supported by the record is as follows: “[W]hether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Thus, only if “no rational trier of fact” could have found proof of guilt beyond a reasonable doubt will a petitioner be entitled to habeas relief. Jackson, 443 U.S. at 324. Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16.

         If confronted by a record that supports conflicting inferences, a federal habeas court “must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).

         After the enactment of the AEDPA, a federal habeas court must apply the standards of Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In applying the AEDPA's deferential standard of review, this Court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986).

         In Cavazos v. Smith, 565 U.S. 1 (2011), the United States Supreme Court further explained the highly deferential standard of review in habeas proceedings, by noting that Jackson

makes clear that it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was “objectively unreasonable.”
Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.

Id. at 2-3.

         b. Analysis

         Respondent argues Petitioner fails to present a colorable claim. The Court agrees. After viewing the evidence in the light most favorable to the prosecution, it is clear that a rational trier of fact could have Petitioner was in fact one of the perpetrators.

         Surveillance video of the crime showed a suspect place his bare left hand on a glass counter at the back of the store. (RT 658-61.) The crime scene technician retrieved a latent fingerprint and partial palm print from the same location shown in the video. The fingerprint and palm print matched Petitioner's left ring finger and left palm. (RT 661-65, 673, 686, 693, 767-71, 776-77.) The surveillance video also showed that no other person touched the glass counter in that area that entire day. (RT 695.) When the owners were questioned, they stated they had not seen Petitioner in their store before. (RT 478, 480, 528-29, 933, 958-59.) Douglas Jarvi, one of the owners, recalled that his wife, Katharina Jarvi, had cleaned the glass cases the night before the crime. (RT 467, 490.) Katharina Jarvi testified she was 99 percent sure she had wiped down the glass counters the night before the crime. (RT 525, 532.) Based on this evidence and the inferences that could be drawn therefrom, a rational factfinder could have determined that Petitioner was one of the suspects.

         To the extent that Petitioner argues that other evidence supported his claim that he was not one of the perpetrators, the Court must assume that the jury resolved these conflicting facts in favor of the prosecution. Jackson, 443 U.S. at 326. The reviewing court “must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict.” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).

         2. Use of False Testimony

         Petitioner next claims the prosecutor committed misconduct by knowingly presenting false evidence. He asserts that the prosecutor elicited false testimony from lead Detective Toler as well as another Bakersfield Police Officer that Petitioner was the driver of the vehicle that was seized on September 14, 2012. Petitioner complains that this false information led to two additional charges because a search of the vehicle revealed two firearms. After Petitioner was set for trial, the prosecution advised the court that they had been under the false assumption that the petitioner was the driver when video showed he was in fact a rear passenger. The prosecution then used the two firearms to connect Petitioner to an unrelated burglary in which one of the firearms was stolen, and thus paint Petitioner in a negative light. Petitioner also complains that the prosecutor elicited testimony from the detective that his fingerprints were recovered from behind the victims' counter tops when in fact they were recovered from on top of the counter top, which is more accessible to the public.

         Like the first claim, Petitioner only presented this claim to the Kern County Superior Court. It is therefore unexhausted. Nevertheless, because the Court agrees that Petitioner fails to present a colorable claim, the Court will recommend it be denied on the merits.

         a. Legal Standard

         “[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976); Napue v. Illinois, 360 U.S. 264 (1959). So must a conviction obtained by the presentation of false evidence. See United States v. Bagley, 473 U.S. 667, 678-80 nn.8-9 (1985). In Napue, the Supreme Court held that the knowing use of false testimony to obtain a conviction violates due process regardless of whether the prosecutor solicited the false testimony or merely allowed it to go uncorrected when it appeared. Id. at 269. The Court explained that the principle that a State may not knowingly use false testimony to obtain a conviction - even false testimony that goes only to the credibility of the witness - is “implicit in any concept of ordered liberty.” Id. In order to prevail on such a due process claim, “the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003), cert. denied, 540 U.S. 1208');">540 U.S. 1208 (2004). Nevertheless, simple inconsistencies in testimony are insufficient to establish that a prosecutor knowingly permitted the admission of false testimony. United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir.1995). “Discrepancies in . . . testimony . . . could as easily flow from errors in recollection as from lies.” Id.

         b. Analysis

         Respondent is correct that Petitioner fails to present a colorable claim under Napue. His claims are unsupported by evidence, and he fails to point to anywhere in the record where officers allegedly provided false testimony. Moreover, he fails to show that any testimony was actually false, that the prosecution knew or should have known that any testimony was false, that the prosecution knowingly permitted false testimony, and that the false testimony was material. The claim is conclusory and should be rejected.

         3. Ineffective Assistance of Counsel

         In grounds three and four, Petitioner alleges that defense counsel was ineffective and incompetent in the following ways: 1) By permitting the prosecution to present false evidence when the prosecutor stated that Petitioner was the driver of the vehicle seized on September 14, 2012; 2) By failing to present his alibi witness who would have stated he was with her during the time of the crime; 3) By failing to dismiss a juror that had preexisting knowledge about the case; 4) By submitting letters to the court that were provided by Petitioner's family and friends asking the court to show mercy at sentencing; 5) By failing to present evidence of the tattoos on Petitioner's hands and forearm; 6) By neglecting to hire an investigator to look into his alibi defense; 7) By representing Petitioner despite having a conflict of interest after having represented Petitioner's brother; 8) By failing to consult or retain an expert witness concerning the fingerprint evidence.

         Like the previous claims, Petitioner only presented this claim to the superior court. It is therefore unexhausted and subject to dismissal. Nevertheless, the Court will address the claims ...


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