United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
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.
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.
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). The Fifth DCA affirmed
the judgment on February 3, 2016. Id.
then filed a petition for review in the California Supreme
Court. (LD 20.) The petition was summarily denied on
April 20, 2016. (LD 21.)
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.)
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.
Court adopts the Statement of Facts in the Fifth DCA's
A. Prosecution facts relating to counts 1 through
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
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
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
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.
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
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.
Legal Standard of Review
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.
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).
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.
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.
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).
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).
Review of Claims
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.
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.
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.
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.
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.
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
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
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
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.
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
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.
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).
Use of False Testimony
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.
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.
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.
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.
Ineffective Assistance of Counsel
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.
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