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Armstrong v. Lizarraga

United States District Court, E.D. California

July 18, 2019

DAMARCUS V. ARMSTRONG, Petitioner,
v.
JOE A. LIZARRAGA, Respondent.

          MEMORANDUM OPINION AND ORDER

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties (ECF Nos. 10 and 11), this case is before the undersigned judge for all purposes, including entry of a final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner's petition for a writ of habeas corpus (ECF No. 1) and respondent's answer (ECF No. 13).

         I. BACKGROUND

         A. Facts[1]

         Findings of fact in the last reasoned state court decision are entitled to a presumption of correctness, rebuttable only by clear and convincing evidence. See Runningeagle v. Ryan, 686 F.3d 759 n.1 (9th Cir. 2012). The California Court of Appeal, First District, recited the following facts, and Petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

Osby was killed because his ex-girlfriend's family believed he stole their video game console and laptop computer. Osby lived with his girlfriend Tina Odem at her mother's house for several months before the couple separated around April 2011. A video game console and laptop were discovered missing on the day Osby moved out and the residents of the house suspected that Osby stole the items.
The Fairfield house had many residents, including Tina Odem, Tina's mother Ryan Odom[2] and Ryan's brother Frank Bigoski. Also resident were Janiel Miller and Jennifer Whittington. Khalil Askari-Roberts, Ryan's boyfriend, was frequently at the house and defendant moved into the house as Tina's boyfriend shortly after Osby departed. These seven individuals were charged with Osby's torture and killing. Tina, Ryan and Bigoski were tried separately from defendant and convicted.[3] The other three entered pleas, two of whom-Miller and Whittington-testified as prosecution witnesses.
Miller and Whittington testified that Ryan decided to take action against Osby when she heard from a mutual friend that Osby tried to sell electronic equipment matching the description of property taken from her house. Whittington testified that Ryan said she “just wanted to talk” to Osby. Miller testified that Ryan told several house residents, including defendant, that Ryan wanted to “get him back.” Ryan said she wanted to question Osby about stealing the electronics and “if he lies” and denies the theft, she would “slap him.”
Ryan asked Whittington to lure Osby to the house by inviting him to join a “lick, ” or burglary. Whittington telephoned Osby with the fake offer and he agreed to come to the house. Osby arrived at the house on the afternoon of May 12, 2011.[4] Osby was greeted cordially and led to a converted garage used as a “hangout room” for smoking.
Present in the room were Osby, defendant, Ryan, Tina, Bigoski, Whittington and Askari-Roberts. Whittington closed the door to the smoking room with the group assembled inside. Whittington testified that Ryan punched Osby as soon as the door was closed. Osby stumbled backward into a corner where Ryan, Tina and Askari-Roberts hit and kicked him. Osby fell to the floor and Ryan stood over him, kicking and yelling at him. Defendant, Bigoski and Askari-Roberts stood near Osby's head and Tina near his feet. Referring to the missing video game console, Ryan yelled “You want to steal from my kids?” Osby said he “didn't do it.” Whittington saw “a little bit of blood on the floor.” She ran from the room and stayed away for five to ten minutes to “get a grip” on her emotions.
Miller testified he was in the laundry room when he heard a loud “commotion” coming from the smoking room next door. Miller entered the room around the time Whittington left it. Upon entering the room, he saw Osby on top of Ryan. Others began grabbing Osby and pulling him off Ryan. Soon Osby was on the floor “being beat up.” Defendant and Askari-Roberts held down Osby while Ryan kicked him in the side numerous times. Ryan asked Osby, “Why are you lying to me? Why would you steal from me? Why would you take from my kids? That was their Christmas present.” Osby responded, “I didn't do it, Mom. . . . I love you guys. You already know I love you and I wouldn't do anything like that to you.”[5]
Osby struggled from the floor and managed to free himself momentarily from the grip of defendant and Askari-Roberts. The two men regained their grip on Osby and held him down on a couch. Bigoski left the room and returned with a bat, which he used to strike Osby. Bigoski swung a second time and accidentally hit Ryan. Ryan told Bigoski to “get rid of the bat, you stupid motherfucker” and he did so. At this point, Osby ran toward the window. Askari-Roberts grabbed him from behind and Osby landed on a bed. Osby continued to struggle. Osby was very strong and, according to Miller, could not have been subdued by any one person in the room. Defendant, Askari-Roberts, Bigoski and Miller each held one of Osby's limbs to keep him pressed to the bed.
Miller heard someone say “go get the tape.” Tina left the room and returned with duct tape. Osby began “freaking out” and asked, “What the fuck is wrong with you all?” He implored Ryan, “Come on, mom. You know I would never do nothing like this. Mom, what's wrong with you?” Ryan started crying and defendant told her she was “getting way too emotional” and should leave the room. Ryan left the room with her boyfriend, Askari-Roberts.
With Osby face down on the bed, defendant taped together Osby's wrists behind his back. Defendant then handed the tape to Bigoski. Bigoski taped Osby's legs together. Defendant and Bigoski then hog-tied Osby by bending his legs at the knees, pushing his bound legs upward and joining Osby's legs and arms together. Defendant also taped Osby's mouth shut.
Osby was moved from the bed to the floor where he managed to break the hog-tie linking his hands and feet. Osby sat with his back to the couch, “wiggled” the tape off his mouth and asked, “Can you just take this tape off my face?” Bigoski removed the tape from Osby's face. It looked to Miller like Osby had a broken nose. Osby said “I don't know what's wrong with you all. You all know I didn't do none of this. This is wrong.”
Defendant sat near Osby and said, “just tell us where it's at.” Defendant held a revolver to Osby's head and repeated the question. Miller and Whittington testified that defendant regularly carried a revolver, which defendant called “Stella.” According to Miller, defendant secretly removed the revolver's bullets before pressing it to Osby's head. Osby, thinking the gun was loaded, “freak[ed] out” and said to defendant “come on, man, it doesn't have to be like this man. Come on man, I didn't take it.” Defendant pulled the trigger and told Osby “you better tell us where it's at because if you don't, I got one in here.” Osby insisted “I didn't do it.” Defendant, with his revolver and bullets in hand, told Bigoski and Miller to watch Osby until he returned and walked from the room.
Whittington testified that defendant and Ryan left the house to walk to a taxi company where Askari-Roberts worked. Fairfield Taxi is 0.3 miles from Ryan's house. It was stipulated that Askari-Roberts was working at Fairfield Taxi that night from 9:00 p.m. p.m. until 4:00 a.m. the following morning. Whittington testified that, before leaving the house, Ryan told her to stay out of the room because she is “too sensitive” and does not “know how to act.” Whittington returned to the room anyway. In the room, at that time or shortly after, were Bigoski, Miller, Tina, another daughter of Ryan, and Osby. Osby was sitting on the floor leaning on a couch with his ankles and wrists bound with blue tape. Osby was hurt. “His nose looked like it had been broken. There was blood on his face, and his eye was swollen, like almost shut.” Osby asked to be set free. “He was saying that he just wanted to see his son, that he wouldn't tell nobody.” Whittington testified that Bigoski told Osby defendant was in charge and Bigoski was “just following orders.” Miller testified that Bigoski said “I don't want to get killed” and Osby had to wait for defendant to return to “see what he says.” Whittington gave Osby a drink of water and held a cigarette for him to smoke. Tina told Whittington that she was a “punk” and “being too nice.” Tina telephoned Ryan and Ryan, over the telephone, told Whittington “Get out of the room.” Whittington obeyed.
Miller remained in the room until defendant returned. Defendant entered the room from the direction of the carport. Defendant told Bigoski to help him carry Osby from the room and he did so. Tina asked to go with defendant and he told her “No, I don't want you to be a part of this.” Defendant also declined Bigoski's offer to go along, saying “I got it.” Miller was unsure of the time of day when defendant left the house with Osby. Miller said it was dark outside and estimated it may have been about two hours after sunset. Sunset occurred at 8:10 p.m.[6] Osby was alive when taken from the house, according to Miller.
Around 11:30 p.m., a Mason attending a ceremony in Vallejo saw a white van or SUV drive through the Masonic lodge parking lot.[7] A resident living near the lodge heard a gunshot at 11:30 p.m. or midnight. The next morning, the resident saw a dead man lying on the lodge grounds. The man, later identified as Osby, “was bound. His arms were tied behind his back and he was blindfolded. He looked like he had a gunshot to his head.”
A police officer responded to the scene and he summoned paramedics who pronounced Osby dead. The paramedics apparently tried to provide some aid to Osby because police photographs show “medic pads” affixed to Osby's abdomen. A detective and other officers arrived after the paramedics departed, including Sergeant Mark Nicole who collected evidence. Nicole testified that Osby had a T-shirt tied around his head “in a blindfold style.” His hands were bound behind his back at the wrist with blue painter's tape. His ankles were not bound but there were remnants of tape on his pant legs. There was also an adhesive residue around his mouth. After the deputy coroner arrived on the scene, the blindfold was removed and Osby was observed to have a bullet hole in his head. Osby's nose and mouth were bloody, the area around his left eye swollen, and his shoulder bruised.
Nicole testified “there were two distinct areas of blood. One area was directly beneath [Osby's] head where the body was resting, and then about two and a half feet” uphill from the body near his legs “was a smaller area of blood droplets.” There was a trail of blood between the droplets and blood pool where Osby's head lay. Nicole testified that the blood trail must have originated at the location of the droplets and ran downhill because “fluids . . . don't flow uphill.” Nicole opined that Osby was standing or kneeling at the uphill location of the blood droplets, fell over when shot, and his head came to rest where the blood pool formed.
The forensic pathologist who performed an autopsy testified that Osby died from a gunshot wound to the head and blunt force trauma to the torso. She ruled both injuries a cause of death because “they occurred within a very short period of time, and either alone would have killed him.” She was unable to say “whether or not Mr. Osby was alive or dead at the time he was shot.”
Osby was alive when he was bound. His wrists were crossed and tightly bound together behind his back with “multiple revolutions of blue-colored duct tape” that obstructed the flow of blood and caused his hands to swell. Osby had multiple bruises and abrasions, including a “railroad track injury” of two parallel contusions “with an area of central pallor” consistent with a blow from a pipe or baseball bat. He suffered massive internal bleeding around his kidneys and pancreas. Such injuries can be inflicted by a vehicular collision and, if “due to an altercation, it would probably be the deceased being kicked.” The internal injuries were sufficient to kill him. The pathologist was uncertain how long one could live after sustaining those injuries but opined one would die “within a couple of hours.”
Osby had one gunshot wound, which entered the crown of his head one-half inch left of the midline. The bullet traveled from “left to right, back to front, and downward” and lodged at the base of his skull. There were no burns, soot or gun powder stippling on the skin surrounding the entry wound, indicating that the gun was fired at least three feet from Osby's head.
In the course of their investigation, the police obtained defendant's cell phone records. The records show, in summary, that defendant's cell phone traveled from Fairfield to Vallejo, was in Vallejo at the time of the reported shooting, and returned to Fairfield. A custodian of the records testified that defendant's cell phone made and received several calls from Fairfield on May 12, 2011 from 8:37 to 9:51 p.m. At 11:42 p.m., defendant's phone made an outgoing call from Vallejo of almost three minutes duration. Two additional calls were completed in Vallejo then, at 12:03 a.m., a call was received in Fairfield. Another call was received in Fairfield at 12:33 and relayed by a cell tower near Fairfield Taxi. The day after Osby's body was discovered in Vallejo, a text from defendant's phone read “only for a couple days, it's leave or go to the pen for 25-plus.”
The police searched Fairfield Taxi and found traces of blood on the carpet of one of their vans. A criminologist compared DNA taken from the blood stain to Osby's DNA and concluded that Osby “cannot be excluded as a substantial contributor” and “one in every 51 ...

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