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Franklin v. Diaz

United States District Court, S.D. California

July 19, 2019

D'MARE ATTE FRANKLIN, Petitioner,
v.
RALPH DIAZ, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER DENYING HABEAS CORPUS PETITION [ECF No. 1]

          HONORABLE LINDA LOPEZ, UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is submitted to United States District Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California.

         On December 10, 2018, Petitioner D'Mare Atte Franklin, a state prisoner proceeding pro se, commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. ECF No. 1 (“Pet.”). Petitioner challenges his conviction for attempted murder. Pet. at 1; Lodgment 11-15 at 6-9. On February 15, 2019, Respondent filed an Answer. ECF No. 10. On March 8, 2019, Petitioner filed a Traverse. ECF No. 12. The Court has considered the Petition, Answer, Traverse, and all supporting documents filed by the Parties.

         For the reasons set forth below, the Court RECOMMENDS Petitioner's Petition for Writ of Habeas Corpus be DENIED.

         FACTUAL BACKGROUND

         The following facts are taken from the California Court of Appeal's opinion in People v. Franklin [Lodgment 11-26 at 38-60]. Absent clear and convincing evidence to the contrary, the Court gives deference to the state court's factual determinations and presumes them to be correct. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

Franklin and C. arrived at a La Mesa bar around 12:30 a.m. on a June night. They had already imbibed several drinks at C.'s apartment. C., a “regular, ” greeted the bartender and introduced Franklin as his out-of-state cousin. Franklin came across to the bartender as “a little confrontational.” Another patron later characterized him as “aggressive in the way he spoke” and “like he was ready to start something.”
Franklin and C. hung around by the bar and roughhoused with each other a little before leaving briefly to get pizza from a nearby convenience store. They returned with their pizza and played a game of pool. The roughhousing continued. At one point, the bartender intervened, telling them to “take it down a notch.”
As Franklin and C. were playing pool, Terry B. and Jamar B. pulled their car into the bar's parking lot. Terry had spoken to C. on the phone a few minutes prior and knew that C. was at the bar. Terry went inside and greeted C. with a high five. Franklin offered a high five as well but Terry rebuffed him, saying something along the lines of “mind your business.” Franklin retorted that they could “fade, ” meaning fight.
Franklin and Terry went outside, ostensibly to “fade, ” but no punches were thrown. There was just a lot of yelling and commotion. However, while they and others were reentering the bar, someone-it was unclear whom-hit Franklin from behind.
Back inside the bar, Franklin made several phone calls. He dialed his brother, girlfriend, and mother. His brother called back and they spoke briefly. Terry grew suspicious when he saw Franklin on the phone and asked him if he was calling someone to get the “heat, ” referring to a gun. Franklin did not respond. Terry's suspicions were not wholly off base. At trial, Franklin testified that his brother gratuitously said he was bringing his gun.
Terry went outside to find Jamar so they could leave. As they approached their car, Franklin emerged from the bar. He yelled that he was “ready to fight.” Terry turned and advanced towards Franklin. For several minutes, Franklin and Terry took turns charging at and retreating from each other, but not making contact. Eventually the posturing subsided, and Jamar and Terry got into their car.
Terry backed out of the parking space and began driving toward the parking lot's exit, as Franklin's brother arrived. Franklin bounded around the front of his brother's car to the driver's side and retrieved a gun. He fired four to five rounds at Terry and Jamar's departing vehicle, lodging one bullet in its trunk. As Terry and Jamar's car turned out of the parking lot, Franklin ran after it, hopping down to a lower-level sidewalk and firing five to six more rounds.
Franklin darted back to his brother's vehicle and stowed the gun in the passenger side as a police car pulled into the lot. Franklin ran. The police gave chase, and Franklin tried to evade them, hurdling a fence before reversing course and jumping back over the same fence. Eventually he slowed to a walk and was stopped. While detained, Franklin stomped on his cellphone, calling it a “piece of crap.”
The police collected 10 spent firearm casings from the bar's parking lot and the nearby area. A gun registered to Franklin's brother was later found in the San Diego harbor. Nine of the casings were matched to it.
Franklin was charged with four counts: attempted murder of Terry (§§ 664, 187, subd. (a); count one); attempted murder of Jamar (§§ 664, 187, subd. (a); count two); assault on Terry with a semiautomatic firearm (§ 245, subd. (b); count three); and assault on Jamar with a semiautomatic firearm (§ 245, subd. (b); count four). The case proceeded to trial by jury.
At trial, Franklin took the stand in his own defense. According to Franklin, earlier that day tension arose between Terry and him during a conversation at C.'s apartment; Terry had warned, “I'll be back.” Franklin was shocked to later see Terry arrive at the bar. He denied challenging Terry to “fade.” Franklin testified that he thought Terry was armed and that Terry threatened to kill him. He also testified that after he was punched from behind, he turned and saw Terry. When he fired the gun, Franklin was afraid for his life and wasn't “trying to do anything … besides scar[e] them away from [him].” Franklin also repeatedly testified that he was drunk.
The court instructed the jury on premeditated and deliberate attempted murder (CALCRIM Nos. 600, 601), attempted voluntary manslaughter based on heat of passion (CALCRIM No. 603), attempted voluntary manslaughter based on imperfect self-defense (CALCRIM No. 604), self-defense (CALCRIM No. 505), and voluntary intoxication (CALCRIM No. 625).
The jury convicted Franklin of willful, deliberate, and premeditated attempted murder of Terry and both assault counts. It further found that, with respect to the attempted murder conviction, Franklin personally discharged a firearm within the meaning of section 12022.53, subdivision (c), and with respect to the assault convictions, Franklin personally used a firearm within the meaning of section 12022.5, subdivision (a). As to the second count, the jury acquitted Franklin of the attempted murder of Jamar (§§ 664, 187, subd. (a)), but hung as to the lesser included offense of attempted voluntary manslaughter (§§ 664, 192, subd. (a)). After the court declared a mistrial as to that lesser included offense, the People dismissed the count.
Franklin subsequently moved to reduce his premeditated and deliberate attempted murder conviction to one of attempted voluntary manslaughter or, in the alternative, to have the section 189 premeditation and deliberation finding set aside. The court denied the motion and proceeded to sentencing. For the attempted murder conviction, Franklin was sentenced to an indeterminate life term with a consecutive determinate 20-year term based on the firearm enhancement. For the assault on Jamar, he was sentenced to a concurrent term of six years, plus four years for the firearm enhancement. The sentence for the assault on Terry-also six years, plus four years for the firearm enhancement-was stayed pursuant to section 654.

         Lodgment 11-26 at 39-43.

         PROCEDURAL BACKGROUND

         I. Appeal and Petition for Writ of Habeas Corpus to the California Court of Appeal

         On April 4, 2017, Petitioner filed an Appellant's Opening Brief in the California Court of Appeal, Fourth Appellate District, Division One (“California Court of Appeal”) asserting: (1) his due process and Sixth Amendment rights were violated by the trial court's response to a jury question regarding the burden of proof for heat of passion attempted manslaughter; and (2) his Sixth Amendment rights were violated when his trial counsel failed to object to the trial court's response or ask that the jurors be instructed with a modified version of CALCRIM No. 522 on provocation. See Lodgment 16. On April 4, 2017, Petitioner filed a Petition for Writ of Habeas Corpus to the California Court of Appeal raising the same claims made in his direct appeal. See Lodgment 24.

         On November 20, 2017, Petitioner filed a Supplemental Opening Brief asserting his case should be remanded for re-sentencing to allow the trial court to exercise its discretion as to whether to strike or dismiss the firearm enhancements to Petitioner's sentence given the intervening enactment of Senate Bill 620. See Lodgment No. 19.

         On March 26, 2018, the California Court of Appeal remanded Petitioner's case for resentencing as to the firearm enhancements, but otherwise affirmed the judgment of conviction in all other aspects. See Lodgments 21 and 25.

         II. Petitions for Review to the California Supreme Court

          On May 2, 2017, Petitioner filed petitions for review in the California Supreme Court. See Lodgments 22 and 26. On July 11, 2018, the California Supreme Court summarily denied Petitioner's petitions without comment or citation. See Lodgments 23 and 27.

         III. Federal Habeas Petition

         On December 10, 2018, Petitioner filed the instant federal Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. See Pet. On February 15, 2019, Respondent filed an Answer. ECF No. 10. On March 8, 2019, Petitioner filed a Traverse. ECF No. 12. On March 12, 2019, the Court accepted Plaintiff's ex parte letter requesting that the Court take his pro se status into account. ECF No. 14. The Court thereafter took the matter under submission.

         SCOPE OF REVIEW

         Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

         Petitioner's Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Accordingly, the AEDPA applies to the Petition.

         Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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.

         In making this determination, a court may consider a lower court's analysis. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991) (authorizing a reviewing court to look through to the last reasoned state court decision). Summary denials are presumed to constitute adjudications on the merits unless ‚Äúthere is reason to think some other explanation for the ...


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