United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER DENYING HABEAS
CORPUS PETITION [ECF No. 1]
HONORABLE LINDA LOPEZ, UNITED STATES MAGISTRATE JUDGE
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
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.
reasons set forth below, the Court
RECOMMENDS Petitioner's Petition for
Writ of Habeas Corpus be DENIED.
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
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
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
11-26 at 39-43.
Appeal and Petition for Writ of Habeas Corpus to the
California Court of Appeal
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.
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.
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
Petitions for Review to the California Supreme
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.
Federal Habeas Petition
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.
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.
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.
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;
(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.
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 “there is reason to think some other
explanation for the ...