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Sharma v. Spearman

United States District Court, N.D. California

July 25, 2019

NATEEL SHARMA, Petitioner,
v.
M. ELIOT SPEARMAN, Warden of High Desert State Prison, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this federal habeas corpus action, pursuant to 28 U.S.C. § 2254, a California prisoner alleges that defense counsel rendered ineffective assistance by: (1) engaging in a racially-based cross-examination with the victim; (2) failing to pursue a Batson/Wheeler motion; (3) failing to make timely trial objections; and (4) misunderstanding the law. Petitioner also alleges that the cumulative effect of the above errors requires reversal. For the reasons stated herein, the petition for habeas relief is Denied.

         STATEMENT

         In September 2011, petitioner Nateel Sharma shot victim Nick Delao in the abdomen with a shotgun. In 2014, an Alameda County jury found him guilty of attempted murder and assault with a firearm. He was sentenced to a long prison term. The facts are taken from the California Court of Appeal's opinion (Dkt. No. 9-20, Exh. 7 at 1-7).

         1. The Argument at Victim Delao's House

         The shooting occurred outside of a Hayward home where petitioner, his parents, his grandmother, and his younger sister lived. The prosecution and defense presented substantially different versions of these events. The prosecution relied on the testimony of Victim Delao, Luis Cabada (a mutual friend of petitioner and Victim Delao), and two of petitioner's neighbors. The defense relied on testimony from petitioner, his father, and Angel Villalbazo (petitioner's friend).

         On the day of the shooting, Victim Delao spent the day consuming alcohol alone in his home. In the early evening, Cabada and an unnamed friend joined him. Petitioner arrived within the next hour. The four began smoking marijuana and drinking. In total, Victim Delao consumed about seven or eight 40-ounce bottles of malt liquor. He acknowledged that his memory of the events was therefore “a little spotty” (Clerk's Tr. at 540:14-15).

         At some point during the evening, the mood changed. Victim Delao and petitioner began to argue. Victim Delao testified that while he couldn't remember the exact reason for the argument, it may have been because he “owed [petitioner] a couple hundred bucks for some weed” (id. at 540:19-541:1). In contrast, petitioner testified that the argument started because he owed Victim Delao money. Petitioner testified that Victim Delao said, “[Y]ou bitch ass . . . nigga. When you going to pay me my dough[]” (id. at 730:22-23).

         Victim Delao and Cabada, who was not drunk at the time, both testified that petitioner yelled that he was going to shoot Victim Delao, who subsequently testified that he told petitioner “to go ahead, ” believing that petitioner would not bring his threat to fruition (id. at 649:13-15). Petitioner, however, testified that after Victim Delao demanded money, he smashed an empty 40-ounce bottle, and threatened to kill petitioner and “run up in [his] house and get what's mine” (id. at 731:18-19). Petitioner responded that Victim Delao could not enter his home, and Victim Delao asked whether petitioner would shoot him. Petitioner then left, heading toward his home, which was a two-minute walk away.

         2. The Confrontation Outside Petitioner's Home

         Petitioner testified that he walked to his home, went to his bedroom and grabbed a shotgun that allegedly belonged to his cousin. He then went to the backyard, shot the gun in the air, and, still holding the gun, walked to the front of his house, where he encountered Angel Villalbazo (id. at 732:20-22). Villalbazo instructed petitioner to put the gun back inside the home (and he did), and the pair walked to a nearby park (id. at 733:9-12). They then decided to drive to a store, so they headed back to petitioner's home for the car.

         Meanwhile, Victim Delao testified that about five minutes after petitioner left, he heard three or four loud noises resembling gunshots, emanating from the direction of petitioner's home. Cabada testified that he also heard several loud sounds that sounded like a shotgun. This prompted Victim Delao to start walking toward petitioner's home, with Cabada and the unnamed friend. Victim Delao also testified that he called petitioner's cell phone and told him to come outside to fight. Victim Delao acknowledged that a match between the two would be unfair because he weighed roughly 300 pounds while petitioner weighed 120 pounds.

         Victim Delao testified that once he arrived at petitioner's house, he began pounding on the garage door while yelling at petitioner to come outside. Petitioner's father testified that he heard banging on the garage door. He then testified that he opened the door to ask Victim Delao to leave. Not to be deterred, Victim Delao forced his way into the house. Petitioner's father stated that he and petitioner's mother had to push Victim Delao outside while he punched threatened both of them. Several other witnesses, however, denied that Victim Delao entered petitioner's home or that he even got near the front door. Petitioner's father conceded that his statement to the police, provided on the night of the shooting, never mentioned that Victim Delao entered the home or that Victim Delao assaulted him or his wife.

         Petitioner, Cabada, and Villalbazo agreed that petitioner was already outside when Victim Delao arrived at petitioner's home. The witnesses generally agreed that Victim Delao and petitioner confronted each other in the street and exchanged blows, that Victim Delao landed at least one punch, that petitioner dropped his cell phone during the altercation, and that Victim Delao picked up the phone and smashed it on the ground, at which point petitioner ran into the home. Cabada testified that before petitioner ran inside, he said that he was going to shoot Victim Delao. A neighbor who was present at the scene similarly heard petitioner yell that he was going to get his gun.

         Once petitioner was inside, Victim Delao turned to leave. A female neighbor testified that with her encouragement, Victim Delao began walking away. Petitioner's father, however, testified that Victim Delao tried to follow petitioner inside. Petitioner's father testified that, while his son was inside, Victim Delao tried to push his way into the home. Petitioner's father kept pushing Victim Delao back while Victim Delao continued to punch him. He also testified that Victim Delao threatened to burn petitioner's house down. There is no other testimony that corroborates petitioner's father's testimony on these points.

         Petitioner testified that after he exchanged blows with Victim Delao, petitioner entered his home. Because he was scared for his father's safety, he retrieved his cousin's shotgun and ran back outside.

         3. The Shooting

         Most witnesses agreed that when petitioner re-emerged from the house, he was holding a shotgun and headed toward Victim Delao. According to Victim Delao, petitioner was back in the street, pointing the shotgun at him, by the time he noticed petitioner. Victim Delao then testified that he became angry, grabbed the shotgun barrel, held it against his stomach, and said, “[Y]ou ain't going to shoot me; you're a bitch” (Clerk's Tr. at 571:23-25). Victim Delao stated that he only used one hand to grab the firearm and did not pull very forcefully. He testified that he then dropped his hands to his side, and told petitioner once more, “[Y]ou ain't going to do it” (id. at 574:8-9). A few seconds later, petitioner shot Victim Delao in the stomach, and Victim Delao fell to the ground.

         Cabada offered a similar testimony, namely that petitioner approached Victim Delao and put the barrel of the shotgun close to Victim Delao's stomach, who then grabbed the barrel and pulled the gun toward him, declaring that petitioner would not follow through. Cabada stated that Victim Delao's hands were by his side when he was shot.

         The female neighbor testified that she was standing behind Victim Delao when she saw petitioner run toward him and point the shotgun at his stomach. She did not, however, see Victim Delao pull the shotgun toward himself. She testified that Victim Delao's hands were at his side when the weapon was discharged. A neighbor watching from the window also testified he did not see Victim Delao make any sudden movements or advance toward petitioner before he was shot.

         In contrast, petitioner and his father provided testimony suggesting that the shooting was accidental. Petitioner's father testified that he managed to push Victim Delao out to the street and was outside with him by the time petitioner emerged from the home with the gun. Petitioner headed toward Victim Delao. Petitioner's father, who was nearby, grabbed his son's arm and tried to push the shotgun's barrel up toward the sky. Petitioner's father stated that Victim Delao repeatedly goaded petitioner into shooting him while he forcefully pulled the barrel toward his stomach. Petitioner's father moved out of the way as Victim Delao continued to pull the barrel. Petitioner's father heard a loud noise and saw Victim Delao step back and fall. Petitioner similarly testified that before he neared Victim Delao, his father grabbed the gun. Victim Delao, however, pulled on the barrel and the weapon discharged. Petitioner testified that he did not intend to shoot Victim Delao. He said that despite their checkered history, the two were still friends and he merely wanted to scare Victim Delao in order to protect his father.

         Victim Delao sustained a major gunshot would to the stomach, causing his intestines to protrude. He eventually received several surgical operations and spent twenty-seven days in the hospital. He ultimately lost the upper and lower intestines, and a section of his colon.

         Petitioner testified that after the shooting, he left the shotgun lying in the street and ran back into his home. He instructed his grandmother to call 911 and ran to his backyard, where he hopped the fence and ran to another friend's home. Petitioner then called his sister and cousin, who picked ...


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