United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
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
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).
The Argument at Victim Delao's House
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).
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).
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).
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.
The Confrontation Outside Petitioner's Home
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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 ...