United States District Court, E.D. California
K. SINGLETON, JR., SENIOR UNITED STATES DISTRICT JUDGE
Demar Crisp, a state prisoner represented by counsel, filed a
Petition for a Writ of Habeas Corpus with this Court pursuant
to 28 U.S.C. § 2254. Crisp is in the custody of the
California Department of Corrections and Rehabilitation
(“CDCR”) and incarcerated at Mule Creek State
Prison. Respondent has answered, and Crisp has replied.
October 21, 2010, Crisp, along with Steven Brown Jr., was
charged with multiple crimes arising out of a drive-by
shooting that occurred on or about December 18, 2009, when
Crisp was seventeen years old. Specifically, Crisp was
charged with attempted murder (Count 1); discharging a
firearm from a motor vehicle (Count 2); and assault with a
deadly weapon (Count 3). With respect to Counts 1 and 2, the
information alleged that Crisp personally used a firearm. The
information further alleged with respect to Count 3 that
Crisp personally used a firearm and that he personally
inflicted great bodily injury upon the victim. Crisp pled not
guilty, denied the allegations, and proceeded to a jury trial
on October 28, 2010. On direct appeal of his conviction, the
California Court of Appeal laid out the following facts
underlying the charges against Crisp and the evidence
presented at trial:
On the night of December 18, 2009, defendants had difficulty
finding a party hosted by Jennifer Ly. Thinking they had
found it, they walked up to a group of people standing
outside a residence at what turned out to be a family 21st
birthday party. They were told there was no Jennifer at the
party and they left. One guest testified that Brown appeared
to be “[a] little angry.” No. one else, including
defendants, testified there was any altercation, any unkind
or agitated interaction, or any hard feelings. Defendants
were simply at the wrong party.
They got back in their car. There is some dispute as to the
route they then took, but they ended up in front of the same
party with their lights off, and as the driver slowed down,
witnesses saw an arm stick out of the passenger window and
heard two or three gunshots. Andrew Tapalla had just arrived
at the party when he was shot in the buttocks. Emergency
personnel took him to the hospital, where he was given
morphine to control the pain, but the bullet was not removed.
He missed four days of work.
Defendants fled the scene. Shocked that Crisp had just fired
a gun out of the window of his car, Brown testified he asked
Crisp, “What the fuck are you doing?” He did not
know Crisp had fired into a group of people or that anyone
had been hit. He planned to take Crisp home. Crisp, who
testified that it was he who was shocked that Brown reached
in front of him to shoot out of the passenger window, claimed
they had no conversation at all. Both defendants testified it
was not their gun, they had never shot a gun before, and they
did not shoot it at the group of partygoers after they left.
Several witnesses testified that someone fired the shots from
the passenger side of a Ford Mustang. At least two witnesses
testified they saw an arm sticking out of the window, and one
testified it was out at least as far as his elbow.
Brown pulled into a gasoline station with the police in hot
pursuit. He testified that after he parked he asked Crisp to
hand him the gun because he was afraid of what Crisp would do
with it. He planned to turn it over to the police. Although
he testified he had never owned or used a gun before, he saw
a small button on the bottom of the gun, depressed it, and
removed the magazine. But he then reloaded the gun, placed it
in his waistband, and got out of the car.
A police officer testified that he asked Brown if he had a
gun, and Brown shook his head to indicate he did not. Brown
denied the police officer had asked him. Rather, according to
Brown, the police officers threw him against a police car,
banged his head into the car, and yelled at him. In the
process, the gun fell from his left pant leg to the ground.
Officers found a .25–caliber spent cartridge casing
fired by the gun retrieved from Brown in the space between
the center console and the front passenger seat.
Crisp testified he did not know Brown was armed that night
until he saw him pull a gun out of the pocket of his peacoat.
Because the night was so cold, he asked Brown if he could
borrow some gloves. He testified that he wore the gloves all
night, including while he was texting Jennifer and his
A criminalist testified that both Brown and Crisp tested
positive for gunshot residue. From the testing he conducted,
the criminalist found more on Crisp’s hand than on
Brown’s, but he did not do a complete reading of
Brown’s sample. Based on the gunshot residue evidence,
it could not be determined who had fired the gun.
People v. Brown, No. C067117, 2013 WL 5978681, at
*1-2 (Cal.Ct.App. Nov. 12, 2013).
conclusion of trial, the jury failed to reach a verdict on
the attempted murder charge (Count 1), but found Crisp guilty
of discharging a firearm from a motor vehicle (Count 2) and
assault with a deadly weapon (Count 3), and also found true
the related enhancement allegations. The trial court subsequently
sentenced Crisp to an aggregate term of 30 years to life
counsel, Crisp appealed his conviction, arguing that: 1) the
trial court prejudicially erred in telling the jury that it
could draw adverse inferences from Crisp’s failure to
explain or deny evidence against him; 2) the evidence of
great bodily injury was legally insufficient to support the
enhancement allegations; and 3) his sentence of 30 years to
life imprisonment constituted cruel and unusual punishment.
The Court of Appeal unanimously affirmed the judgment against
Crisp in a reasoned, unpublished decision issued on November
12, 2013. Brown, 2013 WL 5978681, at
The California Supreme Court summarily denied review on
January 29, 2014. Crisp’s conviction became final on
direct review 90 days later, when his time to file a petition
for certiorari in the U.S. Supreme Court expired on April 29,
2014. See Jiminez v. Quarterman, 555 U.S. 113, 119
(2009); Spitsyn v. Moore, 345 F.3d 796, 798 (9th
timely filed a counseled Petition for a Writ of Habeas Corpus
to this Court on April 29, 2015. Docket No. 1; see
28 U.S.C. § 2244(d)(1)(A). After these federal
proceedings were stayed to allow Crisp to fully exhaust his
claims in state court, Docket No. 7, Crisp filed an Amended
Petition (Docket No. 12, “Petition”), which is
now before the undersigned judge for adjudication.
counseled Petition before this Court, Crisp argues: 1) his
trial counsel provided ineffective assistance in a variety of
ways; 2) his sentence constitutes cruel and unusual
punishment; 3) the prosecutor failed to disclose material,
exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1962); 4) the cumulative effect
of the trial court’s errors, the Brady
violation, and the ineffective assistance of trial counsel
rendered the proceedings unfair and unreliable; 5) appellate
counsel was ineffective for failing to raise trial
counsel’s ineffectiveness on direct appeal; and 6) he
is actually innocent of the offenses for which he was
convicted and sentenced.
STANDARD OF REVIEW
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d), this Court
cannot grant relief unless the decision of the state court
was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States, ”
§ 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding, ” § 2254(d)(2). A
state-court decision is contrary to federal law if the state
court applies a rule that contradicts controlling Supreme
Court authority or “if the state court confronts a set
of facts that are materially indistinguishable from a
decision” of the Supreme Court, but nevertheless
arrives at a different result. Williams v. Taylor,
529 U.S. 362, 406 (2000). The term unreasonable is a common
term in the legal world. The Supreme Court has cautioned,
however, that the range of reasonable judgments may depend in
part on the nature of the relevant rule argued to be clearly
established federal law. Yarborough v. Alvarado, 541
U.S. 652, 664 (2004) (“[E]valuating whether a rule
application was unreasonable requires considering the
rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case
Supreme Court has explained that “clearly established
Federal law” in § 2254(d)(1) “refers to the
holdings, as opposed to the dicta, of [the Supreme Court] as
of the time of the relevant state-court decision.”
Id. at 412. The holding must also be intended to be
binding upon the states; that is, the decision must be based
upon constitutional grounds, not on the supervisory power of
the Supreme Court over federal courts. Early v.
Packer, 537 U.S. 3, 10 (2002). Where holdings of the
Supreme Court regarding the issue presented on habeas review
are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal
law.’” Carey v. Musladin, 549 U.S. 70,
77 (2006) (citation omitted).
extent that the Petition raises issues of the proper
application of state law, they are beyond the purview of this
Court in a federal habeas proceeding. See Swarthout v.
Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding
that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual
federalism that the states possess primary authority for
defining and enforcing the criminal law. See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a
federal habeas court cannot reexamine a state court’s
interpretation and application of state law); Walton v.
Arizona, 497 U.S. 639, 653 (1990) (presuming that the
state court knew and correctly applied state law),
overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
applying these standards on habeas review, this Court reviews
the “last reasoned decision” by the state court.
See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th
Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911,
918 (9th Cir. 2002)). A summary denial is an adjudication on
the merits and entitled to deference. Harrington v.
Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the
state court’s findings of fact are presumed to be
correct unless the petitioner rebuts this presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Ineffective Assistance of Counsel (Grounds 1, 5)
first argues that his trial and appellate counsel were
ineffective for a variety of reasons. To demonstrate
ineffective assistance of counsel under Strickland v.
Washington, a defendant must show both that
counsel’s performance was deficient and that the
deficient performance prejudiced his defense. 466 U.S. 668,
687 (1984). A deficient performance is one in which
“counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed by the
Sixth Amendment.” Id.
Supreme Court has explained that, if there is a reasonable
probability that the outcome might have been different as a
result of a legal error, the defendant has established
prejudice and is entitled to relief. La ...