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Crisp v. Davey

United States District Court, E.D. California

September 24, 2019

PATRICK COVELLO, Warden, Mule Creek State Prison, [1] Respondent.



         Denzel 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.


         On 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.[2] 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 mother.
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).

         At the 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.[3] The trial court subsequently sentenced Crisp to an aggregate term of 30 years to life imprisonment.[4]

         Through 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 *7.[5] 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 Cir. 2003).

         Crisp 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.


         In his 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.


         Under 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 determinations.”).

         The 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).

         To the 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).

         In 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).


         A. Ineffective Assistance of Counsel (Grounds 1, 5)

         Crisp 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.

         The 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 ...

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