Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Grey v. Montgomery

United States District Court, S.D. California

October 15, 2019

ANTUON EUGENE GREY, Plaintiff,
v.
WARREN L. MONTGOMERY Warden, Defendant.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS

          GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE

         Presently before this Court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed by Petitioner Antuon Eugene Grey (“Petitioner”), a state prisoner proceeding with counsel. Pet., Dkt. No. 1. In his petition, Grey seeks to challenge his convictions in San Diego Superior Court for murder, attempted murder, and assault with firearm. Pet., Dkt. No. 1. On March 15, 2017, Respondent Warren L. Montgomery, Warden, filed an Answer and Memorandum of Points and Authorities in Support of the Answer (“Answer”) and Lodgments. Dkt. Nos. 14-15. Petitioner filed a Traverse on June 19, 2017. Dkt. No. 20. On September 20, 2018, Magistrate Judge John L. Weinberg issued a Report and Recommendation (“Report”) recommending that this Court deny the request for an evidentiary hearing and deny the Petition. Dkt. No. 22. Petitioner filed a written objection to the Report on October 6, 2018.[1]

         After a thorough review of the issues and documents presented, this Court ADOPTS the Magistrate Judge's Report and Recommendation, DENIES Petitioner's request for an evidentiary hearing, OVERRULES Petitioner's objections, DENIES the petition for a writ of habeas corpus, and DENIES a certificate of appealability.

         I. BACKGROUND

         A. Factual Background

         This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parle v. Fraley, 506 U.S. 20, 35- 36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are entitled to statutory presumption of correctness). This Court provides the following summary of the facts based on the opinion of the California Court of Appeal.

On January 320, 2012, Hopeton Bennett, a member of the Parkside/Skyline gang known as “Baby Dos, ” was shot and killed, and Parkside/Skyline gang member Julian Velasquez was shot. Grey was also a member of the Parkside/Skyline gang and was known as “Little Dos.” The naming arrangement between Grey and Bennett indicated that Grey was something of a mentor to Bennett.
The following day, [Dave] Lockett was visiting some family members at an apartment complex on Solola Avenue in San Diego. While in the parking lot, Lockett ran into an acquaintance, [Edwin] Jackson, who lived at the complex. Jackson was a member of the Lincoln Park gang, the chief rival of Parkside/Skyline gang. The Lincoln Park gang was known to occupy the apartment complex on Solola Avenue.
As Lockett started back to his relative's apartment, he saw two black males, one of whom he later identified as Grey, approaching from the parking lot entrance. Another witness heard Jackson ask the men, “Blood, who is you niggers?” After a brief exchange, Grey pulled a firearm from his sweatshirt pocket and fired the weapon, striking Lockett in the stomach as Lockett dove to the ground. Lockett then heard running footsteps and multiple gunshots. A number of these shots struck Jackson, who died from his injuries. Police recovered a beanie hat from the scene with DNA analysis producing a match to Grey's brother.
Later that day, Lockett gave a description of the shooter to police, noting that the shooter had a lot of acne on his face. Lockett, however, did not get a good look at the face of Grey's companion. As a result of the DNA match, police went to the residence of Grey's brother where they encountered and photographed Grey, who had distinctive acne on his face and appeared to fit the general description of the shooter. Police recovered from the residence a pamphlet for Bennett's funeral memorial.
Police later conducted an audio-recorded lineup with Lockett. Lockett selected Grey's photograph out of a five-photograph lineup and identified him as the shooter. The detective, however, forgot to have Lockett sign the photograph. The following day, police conducted another audio-recorded photographic lineup with Lockett. Lockett again identified Grey's photograph as the shooter and signed the photograph. Lockett testified at trial he had no doubt and was “100 percent” sure Grey was the shooter.
A gang expert testified regarding gangs and gang culture, including that acts of violence between rival gangs result in violent retaliation. Based on a hypothetical mirroring the prosecution's evidence, including the shooting death of Bennett approximately 30 hours earlier, the gang expert opined that the shooting in this case was committed for the benefit of the Parkside/Skyline gang.

Pet., Dkt. No. 1-3 at 2-4.

         B. Procedural Background

         On January 7, 2013, the San Diego District Attorney's Office filed a complaint charging Petitioner with the following: Count One, murder of Edwin Jackson, in violation of California Penal Code (Penal Code) § 187(a); Count Two, attempted murder of Dave Lockett, in violation of Penal Code §§ 187(a) and 664; and Count Three, assault with a semiautomatic firearm upon Dave Lockett, in violation of Penal Code § 245(b). Dkt. No. 15-17 at 1-6. As to Counts Two and Three, the complaint also alleged Petitioner had personally used a firearm, within the meaning of Penal Code § 12022.5(a), had committed the crimes alleged in those counts for the benefit of, at the direction of and in association with a gang with intent to promote further and assist the gang's criminal activities, within the meaning of Penal Code § 186.22(b)(1), and personally inflicted great bodily injury, within the meaning of Penal Code § 12022.7(a). Id. at 3-4. In addition, the complaint alleged Petitioner had suffered a prior conviction, for which he had served a prison sentence, within the meaning of Penal Code §§ 667.5(b) and 668, and had suffered a prior “strike” conviction, within the meaning of Penal Code §§ 667(b)-(i), 1170.12, and 668, California's Three Strikes Law. Id. at 5. Following a jury trial, Petitioner was convicted on all counts and the jury found all the allegations to be true. Lodgment No. 8, Vol. 3 at 665-70.

         Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One. Lodgment No. 4. The state appellate court affirmed Petitioner's conviction in a written, unpublished decision. Pet., Dkt. No. 1-3. Petitioner then filed a petition for review in the California Supreme Court, which summarily denied the petition. Lodgment No. 1. Petitioner then filed a habeas corpus petition in the California Supreme Court. Lodgment No. 2. The California Supreme Court summarily denied the petition. Lodgment No. 3.

         On November 9, 2016, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. Pet., Dkt. No. 1. On March 15, 2017, Respondent filed an Answer and Memorandum of Points and Authorities in Support of the Answer (“Answer”) and Lodgments. Dkt. Nos. 14-15. Petitioner filed a Traverse on June 19, 2017. Dkt. No. 20. On September 20, 2018, Magistrate Judge John L. Weinberg issued a Report and Recommendation (“Report”) recommending that this Court deny the request for an evidentiary hearing and deny the Petition. Dkt. No. 22. Petitioner filed a written objection to the Report on October 6, 2018. Dkt. No. 23.

         II. STANDARD OF REVIEW

         A. Magistrate Judge's Report and Recommendation Standard of Review

         Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) outline the procedure regarding the district court's treatment of a magistrate judge's report and recommendation. The district court “may accept, reject, or modify, in whole or in part, the findings of recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 675 (1980). Because objections were made, the Court reviews de novo the parts of the magistrate judge's findings and recommendations to which specific objections have been made. Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         B. AEDPA Standard of Review of Habeas Petition

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a court will not grant a habeas petition with respect to any claim adjudicated on the merits by the state court unless that adjudication “(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; or (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.” Early v. Packer, 537 U.S. 3, 7-8 (2002) (quoting 28 U.S.C. § 2254(d)).

         A federal court may grant habeas relief under the “contrary to” clause if the state court applied a different rule than the governing law established by the Supreme Court, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). A state court need not cite Supreme Court precedent when resolving a habeas corpus claim “so long as neither the reasoning nor the result of the state-court action contradicts [Supreme Court precedent].” Early, 537 U.S. at 8.

         The court may grant relief under the “unreasonable application” prong if the state court correctly identified the governing Supreme Court principle but unreasonably applied it to the facts of the case. Bell, 535 U.S. at 694. Additionally, the “unreasonable application” prong requires the state court's application of clearly established federal law to be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Court may also grant relief if the state court's decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).

         A federal court uses the decision of the highest state court to make its habeas determination. See Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). However, if no reasoned decision from the highest state court exists, the Court “looks through” the unreasoned judgment to the last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. Id. at 805-06.

         III. DISCUSSION

         Petitioner requests habeas relief based on four grounds: (1) the trial judge improperly removed a juror when, following the testimony of the eyewitness defense expert, the juror realized he had participated in some of the studies the witness had performed while at the University of Texas, Dkt. No. 1-2 at 1-5; (2) ineffective assistance of trial counsel for failing to present exculpatory alibi evidence to support a defense of mistaken identification, Id. at 6-19; (3) ineffective assistance of trial counsel for failing to object to the removal of the juror, Id. at 19-23; and (4) the trial judge wrongly refused to instruct the jury to view the eyewitness identification with caution, Id. at 23. Because Petitioner filed his federal habeas petition in 2016, it is subject to the provisions of AEDPA.

         A. Removal of Juror No. 8 (ground one)

         First, Petitioner alleges the trial judge improperly removed Juror No. 8 during the trial after that juror told the judge he had attended the same university at which the expert taught. The juror also informed the judge that he had participated in some of the studies on eyewitness testimony the expert cited. Pet., Dkt. No. 1-2 at 1-5; Traverse, Dkt. No. 20-1 at 11-20. Specifically, Petitioner contends the state court's denial of this claim was based on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2) because Juror No. 8's statements did not establish he was biased, only that he harbored serious doubt about the reliability of eyewitness testimony. As such, Petitioner asserts that the removal of the juror therefore violated Petitioner's due process and fair trial rights. Traverse, Dkt. No. 20-1 at 19.

         Respondent claims this ground is procedurally defaulted because the last reasoned state court decision, the California Court of Appeal's opinion, concluded Petitioner had failed to object to the discharge of the juror and had therefore forfeited the claim. P. & A. Supp. Answer, Dkt. No. 14-1 at 14. In any event, Respondent argues, the claim is also meritless even if Petitioner's procedurally barred claim had been excused. Id. at 14-18.

         1. Procedural Default

         Because the California Supreme Court summarily denied Petitioner's petition for review in which he raised his claim regarding Juror No. 8, this Court must “look through" to the state appellate court's decision. Ylst, 501 U.S. at 805-06. That court concluded the claim had been waived under People v. Holt, 15 Cal.4th 619, 656 (1997) because defense counsel failed to object to the juror's removal. Pet., Dkt. No. 1-3 at 9-10. The appellate court went on to address the merits of the claim and denied Petitioner relief. Id. at 10-11.

         The Ninth Circuit has held that procedural default is an affirmative defense. As a result, in order to establish a claim is procedurally defaulted, Respondent must first “adequately [plead] the existence of an independent and adequate state procedural ground . . . .” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). To place the defense at issue, Petitioner must then “assert[] specific factual allegations that demonstrate the inadequacy of the state procedure . . . .” Id. The “ultimate burden” of proving procedural default, however, belongs to the state. Id. If the state meets its burden under Bennett, federal review of the claim is foreclosed unless the Petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         A state procedural rule is “independent” if the state law basis for the decision is not interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris v. Reed, 489 U.S. 255, 265 (1989). A ground is “interwoven” with federal law if the state has made application of the procedural bar depend on an antecedent ruling on federal law such as the determination of whether federal constitutional error has been committed. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). “To qualify as an ‘adequate' procedural ground, a state rule must be ‘firmly established and regularly followed.'” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). All cases cited by a state court must be independent and adequate to bar federal review of the claims. Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000).

         Petitioner contends his claim is not procedurally defaulted because the state court decided the merits of his claim in addition to imposing a procedural bar. Dkt. No. 20 at 2. In his objection, Petitioner argues that the Magistrate Judge improperly found that trial counsel was ineffective. As such, Petitioner surmises that the Magistrate Judge wrongly found a procedural default.

         Respondent contends that Petitioner's claim is procedurally defaulted because the last reasoned state court decision, the California Court of Appeal's opinion, concluded Petitioner had failed to object to the juror's dismissal and had therefore forfeited the claim. P. & A. Supp. Answer, Dkt. No. 14-1 at 14. Thus, according to Respondent, it follows that Respondent has pled the existence of an independent and adequate state procedural bar. Moreover, Respondent notes that Petitioner Grey has not “asserted specific factual allegations that demonstrate the inadequacy of the state procedure . . . .” Bennett, 322 F.3d at 586. As such, Respondent submits that Petitioner's claims are procedurally defaulted unless he can show cause for the default and actual prejudice as a result of the alleged violation of federal law - or a demonstration that failure to consider the claims would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. (Emphasis added).

         The “cause” prong is satisfied if Petitioner is able to demonstrate some “objective factor” that precluded him from raising his claims in state court. These objective factors could include “interference by state officials” or “constitutionally ineffective counsel.” See McClesky v. Zant, 499 U.S. 467, 493-94 (1991). In this case, Petitioner has pointed to his trial counsel's ineffectiveness by account of his counsel's failure to object to Juror No. 8, which in turn caused the procedural default at issue. ECF No. 20-1 at 15-16. As discussed below, the Court agrees with the Magistrate Judge's finding in the R&R that trial counsel was not ineffective. Thus, counsel's failure to object to the juror's removal cannot form the basis for a successful showing of “cause” under Coleman. Since Petitioner does not allege any other “objective factor” that precluded him from raising his claims in state court, the Court agrees with the Magistrate Judge in finding that Grey has not established cause for the default. See McClesky, 499 U.S. at 493-94.

         A showing of prejudice sufficient to excuse procedurally barred claims requires “actual harm resulting from the alleged error.” Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). Because the court addressed the merits of the claim and denied it as an alternative holding, Petitioner has not established prejudice that resulted from the state court's imposition of the procedural bar. In addition, procedural default is not nullified even where, as here, the state court reaches a decision on the merits of the claim as an alternative holding. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989). As such, the Court agrees with the Magistrate Judge's finding that the state has met its burden under Bennett to plead the existence of an independent and adequate state procedural bar.

         Thus, the Court agrees with the Magistrate Judge that Petitioner has failed to overcome the procedural bar by demonstrating some “objective factor” that precluded him from raising his claims in state court. Therefore, it follows that Petitioner has not established cause for the default under Coleman, and his claim regarding the removal of Juror No. 8 is procedurally defaulted.

         2. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.