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Drawn v. Nueschid

United States District Court, N.D. California

October 15, 2019

ROBERT DRAWN, Petitioner,
v.
ROBERT NUESCHID, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          SUSAN ILLSTON UNITED STATES DISTRICT JUDGE

         Robert Drawn filed this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge his conviction in the Alameda County Superior Court. This Court issued an order to show cause why the writ should not be granted. Respondent has filed an answer and Drawn has filed a traverse. For the reasons discussed below, the petition will be DENIED.

         BACKGROUND

         A. Facts of the Case

         The California Court of Appeal described the evidence relating to the crimes in which Waleed Wheatfall was killed and Kennith Robinson was wounded:

The shootings occurred near the intersection of 57th Avenue and Foothill Boulevard in Oakland, where Drawn operated an auto detailing service out of a space he leased from a car wash. Drawn typically parked his blue van with large rims at the car wash or on the street nearby.
On the day of the shootings the owner of the car wash saw Drawn conversing with Wheatfall. From their body language, “[i]t seemed like, you know, points were trying to be made.” Later the owner heard gunshots, crossed the street and saw Robinson, in his car, shot.
That afternoon M. LeClaire was sitting in his parked truck at the car wash when he noticed a “big African-American guy with a full beard” in a truck parked next to his. The man was “talking really loud” and apparently arguing with someone. A few minutes later a blue van with big rims pulled in and parked in front of LeClaire's truck. Drawn got out of the van and the bearded man got out of his truck. Both were yelling and Drawn said “Come on. I'm gonna go knock this nigga's head off. Let's go knock this nigga's head off.” The two crossed the street to the Safeland Market parking lot, where a man approached Drawn and extended his right arm as though to shake his hand. Drawn drew a gun, shot the man several times, then walked up to a parked car and “shot whoever was sitting there through the window.” The bearded man ran back to his truck and drove away. Nobody returned to the blue van.
The next day police showed LeClaire a photo lineup. He recognized Drawn as the shooter, but did not want to get involved so he told police he did not recognize anyone. About six weeks later police showed LeClaire another photo lineup. This time he identified Drawn “[b]ecause I didn't feel I was so much under pressure like the first time, ” but said he was only 50 percent sure because he was afraid for his family's safety. He testified at trial that he lied to police about being uncertain and lied again at the preliminary hearing because he was afraid of repercussions from Drawn or his friends. LeClaire decided to do “the right thing” after the prosecutor promised to protect his family, and at trial testified he was certain Drawn was the shooter.
Robinson testified he was hanging out with Wheatfall at the Safeland Market the day of the shooting. He observed Wheatfall and Drawn having a conversation. Drawn left but returned 15 or 20 minutes later. Robinson thought he and Wheatfall were going to get jumped, so got into his car to put his phones away “[s]o I wouldn't break them if I get into a fight or something.” Moments later he heard gunshots. Robinson was shot three times as he sat in his car.
Robinson called 911. A recording of his call was played for the jury. He said the shooter was “the guy at the detail shop across the street” and had a blue van. Five days later Robinson identified Drawn as the shooter from a six-pack photo lineup on which he circled and initialed Drawn's photograph.
At trial Robinson was a reluctant witness. He testified he never saw the shooter and did not remember being shown or making an identification from a photo lineup. But, he conceded that he recognized his handwriting and initials next to Drawn's photo. He later told police he did not know what he was doing when he identified the shooter because he was on medication. Robinson told the prosecutor that people who grow up in Oakland “are not supposed to come to court and testify . . . about what happened.”
A. Williams and R. Lee drove to Safeland Market to see Wheatfall shortly before the shootings. Williams got out of the car and greeted Wheatfall. Then they heard gunshots. Lee looked around and saw a tall man in a hoodie and baseball cap shooting a gun toward the ground. She ducked and tried to drive away, but her car ran over “somebody or something” so she stopped and got out. Williams had run behind the market when he heard shots but came back to look for Wheatfall. Wheatfall was dead, his body pinned under Lee's car. The cause of death was multiple gunshot wounds. Neither Williams nor Lee was able to identify the shooter.
Drawn never returned to the car wash for his van and stopped visiting his children's mother not long after the shooting. He called her two or three times per month, but he blocked his phone number and would not disclose his whereabouts.
Police found a blue baseball cap in the direction the shooter was seen fleeing from the crime scene. DNA on the cap was consistent with Drawn and could have come from him, but a statistical analysis was not possible due to the quality of the sample.
Drawn was arrested in Southern California almost a year and a half later. A jury found him guilty of first degree murder and attempted murder, each enhanced for his use of a firearm, and three firearms offenses. Sentenced to 84 years to life in prison, Drawn filed this timely appeal.

Docket No. 7-12 at 89-92.

         B. Procedural History

         At a jury trial in Alameda County Superior Court in December 2015, Drawn was convicted of first-degree murder, attempted murder, unlawful transportation of an assault weapon, and two counts of possession of a firearm by a felon, with enhancements on the murder and attempted murder counts for personal use of a firearm. Docket No. 1 at 1-2. Drawn was sentenced to 84 years to life. Drawn's conviction was upheld on appeal to the California Court of Appeal. Docket No. 7-12 at 89. The California Supreme Court denied Drawn's petition for review. Id. at 133. Drawn twice filed unsuccessful habeas petitions in the California Court of Appeal and twice filed unsuccessful habeas petitions in the California Supreme Court. See id. at 138-215.

         On April 22, 2019, Drawn filed this action seeking federal habeas relief on both a Confrontation Clause claim under the Sixth Amendment to the United States Constitution and an Equal Protection Clause claim under the Fourteenth Amendment. Docket No. 1. This Court then ordered respondent to show cause why the petition should not be granted. Respondent filed an answer. Drawn then filed his traverse. The case is now ready for review on the merits.

         JURISDICTION AND VENUE

         This court has subject matter jurisdiction over this action for a writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Alameda County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).

         EXHAUSTION

         Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28 U.S.C. § 2254(b), (c). State judicial remedies have been exhausted for the claims presented in the petition.

         LEGAL ...


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