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Gage v. Madden

United States District Court, E.D. California

October 15, 2019

CICK GAGE, Petitioner,
RAYMOND MADDEN, Warden, Respondent.



         Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Robert J. Beles and Joseph L. Ryan of the Law Office of Beles and Beles. He is currently serving a sentence of 25 years for convictions of robbery and assault with a firearm. He filed the instant habeas action challenging the conviction. As discussed below, the Court finds the claims to be without merit. Therefore, the petition will be DENIED.[1]


         On June 20, 2014, in the Kern County Superior Court, following a jury trial, Petitioner was found guilty of three counts of robbery (Cal. Penal Code § 212.5(c)) and two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)). People v. Packard, No. F070008, 2017 WL 3725941, at *1 (Cal.Ct.App. 2017), review denied (Cal. 2017). In a bifurcated proceeding, the trial court found true an allegation Petitioner had a prior serious felony conviction within the meaning of the prior serious felony conviction enhancement (Cal. Penal Code § 667(a)) and California's Three Strikes Law (Cal. Penal Code § 667(e)). Id. The trial court sentenced Petitioner to an aggregate determinate term of 25 years. Id. at *2.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On August 30, 2017, the Fifth DCA affirmed the judgment. Id. Petitioner filed a petition for review in the California Supreme Court, and the petition was denied on December 13, 2017. Id.

         On March 5, 2019, Petitioner filed the instant petition for writ of habeas corpus. (Doc. 1.) Respondent filed an answer on June 11, 2019. (Doc. 10.) On October 1, 2019, Petitioner filed a traverse. (Doc. 18.)


         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:

Robbery of Dispensary
Darin Phillips was working at American Green Farmers, a medical marijuana dispensary in Bakersfield, about 3:00 p.m. on May 11, 2012. Owner Kevin Moats and receptionist Shanta Jones were working at the dispensary with Phillips. From a front door, patients entered a reception room with a check-in counter that Jones sat behind. Jones greeted patients, verified their paperwork and checked them in, and enrolled new patients. To the left of the reception room was the dispensary, also known as the bud room, with a door to the street that was always locked.
Jones heard a knock at the door, and when she opened it she saw two African- American men who appeared to be in their 20's. One of the men had a darker complexion and a tattoo on his neck. When Jones asked if they were new patients, the man with the darker complexion did not respond but ran into Jones and knocked her backward onto the floor. Jones felt blurry or dazed when she hit the ground and started screaming.
Phillips heard Jones scream and sounds of commotion from the room adjacent to the bud room. When he entered the bud room, Phillips saw one of the two men hitting Moats over the head. Moats was on his knees with his hands balled into fists. Phillips punched Moat's assailant on the left side of the man's face. The man spun around and placed a silver handgun to Phillip's head. As Phillips grabbed the man's right arm and pushed the gun to the side, the gun fired a round next to Phillips's head.
Jones heard two or three gunshots from where she was lying on the ground. When Jones noticed no one was around her, she ran out the door and down the street where she borrowed the cell phone of a passerby to call 911.
Phillips and the armed assailant fell to the ground. The assailant had his knee on Phillips's chest. Phillips locked his arms so the assailant could not put the gun back in his face. Moats came to Phillips's assistance, and both struggled to get the gun away from the assailant. The assailant yelled, “‘I got two people in here.'” A second assailant, who was a little bigger than the first, came into the room carrying a larger handgun and pointed it at the heads of Moats and Phillips. The two assailants kicked and stomped Moats and Phillips until they told the assailants to take what they wanted. The second assailant covered his face with his T-shirt and told Phillips not to look at him.
The assailants asked where the marijuana was. Phillips pointed to where it was in the room. The assailants took a large travel duffle bag from the store that already contained Ziploc bags of marijuana for restocking. Phillips could hear the second assailant with the larger gun taking glass jars of marijuana from the bud room. The first assailant demanded to know the location of the money. He was directed to a shelf with Tupperware containers of cash; the assailants took the containers, which had between $500 and $700. The first assailant seemed excited and said, “‘I can't believe you made me shoot my gun.'” Both assailants were wearing blue surgical-type gloves.
The assailants asked Phillips and Moats about the safe. Phillips told them it was down the hall in the kitchen area and offered to open it for the assailants, but they would not let Phillips and Moats get up. Phillips gave them the code to open the safe, which worked on a digital keypad, but he did not tell them they had to push “Start” on the keypad before entering the numeric code. Phillips said it seemed there were multiple unsuccessful attempts to open the safe.
The assailants returned to the victims, demanding the video recording tapes from the camera surveillance system. Phillips told them there were no tapes because the system was digital, so one of the assailants slammed the system on the ground four or five inches from Phillips's face. After the assailants fled through different exits, Phillips found a patient on the floor of the reception area who had been duct-taped and hog-tied with electrical cord. There were bullet holes in the wall and in the ceiling of the room where Phillips and the assailant struggled over the gun.
Patient Derrick Hudson was about to enter the dispensary when he saw a young African-American man with a dark complexion running out the front door. The young man had a blue or black scarf or do-rag on his head. Hudson saw the man for three to four seconds but was not wearing his glasses at that time, though he was wearing them during his testimony.
Immediate Post-robbery Investigation
Detectives William Hughes and Dennis Murphy responded in an unmarked gold Ford Crown Victoria. Enroute, the communications center broadcast information describing two Black robbery suspects. Hughes took Chester Avenue and turned onto 5th Street with emergency lights activated. He noticed three Black males inside a late model, four-door black Toyota Camry waiting behind two vehicles at a stop sign.
As Hughes passed the Camry, the driver looked at Hughes and slid back behind the car's B pillar. The passengers also slumped away from view. Hughes made a U-turn and followed several cars behind the Camry. It soon made a sweeping right-hand turn onto 8th Street, failing to stop for the red light. The Camry rapidly accelerated eastbound until it made a turn onto L Street, stopping in the front yard of a residence on the 700 block of L Street. Three Black males exited the car, leaving the doors open.
As Hughes got out of his car, he looked directly at the driver of the Camry, whom he identified as Packard. The detective could smell a strong odor of fresh marijuana emanating from the car. Bakersfield police officer Jeff Martin and his canine partner Titan arrived at the scene. Titan and Martin came to a carport where a gray SUV was parked.
Packard was hiding underneath the SUV. Martin instructed him twice to come out with his hands up or he would send his dog in. Another officer also gave the same two commands for Packard to come out. After Packard ignored Officer Martin's commands for him to crawl out, the officer gave Titan a command to engage. Titan went under the SUV and bit Packard on his right biceps. Titan pulled Packard out as Packard tried to pull himself back under the SUV. Titan followed Martin's command to release Packard, who was then handcuffed and arrested.
Detective Nathan Anderberg found a pair of clean white cotton gloves behind a piece of siding on the south side of the residence, about 50 feet away from where Packard was detained. Officer Isaac Aleman discovered a black Samsung cell phone near where Packard was detained. The call log on the phone had been deleted. Detective Brent Stratton obtained the number for the Samsung phone from the service carrier, MetroPCS, and Packard confirmed it was his cell phone number.
Aleman assisted with serving a search warrant at Packard's residence on West Drive. He found items of mail addressed to Packard, a black leather holster for a firearm, and men's and women's clothing and shoes.
Crime scene technician Jeffery Cecil found a .25-caliber casing in the back employee room of the dispensary. There was duct tape on the floor of the back hallway of the business.
Searching the car, Cecil located an Interarms nine-millimeter semiautomatic firearm loaded with seven .380-caliber bullets on the front passenger floorboard of the Camry. There was a gray and red Chicago Bulls hat on the front passenger seat. Cecil determined the marijuana in the various jars totaled 316 grams.
A duffel bag found in the rear passenger's side of the Camry contained multiple jars of different brands of marijuana with a total of 1, 030 grams of marijuana. Cecil found a red ball cap with an “A” and a halo symbol on the rear seat. Inside a Spiderman backpack on the rear driver's side floorboard was a white cotton glove, a package for gloves, and a wrapper for duct tape. Cecil located a second glove package wrapper in the car. There was a MetroPCS cell phone in the rear passenger's side door panel.
The cell phone rang several times during the search, and Stratton answered it when it rang. During one call someone asked for “Nunu.” During a previous traffic stop, Thomas told Bakersfield police officer Jared Ashby he went by the name Nunu. The e-mail address associated with the cell phone included Thomas's name. The phone contained several “selfies” of Thomas. One text message that came in was “Nunu?” The detective determined the cell number for the phone was associated with Thomas.
There was a photograph on the phone of the semiautomatic nine-millimeter firearm found in the Camry with a text message reading, “I got a thang 4 sale.” The reply text message asked, “what kind.” The response stated, “9 MM that also shoots .380's.” Stratton explained .380-caliber bullets could fit into the chamber of a nine-millimeter gun because they were both the same diameter, though the .380-caliber bullet is shorter in length.
Identification Evidence
Phillips identified Thomas in court as the first assailant who held the gun to his head during their struggle. Phillips identified Thomas from a photographic lineup sometime after the robbery. Phillips identified Gage in a separate photographic lineup. Jones separately identified Thomas from a photographic lineup. She told Stratton she was 60 percent certain of her identification. Jones explained the man's eyes and facial structure were similar to the suspect's.
Hudson identified Thomas from a six-pack photographic lineup shown to him by the detective. Hudson described Thomas as the man who had run past him. He was only 10 percent sure of his identification. The man in the lineup was a dark person, but Hudson believed the man he had seen was younger than the individual in the photographic lineup.
Jones also identified Gage from a photographic lineup. Jones said she was 75 percent certain of her identification of Gage. Jones told officers she chose the subject because he had the same eyes as the robber. She was unable to see the silver-dollar-sized tattoo on the left side of the suspect's neck because the photograph was a headshot. Jones believed the man may have had more tattoos in addition to the one she described.
In her report to police, Jones described one of the perpetrators as a Black male adult, 19 to 21 years old, dark complexion, wearing either a royal or navy blue shirt and shorts, with a silver-dollar-sized tattoo on the left side of his neck, approximately six feet tall, with a thin build. Jones specified this suspect was the one who had knocked her to the ground. She described the second perpetrator as a Black male adult with a dark complexion, 19 to 21 years old, wearing a black T-shirt and dark jeans. Jones believed the second perpetrator may also have had tattoos.
DNA Evidence
Jerry Garza, a DNA expert, extracted DNA from the swabbed sample taken from the red Angels hat. Garza could not exclude Packard as a major contributor. Using random match probability, the probability of selecting an unknown, unrelated person from the Caucasian population with the same DNA major profile as Packard was one in 260 trillion, one in 14 trillion for the African-American population, and one in 8.2 quadrillion for the Hispanic population.
Garza obtained a mixture of DNA from the red and gray Chicago Bulls hat.
Gage presented an alibi defense based on his testimony as well as the corroborating testimony of a friend from childhood and the mother of his child. Gage also had an innocent explanation for telephone calls or text messages he made to his codefendants before and during the time of the robbery. This evidence will be presented in greater detail below.
Thomas's mother confirmed her son went by the nickname Nunu, which she gave him when he was young. Thomas was also involved with his mother's nonprofit ministry in her church, which works to prevent gang violence in their neighborhood. Thomas had tattoos of the names of a friend and his uncle, as well as tattoos of a checkered race flag and lips under his left ear.
Packard's counsel called Dr. Scott Fraser as an eyewitness identification expert. Dr. Fraser identified the factors known scientifically to influence eyewitness memory, accurate recall, and subsequent identification. The accuracy of identification is reduced by situations with fear and high stress. The physiological response to stress affects memory and the subsequent ability to recognize people. So does the presence of a gun. People are less accurate in identifying members of a different race than members of their own race. The more often a person is shown an individual in a live or photographic lineup, or at a court hearing, the person becomes progressively more certain of an identification.
Dr. Fraser explained there were several ways a lineup could be suggestive. The Department of Justice protocol favors sequential or one-by-one lineups rather than simultaneous ones and also double blind presenters so the person administering the lineup is unaware of the suspect's identity. Some jurisdictions require all lineups be recorded by audio or by audio and video to verify the reliability of the procedure. These procedures were not followed here but would have made the witness identifications more reliable. Dr. Fraser described the six-pack photographic identification procedure used by investigators in this case as “a roll of the die.”

Packard, 2017 WL 3725941, at *2-6.


         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (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.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “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.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         C. Review of Petition

         The petition presents the following claims for relief: 1) the state court erred in concluding that Petitioner was not entitled to relief where the trial court denied him right to due process by repeatedly denigrating counsel in front of the jury, showing a strong bias against Petitioner; 2) the state court erred in concluding that Petitioner was not prejudiced by trial counsel's unreasonable failure to present cell phone records corroborating Petitioner's testimony, especially where the jury specifically requested the records during deliberations; and 3) the state court's ...

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