United States District Court, E.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE
CASE, ORDER DECLINING ISSUANCE OF CERTIFICATE OF
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.)
Court adopts the Statement of Facts in the Fifth DCA's
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
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
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
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
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
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.
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.
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
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
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.
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
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.
Legal Standard of Review
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.
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).
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.
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.
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).
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).
Review of Petition
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 ...