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Wright v. McDowell

United States District Court, E.D. California

October 23, 2019

NEIL MCDOWELL, et al., Respondents.



         Introduction Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c).

         Petitioner challenges a 2015 conviction entered against him in the Shasta County Superior Court. ECF No. 1. Respondent has filed an answer, and petitioner a traverse. ECF Nos. 12, 18. After independent review of the record, and application of the applicable law, this court recommends denial of petitioner's application for habeas relief.

         Procedural Background

         On April 17, 2015, petitioner was convicted by jury of four counts of assault with a deadly weapon (Cal. Pen. Code § 245(a)(2)), one count of carrying a loaded firearm by a gang member (Cal. Pen. Code § 12031(a)(2)(c), and one count of discharging a firearm in a school zone (Cal. Pen. Code § 626.9(d)). ECF No. 13-3 at 94. The jury also found true certain firearm and gang enhancements. Id. Petitioner was sentenced to a state prison term of 23 years and four months. Id. On June 6, 2016, petitioner proceeding through counsel, filed an appeal in the California Court of Appeal, Third Appellate District. ECF No. 14-1. The Court of Appeal affirmed the judgment on June 12, 2017. ECF No. 14-5. On July 19, 2017, petitioner proceeding through counsel, appealed to the California Supreme Court. ECF No. 14-6. On September 20, 2017, the California Supreme Court denied the petition. ECF No. 14-7. On September 25, 2017, the California Supreme Court issued a remittitur. Id.

         On December 15, 2017, petitioner proceeding through counsel, filed a “motion to recall the remittitur, reinstate the appeal and permit supplemental briefing on the trial court's newfound discretion pursuant to Senate Bill 620” with the California Court of Appeal, Third Appellate District (“Court of Appeal”). ECF No. 14-8. On December 19, 2017, the California Court of Appeal granted petitioner's motion to recall the remittitur and vacated its June 12, 2017 decision and reinstated petitioner's appeal. ECF No. 14-9. After the submission of supplemental briefing on Senate Bill 620, the California Court of Appeal issued an opinion and affirmed the judgment. ECF No. 15-3. On August 10, 2018, petitioner proceeding through counsel, filed an appeal with the California Supreme Court. ECF No. 15-4. On October 17, 2018, the California Supreme Court denied the petition for review without an opinion. ECF No. 15-5.

         The instant federal petition was filed on December 16, 2018. ECF No. 1.

         Factual Background

         Petitioner does not dispute the facts as set forth in the California Court of Appeal's opinion. In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual background:

On October 12, 2012, D. Ryles stormed out of a party on foot after having too much to drink. Some of his friends, including Talon, Bradley and Cristina, followed Ryles to make sure he was alright. Ryles was yelling and making a scene, and nearby residents asked the group to quiet down. Defendant was at one of these residences with Emilio and Eddie. Defendant told Emilio and Eddie he was going to record what was going on with Ryles and his friends. He told the police later, “I remember Eddie saying don't get beat up. And I was just like dude, I know how to fight.” Defendant walked across the street and started recording a video on his phone. Cristina noticed this and asked defendant to stop. Then, Talon asked defendant why he was recording and told him to put the phone down.
Defendant put his phone away, but pulled out a gun and put it to Talon's head. Talon explained that, “being intoxicated, I was just, like, ‘What? Are you going to shoot me?' You know, not thinking it was going to happen at all.” Defendant hit Talon on the back with the gun. Next, defendant hit Talon on the head and hands as he tried to cover himself. When defendant did so, the gun went off. Talon and Cristina jumped over a fence and hid. Defendant turned and shot Ryles in the ankle. Ryles fell to the ground. Bradley fell to his knees holding Ryles.[1] Defendant pointed the gun at the two men and said, “Say something else.” Bradley protested that they had not said anything. Defendant kicked Ryles in the face and repeated, “Say something else.” A witness reported that defendant said, “That's what you get, you little bitch.” Other witnesses said defendant left the scene laughing.
In an interview at the Redding Police Department, defendant explained that his gun accidentally fired three times, and that he gave the gun away to a Sureño gang member the following day.
On October 16, 2012, police officers conducted a search of defendant's bedroom. Defendant is originally from the San Fernando Valley and had been staying with Emilio for about a week and a half. As relevant to this appeal, officers found a copy of an article about the shooting in defendant's closet.
On November 1, 2012, officers searched the entire apartment. They found a book written by a former member of the Mexican Mafia. Blue bandanas were found in both bedrooms, including one wrapped around five .38-caliber shells in Emilio's room. Most of the clothing in the apartment was either blue or black. The officer who testified about this search did not recall seeing any red clothing.
The parties stipulated “[t]hat the Sureño street gang and its subsets are in fact a criminal street gang” as defined in section 186.22, subdivision (f). Department of Corrections and Rehabilitation Special Agent Paul Sprague testified as an expert on the Sureño gang. He explained its relationship to the Mexican Mafia and that Sureños generally wear blue while their enemies-the Norteños-generally wear red. Sureños often wear blue bandanas in particular.
Redding Police Officer Levi Solada testified that gang members normally get tattoos depicting areas they are from and describing what gangs they are associated with. Defendant had “SUR, ” “YB, ” “YBR” and three dots tattooed on his left hand. Officer Solada and Special Agent Sprague testified “SUR” was a reference to the Sureños and “YB” and “YBR” referred to the Young Boys RIFA, a subset of the Sureños from Los Angeles that defendant belonged to. Defendant also had “NK” tattooed on his left hand for “Norteño Killer.” On his face, defendant had tattoos of the letter “Y” and three small dots. Special Agent Sprague explained the three dots symbolize the term “mi vida loca” and embracing the gang lifestyle. Defendant also had numerous other tattoos on his body that conveyed membership in the Sureño gang.
The parties stipulated that specific graffiti appeared near the location of the shooting between October 2, 2012, and October 3, 2012. The graffiti contained various symbols associated with the Sureños. Special Agent Sprague testified Sureños use graffiti to mark their territory. He also said the “YB” depicted in the photograph of the graffiti was in similar script to the “YB” on defendant's body.
Special Agent Sprague opined that defendant was an active Sureño gang member. Defendant was living with Emilio, who had previously admitted to a gang enhancement under section 186.22, subdivision (b)(1).
Special Agent Sprague testified that Sureños use violence to demonstrate and promote the gang's strength. Violence also enhances an individual's reputation: “An individual who is quick to violence and does it with courage and demonstrates their loyalty is honored within the gang. The slang term is ‘street cred' or ‘street credibility[.'] It instills a sense of fear in victims and witnesses and in people who hear about the reputation of the gang. In other words, the thing to fear is the violence of the gang. That's the thing they point to and say, ‘Look what this gang is capable of.' ”
The prosecution asked Special Agent Sprague hypothetical questions mirroring the facts of these crimes, and he opined that the crimes were committed for the benefit of, the direction of or in association with a criminal street gang. He explained that, based on the disrespect perceived, the crime benefited the gang by protecting its reputation and territory. Witnesses would remember the violent act and the gang's reputation would grow after the witnesses learned the identity of the attacker. The gang's reputation is important because it creates fear in the general public and allows the gang to commit its primary criminal activities with greater impunity. Violent crimes in particular further the activities of the Sureño gang because of their severity. They serve as a warning to enemies and members of the community, and instill fear in those who hear what the gang has done. Additionally, possessing an article about the crimes allows a person to demonstrate to other gang members that he performed the activity.

ECF No. 15-3 at 2-5.

         Antiterrorism and Effective Death Penalty Act of 1996 Legal Standards

         The statutory limitations of the power of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The text of § 2254 provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court ...

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