United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
is currently in state prison serving a sentence of 74 years
to life for his conviction for offenses surrounding shooting
two people in a bar. He filed the instant habeas petition
challenging the conviction. As discussed below, the Court
finds the claims to be without merit and recommends the
petition be DENIED.
was convicted of second-degree murder of Janee Tatum (Pen.
Code, § 187) and attempted murder of Herman Tatum, Jr.
(§§ 664/187), with enhancements for personally and
intentionally discharging a firearm causing great bodily
injury or death (§ 12022.53, subd. (d)). People v.
Foster, 2019 Cal.App. Unpub. LEXIS 92, at *1 (Cal.App.
5th Dist. January 3, 2019). Petitioner also pleaded no
contest to possession of a firearm by a felon (§ 29800,
subd. (a)(1)). Id. The court sentenced Petitioner to
9 years plus 65 years to life. Id. at *2. The Fifth
DCA remanded the matter for sentencing issues but affirmed
the conviction otherwise. Id. at *3.
filed the instant habeas petition on June 21, 2019. (Doc. 1.)
Respondent filed its answer on September 6, 2019. (Doc. 11.)
Court adopts the Statement of Facts in the Fifth DCA's
The Hinton Center event
On the afternoon of Sunday, March 23, 2014, Herman Tatum and
his father went to a "Stop the Violence" gathering
at the Hinton Center in Fresno. There were 20 to 30 people
there. Herman and his father talked to friends and relatives,
stayed for about 30 to 45 minutes, and then Herman went home.
Alberta Malone also attended the event and took photographs
of everyone having a good time. One of the photographs showed
defendant was at the event. There is no evidence that
defendant and Herman interacted in any way at the event.
The Crossroads bar
Later that evening, Herman was at home with his wife, Janee.
Herman was a long haul truck driver and scheduled to leave
the next day. Janee suggested that they go to The Crossroads
bar as something fun to do that night. Herman agreed.
Herman and Janee arrived at the bar sometime between 10:00
p.m. and 11:00 p.m. The bar was located in a small shopping
center at the corner of Cedar and Shields in Fresno. The
bar's interior was separated in certain segments. At the
entrance door, there was a curtained foyer followed by a
dance floor, a barrier wall around the dance floor, a stage
for the band, and a U-shaped bar.
Herman testified that he was carrying a .45-caliber Glock
handgun in a holster on the right side of his belt, and the
holster was inside his waistband. His shirt was hanging over
his belt and covered the gun holster. The gun was loaded but
not cocked. He did not have a concealed weapons permit.
Herman testified he had lawfully purchased the gun, and
always carried it because he felt it would protect his
family. Herman and Janee belonged to a hunting club.
Herman testified there were 20 to 30 other patrons at the
bar, including about half the people who had been at the
Hinton Center event. Everyone "pretty much knew each
other ... but everybody is not friends."
Defendant's statements to Janee and
Herman testified about what happened at the Crossroads that
night. Herman was standing by the bar and talking to a
friend. Janee was standing two feet behind Herman.
Defendant walked between Herman and his friend. Herman did
not know defendant but recognized him because defendant had
been at the Hinton Center event earlier that day.
Herman testified that defendant started to talk to Janee and
said to her, "'Hey, I want to talk to you
outside.'" Janee turned around and told defendant,
"'Hey, I'm married. I don't do
Defendant walked to Herman's side and tapped him on the
shoulder. Defendant asked Herman, "'Hey, is this
your girl?'" Herman testified he replied in a
"joking" way, "'No, it's my
Herman testified defendant asked, "'Hey, is this
your wife?'" Herman again said she was his wife.
Defendant said, "'You know who I am?'"
Herman said no.
Herman testified he extended his hand, introduced himself,
and tried to shake defendant's hand. Defendant did not
shake his hand. Defendant said, "'Nah, we are going
to leave it at that, '" turned around, and said it
was okay. Herman also said it was okay. Herman testified he
never pulled his firearm at that time because they did not
argue, and he thought the exchange ended. He never lifted his
shirt to show the gun to defendant.
Herman testified Janee told him to get another drink and then
they could leave. Herman asked the bartender for two more
drinks and resumed his conversation with his friend.
Defendant shoots Janee and Herman
When the drinks were ready, Herman turned to the bar to get
them. Janee was still standing in the same place. Herman
never saw her talk to defendant. Herman looked to the left
and saw defendant rocking back and forth. Herman was not
concerned about defendant's behavior because music was
playing in the bar.
As Herman picked up the drinks, he heard someone say,
"'Now what, you bitch-ass n[****]r?'"
Herman turned around and saw defendant and realized defendant
had made the statement. Herman did not know why defendant
said that. Defendant was standing in the same place and still
rocking back and forth. Defendant's right hand was
extended, and he was holding a handgun. Herman testified that
he looked at defendant, but defendant "wasn't
pointing [the gun] at me, though. He never pointed it at me.
He had it pointed at Janee."
Herman testified he made "a left turn very fast"
and tried to use his right hand to knock the gun out of
defendant's hand. "My purpose of doing that is so I
can get to my wife. I figured if I can cover up my wife,
anything I needed to do after that I could do." Herman
took two large steps toward defendant, spun around, and his
left elbow made contact with defendant's right hand.
Herman thought he had knocked the gun out of defendant's
hand and tried to get to Janee to cover and protect her.
Herman testified defendant never dropped the gun but held
onto it. Defendant regained control of the gun and
"[r]epositioned his grip." Defendant stepped to the
right "and he fired, boom."
As the first shot was fired, Herman testified he was
"running towards" Janee and "reaching out to
grab her" with his right hand. Herman was "maybe a
step, step and a half off" and "grabbed her elbow.
I barely got my fingers on her, and I was trying" to
"throw my left arm over" to cover her body.
Herman testified that Janee fell backwards before he could
reach her. Herman heard a couple more gunshots. At that
point, Herman realized he was also hit and fell to the floor.
Once he landed on the floor, Herman pulled out his own
handgun, cocked it, and looked for defendant but he was gone.
Herman was positive that defendant never saw that he was
carrying a gun.
Herman held Janee on the floor and realized she had been shot
in the head. She was bleeding very badly. Herman's
neighbor approached and stood over them. Herman handed his
gun to the neighbor and told him to take it home. "I
mean, what else can I do with it? I mean, I hadn't
fire[d] it. I didn't do nothing with it."
Herman testified defendant shot them about 30 minutes after
defendant made his initial statements to them. Herman did not
notice if defendant walked in and out of the bar before the
shooting because he was not paying attention to him.
The victims' injuries
The police received a dispatch to respond to the bar at 11:09
p.m., and Herman and Janee were immediately transported to
Janee had been shot once in the head. The bullet entered the
front of her forehead, fractured her skull, continued to the
top portion of her head and through the soft tissue, and
resulted in bleeding outside and under the brain. She lapsed
into a coma within a few minutes of the injury. There was no
gunshot residue or stippling on her forehead, indicating the
gun was fired at least two to three feet away from her. Janee
died at the hospital after being on a respirator for a few
Herman was shot twice and wounded in his back and lower
buttocks. The wounds were about 12 inches apart. He had
surgery to remove the bullets and was in the hospital for
three days. Herman was unable to work for nine months because
of his injuries. At the time of trial, he sometimes had
difficulty standing, his leg locked at times, and he could
not squat down.
The officers found four nine-millimeter shell casings on the
floor of the bar. There was a fresh bullet hole through the
wall of a store room.
An officer spoke to Herman at the hospital and obtained a
statement about what happened. The police also interviewed
other patrons at the bar and obtained a physical description
of the gunman.
The officers learned from witnesses in the bar that earlier
in the evening, the possible gunman had been at a liquor
store located in the same shopping center. The police
obtained surveillance video from the liquor store and
obtained a still photograph of a man who matched the
witnesses' descriptions of the gunman. The police also
examined Alberta Malone's camera and found a photograph
of someone who resembled the person in the surveillance
Based on this information, the police prepared a photographic
lineup that included defendant's picture and showed it to
Herman and other witnesses at the bar. Defendant was
identified as the gunman.
Arrest of defendant
On May 2, 2014, defendant was arrested at an apartment in
Cleveland, Ohio, by officers attached to the Federal Bureau
of Investigation's violent crime task force. Defendant
was held in custody at the Cuyahoga County Jail. Defendant
made a telephone call from jail to someone on the same day
that he was arrested. Defendant's call was monitored, and
officers heard defendant make statements about the possible
location of a gun.
A few hours after he was arrested, the officers returned to
the Cleveland apartment where they had found defendant. The
officers discovered a nine-millimeter handgun that was under
the plastic liner of a bathroom trash can. There was one
bullet in the chamber and additional bullets in the magazine.
A criminalist compared the four nine-millimeter casings found
on the bar's floor with the nine-millimeter handgun
recovered from the Cleveland apartment where defendant was
The criminalist testified she identified three casings as
being fired from that nine-millimeter handgun.
The fourth casing "had the same class
characteristics," but there were not enough details to
say "with absolute certainty" that it was also
fired from defendant's gun. The criminalist testified it
was "possible" the fourth casing was fired from
another nine-millimeter weapon but explained the fourth
casing "most likely" was fired from defendant's
gun and there just "was not enough there in detail for
me to call it an identification."
The police also recovered Herman's .45-caliber Glock
pistol that he had at the bar and gave to his neighbor. The
criminalist examined Herman's Glock handgun and compared
it with the four casings found in the bar. She testified that
none of the casings were fired from the .45-caliber Glock
handgun because of "[t]he differences in caliber, so
those cartridge cases could not have been fired from that
Glock. They were .9mm caliber, which is much smaller diameter
than .45 caliber pistol."
Prosecution evidence from other bar
Tony Ortega testified he was at the bar and talking to
friends. A disc jockey was playing music. Ortega did not hear
any loud arguments or disturbances. After he had been at the
bar for about 30 minutes, the music suddenly stopped, and he
thought the speaker had blown out. He then heard gunshots.
Ortega looked up and saw a man firing a gun. Ortega later
identified defendant as the gunman. Defendant's right
hand was fully extended as he fired. Ortega heard three to
five gunshots and saw a couple of flashes. Ortega could not
see who defendant was firing at. After he fired the final
shot, defendant walked out of the bar, and he was still
carrying the gun. Ortega did not know him and had never seen
him before. Everyone was screaming and running after the
shots were fired. Ortega did not see anyone else with a gun.
Feliza Banuelos testified she was sitting at the bar and saw
a man with dreadlocks walk out of the building and then
return. The man again walked out and then came back inside.
When he returned the second time, he was holding a handgun
and started shooting. She did not know the gunman. She ducked
down and did not see what happened. She did not hear any
arguments before the gunshots and did not see anyone else
with a gun.
Alberta Malone testified about taking photographs at the
Hinton Center event; she further testified that defendant was
also at the Hinton Center. Malone was also at the Crossroads
that night and took additional photographs at the bar. One
photograph showed Herman and Janee standing together. Malone
testified that she heard gunshots and immediately went down
to the floor. She did not hear any arguments or yelling
before the gunshots. She later gave her camera to the police.
DEFENDANT'S TRIAL TESTIMONY
Defendant testified at trial about the shooting. He went to
the "Stop the Violence" event at Hinton Center
earlier that day. He was wearing a T-shirt that said
"Nothing but love Fresno" that he previously bought
from someone who was throwing the event. He stayed at the
event for several hours, ate food, and drank two or three
Defendant testified he was armed with a buck knife and a
nine-millimeter handgun that day. He carried the gun because
of the violence in the area, and to protect himself from
"indirect" threats he had received. Defendant
testified he previously obtained the gun "from the
streets" and had stored it "in an abandoned
house." The gun was loaded, but he could not remember
where he got the ammunition. Defendant put the gun in his
waistband and covered it with his shirt.
Later that evening, defendant went to the Crossroads with
some people who had been at the Hinton Center event. He
briefly stopped at a nearby liquor store to buy cigarettes.
He smoked a cigarette outside and then went into the
Crossroads. Defendant testified he sat with his friends by
the bar and drank a shot of Hennessey.
Defendant testified another friend invited him to go outside
and smoke marijuana. Defendant agreed and hurried to finish
his drink. Defendant left the bar area and headed toward the
door. Defendant testified he walked by Janee. Herman spun
around and blocked defendant's path. Defendant testified
he had never met Herman or Janee, he did not know them, and
he did not see them at the Hinton Center event.
Herman asked defendant what he said to his wife. Defendant
replied that he did not say anything to her. Janee approached
Herman and said, "'Man, hold on, you tripping,
'" and grabbed Herman's arm. Herman told
defendant, "'Yeah, you better not have say nothing
to my wife.'"
Defendant testified Herman "started to get angry like
provoking or trying to just - telling me as far as getting
real hostile." Defendant testified he backed away from
Herman and Janee; he did not ask Herman if he knew who he
was. A man who had been sitting at the corner of the bar got
up and stood between defendant and Herman. Defendant kept
backpedaling. Herman came at defendant in an aggressive
manner and cursed him.
Defendant testified that Herman pulled a nine-millimeter
"Glock 9" from the side of his hip. Herman pointed
the gun at defendant.
Defendant testified he feared for his life and pulled his own
gun. Defendant ducked down low, so Herman could not see him.
Herman did not try to slap the gun out of his hand. Herman
put his drink down and turned. Janee was "flying that
way towards where I had just walked from." Defendant
testified he fired three shots. He fired once while crouched
down low, and then fired two more shots.
Defendant testified he fired in self-defense. He was afraid
Herman was going to shoot him before he could shoot Herman.
Defendant was stunned that he had just shot a man, and he
walked out of the bar. He had no idea that Janee was hit by a
Defendant insisted he did not fire the bullet that hit Janee
in the head and killed her.
After the shooting, defendant took the train to Cleveland to
get away "from all the riff raff." He stayed with
the sister of his brother-in-law, and put his gun in a
garbage can. Defendant learned Janee had been killed. He was
"stunned" and knew he "didn't do it."
Defendant admitted he was also known as "Crazy,"
and a similar nickname was on the shirt that he was wearing
at the bar. Defendant testified that he believed there was a
plot against him that day but conceded that Herman and Janee
were not involved in the plot, and he did not know them.
Defendant testified that Herman was angry and aggressive, and
used a loud voice. Defendant was trying to calm things down.
Defendant believed Herman fired a shot, but he was not
"Q. Now, is it your testimony that Herman fired a shot,
one or more shots at you, is that your testimony?
"A. He shot one that I know of. I don't know,
probably one shot at most."
Defendant was "probably" aiming at Herman when he
fired the first shot. "[I]t was low. I don't know if
I was aiming exactly at - I couldn't get it out - I was
just moving up- moving it up, coming up with it. So I
don't know if it - I was trying to aim at him."
"Q. You intentionally pulled the trigger, right?
"Q. You know what happens when you pull a trigger to a
loaded gun, right?
"Q. You know pointing a loaded gun at someone and
shooting them, there's a chance you can kill someone,
"A. There's a chance, probably, yes.
"Q. Well, my question is if your testimony is that
Herman - you only did that because he was pulling a gun, were
you trying to kill him, were you trying to put him down?
"A. I was trying to stop him from shooting me.
"Q. And how did you do that?
"A. Pointing my gun and shooting back."
Defendant insisted he saw Herman holding a gun and pointing
it at him before he reached for his own gun.
"[H]e pulled his gun, as he is pulling his gun out,
brandishing it, that's when I went for mines
[sic]. He come up, point it at me, so I had came up
like this. I couldn't even get it all the way up yet. He
already had the gun on me. He already had everything on me,
you know." Defendant testified that he only fired after
he heard a gunshot.
"Q. It's your testimony that [Herman] fired first?
"A. Yeah, I heard the shot, so I fired."
Defendant was not sure if he shot Herman, but again insisted
he did not shoot Janee.
Also, on cross-examination, the prosecutor asked defendant
about statements he made to detectives during his post-arrest
interview in Cleveland. Defendant admitted that he told the
detectives that he fired two shots, but he testified at trial
that he fired three shots. Defendant insisted he told the
detectives that Herman had a "Glock 9." Defendant
was asked to review the transcript of his post-arrest
interview to show where he made that ...