CLAUDIA WILKEN, District Judge.
Petitioner Mark A. Candler, a state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state criminal conviction. He asserts claims for ineffective assistance of counsel based on appellate counsel's failure to challenge on appeal (1) the sufficiency of the evidence to support his conviction for attempted murder; and (2) the trial court's denial of the motion to suppress evidence gathered by wiretap. Respondent has filed an answer and a memorandum of points and authorities in support thereof and Petitioner has filed a traverse. Petitioner moves for an evidentiary hearing. For the reasons discussed below, the Court DENIES the motion for an evidentiary hearing and DENIES the petition.
On August 5, 2010, an Alameda County jury found Petitioner guilty of one count of attempted murder, one count of shooting at an inhabited dwelling, three counts of being a felon in possession of a firearm, and one count of possession of an assault weapon. Each charge was accompanied by an allegation that Petitioner committed it in association with a criminal street gang. These enhancement allegations were also found to be true. On October 29, 2010, the trial court sentenced Petitioner to forty-eight years to life. Represented by counsel, Petitioner filed a direct appeal to the California Court of Appeal, raising six grounds: (1) that the admission of a large volume of evidence related to gangs was inflammatory and unfairly prejudicial; (2) that the trial court wrongly allowed the State's gang expert to opine that he shot the victim; (3) insufficiency of the evidence with respect to the felon in possession counts; (4) sentencing error with respect to the felon in possession counts; and (5) erroneous denial of the motion to sever his trial from his co-defendants. On May 22, 2012, the Court of Appeal affirmed, except as to the claim of sentencing error. On August 22, 2012, the California Supreme Court denied Petitioner's petition for review of the denial of his direct appeal.
On September 20, 2012, Petitioner, proceeding
On September 13, 2013, Petitioner filed a second habeas petition in the California Court of Appeal, raising the same grounds as those contained in his September 20, 2012 petition "for the purpose of federalizing all claims." The California Court of Appeal denied the petition on October 4, 2013.
Petitioner filed the instant habeas petition on November 15, 2013.
According to trial testimony, gangs from the Acorn and Ghost Town neighborhoods in West Oakland had a strong alliance in the period leading up to June 30, 2006. On June 30, 2006, a funeral took place on Filbert Street for a Ghost Town resident named Sean. At the end of the funeral, Aaron Burrell and Marquis Burton got into a dispute after Burrell accused Burton of stealing his car. Although Mr. Burrell was a Ghost Town resident and Burton was an Acorn resident, they were close and Burrell referred to Burton as his god-brother. When Mr. Burrell threatened to fight Burton, another Acorn resident, Wendell Stevenson, threatened to fight back against him. Another Ghost Town resident, Jermel Holloway, threatened to join the fight on Mr. Burrell's side. Mr. Stevenson and Mr. Holloway were members of the Acorn and Ghost Town gangs, respectively.
After the funeral, mourners gathered on Martin Luther King (MLK) Way near 31st Street, in Ghost Town, for a candlelight vigil. Close to fifty people were there. Among them were Joy-Nequia Brooks, Dashawna Ross, Mr. Burrell and Mr. Holloway. At approximately 4:50 PM, nearby police officers heard more than thirty gunshots in rapid succession. One officer, Ouseng Saepern, saw a white Dodge Magnum leaving the scene and driving very fast. Officer Saepern followed the Magnum but lost sight of the vehicle within a few blocks. Shortly thereafter, another officer, Anthony Tedesco, arrived at the intersection of 31st Street and MLK. He saw many people looking south on MLK and testified that he began collecting shell casings because they were in a busy intersection. He recovered thirty-two 7.62 caliber casings associated with automatic assault rifles and eight .40 caliber casings from a handgun. Later analysis showed that the casings came from an SKS-type rifle, an AK-type rifle and a handgun. Residents of several nearby homes testified that they heard gun fire and found bullet holes in their homes. Mr. Holloway was shot three times in the buttocks and legs during the incident. He was not interviewed by the police at the time of the shooting. No one at the scene was willing to talk to the police officers.
Two years later, Sergeant Tony Jones was investigating a separate March 31, 2008 murder of Kevin McKenzie, a Ghost Town resident. Sergeant Jones learned that Mr. Burrell had been sitting in the driver's seat of the car that Mr. McKenzie was next to when he was shot. Accordingly, Sergeant Jones requested that Mr. Burrell be brought to the station for questioning. Sergeant Jones testified that Mr. Burrell told him that he believed the person who killed Mr. McKenzie intended to shoot Mr. Burrell.
Based on this information Sergeant Jones asked Mr. Burrell to explain the history of the conflict between the Acorn and Ghost Town gangs. Mr. Burrell relayed the story of the June 2006 funeral dispute and the shooting that took place later that afternoon. Based on the information gathered from Mr. Burrell, Sergeant Jones also questioned Joy-Nequia Brooks, Dashawna Ross and Jermel Holloway. Petitioner and Elijah Thomas were then charged with the 2006 shooting. Each of the 2008 statements and the witnesses' trial testimony are summarized below.
At trial, Petitioner testified that, on the day of the 2006 shooting, he received a phone call regarding the altercation between Mr. Stevenson and Mr. Holloway outside the funeral home on Filbert Street. Petitioner further testified that he went to see Stevenson to find out what happened. Mr. Stevenson told Petitioner about the gathering at MLK and 31st but said he did not want to go there because he heard Mr. Holloway was high. Petitioner testified that he went to the vigil both to try to talk to Mr. Holloway and to pay his respects. Petitioner drove to the vigil in a red two-tone Buick and looked for Mr. Holloway. When he arrived he saw about sixty people at the intersection. He located Mr. Holloway and began walking towards him and calling his name from about twelve feet away. Petitioner saw Mr. Holloway "whip out" but testified that he could not tell at first "if it was a fake gun or some type of joke." RT 2356-57.
Petitioner testified that he fell to the ground and began crawling toward his car when he heard the automatic gunfire. At some point, he looked up and saw Mr. Stevenson standing near a white Dodge Magnum, firing an automatic rifle into the air. After shooting two bursts of gunfire, Mr. Stevenson got into his white Dodge Magnum and drove south on MLK. Petitioner testified that he saw Mr. Holloway run into the intersection of 31st Street and MLK and then get into the backseat of a different white Dodge Magnum that also drove south on MLK. After approximately a minute, Petitioner got in his car and drove to Kaiser Hospital in Oakland to pick up his son's mother from work.
Mr. Holloway, the victim of the 2006 shooting, was killed in a separate incident in November 2009 and, hence, was not available to testify at trial. At the 2008 preliminary hearing, while he discussed the injuries he sustained as a result of the 2006 shooting, he denied that either Petitioner or his co-defendant, Elijah Thomas, shot him in 2006. He stated that he and the mother of his child were present at the funeral, but denied that there had been any argument. He stated that he heard shots, realized he was hit, and then ran into a nearby store. He further stated that a stranger drove him to the hospital.
Prior to the preliminary hearing, Mr. Holloway, incarcerated in prison, had spoken to Sergeant Jones. He had refused to allow the conversation to be recorded, but Sergeant Jones took notes and testified as to their conversation. Sergeant Jones testified that Mr. Holloway told him that, prior to the shooting, the Ghost Town and Acorn gangs got along. He told him that the argument at the funeral was a result of Mr. Burton taking Mr. Burrell's car. He said that he then got involved in the argument, and told Mr. Stevenson that if he fought Mr. Burton, then he would fight Mr. Stevenson. Mr. Stevenson then drove away, saying that he was not interested in fighting. Mr. Holloway told Sergeant Jones that he had a feeling the Ghost Town gang members were going to come back and retaliate.
Sergeant Jones testified that Mr. Holloway told him that on the day of the 2006 shooting, he saw Petitioner and Mr. Thomas drive from 31st Street and get out of a white Dodge Magnum with a "long chopper." RT 2063. Sergeant Jones testified that a "chopper" is common street terminology for an assault rifle. RT 2078. Next, he heard shots being fired behind him and got hit in the back of the legs. He went on to tell Sergeant Jones that he turned around and saw Petitioner shooting at him.
At trial, Joy-Nequia Brooks testified that she was present at MLK and 31st Street at the time of the 2006 shooting. She testified that she froze for five to ten seconds and then started running, so she did not see who was shooting. At trial, Ms. Brooks further testified that she had never seen Petitioner or Mr. Thomas before.
In Ms. Brooks's 2008 statement, she admitted to knowing Petitioner as a member of the Acorn gang, knowing his real name and having seen him often. Ms. Brooks stated that the argument between Mr. Burrell, Mr. Holloway, Mr. Burton and Mr. Stevenson could have turned into a fight, "but they wanted to go get guns and they came back with guns ..." CST 2498. She stated that as she stood on the corner of 31st Street and MLK, she saw Petitioner and Mr. Thomas drive up in a Jaguar to the middle of the block on MLK between 31st and 32nd Streets. She stated that she saw Mr. Thomas stop the car in the middle of the block, Petitioner exit the passenger side, shoot Mr. Holloway, get back in the car and leave. She stated that Petitioner used a "big ass gun ... that was like a[n] army gun." CST 2503. She stated that Mr. Stevenson also drove up in a red "scraper car." CST 2499. Ms. Brooks stated that Mr. Stevenson got out of his car, but Ms. Brooks did not see him shoot at anybody. Ms. Brooks also observed a third car drive up at the same time, but she could not remember what kind of car it was.
After invoking his Fifth Amendment rights at trial, Mr.
Burrell was granted immunity as to any testimony given. RT 533.
At trial, Mr. Burrell testified that prior to the 2006 shooting, there were no problems between the Acorn and Ghost Town gangs. A month or two prior to the 2006 shooting, Mr. Burrell's car, a Buick with chrome rims, was stolen. After the car was stolen, Mr. Burrell saw parts of what he believed to be his car, specifically his rims, in other cars in the Acorn neighborhood. Mr. Burrell was affiliated with the Ghost Town neighborhood. He testified that he believed his god-brother, subsequently identified as Marquis Burton, also known as "Flip," had the car because Mr. Burton had a master key used by car thieves to steal cars. RT 826.
Mr. Burrell testified that, on the day of the 2006 shooting, he and his cousin, Dashawna Ross, were at the funeral for Sean, a Ghost Town resident. He stated that, after the funeral, he saw Mr. Burton and they began to argue about Mr. Burrell's stolen car. Mr. Burrell stated that Mr. Holloway was with him and that Mr. Stevenson, also known as "Weezy," came to Mr. Burton's defense. During the argument, after Mr. Burrell indicated that he wanted to fight Mr. Burton, Mr. Stevenson said that if Mr. Burrell fought Mr. Burton, then Mr. Stevenson would fight Mr. Burrell. Mr. Holloway jumped in, saying that if Mr. Stevenson fought Mr. Burrell, then Mr. Holloway would fight Mr. Stevenson. Mr. Burrell stated that after this exchange, Mr. Stevenson and Mr. Burton drove off together, while he and Mr. Holloway drove off together.
Mr. Burrell testified that, after the funeral, a group of people gathered at 31st and MLK, which was in the Acorn neighborhood. He arrived at the intersection in a car with Mr. Holloway. Then Mr. Holloway parked the car and Mr. Burrell got high by smoking marijuana and drinking "syrup," a form of Robitussin with codeine. RT 842.
Mr. Burrell testified that, right before the shooting began, he noticed several cars, including a white car, but did not see any people coming out of the cars. Mr. Burrell stated that he was sitting in his friend's car (which was the same car in which he and Mr. Holloway left Sean's funeral) when the shots were fired from behind where he was parked. As the shots were being fired, he ran on foot to the backyard of a home and, when the shooting stopped, he got back into the car. He testified that he did not see who was doing the shooting or who was shot. He further testified that he, his friend, and two other people drove away to East Oakland. Mr. Burrell stated that, later that day, he saw Mr. Holloway.
At trial, after Mr. Burrell testified as described above, the prosecutor played a recording of a conversation between Mr. Burrell and Sergeant Jones made after the 2008 shooting that left Mr. Burrell's friend, Mr. McKenzie, dead. Mr. Burrell testified that whatever he said that was recorded during that conversation, he was telling Sergeant Jones "whatever he wanted to hear to get out of there." RT 864. The prosecutor presented a diagram of the area, a diagram to which Mr. Burrell and Sergeant Jones refer in the recording. Mr. Burrell told Sergeant Jones that he was "by the dead end" of 31st Street during the shooting, looking towards 32nd Street. CST 2517. He stated that he saw Petitioner get out of a white Dodge Magnum and that he saw Mr. Thomas get out of a blue BMW SUV. He then told Sergeant Jones that Mr. Thomas was the first to start shooting. He told Sergeant Jones, "They start shooting. M-A
At trial, Ms. Bell testified that she did not know Petitioner. She testified that on the day of the shooting, she went looking for her son at a funeral being held at Baker's Funeral Home on Filbert Street in the Acorn neighborhood. She stated that she did not find her son in the crowd, so she left the area after five or ten minutes. Next, she went to 32nd and MLK, again looking for her son. Ms. Bell testified that she double-parked her car, because there were no parking spots, and looked for her son in the crowd. She went on to testify that she did not know about Mr. Burrell's stolen car nor did she see Petitioner outside of the funeral home on the date of the shooting. She stated that she did not see a shooting.
In her 2008 statement to Sergeant Jones, Ms. Bell stated that she knew Petitioner from having seen him around the neighborhood, and that they had had a two and a half hour conversation at a birthday party. She stated that the car which started the argument at the funeral was stolen from in front of her home. She was at the funeral that day, and had seen and heard the argument over the car. After the funeral, Ms. Bell, accompanied by two other people, including Ms. Brooks, drove from Ghost Town to 31st Street and MLK in the Acorn neighborhood. She told Sergeant Jones that, between two and three o'clock in the afternoon that day, she saw Petitioner and Mr. Thomas driving down the street. Someone yelled that the men were coming, and then "MAC ... jumped out, started shooting." CST 2536. She also told Sergeant Jones that Petitioner had "a chopper, ... a hundred rounder or something," CST 2537, and that even though she was on the ground, she could see Petitioner shooting as she looked under a car.
On April 22, 2008, the Oakland Police Department (OPD) obtained a warrant authorizing a wiretap on three phone numbers associated with members of the Acorn gang. The order was issued upon an application by the Alameda County District Attorney, an approval by the OPD Chief Wayne Tucker, and an affidavit by OPD Officer Steve Valle. The operation focused on three individuals named in the application, as well as other "Target Subjects," including Petitioner. The individuals were targeted because OPD believed that they were involved in crimes associated with a street gang. The wiretap was authorized for thirty days.
After the initial wiretap was authorized, Officer Valle submitted a new affidavit supporting a request to modify the original wiretap to include an authorization to tap Petitioner's cellphone, the number of which OPD had recently discovered. Neither the District Attorney nor the Chief of Police signed the modification request. On May 5, 2008, Alameda County Superior Court Judge Jon Rolefson executed a modified order authorizing the tapping of Petitioner's phone. The order acknowledged the previous application by the District Attorney, and the approval by Chief Tucker.
A few weeks later, the District Attorney submitted an application requesting a thirty day extension of the modified wiretap, supported by Officer Valle's affidavit and OPD Assistant Chief Howard Jordan's approval on behalf of Chief Tucker. On May 20, 2008, Judge Rolefson authorized an extension of the wiretap operation for an additional thirty days. The extension order acknowledged the past approval of Chief Tucker. The evidence gained from the wiretap was used to establish the 2008 firearms charges against Petitioner and Mr. Thomas.
A federal court may entertain a habeas petition from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, a district court may not grant habeas relief unless the state court's adjudication of the 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);
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts."
If constitutional error is found, habeas relief is warranted only if the error had a "`substantial and injurious effect or influence in determining the jury's verdict.'"
When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion of the highest court to analyze whether the state judgment was erroneous under the standard of § 2254(d).
Petitioner claims that he was denied the effective assistance of counsel on appeal because appellate counsel did not challenge (1) the sufficiency of the evidence with respect to the attempted murder charge or (2) the admission of the wiretap evidence.
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right.
Petitioner argues that appellate counsel was deficient because he failed to challenge the sufficiency of the evidence to support the attempted murder charge. Specifically, Petitioner argues that the evidence presented that he shot at Mr. Holloway came through four unsworn, out-of-court statements that were later recanted.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."
A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt.
After AEDPA, a federal habeas court applies the standards of
Petitioner's claim that the evidence presented at trial was insufficient to support an attempted murder conviction is premised on the prosecution's reliance on four out-of-court witness statements, all of which were later recanted at trial. Petitioner argues that these statements were the "only evidence produced at trial," they were not reliable or substantial, and thus fail the substantial evidence test.
"A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied."
Both Petitioner and the State rely on
After considering the
Petitioner admits that "all four witnesses were familiar or very familiar" with him. Traverse, 35. In her 2008 statement to Sergeant Jones, Ms. Bell stated that she and Petitioner had a two and a half hour conversation at a recent birthday party. Ms. Brooks admitted, in 2008, to knowing Petitioner, his gang affiliation, and his real name and to having seen him often.
At trial, Mr. Burrell, Ms. Brooks and Ms. Bell denied seeing Petitioner at the scene of the crime. However, in their 2008 pretrial statements, each placed Petitioner at the scene and stated they were in a position to see the crime as it was committed. Ms. Bell stated that, even though she was on the ground when the shots were fired, from her spot under the car, she could see Petitioner shooting. Ms. Brooks stated that she was near the shooting and described the gun Petitioner carried. Mr. Burrell stated that from his car, parked at the "dead end" of 31st Street, he saw Petitioner exit a white Dodge Magnum and start shooting.
Petitioner argues that because the witnesses are each affiliated with Ghost Town, they have a motive to lie about him, as a member of the rival Acorn gang. Yet, this fact could also be interpreted against Petitioner. It is unlikely that witnesses seeking to frame Petitioner would recant the very statements that implicate him in this crime.
Petitioner placed himself at the scene of the shooting, as did all of the witnesses in their out-of-court statements. Ms. Brooks stated that she was privy to the argument at the funeral home, and gave a detailed description of the shooting, including seeing Petitioner with a gun, and a description of the gun Petitioner carried. Ms. Bell gave a similar description of the gun, provided details about the car stolen from in front of her house and stated details about what was said during the shooting, what time it took place and identified Petitioner as a shooter. Mr. Burrell also gave details about Petitioner's car, the direction from which the cars came before the shooting, and corroborated Ms. Brooks's and Ms. Bell's statement about seeing Petitioner fire his gun and the type of gun Petitioner used in the shooting. The statements about the type of gun used were corroborated by the assault-rifle-caliber bullet holes found in the surrounding houses.
On balance, each of the
Furthermore, in
12 Cal. 4th at 267-268. The most relevant here is that of evidence that a witness's recantation is due to fear of retaliation.
In her 2008 statement to Sergeant Jones, Ms. Ross stated that she was afraid of retaliation and did not want to go to court because of events that occurred the last time she was in court. She explained, "I done got threatened and chased down and people want to kill me behind going to court." CST 2529. Sergeant Jones then asked Ms. Ross if the reason she did not want to testify was that she was "afraid of something happening to" her.
Thus, for the reasons stated above, the Court finds that the out-of-court statements made by the witnesses meet the substantial evidence test, in spite of the subsequent recantations. Hence, appellate counsel could have reasonably concluded that, given that the evidence was sufficient to support the conviction, there was no merit to bringing a sufficiency of the evidence challenge on appeal.
Furthermore, Petitioner has not shown, as required under
As discussed above, a challenge to the sufficiency of the evidence likely would not have succeeded. Hence, even assuming his counsel's performance was unreasonable, Petitioner has not shown that he suffered prejudice. Accordingly, Petitioner's request for habeas relief on this ground is DENIED. II. Second Ground for Relief: Motion to Suppress Wiretap Evidence
Petitioner next argues that appellate counsel was ineffective in failing to appeal the denial of his motion to suppress the wiretap evidence used to support his firearms convictions.
The original wiretap authorization, signed by the District Attorney, the Chief of Police, and accompanied by an affidavit from Officer Valle, allowed for the monitoring of three target telephones. For the modification, Officer Valle asked Judge Rolefson to add a fourth telephone line, specifically, that of Petitioner. Chief Tucker was unavailable to sign the modified application and the District Attorney also did not sign. In the place of the Police Chief, however, the Assistant Chief of Police, Howard Johnson, signed the application.
California law requires that "[e]ach application for an order authorizing the interception of a wire or electronic communication shall be made in writing upon the personal oath or affirmation of the Attorney General ... or [of] a district attorney, or the person designated to act as district attorney in the district attorney's absence ... to the presiding judge of the superior court or one other judge designated by the presiding judge." Cal. Penal Code § 629.50(a).
California courts look to federal as well as California law in applying the California wiretap statute.
In
Here, the Superior Court interpreted the facts surrounding this wiretap in the light of the California statute and
RAT 38-40.
On the last
Petitioner argues that the trial court misapplied the California wiretap statute and that appellate counsel was ineffective for not raising this issue on appeal. To succeed on this claim, Petitioner must show that the appellate court, had this issue been raised, would have ruled in his favor and found that the purpose of the violated provision was not achieved due to the absence of key signatures on the wiretap modification application.
Petitioner relies on
In
416 U.S. at 509-510. As a result, the Supreme Court ruled, "We are confident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored."
In
Thus, Petitioner has not satisfied his burden of showing that the trial court's admission of the wiretap evidence was such that the appellate court would likely have found that the trial court erred.
Moreover, Petitioner has not shown, as required under
A habeas petitioner is entitled to an evidentiary hearing on disputed facts where his allegations, if proven, would entitle him to relief.
The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability in the ruling. Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."
The Court finds that reasonable jurists would not find its ruling on any of Petitioner's claims debatable or wrong. Therefore, a certificate of appealability is denied.
Petitioner may not appeal the denial of a certificate of appealability in this Court but may seek a certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases.
Based on the foregoing, the Court orders as follows:
1. The request for an evidentiary hearing is denied.
2. The petition for a writ of habeas corpus is denied.
3. The Clerk of the Court shall enter a separate judgment, terminate all pending motions and close the file.
4. A certificate of appealability is denied.
