Ali v. Grounds, Case No. 14–cv–00898–BAS–WVG

• Court: United States District Courts. 9th Circuit. United States District Court (Southern District of California)
• Citation: 236 F.Supp.3d 1241
• Decision Date: 22 February 2017
• Docket Number: Case No. 14–cv–00898–BAS–WVG
• Parties: Ahmed ALI, Petitioner, v. R.T.C. GROUNDS, Warden, et al., Respondents.

236 F.Supp.3d 1241

Ahmed ALI, Petitioner,
v.
R.T.C. GROUNDS, Warden, et al., Respondents.

Case No. 14–cv–00898–BAS–WVG

United States District Court, S.D. California.

Signed February 22, 2017

236 F.Supp.3d 1246

Kurt David Hermansen, Law Offices of Kurt D. Hermansen, San Diego, CA, for Petitioner.

Attorney General, Vincent Paul LaPietra, State of California Office of the Attorney General, San Diego, CA, for Respondents.

ORDER:

(1) OVERRULING PETITIONER'S OBJECTIONS;

(2) ADOPTING REPORT AND RECOMMENDATION; AND

(3) DENYING FIRST AMENDED HABEAS PETITION

Hon. Cynthia Bashant, United States District Judge

Petitioner Ahmed Ali brings this First Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his July 2010 conviction in San Diego County Superior Court. The matter was referred to Magistrate Judge William V. Gallo, who issued a Report and Recommendation recommending that Ali's petition be denied. Ali filed written objections. For the reasons set forth below, the Court adopts the Report and Recommendation, and denies Ali's habeas petition.

236 F.Supp.3d 1247

BACKGROUND

The California Court of Appeal found the facts underlying Ali's conviction to be as follows:¹

On the night of July 22, 2008, shootings occurred at two different locations in San Diego.

The first shooting occurred around 9:30 p.m. when two men walked up to and shot at a car that was driving out of the Harbor View apartment complex. The apartment complex was known as a location where members of the Neighborhood Crip gang congregated. One witness described the apartment complex as a "war zone" between the Neighborhood Crip gang and the nearby Lincoln Park gang. Three men were riding in the targeted car, at least two of whom were affiliated with the Neighborhood Crip gang. Before shooting at the car, one of the shooters said, "What's up, cuz," with "cuz" being a term that refers to Crip gang members. Bullets struck the car, but no one in the car was shot or seriously injured. A bullet also entered a nearby residence.

The second shooting, which occurred at an apartment complex on College Avenue, was reported to police shortly before 11:00 p.m. Two men approached a group of people congregating by the stairs at the apartment complex and opened fire. Larry Lumpkin was fatally shot in the head. Maurice McElwee sustained a minor gunshot wound to his chest. Although the College Avenue apartment complex was not in any particular gang's territory, it was a common place for members of the O'Farrell Park or Skyline Piru gangs.

On August 7, 2008, the police received information about both shootings when a member of the Lincoln Park gang, Jesse Freeman, spoke to police after being arrested on an unrelated offense. Freeman told police that a fellow Lincoln Park gang member, Ali, claimed to have committed both of the July 22, 2008 shootings along with someone named "L" or "Lex." Freeman also gave police information about other crimes, including bank robberies, committed by different Lincoln Park gang members. Freeman made similar disclosures to police in subsequent interviews.

After the disclosure from Freeman, police examined the ballistics evidence from the two July 22, 2008 shootings and discovered that the same firearm was used in both incidents. Police next searched Ali's apartment and found a shell casing that was shown through forensic analysis to have been discharged from a gun that was fired at both of the July 22, 2008 shooting scenes.

Police arrested Ali in connection with the July 22, 2008 shootings. Freeman testified at a preliminary hearing held on November 14, 2008, describing Ali's admission to committing the shootings. According to Freeman's testimony, Ali told him that he carried out the shootings to "put in some work" for the Lincoln Park gang and get at members of rival gangs. Because Freeman was in danger from having testified against a fellow gang member, the police relocated Freeman to Arizona after the preliminary hearing. Freeman was found dead under a freeway overpass in Arizona on November 22, 2008, having suffered blunt force head trauma. Local police

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investigation into Freeman's death was inconclusive as to whether the death was a homicide, a suicide or an accident.

Ali was tried for one count of murder based on Lumpkin's death ( Cal. Penal Code § 187, subd. (a) ); four counts of attempted murder based on the chest wound to McElwee and the shots fired at the three victims in the car at the Harbor View apartments ( §§ 187, subd. (a), 664 ); two counts of shooting at an inhabited structure or vehicle (§ 246); one count of being a convicted felon in possession of a firearm (former § 12021, subd. (a)(1)); and one count of unlawfully possessing a firearm (former § 12316, subd. (b)(1)). The information also alleged firearm and criminal street gang enhancements (§§ 12022.53, subds. (c), (d), (e)(1), 186.22, subd. (b)(1)).

Because Freeman was no longer alive at the time of trial, his preliminary hearing testimony was read into the record at trial. The jury also heard recordings of Freeman's interview with police.

Among the other evidence against Ali at trial was the testimony of two eye witnesses. First, one of the men who came under fire at the College Avenue apartments on July 22, 2008, testified that he picked out Ali from a photographic lineup in February 2009 as one of the shooters, stating that he was 60 to 70 percent certain at the time of the identification. Second, a teenage boy, James Gomez, who saw the shooters at the College Avenue apartments before they opened fire, identified Ali as one of the shooters.

Ali presented testimony from friends and family members, who said they were with Ali at his apartment at the time of the shootings. Defense counsel argued that instead of Ali committing the shootings, Freeman or some other Lincoln Park gang member could have committed them and could have framed Ali, or the shootings could have been committed by someone associated with a different gang.

The jury convicted Ali on all counts, and the trial court sentenced him to prison for an indeterminate prison term of 135 years to life, plus a determinate term of 60 years.

People v. Ali , D058357, 2013 WL 452901, at *1–3 (Cal. Ct. App. Feb. 7, 2013) (unpublished).

Ali filed a direct appeal of his conviction in the California Court of Appeal, which affirmed his conviction in an unpublished opinion dated February 7, 2013. Id. Ali then filed a petition for review in the California Supreme Court. (ECF No. 5, Attach. 45.) That Court summarily denied the petition on April 17, 2013. (ECF No. 5, Attach. 46.)

On June 9, 2014, Ali filed a First Amended Petition for Writ of Habeas Corpus ("Petition") in this Court seeking habeas relief on twelve grounds.² (ECF No. 6.) Respondents answered, and Ali filed a traverse. (ECF Nos. 10, 11.)

On March 16, 2015, Magistrate Judge William V. Gallo issued a Report and Recommendation, pursuant to 28 U.S.C. § 636, recommending that this Court deny Ali's Petition. (ECF No. 12 ("Report" or "R & R")) Among other things, the magistrate judge concluded that the California Court of Appeal's adjudication of Ali's claims was neither contrary to, nor an unreasonable application of, clearly established federal law.

236 F.Supp.3d 1249

Ali filed written objections to the Report on April 29, 2015, arguing that it erroneously resolves four of the twelve claims for relief raised in the Petition. (ECF No. 15 ("Pet'r's Objs.")) Ali's four remaining claims are based on: (1) the trial court's exclusion of certain hearsay statements; (2) the trial court's failure to instruct on third-party culpability; (3) the trial court's exclusion of a juror affidavit to impeach the verdict; and (4) cumulative error.

STANDARD OF REVIEW

A. Review of Magistrate Judge's Report and Recommendation

A district court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636. Under this statute, a district court must review de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Only objections that reference specific portions of the report and recommendation will trigger de novo review—general or conclusory objections do not suffice. See, e.g. , Goney v. Clark , 749 F.2d 5, 7 (3d Cir. 1984) (finding that de novo review of magistrate's report was not required where appellant's objections were "general in nature" and "[t]here was no objection to a specific portion of the report"). Where a petitioner does not object to a report and recommendation, or to portions thereof, the district court is not required to conduct "any review at all," de novo or otherwise. Thomas v. Arn , 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; see also United States v. Reyna–Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003) ("The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made , but not otherwise."). Upon...