Allen v. Gastelo
| Docket Number | CV 20-10821-GW(E) |
| Decision Date | 03 October 2022 |
| Parties | CORNELL ARTHUR ALLEN, Petitioner, v. JOSIE GASTELO, Warden, Respondent. |
| Court | U.S. District Court — Central District of California |
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On November 24, 2020, Petitioner, then proceeding pro se, filed a “Petition for Writ of Habeas Corpus By a Person in State Custody.” The Petition contained ten claims for relief. Petitioner appeared to concede that several of the claims or subclaims were unexhausted.
Petitioner sought a stay of the Petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005) (“Rhines”), and/or Kelly v Small, 315 F.3d 1063 (9th Cir. 2003), cert denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) (“Kelly”) (Petition, p. 3).
On January 25, 2021, Respondent filed a motion to dismiss the Petition on the ground that the Petition contained several unexhausted claims or subclaims. On February 22, 2021, an attorney (Petitioner's present counsel) filed a “Notice of Appearance.” On June 11, 2021 Petitioner, now represented by counsel, filed an opposition to the motion to dismiss, again seeking a stay pursuant to Rhines or Kelly. On July 22, 2021, Respondent filed an opposition to Petitioner's request for a stay.
On August 20, 2021, the Court issued an “Order Denying Rhines Stay; and Granting Kelly Stay.” In granting a Kelly stay, the Court deemed the Petition amended to delete the unexhausted claims.
On December 1, 2021, Petitioner filed a “Motion to Amend Petition to Add Newly Exhausted Claims,” (“Motion to Amend, etc.,”), to which Petitioner attached a copy of the California Supreme Court's order denying Petitioner's state court habeas petition. On December 22, 2021, Respondent filed a “Notice of Non-Opposition to Petitioner's Motion to Amend, etc.” On December 27, 2021, the Court granted the Motion to Amend. Thereby, the original Petition (newly amended to add back the previously deleted claims) became the First Amended Petition (“FAP”).
On April 25, 2022, Respondent filed an Answer. On August 12, 2022, Petitioner filed a Traverse.
A Ventura County Superior Court jury found Petitioner guilty of the murder of Stefan Johnson in violation of California Penal Code section 187(a), and found true the allegations that: (1) Petitioner personally and intentionally discharged a firearm which proximately caused Johnson's death within the meaning of California Penal Code section 12022.53(d); and (2) Petitioner personally used a firearm within the meaning of California Penal Code section 12022.5(a)(1) (Reporter's Transcript [“R.T.”] 2158; Clerk's Transcript [“C.T.”] 493, 495-96). The jury found Petitioner not guilty of first degree murder (R.T. 2158; C.T. 493, 495). The Court sentenced Petitioner to a term of fifteen years to life for the murder, plus an additional twenty-five years on the section 12022.53(d) enhancement (R.T. 2177-78; C.T. 537-39).
The California Court of Appeal remanded the case to permit the sentencing court to consider whether to exercise its discretion to strike or dismiss the enhancement (in light of the 2018 amendment to section 12022.53(d)), but otherwise affirmed (Respondent's Lodgment 2;[1] see People v. Allen, 2019 WL 513574 (Cal.App. Feb. 11, 2019)).[2] The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 4).
On remand, the sentencing court amended the enhancement allegation to an allegation pursuant to California Penal Code section 12022.53(c) and resentenced Petitioner to a consecutive term of twenty years on that enhancement (Respondent's Lodgment 1, pp. 111-12).
On August 17, 2020, Petitioner filed a habeas corpus petition in the California Supreme Court (“First California Supreme Court Habeas Petition”), which that court summarily denied on November 18, 2020 (Respondent's Lodgments 5, 6, 7).
On September 22, 2021, following this Court's grant of a stay, Petitioner filed a second habeas corpus petition in the California Supreme Court (“Second California Supreme Court Habeas Petition”) (see “Notice of Filing of State Petition for Writ of Habeas Corpus” and attachment thereto, filed September 22, 2021). The California Supreme Court summarily denied this petition on November 17, 2021 (see “Motion to Amend Petition, etc.” and attachment thereto, filed December 1, 2021).
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v Allen, 2019 WL 513574 (Cal.App. Feb. 11, 2019). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
Ventura police went to an apartment on Hurst Avenue at 5:30 a.m. on June 6, 2013, in response to a 911 report of a shooting. They found Stefan Johnson face down on a couch in the living room bloodstained, not breathing and without a pulse. No weapon was found.
The 911 call came from [Petitioner], who said, “Hey, I just shot an unwelcome person in my home.” The dispatcher asked, “You shot them?” [Petitioner] replied, After obtaining the address, the dispatcher asked, “Ok, is the person alive?” [Petitioner] answered, “Ahhh, I doubt it.” He identified himself as “Cornell Allen.”
A neighbor awakened by multiple gunshots saw [Petitioner] leave the apartment. Police were unable to follow [Petitioner] using a cell phone signal because he had turned off his device. They used a GPS tracking system to locate his car, parked in Camarillo. In the trunk police found a .45 caliber semiautomatic handgun registered to [Petitioner], with a laser light and an empty 10-round magazine. Testing showed that it was the gun used to shoot Johnson.
The apartment where the crime occurred belonged to Christina Roberts, who was not home at the time of the shooting. However, her daughter Mariah Figueroa and Josiah Guerrero were there, asleep in a back bedroom. Guerrero told police he thought that the victim was asleep on the couch when he was shot. Figueroa identified [Petitioner] as someone Roberts dated for five or six years. [Petitioner] had a studio in west Ventura but often stayed overnight at Roberts's apartment, where he contributed to the rent and other expenses.
In March 2013, [Petitioner] brought Stefan Johnson to Roberts's apartment, introducing him as his “brother.” Johnson began to frequent the apartment, sleeping on the couch about four nights per week. Guerrero observed that [Petitioner] and Johnson They never argued, physically fought, or threatened each other. [Petitioner] said that Roberts and Johnson were the two most important people in his life. He did not feel that Johnson posed a threat to anyone's safety at the Hurst Avenue apartment.
Though [Petitioner] and Roberts had an intimate relationship, it was not exclusive. [Petitioner] had other girlfriends, and knew that Roberts worked as an escort and sold nude photographs of herself; he never objected and [he] engaged in “threesomes” with her. On a few occasions, [Petitioner], Johnson and Roberts had a threesome.
Johnson and Roberts began an emotional relationship a month before the shooting. Roberts's feelings for Johnson were not a secret; she knew that [Petitioner] “wasn't happy about it.” Her relationship with [Petitioner] deteriorated. On May 20, 2013, she texted [Petitioner], “I am scared of you!!!” and “Don't wanna be around u,” adding “Because your [sic] out of control.”
Roberts and Johnson began communicating secretly when [Petitioner] “started to act crazy,” texting each other sentiments of love in May 2013. She wrote that [Petitioner] was “such a turn off,” that he “scares me,” and “gets on my nerves.” She denigrated [Petitioner's] sexual prowess, texting Johnson on June 4 that [Petitioner] “couldn't fuc [sic] last night” and “I don't think I can survive this limp dick relationship.” Roberts testified that she did not intend for [Petitioner] to see the messages. [Petitioner] told her that when she talked in her sleep, she said she loved and wanted Johnson, not [Petitioner].
[Petitioner] wrote Roberts that he had “an issue” with her desire for Johnson adding, “I ain't about to stroll.” On June 1, [Petitioner] texted her, “You're the bestest ever never going to let you go wanna let you know I adore & appreciate you so much every day yearning for your touch. . . .” (Sic.) Despite [Petitioner's] adoration, Roberts told him he was no longer welcome in her home because his behavior was radical and abusive. She was upset that he beat his dog with a belt, striking several people in the process, then threw the pet from the living room to the dining room. He also threw an iPad.
The night of June 4, [Petitioner] woke Roberts by hitting her in the head with a hard object, which she believes was a gun. He was holding her phone and had viewed her messages to Johnson. He pulled her into the living room, where Johnson was on the couch. Roberts became scared when she saw that [Petitioner] had a gun in his waistband.
[Petitioner] told Johnson and Roberts he felt “that we didn't like him; we didn't want him in the relationship anymore . . .” Roberts opined that [Petitioner] was “[n]ot himself,” and was angry because he saw...
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