ORDER DENYING PETITIONS FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATES OF APPEALABILITY Before the Court are two pro se petitions for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioners Antoine Mackey and Yusef Ali Bey, each challenging the validity of judgments obtained against them in state court. On January 3, 2017, the Court related the cases. Mackey v. Soto, 15-cv-03165 HSG ("Mackey"), Dkt. No. 60; Bey v. Muniz, 16-03984 HSG ("Bey"), Dkt. No. 8. Each respondent has filed an answer to each petition.1 2 Neither petitioner has filed a traverse, and the deadline to do so has since passed. For the reasons set forth below, bothpetitions are denied.
On April 29, 2009, the Alameda County District Attorney filed an indictment accusing Mackey and Bey3 of murder in violation of section 187(a) of the California Penal Code4 in counts one (murder of Chauncey Bailey), two (murder of Michael Wills), and four (murder of Odel Roberson). It was further alleged in counts one and four that a principal was armed with a firearm within the meaning of section 12022(a)(1), and in count two that Mackey personally discharged a firearm and caused great bodily injury within the meaning of sections 12022.7(a) and 12022.53(d), that Mackey personally and intentionally discharged a firearm within the meaning of section 12022.53(c), and that Mackey personally used a firearm within the meaning of sections 12022.5(a) and 12022.53(b), (g). In count three, Mackey was accused of possession of a firearm by a felon in violation of section 12021(a)(1). In count five, Bey was accused of shooting at an unoccupied vehicle, in violation of section 247(b). It was also alleged that there were special circumstances of more than one murder within the meaning of section 190.2(a)(3), and that Mackey had two prior felony convictions. Clerk's Transcript ("CT") 1-6, 2991-95.5
On June 9, 2011, the jury found as to count one that both Mackey and Bey were guilty of first-degree murder, a principal was armed with a firearm, and there were special circumstances. The jury found as to count two that both Mackey and Bey were guilty of first-degree murder, a principal was armed with a firearm, and there were special circumstances. However, with respect to count two, the jury found that Mackey did not personally and intentionally discharge a firearm. The jury found as to count three that Mackey was guilty of being a felon in possession of a firearm. The jury found as to count four that Bey was guilty of first-degree murder, a principal was armed with a firearm, and there were special circumstances. The jury failed to reach a verdict regarding the count four murder charge against Mackey. The trial court granted Mackey's motionfor a mistrial as to count four. The jury found as to count five that Bey was guilty of shooting at an unoccupied vehicle. CT 2268-74, 2276-78, 4876-80, 4882-82.
On August 26, 2011, the trial court sentenced Mackey to state prison for two consecutive terms of life without parole for counts one and two, plus one year for the firearm enhancement for count one, and sentenced Bey to state prison for three consecutive terms of life without parole, plus six years for the firearm enhancement for counts one, two and four, plus the upper term of three years for count five. CT 2944-47, 4950-53. The trial court granted the prosecution's motion to dismiss count four as to Mackey. CT 4953.
On January 14, 2015, the California Court of Appeal affirmed both petitioners' convictions in a published decision. People v. Mackey, et al., 182 Cal. Rptr. 3d 401 (Cal. Ct. App. 2015) ("Mackey, et al."). On April 15, 2015, the California Supreme Court denied both Mackey's petition for review and Bey's petition for review. Answer, Exs. N, O and P.
On July 8, 2015, Mackey filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mackey, Dkt. No. 1. On July 14, 2016, Bey filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bey, Dkt. No. 1.
The following factual background is taken from the January 14, 2015 opinion of the California Court of Appeal:6
A. The Prosecution Evidence
1. Your Black Muslim Bakery and its occupants
Bey's father, Yusuf Bey, Sr. (Yusuf, Sr.), founded Your Black Muslim Bakery (the Bakery), and for decades was the head of the Bakery and affiliated companies, which included a security business and a community school. [FN 2] Yusuf, Sr., died in September or October 2003. For some period prior to his death he was in poor health, and Waajid Bey (Waajid), an accountant and tax expert who served on multiple corporate boards of the affiliated Bakery businesses, was named chief executive officer (CEO) and president of the Bakery. Waajid died in February 2004, just a year after taking control of the Bakery.
[FN 2] Several of the people involved in this case bear the surname "Bey." When we refer simply to "Bey," we are referring to defendant Yusuf Bey IV. Others named "Bey" will be designated by their first names. Not all those named "Bey" are blood relatives of Bey. It was an honorary name bestowed on those who were especially dedicated to the Bakery and the principles of Islam as practiced there.
Bey's brother Antar Bey (Antar) then took control of the Bakery, at age 23. Other Bey family members took issue with this, left the Bakery business, and filed suit to try to prove that Antar's takeover was fraudulent. Antar was killed in October 2005.
After Antar's death, Bey took control of the Bakery, becoming CEO. He was 19 years old.
The downstairs of the Bakery building consisted of a retail counter, baking area, and office area, with an entrance at 5836 San Pablo Avenue, Oakland. The upstairs was a residence that could be accessed from either front stairs or back stairs near a parking area. There was a large living room at the top of the stairs, and several bedrooms. Bey occupied the master bedroom.
A duplex in the rear of the Bakery had two units, one upstairs and one downstairs, with three bedrooms. The first lower unit bedroom was occupied by Mackey, the second bedroom by Devaughndre Broussard (Broussard), and the third by Malachi Hurst.
As will be seen, Broussard played a crucial role in this case in that he was the shooter in the Bailey and Roberson murders and one of the shooters in the car shooting. Broussard had a criminal history: he committed a strong-arm robbery with others when he was a minor, and he was convicted of assault on a bus passenger as an adult. Broussard turned state's witness in exchange for a sentence of 25 years, avoiding a life term without possibility of parole. He testified at length, for some six days, and it was largely through his testimony that the state was able to produce evidence of the details of the crimes and the roles played by various other participants.
Broussard had heard about Bey and the Bakery from a family friend, Richard Lewis (Lewis), when they were in jail together. Lewis told him Bey needed "soldiers" to serve the Black community, and in exchange Bey could ensure that his soldiers would get "good credit to buy whatever you want." When he was released from jail, Broussard went to live at the Bakery.
Broussard started working at the Bakery in July 2006, serving as a janitor and providing security. Broussard described being searched and led in military-style drills when he first arrived at the Bakery. He also testified about being introduced to Bey and his brothers, and described the security system and cameras installed in Bey's bedroom. In their initial meeting Bey talked about "eye for an eye" revenge and said that if somebody did something wrong, they deserved to get the same treatment in return. Broussard came to understand that he would be expected to commit crimes as part of his "job" at the Bakery, but he went along with it because of the credit assistance he had been promised. Broussard was told he needed to stay free of drugs and alcohol.
Bey regularly gave sermons at the Bakery, speaking on the history of the Black man and the "devils" or "White devils" who sabotaged Islam. There were also regular meetings in security training, which included military style drills.
2. Liquor store vandalism and the Mossberg shotgunBey took over the Bakery in late 2005. On November 23, 2005, about a dozen Bakery men wearing suits and bow ties, including Bey, Donald Cunningham, Dyamen Williams (Williams), and Dhakir (Zaki), vandalized two Muslim-owned West Oakland liquor stores by smashing bottles and equipment, to show their disapproval of selling alcohol in the African-American community. The men assaulted at least one liquor store employee and took a Mossberg shotgun from underneath a counter at one of the stores. It was stipulated that after the murders in this case Bey was convicted in a separate proceeding of stealing the Mossberg shotgun.
3. The Cook car shooting
Bey's "second wife," Jasmine Siaw (Siaw), had two children with Cameron Cook (Cook). Siaw testified that Cook did not like having his children raised at the Bakery, and on one occasion in late 2006 he made an angry phone call to Siaw, and she heard gunshots in the background. It turned out that Cook was shooting a gun into the air outside the Bakery. Bey wanted to do something in response, but Siaw did not want Cook to be hurt, so Bey decided to shoot up Cook's car.
Siaw was present on December 7, 2006, when Bey told Yusuf Bey V (Yusuf V), "Let's talk about what we're going to do." Sometime past midnight that night, Bey took Siaw in his BMW to the spot where Cook's car was parked, not far from the Bakery. Siaw saw about four or five men associated with the Bakery leave at the same time in a
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