Barbarin v. Scribner
| Decision Date | 22 August 2011 |
| Docket Number | No. 2:04–cv–00894–MDS.,2:04–cv–00894–MDS. |
| Parties | Anthony BARBARIN, Petitioner, v. A.K. SCRIBNER, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of California |
OPINION TEXT STARTS HERE
Anthony Barbarin, Vacaville, CA, pro se.
Gregory Albert Ott, California Attorney Generals Office, San Francisco, CA, for Respondent.
Pending before the court is Petitioner Anthony Barbarin's (Barbarin) application for a writ of habeas corpus. For the reasons noted below, Barbarin's application is DENIED.
On September 24, 1999, a Solano County Superior Court jury convicted Barbarin of first-degree murder. Barbarin was sentenced to state prison for 25 years to life, as well as a consecutive 6–year term for violating probation in three other cases.
In his Second Amended Petition, Barbarin states six claims for relief: (1) his due process rights were violated because one of the jurors was biased against him; (2) his Confrontation Clause rights were violated because Nicole Garrott's preliminary hearing testimony was admitted at trial; (3) his right to effective assistance of trial counsel was violated because his attorney failed properly to object to Garrott's testimony; (4) his due process rights were violated because the trial court declined to instruct the jury that defendant could only be found guilty as an accessory after the fact; (5) his equal protection rights were violated under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because the prosecutor exercised peremptory challenges against three African–American prospective jurors; and (6) his due process rights were violated when the trial court instructed the jurors to inform the court if any other juror refused to deliberate or expressed an intention to disregard the law. Second Amended Petition.
Barbarin filed a direct appeal of his conviction in the California Court of Appeal, First District. In its decision affirming the judgment and sentence, the Court of Appeal summarized the relevant facts and testimony from Barbarin's joint trial with his co-defendant Runako Magee:
Jamie Terrell died of gunshot wounds received while he was sitting in his parked car on the street outside the home of his girlfriend in Vallejo. [ ] Runako Magee shot the victim through the open window of the car as Magee and [Barbarin] stood beside the car talking with him....
The murder was witnessed by victim Terrell's girlfriend, Desiree Williams, and her friend Leslie Martin, both of whom were eighteen years old at the time. On December 21, 1998 the day of murder, Martin went over to Williams's house in the late morning. In the afternoon Martin and Williams went to a store to purchase some food and candy. Upon arrival, they saw [Barbarin and Magee] entering the store. Both Martin and Williams had first been introduced to [Barbarin and Magee] by victim Terrell within the preceding month. Martin went into the store and approached [ ] Magee, with whom she had shared a double date roughly ten days earlier with Williams and victim Terrell. Martin told Magee she would be “hanging out” with Williams and Terrell later at Williams's house, and invited him to join them there. They exchanged pager telephone numbers.
After Martin and Williams returned to the latter's house Martin paged [ ] Magee. When he responded by telephoning Williams's house, Martin told him they were getting ready to leave and were just waiting for Terrell to arrive. Magee told her he would come over. He arrived approximately 20 minutes later in an automobile with [ ] Barbarin driving. After waiting awhile longer for Terrell to arrive, the four decided to go to a nearby liquor store. The two young women got into the back seat of the car. As they did so, Williams noticed a six- to seven-inch chrome-colored handgun between the front passenger seat where Magee was sitting and the center armrest. Williams made eye contact with Magee, who said: “I always stay strapped.” Williams understood that he meant he always had a gun with him. Martin, who got into the car after Williams, did not notice the gun or hear any conversation about it.
Magee and Barbarin purchased some alcohol at the liquor store. On the way back to Williams's house, Martin, Williams and Barbarin smoked a “blunt” a cigar made with marijuana. Williams asked Barbarin if she could use his cellular telephone to page Terrell. Barbarin replied: “You can't page that nigger to my phone,” or words to that effect. However, Magee told Barbarin to let Williams use the phone, which she did. Williams left a message telling Terrell to come to her house.1 When they arrived back at Williams's house, Barbarin parked across the street. The four waited briefly for Terrell to arrive before going in the house. After at least a quarter of an hour, Williams received a message from Terrell that he was on his way, and she informed the others. About 30 minutes later, they heard loud music coming from the street. Williams looked outside, saw that it was Terrell in his Mustang automobile, and told the others it was he.
[Barbarin and Magee] immediately went outside while Williams and Martin made their preparations to leave. Four or five minutes later, Martin walked outside, down the stairs, and down the driveway toward the street. Williams followed shortly thereafter, having paused to set the burglar alarm and lock the front door. Terrell's car was parked in the middle of the street. Magee was standing near the car directly in front of the driver's side window, while Barbarin stood to his immediate right, with their backs to the approaching women. When Martin was approximately six or seven feet behind Magee, she could clearly see Terrell sitting in the driver's seat of his car. She heard him, in “a soft voice,” say: As he said this, Terrell raised both his hands, which Martin could see were empty. Williams also heard Terrell say these words as she was walking down the driveway behind Martin, and she also saw Terrell raise his empty hands. Neither Martin nor Williams saw any guns or weapons. It was silent for a while, and then Martin clearly heard Barbarin say: “Man, dump on that nigger.” Martin saw Magee raise a gun in his hand and fire two shots at Terrell without moving from his position at the side of the car. Terrell moaned, grabbed his left side and moved to the right, toward the passenger side of his car. Martin turned around, grabbed Williams, and ran back to the house. She heard at least two additional shots as she ran. Williams heard the shots and saw sparks, but was not certain who did the actual shooting. However, it appeared to her to have been the person closest to Terrell, i.e. Magee. Williams did not hear Barbarin say anything before the shots were fired.
When Williams and Martin reached the front door of the house, they were “frantic,” “scared,” and “stunned.” They stooped down as Williams tried to open the door. As they did so, they heard a car take off and speed up the street, “[b]urning rubber.” It took Williams about a minute to get the door open because she was shaking so much. Once inside, Williams ran to the telephone and called 911. When she got through to the 911 operator, Williams reported what had happened, but claimed she did not know who did it. Williams lied because she “was scared,” “didn't know what to say, what not to say,” “didn't want to get involved” and “didn't know what to do.” Meanwhile, Martin could hear Terrell twice call out “help.” Williams asked Martin to help Terrell while she spoke with the 911 operator.
Martin walked over to Terrell's car and spoke his name. Terrell twice said “[w]e have to go.” Then he said “I can't see,” started shaking, and “just stopped moving.” Martin called Terrell's name loudly and touched his shoulder or arm. Williams came outside soon thereafter. She observed Terrell's eyes were closed and he was moving “back and forth.” Williams was “confused and upset.” She testified that she reached into Terrell's car and turned the ignition off.
Sharon Nunes lived across the street from the Williams family. Shortly after 9 p.m. on December 21, 1998, she heard loud voices and “somebody hollering.” This was followed by a single gunshot, a two- or three-second pause, and then three to five gunshots. As she ran down her hallway to see what was going on, she heard a car speed away. Nunes estimated that she was outside within 15 seconds of first hearing the last gunshots. She saw Williams and Martin standing at the end of Williams's driveway “jumping up and down [and] screaming.” When Nunes asked “[w]hat happened,” Martin ran inside of Williams's house as the latter replied: “They shot my boyfriend.” Neither Williams nor Martin was carrying any gun or other weapon. Nunes ran back inside to get her cordless telephone, and within “a few seconds” brought it outside to call 911. By this time, Williams had run back into her house. Almost immediately she heard approaching police sirens. Nunes stayed outside until the police arrived. Nunes did not see anyone get into or take anything out of the car. Williams and Martin did not reemerge from Williams's house until they were escorted away by the police.
When the police arrived at the scene, a group of people was in the street. However, no one approached the immediate vicinity of the victim's car, which was parked in the middle of the street in front of Williams's house with its headlights on and its motor running. The doors of the car were closed and the driver's side window was rolled down. Victim Terrell was in the driver's seat. He had no pulse, and there was a large amount of blood on his front and left side. The first officer at the scene reached through the car window and turned off the car's ignition. The parking brake of Terrell's car was engaged. Medical personnel arrived, removed Terrell from his car, and attempted to revive and treat him. These efforts...
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