BARCO v. Tilton

• Decision Date: 02 February 2010
• Docket Number: Case No. CV 07-7163-AG (RNB).
• Citation: 694 F. Supp.2d 1122
• Parties: John A. BARCO, Petitioner, v. James E. TILTON, Warden, Respondent.
• Court: U.S. District Court — Central District of California

694 F. Supp.2d 1122

John A. BARCO, Petitioner, v. James E. TILTON, Warden, Respondent.

Case No. CV 07-7163-AG (RNB).

United States District Court, C.D. California.

February 2, 2010.

Conrad Petermann, Conrad Petermann Law Offices, Ojai, CA, for Petitioner.

Robert M. Snider, CAAG-Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

ANDREW J. GUILFORD, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that Judgment be entered granting a conditional writ of habeas corpus as follows:

Unless petitioner is brought to retrial within sixty (60) days of the date the Judgment herein becomes final (plus any additional delay authorized under State law), respondent shall discharge petitioner from all adverse consequences of his conviction in Los Angeles County Superior Court Case No. KA069089.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT N. BLOCK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

On November 1, 2007, petitioner (through counsel) filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein, along with a supporting Memorandum of Points and Authorities ("Pet. Mem."). In accordance with the Court's Order Requiring Response to Petition and following two extensions of time, respondent filed an Answer to Petition, along with a supporting Memorandum of Points and Authorities on February 19, 2008. Due to the attachment of an incorrect document, respondent filed an Amended Answer ("Amd. Ans.") along with a supporting Memorandum of Points and Authorities ("Amd. Ans. Mem.") on February 22, 2008. Petitioner filed a Traverse ("Trav.") thereto on March 10, 2008. The matter was set for a status conference on April 3, 2008 to address an exhaustion issue relating to that portion of Ground two challenging a jury instruction on ex post facto grounds, and to discuss development of the record as to Ground one, an ineffective assistance of counsel claim. At that status conference, petitioner elected to withdraw that portion of Ground two that the Court had found unexhausted, and the Court, after consultation with the parties, set dates for the parties to file a number of documents in preparation for an evidentiary hearing on petitioner's ineffective assistance of counsel claim. The Court held a number of status conferences prior to the evidentiary hearing, and ruled on the admissibility of evidence that the parties proposed to present at the evidentiary hearing. The evidentiary hearing was held on May 28 and 29, 2009 and July 24, 2009. Each party called a number of witnesses. At the request of counsel, the Court issued a tentative ruling on the ineffective assistance of counsel claim on September 14, 2009 and heard argument from the parties regarding the tentative ruling on September 25, 2009.

Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that the Petition be granted with respect to petitioner's ineffective assistance of counsel claim.

PROCEDURAL HISTORY

On September 2, 2005, a Los Angeles County Superior Court jury found petitioner guilty of first degree murder, two counts of shooting at an inhabited dwelling, conspiracy to commit the crimes of murder and shooting at an inhabited dwelling, and attempted murder. (See 2 Clerk's Transcript on Appeal "CT" 424-29; 5 Reporter's Transcript on Appeal "RT" 1833-36). The jury also found true the allegations that a principal in the murder, conspiracy to commit murder, and attempted murder was armed with a firearm within the meaning of Cal.Penal Code § 12022(a)(1), and that the attempted murder was willful, deliberate, and premeditated. (See 2 CT 424, 428-29; 5 RT 1833-36).¹ On January 23, 2006, the trial court sentenced petitioner to state prison for an indeterminate term of 26 years-to-life plus a consecutive term of life with the possibility of parole plus four months. (See 3 CT 740-41; 5 RT 2129-30).

Petitioner appealed his conviction and sentence to the California Court of Appeal raising inter alia claims generally corresponding to Grounds one and three and partially corresponding to Ground two of the Petition herein, and joining in his codefendant's opening brief on appeal. Petitioner concurrently filed a petition for writ of habeas corpus in the Court of Appeal raising a claim generally corresponding to Ground one raised in the petition herein. (See Respondent's Notice of Lodgment "Lodgment" Nos. A-1, B-1). In an unpublished decision filed on June 20, 2007, 2007 WL 1765424, the California Court of Appeal reversed petitioner's (and his codefendant's) conviction of conspiracy to shoot at an inhabited dwelling, but otherwise affirmed the judgment. (See Amd. Ans., Exhibit "Exh." C). The Court of Appeal issued a separate order denying petitioner's habeas petition on the basis that "the record fails to establish that petitioner was denied the effective assistance of counsel." (See Amd. Ans., Exh. E). Petitioner's ensuing Petition for Review to the California Supreme Court raising the same claims raised in the Court of Appeal was denied on September 25, 2007, without comment or citation of authority. (See Lodgment No. B-2; Amd. Ans., Exh. D).

On June 25, 2007, petitioner filed a habeas petition in the California Supreme Court raising a claim generally corresponding to Ground one raised in the Petition herein. (See Lodgment No. B-3). The California Supreme Court denied that petition without comment or citation of authority on September 25, 2007. (See Amd. Ans., Exh. E).

SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

Since petitioner is not contesting the sufficiency of the evidence to support his conviction, the following summary is taken from the "Factual Background" section of the California Court of Appeal opinion (see Amd. Ans., Exh. C at 29-35):²

The prosecution's evidence

Assault on Johnny Barco

In August 2004, Johnny, petitioner's son, went with two friends to a party to which they were not invited, at the home of Rashaun (Rashaun) and Vicky (Vicky) Ware (collectively, the Wares), in West Covina. When a large number of uninvited people arrived, Rashaun told them to leave, and a fight ensued. Rashaun was struck by a bottle. Johnny was attacked by several people, left on the street, and hit by a car as partygoers hurriedly left the residence after hearing a gunshot.

As a result of the attack, Johnny suffered life threatening injuries, including a severed thumb, broken pelvis, three broken vertebrae, numerous cuts and bruises and a footprint embedded on his face by a kick. He was hospitalized for one and one-half or two months, remaining in a coma for some time.

The Barco Family

In November 2003, Luis Gutierrez began dating Inisha Barco (Inisha), petitioner's daughter. Some time afterwards, Alex Guerrero, Inisha's ex-boyfriend and father of her three-year-old daughter, moved in with Inisha. He then moved out of Inisha's residence and later into Barco's residence. Gutierrez moved in with Inisha four or five months after they began dating and remained there until they broke up in February 2005. Gutierrez socialized at the Barco residence almost daily and got along well with the family. At the time of the assault on Johnny, petitioner and his wife, Marivel, Guerrero, Johnny, and Johnny's siblings, Nathan and Vanessa resided at petitioner's residence. While Johnny was hospitalized, his family worried he would die. His parents and siblings, and then live-in boyfriend, Gutierrez, visited him daily.

Investigation of Johnny's beating

Detective Dario Aldecoa investigated the assault on Johnny for several weeks, but was unable to locate any witnesses who could, or would, identify Johnny's assailants. Johnny could not be interviewed due to his injuries. For two months after the assault, petitioner telephoned the detective daily, sometimes two to four times a day, to learn the case status. Petitioner had heard from Johnny's friends that Rashaun was involved in the assault, which he told the detective more than once. Rashaun's photograph was included in a lineup, but neither Johnny's friends who attended the party with him nor any other partygoers selected him as a suspect. Petitioner expressed frustration with the inability to make arrests.

In November 2004, petitioner, Marivel, and Johnny went to the police station to view photographs of Rashaun and others. Johnny could not identify anyone. With no witness identifications, Detective Aldecoa told petitioner the investigation was being suspended, but that petitioner could sue Rashaun civilly and apply for monetary benefits through the victim rights office. This was Detective Aldecoa's last contact with petitioner.

The December 21, 2004 shooting

On December 21, 2004, at approximately 10: 00 p.m., the Wares were preparing for bed when they heard gunshots. Rashaun went to his daughter, Larissa's, room which faced the street, and carried her to his bedroom. There, the Wares noticed that she had been shot in the chest. Vicky called 911 and carried the telephone outside screaming hysterically. She dropped to the ground as additional shots were fired. Three or four feet from her, she saw a small white car drive away. She...