Belardo v. Holland

• Decision Date: 11 July 2017
• Docket Number: No. 2:16-cv-0985 AC P,2:16-cv-0985 AC P
• Parties: WILBERTO BELARDO, Petitioner, v. K. HOLLAND, Respondent.
• Court: U.S. District Court — Eastern District of California

WILBERTO BELARDO, Petitioner, v. K. HOLLAND, Respondent.

No. 2:16-cv-0985 AC P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

July 11, 2017

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed his petition on May 30, 2014 in the Northern District of California. ECF No. 1. Respondent answered the petition on November 24, 2014 and, on May 9, 2016, the case was transferred to this district. ECF Nos. 13, 18. Petitioner did not file a traverse. For the reasons that follow, the undersigned recommends that the petition be denied on the merits without an evidentiary hearing.

BACKGROUND

The following statement of the case is taken from the unpublished opinion of the California Court of Appeal on direct review:¹

In February 1998, Zarate lived alone in a small trailer, from whichhe sold drugs, at the corner of Jackson and Cherry Streets in Dixon, California. Across the street from Zarate's trailer, about 20 to 25 feet away, Charlie Moore lived in a four-unit building. Belardo lived in Dixon with his mother, Norma Rivera; his stepfather; his girlfriend, Ellis; and his 15-year-old half brother, Bango.

On February 15, 1998, Alvaro Delatorre was visiting Zarate, his friend, while Moore hosted a barbecue party across the street. About 9:00 p.m., there was a knock at the door of Zarate's trailer.² The visitor gave a name that Delatorre did not remember and Zarate said it was okay to open the door. Delatorre saw a man pointing a revolver at them, accompanied by another man wearing what might have been a nylon stocking over his face. The man with the gun said, "This is a robbery. Give us the money, the jewelry, and the dope." The man then hit Delatorre on the top of his head with the gun, cutting his scalp and leaving him dizzy and dazed. One of the men reached around Delatorre's neck and grabbed jewelry. Delatorre took out his wallet and the gunman took it from his hand.

The gunman repeated his demand for money, dope, and jewelry and Zarate said, "I ain't giving nothing up." Delatorre heard multiple gunshots and saw that Zarate had been hit. After telling Delatorre to keep quiet, the two men left. According to Delatorre, Zarate had methamphetamine and $1,500 on his person before the robbery. When Zarate's body was later examined, the drugs and cash were gone.

Delatorre ran to Moore's house, where the party was still in progress, and reported the incident to the 911 operator. He went back to the trailer and the police arrived a short time later. Zarate was still alive when police arrived, but was unable to communicate. His shirt had been removed and he was bleeding heavily from a bullet wound in the center of the chest. Paramedics removed Zarate from the trailer, but he died at the scene.

When police interviewed him, Delatorre described the gunman as a "Black male around five foot six" with "a muscular build," "round face," and "puffy cheeks and short hair." Delatorre thought the second man was also African-American, based on seeing his hands and arms. During a pretrial conditional examination, held in anticipation of Delatorre's imminent deportation, he described the gunman as clean shaven, with no acne on his face, no visible tattoos,³ and wearing a tank top. He told the police that the revolver was chrome colored.

Search of the trailer revealed a bloody shirt with a bullet hole on the bed with a spent bullet underneath it. A ballistics expert testifiedthat the bullet was .38 caliber, typically fired from a .38 special ammunition revolver. No spent casings were found.

Zarate had a bullet entry wound in the chest and an exit wound in his back. He also had separate entry and exit wounds in his left arm. At trial, Delatorre testified that the gunman looked like one of two persons he had seen watching him and Zarate from Moore's party that night. He said that he had seen the gunman "driving around" in a black convertible Mustang about a week before the shooting. The People also presented testimony from a number of witnesses indicating that Belardo's stepbrother, Greg Felix,⁴ drove a Mustang convertible and that Belardo rode in the car with Felix.⁵

When Delatorre testified at the conditional hearing, he identified Belardo as the gunman, but he was "not a hundred percent sure." Belardo was wearing "jail clothes" and was in shackles at that hearing. At trial, Delatorre again identified Belardo as one of the two men who entered Zarate's trailer. He was about 50 percent sure.

However, on the night of the homicide, Delatorre assisted in the preparation of a computer-generated composite of the suspect.⁶ As the investigation progressed, he viewed several photographic lineups that included Belardo, but he told the police that he did not recognize anyone as the assailant. On February 23, Delatorre viewed a live lineup including Belardo, but did not identify him. The investigators told Delatorre that the shooter was in the live lineup, and when he said he did not recognize anyone, they told him, "Yes, he is. He's there. Pick him out." Delatorre felt he was being pushed into picking somebody. He then selected someone other than Belardo from the live lineup and told the investigators he was 90 percent sure.

Belardo was on parole from the California Youth Authority on February 15, 1998, and was subject to electronic monitoring, with a curfew of 10:00 p.m. He subsequently admitted a parole violation because electronic monitoring showed that he was not in his residence until 10:08 p.m. on February 15, 1998. He told police that he was at Moore's house between 7:00 and 9:00 p.m. and then walked home, a distance of about half a mile.⁷ He said that whenhe got home he played with the dog in the back yard and denied possessing a gun.

The police searched Belardo's residence on February 17, 1998 and found no evidence connecting him to the robbery and homicide.

Belardo, Bango, Felix, and Belardo's long-time friend, Dustin Blaylock, attended Moore's barbecue. They congregated in the carport area, from which Zarate's trailer was visible. Moore's girlfriend, Lea Mitchell, testified that at some point she overheard a conversation about "jacking" someone. She did not know who made the statement.

Bango was in the carport watching Belardo and Blaylock play craps when Belardo showed Bango a .38 revolver, which he held under a towel. Bango asked why he had a gun, and Belardo responded, "In case something happens. In case something pops off." Later that afternoon, Belardo asked Bango to hold the gun and then left the carport. Belardo returned within five minutes and took the gun back. Bango never saw the gun again and he left the party about 5:00 p.m. to meet friends.

In the evening, Belardo and Blaylock left the party and a short time later, Mitchell heard gunshots. She did not see Belardo or Blaylock again that night.

At the time of the homicide, Francisco Garcia lived next door to Blaylock and .46 miles from Zarate's trailer. About 9:00 p.m., Garcia heard sirens and saw police cars going by. Blaylock then came to Garcia's house with "a Black guy" named "Willie"⁸ and asked to use the telephone. Garcia testified that he knew Willie's brother, Felix, and he had seen Willie driving around in Felix's car.⁹ Blaylock and Willie appeared exhausted, as if they had been running. Willie left a short time later, but Garcia did not know how long Blaylock stayed.¹⁰

Bango returned to Moore's party that evening with Ellis and a friend, and, on arrival, encountered Delatorre, bleeding and seeking help. After taking Delatorre to Moore's residence to call the police, Bango and Ellis returned to Bango's house.¹¹

When they arrived home, Belardo and Rivera were there. Bango asked whether Belardo had anything to do with the shooting. Belardo appeared agitated and told him to "Shut up." Bango asked Belardo several times whether he was involved and Belardo responded by making threats. He said, "I did it once. What makes you think I won't do it again?" Bango understood that Belardo would kill him if he talked to anybody about the incident. Belardo told him, "I'll beat the 'F' out of you" and "Don't say anything. You are trying to get me 25 to life."

Bango testified that Belardo suggested he take responsibility for the shooting, telling him that because he was a minor his punishment would be relatively light.¹² Belardo told Bango that he should expect to be questioned by the police and that Bango needed to corroborate his alibi about being in the backyard playing with the dog.

Ellis had moved in with Belardo about a month before the Zarate homicide. She testified that Belardo sold drugs and that, on his behalf, she sold drugs at school. About a week before the homicide, Ellis overheard Belardo in a telephone conversation "about the guy in the trailer that sold drugs." Belardo said he was "considering robbing" the man. She did not know with whom Belardo was speaking.

On the night of the homicide, when she and Bango returned home after trying to go to Moore's party, Belardo was home, shaving, and "shaking and scared." They started talking about the shooting. Ellis said that Belardo wanted Bango to confess to the shooting, saying he was only 15 years old and would not "do very much time."

Belardo told Ellis "he didn't go there to do that. He went there to rob him and ended up shooting a guy; probably took a guy's life. It wasn't worth very much. They didn't even get very much money out of it." Belardo said that Blaylock was with him.

Ellis was scared because she was dating Belardo and living in his house. Belardo and Ellis began taking measures to "stay out of the view." They hid in a crawl space in Rivera's closet and Belardo would hide in the trunk of their vehicle as they were driving. Belardo told Ellis that, when questioned by the police, she should say that he was in the back yard that night playing with the dogs because the back yard was far enough

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