Blumberg v. Garcia

• Decision Date: 07 February 2010
• Docket Number: No. CV 04-8146-CAS (SH).,CV 04-8146-CAS (SH).
• Citation: 687 F. Supp.2d 1074
• Parties: Paul Christian BLUMBERG, Petitioner, v. Silvia GARCIA, Warden, Respondent.
• Court: U.S. District Court — Central District of California

687 F.Supp.2d 1074

Paul Christian BLUMBERG, Petitioner, v. Silvia GARCIA, Warden, Respondent.

No. CV 04-8146-CAS (SH).

United States District Court, C.D. California, Western Division.

February 7, 2010.

Tracy J. Dressner, Tracy J. Dressner Law Offices, La Crescenta, CA, for Petitioner.

David A. Voet, Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING THE AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHRISTINA A. SNYDER, District Judge.

Pursuant to 28 U.S.C. Section 636(b)(1)(C), the Court has reviewed the Petition, all of the records and files herein and the attached Amended Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination of the Amended Report and Recommendation and Response of the Magistrate Judge to Respondent's Objections. The Court concurs with and adopts the conclusions of the Magistrate Judge.

IT IS ORDERED that the Petitioner's claims for habeas relief and cumulative error are granted, and that Petitioner be released from custody, unless new trial proceedings are commenced within 90 days after entry of Judgment.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Amended Report and Recommendation, Response of the Magistrate Judge to Respondent's Objections and the Judgment herein by the United States mail on petitioner, counsel for petitioner and respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

AMENDED REPORT AND RECOMENDATION OF UNITED STATES MAGISTRATE JUDGE

STEPHEN J. HILLMAN, United States Magistrate Judge.

This amended report and recommendation¹ is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, the magistrate judge recommends that the petition be granted.

PROCEDURAL BACKGROUND

Petitioner, a prisoner in the custody of the California Department of Corrections, represented by counsel, challenges his conviction in Los Angeles Superior Court (Case No. MA015042).

On June 9, 1998, Petitioner was convicted by a jury of conspiracy to commit murder, attempted murder, and assault with a semiautomatic firearm in violation of California Penal Code ("PC") §§ 182(a) (1), 664/187(a) and 245(b), respectively. Clerk's Transcript ("CT") at 259-62; Reporter's Transcript ("RT") at 1704-12. The jury also found "true" the allegations that the attempted murder and assault were committed for the benefit of a criminal street gang and that a principal was armed with a firearm during the commission of the attempted murder, in violation of PC §§ 186.22(b)(1) and 12022(a)(1). CT at 259-62; RT at 1704-12. On September 9, 1998, Petitioner was sentenced to an aggregate term of twenty-six years to life in state prison. CT at 336-38, 352; RT at 1760-66.

Petitioner appealed his conviction to the California Court of Appeal. CT at 353; Lodgment ("Lodg.") Nos. 3-6. In an unpublished opinion filed on February 3, 2000, and modified March 2, 2000, the California Court of Appeal stayed a one-year portion of the sentence, ordered the abstract of judgment modified in certain respects, but otherwise affirmed the judgment in full. Lodg. No. 7. On May 17, 2000, the California Supreme Court denied review without comment or citation to authority. Lodg. Nos. 8, 9.

Petitioner sought collateral review in the Los Angeles Superior Court, which denied relief in a reasoned order filed July 31, 2002. Pet., Ex. R; Lodg. Nos. 10, 11. Petitioner pursued collateral review in the California Court of Appeal, which denied relief in an unpublished decision on September 15, 2003. Pet., Ex. S; Lodg. Nos. 12, 14. Petitioner's petition for habeas relief in the California Supreme Court was summarily denied on September 22, 2004. Pet., Ex. T; Lodg. Nos. 15, 16.

On September 29, 2004, Petitioner, represented by counsel, filed the present habeas corpus petition. Respondent's answer was filed on April 5, 2005; Petitioner's traverse was filed on May 31, 2005.

On December 19, 2005, Magistrate Judge McMahon filed a Report and Recommendation recommending that the Petition be denied in its entirety with prejudice. Upon the filing of Petitioner's objections ("Obj."), the matter was reassigned to the undersigned Magistrate Judge for all further proceedings. On February 26, 2006, the court ordered respondent to file a reply to the objections. On June 9, 2006, respondent filed his reply ("Reply").

After independent review of the pleadings and the record, in an Order dated January 26, 2007 ("Order Re: Further Proceedings"), the undersigned Magistrate Judge concluded that the initial Report and Recommendation did not fully address Petitioner's claims, and that Petitioner had alleged facts, which if true, entitled him to relief, and that an evidentiary hearing may be warranted. The court directed Respondent to file a Supplemental Answer.

On April 30, 2007, Respondent filed a Supplemental Answer ("Supp. Ans."). Pursuant to a stipulation of the parties, on July 10, 2007, the court ordered discovery. On December 6, 2007, the court determined that an evidentiary hearing was required. Respondent filed a "Partial Supplemental Answer" on April 10, 2008. After several status conferences regarding discovery and scheduling, both parties filed pre-evidentiary hearing briefs on May 28, 2008. The evidentiary hearing was held on June 3, 2008.

On June 12, 2008, Petitioner moved to expand the record ("MER"). Respondent filed an opposition to the motion ("Opp. MER") on July 10, 2008; Petitioner filed a reply ("Rep. MER") on July 18, 2008. On September 15, 2008, the court issued an order granting the motion to expand the record.

Petitioner filed a post-evidentiary hearing brief ("Pet. PEHB") on September 15, 2008. Respondent filed a post-evidentiary hearing brief ("Resp. PEHB") on October 30, 2008. Petitioner filed a reply ("Rep. PEHB") on December 5, 2008.

The matter has been submitted and is ready for decision.

PETITIONER'S CLAIMS FOR RELIEF

Petitioner alleges the following grounds for relief:²

1. The key prosecution witnesses—Los Angeles County Deputy Sheriff Brad Foss, Los Angeles Police Officer Brian Hewitt, and Jose Reyes— provided false testimony at trial Claim One: Pet. at 13-37;

2. The prosecution violated Brady, presented false evidence, and impermissibly vouched for prosecution witnesses Claim Two: Pet. at 38-43; and

3. The errors in this case, both individually and cumulatively, rendered petitioner's trial fundamentally unfair Claim Five: Pet. at 50-52.

FACTUAL SUMMARY³

A. Trial

1. Case-in-chief

At about 3:00 p.m. on October 29, 1997, Petitioner and his older half—brother, Michael Blumberg ("Michael")⁴, were driving on "J-8" in Lancaster, California. Michael, who was sitting in the front passenger seat, yelled out to a pedestrian, Ramon Zuniga ("Zuniga"). Zuniga was wearing a baseball cap with the letters "BLC" on the front and "Maldito" on the back. "BLC" is the acronym for the "Barrio Lorenzo Cardenas" gang, of which Zuniga was a member; "Maldito" is Zuniga's gang name (moniker).⁵ Zuniga had not seen Petitioner or Michael before that day. As Petitioner drove past Zuniga, Michael yelled out to Zuniga, asking him if he "wanted shit." Someone in the car also yelled out "it's all about Temple Street."⁶ Zuniga believed that he was being challenged and threatened. He responded that he did not "want no problems." RT 104-09, 111.

Petitioner continued driving, and turned right on Fine Street, the first street he came to after the exchange.⁷ Shortly after, Petitioner drove by Zuniga again. Petitioner stopped at a stop sign after passing Zuniga. When Petitioner stopped, Michael got out of the car. Petitioner turned right at the corner and drove away. Michael approached Zuniga on foot, stating "it's about Temple Street" and "fuck BLC," and shot at Zuniga. Zuniga did not see a gun in Michael's hand before he was shot. RT at 111, 115-19, 135.. Zuniga was shot several times; including in the back, stomach, elbow, and twice in the chest. RT at 195. He survived his injuries, and later identified Petitioner as the driver at a line-up⁸ and at trial. RT at 105, 572.

Michael ran from the scene and through a gate onto Ruthron Street, a cul-de-sac bordering J-8. Petitioner had driven into the cul-de-sac, and was attempting to turn around. After hearing gunshots, Dena Chitty and Fred Roper—each of whom resided on Ruthron—saw an individual run to the car and get into the passenger side, after which the car drove off. Roper noted the license plate number on Petitioner's car, and provided it to an officer who responded to the scene. RT 121, 161-64, 203-07, 209-10.

Officers tracked the license plate number provided by Roper to Petitioner's mother, Graciela Moreno's, residence in Palmdale. Petitioner was not present when the officers arrived. Ms. Moreno consented to a search of the residence, during which officers recovered several "gang related" items from Petitioner's bedroom.⁹ A car with the same license plate number noted by Mr. Roper was found in the garage of the house and impounded. RT at 384-86; 418-29, 431-33. According to Ms. Moreno, Petitioner and Michael (who resided elsewhere) arrived at the house late that afternoon, and left about two hours later in her car. RT at 536-37. Petitioner was arrested later that night. At the time of his arrest, Petitioner had the letter's "TST" (an abbreviation for "Temple Street") tattooed on his forearm, and the words "Temple Street" and "Whisper"—Petitioner's gang moniker—tattooed on his back. Petitioner was wearing large, baggy clothing typical of gang attire, a necklace with the letter "W" on it, and a black belt with the letters "WS" (an abbreviation for "Westside Temple Street") on the buckle. RT at 407-08, 430, 432, 568.

Jose Reyes ("Reyes"), a purportedly former BLC...