REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
Effective September 16, 2015,1 Joshua Burton ("Petitioner") filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") raising six grounds for habeas corpus relief. (Dkt. No. 1). Petitioner also filed a Motion requesting the Court stay the Petition and hold it in abeyance while he exhausted Grounds One through Three and Six of the Petition. (Dkt. No. 3). On April 20, 2016, the Court granted Petitioner's motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (Dkt. No. 9).
After the California Supreme Court denied Petitioner's state habeas corpus petition, Petitioner filed a First Amended Petition for Writ of Habeas Corpus ("FAP") in this Court effective April 11, 2018.2 (Dkt. No. 26). Thereafter, on May 24, 2018, the Court lifted the stay of proceedings in this matter. (Dkt. No. 30).
On August 22, 2018, Respondent filed a Motion to Dismiss Grounds One through Three of the FAP ("Motion") with an accompanying Memorandum of Points and Authorities ("Mot. Mem."), arguing that these grounds are procedurally defaulted. (Dkt. No. 38). Respondent also lodged various documents with the Court. (Dkt. No. 39). On November 6, 2018, the Court denied the Motion without prejudice and required Respondent to file an Answer to the FAP. (Dkt. No. 42).
On January 7, 2019, Respondent filed an Answer to the FAP with an accompanying Memorandum of Points and Authorities ("Ans. Mem."). (Dkt. No. 46). Respondent also lodged relevant portions of the record from Petitioner's state court proceedings, including a two-volume copy of the Clerk's Transcript ("CT") and a seven-volume copy of the Reporter's Transcript ("RT"). (Dkt. No. 47). On February 19, 2019, Petitioner filed a Reply with an accompanying Memorandum of Points and Authorities ("Reply Mem."). (Dkt. No. 51). For the reasons discussed below, it is recommended that the First Amended Petition be DENIED and this action be DISMISSED with prejudice.
On November 9, 2011, a Los Angeles County Superior Court jury found Petitioner guilty of one count of first degree murder in violation of California Penal Code ("P.C.") § 187(a) (count 1), one count of second degree murder in violation of P.C. § 187(a) (count 2), one count of first degree burglary in violation of P.C. § 459 (count 3), and one count of first degree robbery in violation of P.C. § 211 (count 4), and also found various sentence enhancements and a multiple murder special circumstance to be true. (CT 550-54, 564-66; RT 2740-44, 2747-49). On January 20, 2012, Petitioner was sentenced to, among other things, two consecutive sentences of life imprisonment without the possibility of parole on counts 1 and 2.3 (CT 575-78; RT 3329-31).
Petitioner appealed his convictions and sentence to the California Court of Appeal (2d App. Dist., Div. 3), which, in an unpublished opinion filed April 14, 2014, affirmed Petitioner's convictions but remanded the matter to the Superior Court for resentencing on counts 2-4. (Lodgments 2-3, 6, 19). Petitioner thereafter filed a petition for review in the California Supreme Court, which denied the petition on July 16, 2014. (Lodgments 7, 9).
Effective September 1, 2015, Petitioner filed a habeas corpus petition in Los Angeles County Superior Court, which denied the petition in a reasoned decision filed December 1, 2015. (Lodgments 10-11).
On June 20, 2016, the trial court issued an order correcting Petitioner's sentence on counts 2-4, which, among other things, reduced Petitioner's sentence on count two from life without the possibility of parole to life with the possibility of parole. (Lodgments 12-13).
Effective July 13, 2017, Petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on November 14, 2017. (Lodgments 14-15). Effective December 12, 2017, Petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on March 21, 2018.4 (Lodgments 16, 18).
The following facts, taken from the California Court of Appeal's written decision on direct review, have not been rebutted with clear and convincing evidence and must, therefore, be presumed correct.5 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
1. Prosecution evidence.
On December 24, 2007, Los Angeles Police Detective Stephanie Rosa responded to a homicide call at 6733 11th Avenue in Los Angeles. Upon arrival, Rosa and her partner entered apartment number 6 and found Shelton Summerall dead on the living room floor, and Monica Youngblood dead in the bedroom. There were two .45-caliber cartridge casings in the living room and one in the bedroom. The autopsies showed Summerall had sustained three fatal gunshot wounds, two to the head and one to the chest, and Youngblood had sustained a single fatal gunshot wound to the head.
On January 10, 2008, Detective Rosa met with A.A.,[6] who lived in the same apartment complex as Summerall. On the night of the killings, A.A. saw [Petitioner and co-defendant Anthony Mitchell] knocking on Summerall's door at about midnight. [Petitioner] went into Summerall's apartment, followed by Mitchell five minutes later. About 10 minutes after that, A.A. heard gunshots. A.A. later saw [Petitioner and Mitchell] leave Summerall's apartment through a back window.
B.B. testified Summerall was an old friend who occasionally hired him to do chores around the apartment. B.B. had been inside Summerall's bedroom and observed his five or six watches. B.B. particularly liked "a purple watch with diamonds inside." Summerall kept money in a shoebox in his bedroom. B.B. knew Summerall made his living selling crack cocaine.
On the night of the shootings, B.B. was visiting his friend C.C. who lived in the same apartment complex as Summerall. When B.B. and C.C. walked into the building late that night, they saw [Petitioner and Mitchell] standing outside. [Petitioner] asked C.C. if he and B.B. "want[ed] to work." After C.C. declined this invitation, he and B.B. went into C.C.'s apartment. Shortly thereafter, B.B. saw [Petitioner and Mitchell] knocking on Summerall's door. He then heard five gunshots and later saw Mitchell carrying Summerall's shoebox in a clear bag. A few days later, B.B. saw Mitchell wearing Summerall's watch. According to B.B., [Petitioner] bought a brand new Cadillac after the killings.
D.D., a Rolling 60's gang member who was a close friend of Summerall's, testified that a few days before the killings he witnessed a discussion between [Petitioner, Mitchell] and a high-ranking gang member named Scooby. Asked if Scooby was a "shot-caller," D.D. testified, "You could say he was" because he had "authority over anybody." Scooby told [Petitioner and Mitchell] Summerall "shouldn't be selling drugs like he is because nobody could make money." Scooby also said, "Something's got to be done," which meant Summerall had to be killed. D.D. left and called Summerall to warn him that Scooby was out to get him. The next time D.D. saw Mitchell, after the killings, Mitchell tried to sell him Summerall's diamond watch. D.D. also saw Mitchell driving a brand-new Impala.
The prosecution's gang expert testified the Rolling 60's are the largest gang in Los Angeles with 1,200 documented members, 600 of whom are active. Because of its size, there are various cliques within the gang and tensions can arise between them. [Petitioner and Mitchell] were self-admitted members of the Rolling 60's who belonged to the Brynhurst clique, the same clique to which D.D. belonged. Summerall was also a Rolling 60's member, but he belonged to the Front 60's clique. Scooby was from still another clique called the Avenues. The gang expert was acquainted with Summerall, who was always well-dressed, owned various cars including a brand new Corvette, and carried around thousands of dollars in cash. Asked to assume Summerall had been dealing drugs from his apartment, which was in territory controlled by another clique of the same gang, the expert opined the killings had been committed for the benefit of the Rolling 60's gang because members of the other cliques would have felt disrespected and threatened by the fact Summerall had been depriving them of drug profits. In addition, the young gang members doing the killing would gain status for having successfully carried out the orders of a senior gang member.
The gang expert was asked the following hypothetical question: "[A]ssume there's two Rolling 60s from a particular clique that go commit a violent crime against a member of a rival clique or a clique within Rolling 60s that is sometimes rival with them. We have only one shooter during the course of that violent crime. What is the role of the non shooter, assuming they' re working together?" The expert replied, "The non shooter . . . is there for help in case things go sideways . . . [and] to make sure there's no witnesses or police within that area when the crime is committed." Asked what might be the consequences for an innocent bystander who happened to witness this violent crime, the expert answered: "that person [is] getting killed, because they don't want any witnesses being present, because they don't want that to be leaked to the police[.]" Asked a hypothetical question based on the particular facts of this case, the expert opined that killing the potential eyewitness would have been done for the gang's benefit: "They kill [the intended target], and then they kill the witness because,
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