Cornwell v. Warden, No. 2:06-cv-00705 TLN-KJN

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtKENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Decision Date14 February 2018
PartiesGLENN CORNWELL, JR., Petitioner, v. WARDEN, San Quentin State Prison, Respondent.
Docket NumberNo. 2:06-cv-00705 TLN-KJN

GLENN CORNWELL, JR., Petitioner,
v.
WARDEN, San Quentin State Prison, Respondent.

No. 2:06-cv-00705 TLN-KJN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 14, 2018


DEATH PENALTY CASE

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner under sentence of death. He seeks relief pursuant to 28 U.S.C. § 2254. The parties briefed the application of 28 U.S.C. § 2254(d) to each claim in the amended petition. After careful consideration of the parties' briefs and the state court record, this court concludes that petitioner has satisfied the requirements of section 2254(d) for claim 3; has shown that claim 19 is ripe for adjudication; has failed to exhaust aspects of claim 27; has shown that consideration of aspects of claim 34 should be deferred; and has failed to satisfy the requirements of section 2254(d) for the remaining claims in the amended petition. Accordingly, this court recommends that these federal proceedings continue on claim 3 in the amended petition. This court also recommends that claim 19 be dismissed without prejudice to its renewal after an execution date is set and that aspects of claim 27 be dismissed as unexhausted. In addition, this court recommends that consideration of aspects of claim 34 be deferred until the court addresses any procedural default issues. Finally, this court recommends that the remaining

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claims in the amended petition be denied.

BACKGROUND FACTS1

I. Guilt Phase Evidence

The principal participants in the narrative of petitioner's crime are petitioner; his girlfriend, Juanita Washington; his friend, Roland Johnson; his acquaintance, security guard Michael Johnson (no relative of Roland's); Kimberly Scott, owner of Cashland, a check-cashing business in Sacramento; and William Reagan, the victim, who assisted Kimberly Scott in her business and also was romantically involved with her. Several identification witnesses testified, and other witnesses testified on various points. The principal defense witnesses testified concerning the issue of identification, including possible deficiencies in the eyewitness identification evidence proffered by the prosecution. One witness provided petitioner with an alibi.

The setting of the crime was the sidewalk in front of Cashland. The business was located on 16th Street between F and G Streets in Sacramento. There was an alley next to the business, and beyond the alley was an empty lot that served as a parking lot. Also nearby, in the general vicinity, was a supermarket located at 23 d and F Streets.

The crime was committed at approximately 1:30 p.m. on June 1, 1993. The evidence against petitioner, however, reflected preparatory activity on his part beginning on the previous day, May 31, 1993, when he borrowed an automobile, a brown Toyota, belonging to Juanita Washington, his girlfriend. Petitioner drove this automobile to the home of his friend, Roland Johnson, a drug dealer. Petitioner asked Johnson for the loan of a handgun, explaining he needed the weapon "to try to make a move on something," and that he had "eyes,"— statements Johnson interpreted as an announcement that petitioner planned a robbery and that he had an accomplice who was an insider at the scene of the robbery. Roland Johnson supplied petitioner with a loaded .357 magnum revolver and observed petitioner drive away in Washington's Toyota.

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According to Washington, petitioner departed for work at 7:00 a.m. on June 1, 1993, driving her Toyota. Washington's vehicle was parked on the 600 block of 17th Street on that date and was ticketed by a city parking enforcement officer at that location at 3:52 p.m., the ticket noting that the vehicle's tires had been marked at approximately 1:00 p.m. on that date and that the vehicle had exceeded a two-hour parking limit.

William Reagan generally assisted at Cashland by delivering checks to the business's bank and returning with cash. He performed this task successfully on the morning of June 1, 1993, but his second run of the day ended in his death. He departed from Cashland at 12:30 p.m. and withdrew $9,500 in cash from the bank at approximately 1:00 p.m. The withdrawal consisted of $4,000 in $100 bills, $1,500 in $50 bills, and $4,000 in $20 bills. He was killed on his return as he walked from his automobile, which was parked behind Cashland, through the alley to the front of the establishment. It was noted at the trial that the first day of the month ordinarily was a busy one for Cashland.

The prosecution theorized that the insider whom petitioner mentioned to Roland Johnson was Michael Johnson, a man with whom petitioner was acquainted and who was employed as a uniformed security guard at Cashland. Michael Johnson generally worked only on the first day of the month and occasionally accompanied other employees on their bank runs. Usually he was armed, but on the day of the crime he was not. During Reagan's second bank run on June 1, 1993, Michael Johnson remained at Cashland and was observed pacing back and forth and looking out the front windows of the business.

At approximately 1:30 p.m. on June 1, 1993, Reagan was walking from the alley to the Cashland business carrying his briefcase, his usual means of transporting the business's cash. A man whom five witnesses identified as petitioner approached him from behind and attempted to wrest the briefcase from his grasp. (Robert Blair's observations were made from a vantage point across the street from Cashland; Maria Ramos's from the passenger side of an automobile stopped on 16th Street directly in front of Cashland; Frances Rivers's from an automobile idling in the alley adjacent to Cashland, and again from the automobile as it crossed the parking lot behind Cashland; Susan Erickson's through a window inside Cashland; and Cassandra

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Henderson's from directly in front of Cashland.) When Reagan resisted, petitioner produced a weapon and ordered him to drop the briefcase. When Reagan did not comply, petitioner fired the weapon. Reagan fell to the ground, the briefcase still in his grasp. Petitioner fired a second time, striking Reagan's neck, took the briefcase, and ran down the alley next to Cashland, waving the revolver over his head as if signaling. Petitioner ran to the rear of Cashland and into the empty lot behind it. Frances Rivers, one of the persons who observed the shooting, drove away from Cashland after the incident and circled back through the lot. There she came face-to-face with petitioner, whom she recognized as the shooter, and witnessed him run away, accompanied by another man.

Witnesses who were inside Cashland at the time heard someone yell, "they're fighting," then heard gunfire, and crouched on the floor. Scott, the owner of Cashland, heard someone yell, "it's Bill." She ran outside and found Reagan lying on his back on the sidewalk, bleeding from his neck. She could see that he was dying. He was killed by a gunshot wound to his neck that was consistent with the impact by a bullet fired from a .357 magnum positioned against his neck. His face and his left hand displayed gunpowder stippling such as would be present if a firearm had been fired at him at short range, but missed. At the scene of the crime, police investigators discovered a bullet and a bullet casing from a .357 magnum revolver.

There was evidence petitioner was at a supermarket located a few blocks from Cashland at 23d and F Streets at 2:15 p.m. on June 1, 1993. A police search of petitioner's bedroom produced a receipt from the supermarket bearing this date and time. At some time between 2:30 and 3:00 p.m. on the day of the crimes, petitioner arrived at an auto dismantling business and purchased a used white Camaro, paying for the automobile, which cost $1,400, with $20 bills. The purchase was finalized at 3:39 p.m. Petitioner was accompanied by another man who was not identified, but who may have been an accomplice.

Between 3:30 and 4:00 p.m. on June 1, 1993, petitioner arrived in the Camaro at Roland Johnson's home. According to Johnson, petitioner appeared frightened and agitated. He stated that he had used Johnson's weapon but could not return it because he no longer possessed it. Petitioner paid Johnson $500 in $20 bills for the firearm and for other favors. Petitioner reported

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he had committed a robbery and had been forced to "smoke" the victim. Johnson gave this testimony after receiving certain benefits from law enforcement authorities related to his August 1993 imprisonment for a parole violation. Johnson claimed he began to suffer from a guilty conscience concerning the murder petitioner had committed and feared the consequences of his own part in lending petitioner the murder weapon. Johnson contacted law enforcement authorities and supplied them with the foregoing information and, in return for testifying, he received an eight-month reduction of his term of imprisonment for the parole violation as well as immunity from prosecution for any act connected with the charged crimes.

Juanita Washington testified concerning events that took place later on the day of the fatal shooting, June 1, 1993. She reported that petitioner returned to their home at 5:15 p.m. rather than at his usual hour of 4:00 p.m. He arrived in a white Camaro she had not seen previously, explaining that his supervisor at work had purchased the automobile for him and that petitioner would make periodic payments. Washington was concerned because of "the money situation that we were in." Washington observed a briefcase in the trunk of the Camaro. Petitioner informed her that he had left her Toyota downtown because he had worked in the neighborhood that day. He drove her to the vehicle's location on the 600 block of 17th Street, where, as noted previously, it had been ticketed.

Petitioner's supervisor at his place of employment testified, denying having purchased the Camaro. Another employee, a record keeper, added that petitioner failed to report for work on...

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