Davis v. Peery

• Decision Date: 16 August 2019
• Docket Number: No. 2:16-CV-1895-DMC-P,2:16-CV-1895-DMC-P
• Court: U.S. District Court — Eastern District of California
• Parties: MARCUS JAMAL DAVIS, Petitioner, v. SUZANNE M. PEERY, Respondent.

MARCUS JAMAL DAVIS, Petitioner, v. SUZANNE M. PEERY, Respondent.

No. 2:16-CV-1895-DMC-P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 16, 2019

MEMORANDUM OPINION AND ORDER

Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ Pursuant to the written consent of all parties (ECF Nos. 5 and 12), this case is before the undersigned judge for all purposes, including entry of a final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner's pro se petition for a writ of habeas corpus (ECF No. 1), respondent's answer (ECF No. 15), and petitioner's traverse (ECF No. 29), filed by petitioner's counsel.

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I. BACKGROUND

A. Facts²

Findings of fact in the last reasoned state court decision are entitled to a presumption of correctness, rebuttable only by clear and convincing evidence. See Runningeagle v. Ryan, 686 F.3d 759 n.1 (9th Cir. 2012). The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

Defendant Marcus Jamal Davis shot and killed Chester Jackson after an altercation at a restaurant. A jury convicted defendant of first degree murder and found true the allegations that defendant personally and intentionally discharged a firearm, proximately causing great bodily injury or death to Jackson. The trial court sentenced defendant to an aggregate of 50 years to life in prison.

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Defendant twice moved from his table in a restaurant to an empty booth behind Chester Jackson and then talked on defendant's cell phone. A confrontation ensued. Jackson had the equivalent of six alcoholic drinks in his system. Defendant had at least eight alcoholic drinks over the course of the evening. According to James Powell and Torrien Smothers, defendant "wanted to start something" when he aggressively said "what's up" to Jackson, Powell, and Smothers inside the restaurant. Defendant and Jackson said "what's up" to each other. Jackson told a friend, during a cell phone conversation, that he was "about to get into it" with some guys. Defendant and everyone at Jackson's table stood up. Powell was ready to hit defendant if Jackson swung at defendant. But codefendant Robert Earl Lucas intervened, saying "it's good" or "it's cool."

Defendant, Lucas, and defendant's friend Mary McCain told a very different story. They said defendant moved from his table to a table behind Jackson to talk on his cell phone when he received a call from his girlfriend. Defendant claimed no words were exchanged between him and Jackson's group at that time. Defendant later returned to the table behind Jackson because he thought there was another call on his cell phone. This time, Jackson turned around and said "what's up" to defendant. Defendant answered "what's up" and returned to texting on his cell phone. Jackson asked defendant why defendant kept going over to the empty table. Defendant said he stood up when Jackson did. Then Jackson's friends also stood up. Lucas went over to see what was going on when he saw Jackson, Powell, Smothers and defendant stand up. Jackson asked why defendantwas over in his area on the phone. Defendant replied, "what's the problem?" Lucas got between defendant and Jackson, Powell, and Smothers. Lucas told defendant to "keep cool." Lucas told Jackson and his group "is everything cool?" Jackson and his group answered everything was cool. Then Jackson left the restaurant with Powell and Smothers.

Unbeknownst to Lucas, defendant had walked out of the restaurant. Jackson walked out of the restaurant a few seconds behind defendant. Powell and Smothers were right behind Jackson. Jackson and defendant were fighting by the time Powell and Smothers walked outside. Smothers ran over and tried to break defendant and Jackson apart. Powell punched defendant twice in his side or back.

Lucas testified McCain asked him to get defendant, who had gone outside. Lucas saw Jackson and his group assaulting someone when he exited the restaurant. When he realized Jackson and his group were assaulting defendant, Lucas yelled at them to get off defendant.

A waitress heard raised voices outside the restaurant. She informed a manager there was a group of people fighting outside. The waitress and the manager did not see anyone with a gun. The manager did not see anyone with their hands up in the air.

But according to Smothers and Powell, Lucas pulled out a handgun when he exited the restaurant. Smothers said Lucas pointed the gun at Jackson, Powell, and Smothers. And Jackson, Powell and Smothers put up their hands and said, "It's cool. It's cool."

Powell said he ran away when he saw Lucas raise his gun. He maintained he did not see or hear any gunshots. Smothers, on the other hand, claimed Lucas shot in the direction of Jackson, Powell, and Smothers, and Powell and Smothers ran away after the shot was fired. Smothers claimed he ran back when he realized Jackson was not behind him, and he saw defendant point a handgun in Smother's direction and shoot four or five times. Smothers said he ran away again when those shots rang out.

Lucas testified he did not have a gun. He said he was one to two feet away from Smothers and about three feet away from defendant when he heard multiple gunshots. Lucas did not see anyone with a gun. He ran to his vehicle.

The restaurant manager ran to the front door of the restaurant when she heard about four gunshots fired in succession. She did not hear a single gunshot before she heard the multiple gunshots. She saw an African American man lying on the sidewalk and about four people running away. The manager saw a man she later identified as defendant walk toward the man lying on the sidewalk. According to the manager, defendant pulled out a gun as he approached the man on the sidewalk and stopped when he was one to two feet away from the man.

The manager heard defendant say, "I told you this mother fucking shit was going to happen." The manager testified defendant pointed his gun at the head of the man on the ground. The manager heard one gunshot after she turned away. When she opened the door again, she saw defendant walking away from the restaurant.

Surveillance video showed a dark colored sports utility vehicle leave at a high rate of speed from the restaurant parking lot at about the time of the shooting. Lucas and McCain left in Lucas's black sports utility vehicle and were later joined by defendant. Defendant told Lucas and McCain, "they hit me in the jaw." He said someone "jumped" him and took his chain. Police found defendant's gold chain and medallion on the sidewalk in front of the restaurant. The chain was broken.

Jackson was unarmed at the time of the murder. He had multiple gunshot wounds to his head, face, shoulder, forearm, neck, hip, thigh, and chest area. A forensic pathologist opined that the wounds to the head, face and forearm were consistent with Jackson lying on the sidewalk and the shooter firing at Jackson from above. One of the gunshot wounds was inflicted when Jackson had his back to the shooter. Jackson died as a result of the gunshot wounds to his head and torso.

Police located a "live bullet," a bullet that had not been fired from a firearm, at the top of the stairs outside the front door of the restaurant. A live bullet can be expended from a semi-automatic firearm if the shooter "racks the gun" or cycles a live round into the firing chamber of the gun to prepare it for firing. A police detective opined the shooter was standing on the upper landing area of the restaurant when the "live bullet" was cycled out of the gun. Eight spent cartridges were also found at the front of the restaurant. All the cartridges were fired from the same semi-automatic firearm. Two 10 millimeter bullets were recovered from Jackson's body. The "live bullet" was the same caliber and brand as the bullets recovered from Jackson's body and the spent cartridges recovered at the scene.

Defendant and Lucas turned themselves in to police four days after the shooting. Defendant did not have any injuries on his face, head, or body at that time.

McCain told police defendant and Lucas both had guns on the evening before the shooting. At trial, however, McCain denied that she saw defendant or Lucas with a gun. But police found gunshot residue on the driver's side floorboard of Lucas's vehicle.

Defendant testified at trial. He admitted he shot Jackson. Defendant said he felt someone punch him on the right side of his jaw as he was leaning over the outside railing of the restaurant with his eyes closed. He then felt someone punch him from the back, grab him and rip his chain off. He thought someone was robbing him. Defendant said he did not know who was attacking him. He panicked and tried to pull his gun out of his waistband when he was at the top of the landing area outside the restaurant. He fired his gun as fast as he could until he had fired all the bullets. He intended to defend himself. Defendant denied making the statement that the manager testified she heard the shooter make.

Defendant said when the shooting stopped, he saw someone on the ground. He did not see anyone else shooting and did not see Lucas with a gun that night. Defendant ran away because he was frightened. He did not tell Lucas or McCain that he shot someone. He kept his gun hidden from Lucas. He later threw the gun away.

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Lucas testified he had never seen defendant with a gun, and had no reason to believe defendant had a gun at the restaurant.

People v. Davis, 2015 WL 7280796 (Cal. App. Nov. 18, 2015) (unpub.).

B. Procedural History

Petitioner was convicted following a jury trial of first-degree murder. The jury also found true the allegations that petitioner personally and intentionally discharged a firearm causing great bodily injury or death. Petitioner was sentenced to a term of 50 years to life in state prison. The ...