Dixon v. Rackley

• Decision Date: 14 April 2017
• Docket Number: Case No. 1:14-cv-01149 AWI MJS (HC)
• Parties: JOSEPH KEVIN DIXON, Petitioner, v. RON RACKLEY, Respondent.
• Court: U.S. District Court — Eastern District of California

JOSEPH KEVIN DIXON, Petitioner, v. RON RACKLEY, Respondent.

Case No. 1:14-cv-01149 AWI MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 14, 2017

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Tami Krenzin of the office of the California Attorney General. Respondent declined magistrate judge jurisdiction. (ECF No. 11.)

I. Procedural Background

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on March 20, 2009, for three counts of first degree murder, two counts of attempted murder, conspiracy, shooting at an occupied vehicle, active participation in a criminal street gang, two counts of possession of a firearm by a felon, and multiple enhancements. (Lodged Doc. 11.) On April 20, 2009, Petitioner was sentenced to three consecutive terms of life without the possibility of parole in addition to an indeterminate term of 238 years to life in prison. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District on May 10, 2010. (Lodged Doc. 1.) On April 26, 2012, the appellate court reversed the conviction for conspiracy and noted several sentencing errors, but otherwise affirmed the conviction. (Lodged Doc. 4.) Both Petitioner and Respondent sought review by the California Supreme Court on June 1, 2012. (Lodged Doc. 6.) Petitioner's petition for review was summarily denied, however, the California Supreme Court granted Respondent's petition for review on August 15, 2012. (Lodged Doc. 7.) On July 18, 2013, the California reversed the Court of Appeal's decision regarding elements of the criminal gang participation enhancements. (Lodged Doc. 8.) On September 25, 2013, the Court of Appeal issued a revised and amended opinion in light of the reversal from the California Supreme Court. (Lodged Doc. 9.) On October 22, 2014, the Kern County Superior Court issued a corrected abstract of judgment. (Lodged Doc. 11.)

Petitioner filed his federal habeas petition on July 14, 2014 raising the following twelve claims for relief:

1) That the trial court erred in admitting and instructing the jury regarding irrelevant and inflammatory prior gang-related offenses;

2) That the trial court violated Petitioner's due process rights by admitting witness Agustin's testimony of co-defendant Johnson's statements which were against Petitioner's interests at trial;

3) That the trial court violated Petitioner's due process rights by admitting the Jackson's testimony that Petitioner made incriminating statements after he was arrested;

4.) That Petitioner's due process was violated by the admission of the erroneous statements of prosecution's gang expert; 5.) That the trial court erred in denying Petitioner's Wheeler/Batson motions regarding the striking of disabled and African-American persons from the jury;

6.) That the trial court violated Petitioner's due process by denying Petitioner's motion for change of venue;

7.) The trial court violated Petitioner's right to a fair trial by ordering Petitioner to be restrained;

8.) The trial court violated Petitioner's due process rights by not dismissing two jurors that may have been engaged in premature deliberation of Petitioner's case;

9.) That the trial court improperly instructed the jury with CALCRIM No. 373 regarding uncharged participants;

10.) That the instructions regarding gang evidence and enhancements were in error, violating Petitioner's due process rights;

11.) That the accomplice liability jury instructions were in error and violated Petitioner's due process, right to a fair trial, and right to a jury determination; and

12.) Cumulative error.

(See generally, Pet., ECF No. 1.) Respondent filed an answer to the petition on November 21, 2014. (Answer, ECF No. 18.) Petitioner did not file a traverse.

II. Statement of Facts¹

I. Prosecution Evidence

Events Surrounding March 21, 2007

Early on the morning of March 20, 2007, someone shot Venesta Grinnage's vehicle, which was parked in front of her home in the 4300 block of Deborah Street in Bakersfield.[fn4] Grinnage's son, Daniel Davis, frequented the house, although he did not live there. Multiple shell casings from three different semiautomatic firearms were found in the street. Although no suspects could be developed, a neighbor reported seeing a burgundy Honda drive slowly by shortly after 3:30 a.m. and again about 15 minutes later. The car had tinted windows and she could not see inside it. About 4:00 a.m., she heard what sounded like numerous gunshots.

FN4: All dates are in the year 2007 unless otherwise stated.

Some of the law enforcement officers who testified had received promotions or retired by the time of trial. To the extent possible, we refer to them by the titles they had at the time of events.

A number of peripheral actors in the case were regularly referred to at trial by their nicknames or monikers. For the most part, we use the same appellations for the sake of clarity.

Last, exact addresses were given at trial.

Just after midnight on March 21, Bakersfield Police Officers Shaff and Williamson, both members of the police department's Special Enforcement Unit (also known as SEU or the gang unit) were dispatched to an address on Myrtle Street in response to a call in which the reporting party said he had been shot at and his vehicle had been hit with bullets. Upon arrival, Shaff contacted Lee, who reported he had been standing by his vehicle in front of a residence in the 800 block of Deanna Way, talking with some friends, when an older silver or green Jeep drove by and shots were fired at him and his friends. Lee said the incident occurred about half an hour before he called the police, and that he had left the area and gone home. Shaff noted that Lee seemed unusually vague in terms of information he was giving. For instance, he would not identify the friends who had been present, and he seemed very hesitant when Shaff asked for specifics about the other vehicle and its occupants.

There were what appeared to be bullet holes in Lee's vehicle, a 2000 Chevrolet Tahoe that belonged to his father. Shell casings and bullet fragments from at least one gun were found in the 800 block of Deanna Way, where Lee said the shooting had occurred.

As of March 21, the area of Monterey and Inyo in Bakersfield was known to SEU officers as an area that was controlled by the Bloods criminal street gang, a group that was associated with the color red. The Country Boy Crips, who were associated with the color powder blue, were active rivals of the Bloods at the time. The Bloods had somewhat of an alliance with the Westside Crips, and were not actively quarrelling with the Eastside Crips. The corner was a known narcotics location, with sales being made out of the apartment complex there. The territory of a local Hispanic gang, which also sold narcotics, began nearby.

Around 6:45 that evening, Edwin McGowan was talking to friends outside the apartments when he heard some shots. He tried to run, but fell, having been struck. He saw a male wearing a burgundy hoodie shooting a little gun over the top of a car. When McGowan fell, the person ran behind him and shot him two more times, then took off running. McGowan could see the eyes and upper nose of this person, who was not wearing a mask. McGowan denied ever having seen defendants.

Officer Meek interviewed McGowan in the emergency room. McGowan described the shooter as a tall, light-skinned African-American male, 17 to 21 years old, wearing a red hooded sweatshirt, dark pants, a dark ball cap, and clear glasses. Meek confirmed that McGowan wascertain the race was African-American and not Hispanic. When asked, McGowan said he would be able to identify the person if he saw him.[fn5]

FN5: McGowan denied telling Meek that a light-skinned African-American male shot him. Rather, he told Meek the shooter could have been Hispanic or "a bright-skinned" male. McGowan told the grand jury that the shooter was a very light-skinned person, but he could not tell his race. McGowan did not consider any of the defendants to be light-skinned. They all appeared to be African-American to him.

On October 4, Bakersfield Police Detective Darbee showed McGowan a photographic lineup that included a picture of Johnson, whom Darbee considered to be light to medium-skinned. McGowan said he did not recognize anyone, and did not know who shot him because the person had a hoodie over his face. When confronted with the fact that he had told Meek he would be able to identify the shooter, McGowan was hesitant to answer and asked if Darbee knew what would happen to his family if he were to identify anyone or testify against anyone in court.

At the scene, adult-sized footprints, with a stride length suggesting the person had been running, led from the area in which McGowan had lain in front of one of the apartments, toward where a hole had been cut in the chain-link fence at the far corner of the parking lot.[fn6] Three spent .25-caliber shell casings were found near the door of the apartment where McGowan had lain, and another was recovered from the parking lot. All four had been fired from the same gun.

FN6: A canal ran parallel to Monterey Street about a block away. A traversable alleyway ran along both sides of the canal.

All told, McGowan was struck three times in the back. He suffered major abdominal injuries that necessitated multiple surgeries. Taken together, his injuries were life-threatening.

Sometime between 8:00 p.m. and 10:45 p.m. on March 22, Michael Wilcox was inside his home in the 4200 block of Deborah Street, when he heard six to 10 gunshots. Looking out, he saw a person, who appeared to be in the area of the Grinnage house, shooting at a van that

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