Duran v.

• Decision Date: 11 March 2015
• Docket Number: No. 2:14-cv-0094 JAM GGH P,2:14-cv-0094 JAM GGH P
• Court: U.S. District Court — Eastern District of California
• Parties: JOSEPH STANLEY DURAN, III, Petitioner, v. R.T.C. GROUNDS, Respondent.

JOSEPH STANLEY DURAN, III, Petitioner, v. R.T.C. GROUNDS, Respondent.

No. 2:14-cv-0094 JAM GGH P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 11, 2015

ORDER and FINDINGS AND RECOMMENDATIONS

Introduction and Summary

Petitioner's defense to a murder and attempted murder charge was a common one—the other guy did it. And the societal circles in which petitioner was placed, or found himself, made such a defense all the more possible. Ostensibly to avenge himself for being on the losing end of a fight, or on his way to a drug deal, or just along for the ride, petitioner was in a car with persons with criminal backgrounds—persons whose involvement in a shooting from a vehicle would not have been shocking. Indeed, petitioner paints the driver of the vehicle, if he was driving, as a person with mental difficulties portending violence and one with a potential motive (his sister was involved in a fracas with one of the group shot at). All of the claims in this petition revolve around rulings of the trial court, or actions by petitioner's trial counsel, which are posited as harmful to petitioner's defense.

However, the focus of this petition is, for the most part, on the California Court of Appeal, which issued a reasoned decision on all but two claims. Petitioner cannot overcome the deference which is given to the state courts; that is, petitioner has not shown that the appellate court was AEDPA unreasonable in applying clearly established Supreme Court law to the issues. In addition, petitioner cannot demonstrate that he suffered sufficient prejudice as a result of asserted suppression of a witness' criminal history, or his counsel's failure to exploit a witness' criminal history for impeachment purposes.

Factual Background

The background to this case is well stated by the Court of Appeal:

It is not necessary to recount every detail of the trial record because much of it is repetitive, cumulative, or not particularly germane to the contentions defendant advances on his appeal. The Attorney General commences her brief with an admirably concise thumbnail precis of this case: "On June 20, 2007, appellant, a passenger in a van, discharged a firearm at a parked Cadillac as he drove by. Two bullets struck and killed Angelo Hurst, who was standing next to the Cadillac. The prosecution theory was that appellant intended to kill Brandon Boyd, who was a passenger in the Cadillac, in retaliation for Boyd's attack on him earlier that day. The defense claimed mistaken identity ... that Tereaun Berry, the driver of the van, committed the shooting."

This is one of those cases where just about everyone knows everybody else. Defendant knew Boyd, and they had been friends. Defendant was also a friend of Maria and Xavier Montano, Kevin Davis, and James Ayres. Defendant knew Tereaun Berry and his sister Tecora.

But by the date of the killing, June 20, defendant's friendship with Boyd was a thing of the past. That day, they had a brief fight. There were no serious injuries, but defendant got the worst of it, and he wanted a rematch. Boyd learned of defendant's desire but had no intention of indulging it.

It was apparently still up in the air whether there would be a Round Two between defendant and Boyd when the Montanos picked up Boyd and Ayers in their Cadillac. Boyd sat behind Xavier, who was driving. They parked on Cambridge Drive in Vacaville. At approximately 9:45 p.m., Hurst and Davis were standing next to the vehicle, conversing with the four occupants, when a dark-colored van approached. A fusillade of shots was fired from the van.

The van belonged to Tereaun Berry's mother. Tereaun had picked up his sister Tecora at her place of work, together with Sontoya Hawkins, a coworker who needed a ride home. Then they picked up defendant. Tecora (who was chastised by the trial court as "the most contemptuous witness I've ever seen in 32 years ... in the legal profession") testified in effect that "[w]e was driving around Vacaville," past "a car with some people standing outside" when defendant started shooting, but otherwise "I don't remember all the details [as] to what happened that night" except that the next thing she knew they were dropping off Hawkins. It appears Hawkins went into hysterics when the shooting began, so she was similarly unforthcoming with details. However, during a subsequent police interview, Hawkins identified Terraun's "friend," who "they call Joe" and who was sitting in the front passenger seat, as the person who fired the shots.

As for Tereaun Berry (who was even more recalcitrant than his sister and was actually held in contempt after being warned against lying),[N.1] he testified that defendant called and asked for a ride. When defendant got in the van, his face was bruised and he told Tereaun he had been in a fight with Boyd. Tereaun himself had "no beef" with either Boyd or Davis. He did not know that defendant was armed.[N.2]

[N.1] At the start of the defense's cross-examination, Tereaun announced: "I don't want to be here. I told them people ... that I am a schizophrentic [sic ]. I am bipolar. My doctor wrote them a—a statement. I ain't credible, I can't testify, and they still went ahead and do what they want to do to me.... [¶] I ain't took my medication in hella long because I ran out, and I ain't be going back and see my doctor in like two or three months, but my letter I got, it's like four months out, but it's good."

[N.2] There was a gun in the van, put there by a family member Tereaun refused to name, but it may not have been the gun defendant used in the shooting, or the one defendant took with him afterwards.

To hear Tereaun tell it, he was simply driving along when the firing suddenly started. Asked if he saw defendant "put his arm out of the window and start shooting," Tereaun replied "[i]t might have happened." Tereaun grudgingly testified that the firing was directed at a group, some of whom he recognized. After the shooting, Tereaun dropped off Hawkins in Suisun and defendant in Fairfield. Defendant took the gun with him. Defendant told Tereaun that "those people they deserved it," but he was sorry to have used "your mom's car."[N.3] "Maybe" defendant called afterwards and asked Tereaun "not to tell." Thereafter Tereaun did receive threats, although he did not know if they originated with defendant.

[N.3] The apology may have been motivated by Hawkins reproaching defendant for possibly endangering Tereaun's and Tecora's mother if "these people" connected her vehicle to the shooting.

It was not until the very end of Tereaun's cross-examination that a very salient detail emerged, namely, that the van did not arrive at the shooting scene by happenstance, but Tereaun intentionally drove there at defendant's direction so that defendant could "do a drug deal."

Three days after the shooting, Tereaun was voluntarily interviewed by Vacaville Detective Kellis and identified defendant as the shooter. According to Detective Kellis, Tereaun had no difficulty in recounting a version more detailed than his trial testimony. After being picked up, defendant directed Tereaun to the location where defendant "was going to do a ... drug deal." As his van approached the Montanos' Cadillac, Tereaun recognized the victim, Angelo Hurst, Boyd, and Kevin Davis. Defendant "made a statement to the effect of there they are," followed by cocking his firearm. Defendant then said "Fuck that shit," and began firing. While being driven back to Fairfield, defendant told Tereaun "they deserved what they got." Tereaun recounted that the day after the shooting he received the first "threat towards his family" from defendant.

The same thing occurred with respect to Tecora. Vacaville Police Officer Carey interviewed Tecora on the night of the shooting, at which time she told him what happened with "great detail." She corroborated the essence of the version Tereaun gave to Detective Kellis about defendant's "there they are" statement, followed by the cocking of the gun, the "fuck this" comment, and then the firing, and how "they were all upset with Joe" and "freaking out." And like Tereaun, Tecora identified defendant in a photographic line-up.

Hurst was hit in the back. Montano inside his car was hit in the leg. Defendant immediately fled to Mexico, where he was arrested and returned for trial in 2008.

Defendant did not testify. The sole witness on his behalf was Tereaun's psychiatrist, who testified that she diagnosed Tereaun as having "schizophrenia—paranoid type" and "impulse control disorder," and that he had "these mental health issues ... in June of 2007." Tereaun also suffers from delusions. On cross-examination, the doctor further testified in effect that Tereaun wanted to avoid testifying because he feared for his life.

People v. Duran, 2012 WL 5378286, at **1-3 (November 2, 2012)

Issues

Petitioner challenges his conviction on the following grounds: (1) violation of his due process right to present a defense by the exclusion of third-party culpability evidence; (2) violation of his due process right to a fair trial when the trial court failed to give accomplice liability instructions; (3) ineffective assistance of counsel for failing to object to the prosecutor's vouching of the police officer's testimony; (4) ineffective assistance of counsel for failing to object to hearsay testimony; (5) the prosecution suppressed of impeaching evidence; (6) ineffective assistance of counsel for failing to impeach key witnesses; and (7) cumulative error.

AEDPA Standards

The AEDPA standards do play an important role in this case. They are as follows. The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not

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