Dye v. Barnes

• Decision Date: 09 September 2015
• Docket Number: No. 12-cv-2201-TLN-EFB P,12-cv-2201-TLN-EFB P
• Court: U.S. District Court — Eastern District of California
• Parties: WILLIAM DYE, Petitioner, v. RON BARNES, Warden, Respondent.

WILLIAM DYE, Petitioner, v. RON BARNES, Warden, Respondent.

No. 12-cv-2201-TLN-EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 9, 2015

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on September 29, 2009, in the Butte County Superior Court on charges of attempted second degree murder with use of a firearm. He seeks federal habeas relief on the following grounds: (1) his trial and appellate counsel rendered ineffective assistance; (2) prosecutorial misconduct violated his right to due process; and (3) jury instruction error violated his federal constitutional rights. Petitioner has also filed a motion for a stay of this action so that he can "exhaust evidence in support of facts" underlying his claims of prosecutorial misconduct. ECF No. 82 at 1. For the reasons that follow, it is recommended that petitioner's motion for a stay be denied and petitioner's habeas petition be denied in its entirety.

I. Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

A jury convicted defendant William Robert Dye of attempted murder (Pen.Code, §§ 187, subd. (a), 664),FN1 and found that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). The trial court found that he committed the offense while released on bail or [sic] his own recognizance (§ 12022.1), and that he had served four prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for a determinate term of 15 years plus a consecutive indeterminate term of 25 years to life. He was also sentenced to two consecutive terms in the case underlying the on-bail enhancement.

FN1. Further undesignated statutory references are to the Penal Code.

On appeal, defendant contends (1) the jury instructions on attempted murder were erroneous as a matter of law, (2) the trial court erroneously denied his request for a jury instruction on attempted voluntary manslaughter, and (3) he is entitled to an additional day of presentence custody credit; the Attorney General concedes this last point. We shall modify the judgment.

FACTS

Prosecution Case-in-Chief

On the evening of August 31, 2007, a party was held at a Chico motel. Present were defendant, Christopher Johns, Johns's girlfriend Christy Scarbrough, Lena Forbes, Chris Smith, and Smith's girlfriend Antonia Taylor. Alcohol and methamphetamine were consumed.

When the methamphetamine began to run out, Forbes suggested that they buy more from victim Donnie Powell, Jr. (Powell Jr.), who lived nearby. Forbes and Taylor went to Powell Jr.'s apartment where Forbes purchased a quarter ounce of methamphetamine for about $300. After about 45 minutes, Forbes and Taylor returned to the party and shared methamphetamine with defendant, Johns, Scarbrough, and Smith. Then the methamphetamine ran out.

Forbes believed that Powell Jr. had access to a large amount of methamphetamine and could furnish more to the group. Johns suggested to defendant that Powell Jr. could furnish more methamphetamine.

Defendant asked to borrow Forbes's car. She watched as defendant, Johns, and Scarbrough left together in her (Forbes's) car. Defendant was driving.

On the evening of the party, Donnie Powell III was staying with his father, Powell Jr., at his Chico apartment. Powell III was on the living room couch. Powell Jr. and his girlfriend, Teresa Spohr, were in the bedroom watching television, talking, and dozing off. The bedroom door was closed.

Late in the evening, Scarbrough arrived at Powell Jr.'s apartment and knocked on the door. Powell III looked through the peephole and saw Scarbrough, whom he recognized as a family friend. Powell III opened the door and saw that she was accompanied by defendant and Johns, whom he did not know. The trio entered the apartment. Scarbrough wanted to see Powell Jr. Powell III knocked on Powell Jr.'s door and told him that Scarbrough was there. Powell Jr. said, "[w]e're busy," so Powell III returned to the living room.

According to Powell III, the trio went to Powell Jr.'s bedroom door and knocked on it; Scarbrough believed that only defendant and Johns approached the door. Scarbrough sat next to Powell III on the couch and talked to him while defendant and Johns sought entry to the bedroom.

Powell III told Scarbrough that the men were going to make his dad mad; Scarbrough replied, "[w]ell, they're mad," which prompted Powell III to observe the two men.FN2 In an ensuing police interview, Scarbrough said her words had been, "Doesn't matter, they're pissed already." However, she had not known that anything was about to happen.

FN2. Johns testified that he was not angry at Powell Jr., and had no ill feelings toward Powell Jr., who essentially was helping him out; they were not on bad terms. Johns was not aware of any hard feelings defendant may have had toward Powell Jr.

Spohr testified that someone kept knocking on the bedroom door approximately every two seconds, causing Spohr to become irritated and upset. After 45 to 90 seconds, she got up and opened the door, revealing two men she had never seen before. When Powell Jr. saw the two men, he jumped out of the bed and stood next to it. Johns testified that Powell Jr. and Spohr were acting nervous, as if they had been caught having an affair. Johns entered the room, nicely put his hand on Spohr's chest, pushed her back almost to her side of the bed, and told her that she needed to leave. Johns explained that he wanted Spohr to leave because he did not know her and did not want to talk about drugs in front of her; however, she did not leave.

Powell III saw Johns walk to the bedroom doorway and stand there while defendant stood behind Johns in the hallway. After hearing the sound of a punch, Powell III ran down the hall and glanced between defendant and Johns to check on his father. Powell IIImade eye contact with Powell Jr., whose expression suggested that things were okay. Then Powell III returned to the living room and sat with Scarbrough on the couch. He continued to look down the hall to make sure his father was okay.

Spohr testified that the other man (defendant) entered the bedroom, almost immediately pulled a black eight-inch revolver from his waistband, and shot Powell Jr. in the face as Powell Jr. tried to duck. Powell III similarly testified that the shorter, thinner man (defendant) reached into his waistband and pulled out a gun; then Powell III heard a pop. Powell III ran toward his father as the two men fled out the front door. Spohr telephoned 911.

Scarbrough testified that she heard the loud pop, so she panicked and left with defendant and Johns. Eventually, they returned to the motel.

Ninety to 120 minutes after seeing them depart, Forbes saw defendant, Johns, and Scarbrough return to the motel and enter the party room, one after another. Defendant returned the car keys to Forbes. She did not recall anything unusual about how defendant was acting; he was quiet and his usual, easygoing self.

Johns and Scarbrough left the motel alone and walked to Scarbrough's nearby home, where others were present. The police showed up and arrested them. At an in-field showup, Spohr identified Johns as the unarmed man who had pushed her backward. Spohr testified that Scarbrough, whom she knew, was next to Johns.

Scarbrough identified defendant as the third person who had been with her and Johns. Johns selected defendant's photograph from an array. At trial, Johns identified defendant as the person depicted in the photograph he had selected.

Following the shooting, Smith and Taylor drove defendant and his "wife," Rachel Gale, from Chico to the Paradise residence of Thomas Devlin, who was a friend of Smith. Officers detained Smith and Taylor as they were leaving Devlin's residence. At the officers' request, defendant eventually stepped out of the Devlin residence.

Defense

Defendant presented a defense of alibi and third party culpability. Jody Mattis, a friend of Johns, testified that Powell Jr. was shot by a member of Johns's family and not by defendant.

Connie Swanson, defendant's estranged wife, testified that she had attended the party and had talked with defendant outside the motel for 20 minutes after Johns and Scarbrough drove away. Afterward, Swanson reentered the party room and defendant walked toward the parking lot. He returned to the motel room approximately one hour later, which was "way before" Johns and Scarbrough returned.

Taylor testified that she and Smith, her then friend and now husband, rented the motel room for the night and invited defendant, Johns, Scarbrough, and Forbes for a party. Swanson was present. Johns and Scarbrough left the party when Forbes lent them her car. Thereafter, Taylor and defendant took Smith to a hospital emergency room because Smith had an infection in his chin. Hours later, defendant drove Taylor from the hospital back to the motel. About that time, Johns and Scarbrough arrived back at the motel; then Johns and Scarbrough left. Defendant remained at the party a few more hours, until he and Smith left together.

Smith confirmed that defendant and Taylor took him to the hospital. When Smith left the hospital, he saw defendant and assumed that defendant had been there the entire time waiting for him.

People v. Dye, No. C063503, 2011 WL 856424, **1 -3 (Cal.App. 3 Dist. Mar. 11,2011).

After the California Court of Appeal affirmed petitioner's judgment of conviction, he filed a petition for review in the California Supreme Court, raising the same two jury instruction claims that he had raised on direct appeal. Resp't's Lodg. Doc. 5. The Supreme Court summarily denied review. Resp't's Lodg. Doc. 6.

Subsequently, on February...