Fellows v. Dexter
| Decision Date | 28 April 2008 |
| Docket Number | Case No. EDCV 07-0979-JSL (RC). |
| Citation | 551 F.Supp.2d 969 |
| Parties | Sterling FELLOWS, aka Sterling Ashley Fellows, aka Deuce, Petitioner, v. D. DEXTER (Warden), Respondent. |
| Court | U.S. District Court — Central District of California |
Sterling Fellows, Blythe, CA, pro se.
Jeffrey J. Koch, CAAG Office of Attorney General of California, San Diego, CA, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.
This Report and Recommendation is submitted to the Honorable J. Spencer Letts, Senior United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On December 17, 2004, in Riverside County Superior Court case no. RIF094979, a jury convicted petitioner Sterling Fellows, aka Sterling Ashley Fellows, aka Deuce, aka Slam Deuce, of one count of willful, deliberate and premeditated attempted murder in violation of California Penal Code ("P.C.") §§ 664/187 (count 1) and one count of assault with force likely to produce great bodily injury in violation of P.C. § 245(a)(1) (count 2), and, as to both counts, the jury found petitioner personally inflicted great bodily injury within the meaning of P.C. §§ 12022.7(a) and 1192.7(c)(8) and committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with specific intent to promote, further and assist in criminal conduct by gang members within the meaning of P.C. § 186.22(b); however, the jury found petitioner not guilty of wilfully and unlawfully participating in a criminal street gang in violation of P.C. § 186.22(a) (count 3). Clerk's Transcript ("CT") 65-66, 227-34, 244-45. On April 8, 2005, the petitioner was sentenced to 18 years to life in state prison. CT 278-82.
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 283-84, which affirmed the judgment in an unpublished opinion filed September 25, 2006, 2006 WL 2724028, but remanded the matter for resentencing of petitioner to life in prison with parole, with 15 years as the minimum term for parole. Lodgment nos. 5-8. On October 30, 2006, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied the petition on January 17, 2007. Lodgment nos. 9-10.
The California Court of Appeal, in affirming petitioner's convictions and sentence, made the following findings of fact underlying the offenses:1 Crystal Hunter (Crystal) and Dusty Dorsten (Dusty) met petitioner and his friend, Shorty, when petitioner's and Shorty's car broke down. Petitioner introduced himself as "Slam Deuce." Petitioner and Shorty asked if they could use the phone in Crystal's apartment. While inside the apartment, petitioner and Shorty wrote the following on the wall: "Them Niggas, Shorty & Slam Deuce." They also told Crystal and Dusty that they were from the Four Corner Hustler Crips.
Two weeks later, on December 5, 2000, Crystal had a small gathering at her apartment, and petitioner and Shorty came uninvited. Crystal was not feeling well and was resting in her room. Shorty kept going in her room and bothering her. Although Dusty told Shorty to leave Crystal alone, he ignored her and kept going in Crystal's room. Crystal's boyfriend, Jason Sawyer, arrived, and Dusty apprised him of the situation. Jason asked petitioner and Shorty to leave but they refused. They asked Jason to step outside on to the balcony. He complied, and Shorty and Jason started fighting. Jason, being bigger in size, was winning the fight, so Shorty tried to throw him off the balcony. Petitioner then stepped in to help Shorty get Jason over the rail. Jason fell over the rail and hit the ground. He was dazed for a minute, but then jumped up. Petitioner, Shorty, and Crystal ran down the stairs, and the fighting continued. Crystal tried to break up the fight, but petitioner and Shorty started hitting her. Jason broke off the fight out of concern for Crystal, and he and Crystal started walking away. The fight appeared to be over, but then petitioner approached Jason from behind and hit him on the side of the head. Jason was knocked unconscious and fell to the ground. Petitioner and Shorty started kicking him in the head. Petitioner then jumped on Jason's head with both feet, as if he were jumping on a trampoline. As he was jumping, he repeatedly yelled, Shorty continued kicking Jason on the sides of his head, as petitioner was jumping. Petitioner jumped on Jason's head for at least 10 minutes, and jumped up and down approximately 25 to 30 times. Petitioner and Shorty fled when they heard sirens approaching. Jason's face was unrecognizable. There was blood coming out of his mouth and nose, and he was making a gurgling sound. The police found Jason lying in a fetal position, with his head in a pool of blood. He had a deep cut over his left eye, and the left side of his face and his nose were very swollen.
At trial, Dr. Munik Salek, Jason's treating physician, testified that Jason had a collapsed lung and facial fractures. If Jason wasn't medically treated, he could have died from the collapsed lung.
In addition, Officer Jesus Orona, a gang expert, testified that Four Corner Hustler Crips was a criminal street gang and that petitioner had admitted membership in the gang. He testified that petitioner's gang moniker was Slam Deuce. He opined that, based on the gang graffiti that petitioner wrote on Crystal's wall and the statements petitioner made while jumping on Jason's head, petitioner committed this offense for the benefit of the gang.
On August 3, 2007, petitioner, proceeding pro se, filed the pending petition for writ of habeas corpus under 28 U.S.C. § 2254. On October 17, 2007, respondent filed his answer, and on January 22, 2008, petitioner filed his reply.
The petitioner raises the following claims:
Ground One — "In violation of petitioner[`s] Sixth and Fourteenth Amendments; [sic] the evidence was insufficient to sustain the premiditation [sic] conviction"; (Petition at 18-28) and
Ground Two — "In violation of petitioners [sic] Sixth and Fourteenth Amendments; [sic] the evidence is insufficient to sustain the gang enhancement conviction." Petition at 29-35.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:
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 be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — [¶] (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [¶] (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The California Supreme Court reached the merits of petitioner's claims when it denied his petition for review without comment or citation to authority. Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir.2005), amended by, 447 F.3d 1165 (9th Cir.2006), cert, denied ___ U.S. ___, 127 S.Ct. 979, 166 L.Ed.2d 742 (U.S.2007); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992), cert, denied 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). However, "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker maker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir.2007) (en banc), cert, denied ___; U.S. ___, 128 S.Ct. 1878, ___ L.Ed.2d ___ (2008). Thus, in addressing petitioner's claims, this Court will consider the reasoned opinion of the California Court of Appeal, which denied the claims on their merits. Byrd v. Lewis, 510 F.3d 1045, 1048 n. 4 (9th Cir.2007); Parle v. Runnels, 505 F.3d 922, 926 (9th Cir.2007).
To review the sufficiency of the evidence in a habeas corpus proceeding, the Court must determine whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Lewis v. Jeffers, 497 U.S. 764, 781, 110 S.Ct. 3092, 3102-03, 111...
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