Gray v. Santoro
| Decision Date | 10 May 2023 |
| Docket Number | 2:20-cv-01844-SB-SP |
| Parties | WAYNE DINSMORE GRAY, Petitioner, v. KELLY SANTORO, Respondent. |
| Court | U.S. District Court — Central District of California |
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE U.S. MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition (Dkt. No. 1), the records on file, the Report and Recommendation (R&R) of the United States Magistrate Judge (Dkt. No. 20), and the Objections thereto (Dkt. No 23). After conducting a de novo review of the challenged portions of the R&R, the Court ACCEPTS AND ADOPTS the findings and conclusions of the Magistrate Judge.
Petitioner's objections to the R&R are without merit for the reasons explained in the R&R, as briefly discussed below. First Petitioner contends that he is entitled to relief because the trial court erred in failing to instruct the jury on the accomplice corroboration rule in connection with statements made by Javier Pellecer. Even assuming the trial court violated this state rule, Petitioner is not entitled to habeas relief. SeeLaboa v. Calderon, 224 F.3d 972 979 (9th Cir. 2000) (). Petitioner neglects to address this point.
Second, Petitioner contends that the trial court erred by failing to sever the homicide offenses. But he has not shown that any such error would entitle him to habeas relief for a violation of clearly established federal law. SeeRunningeagle v.Ryan, 686 F.3d 758, 776 (9th Cir. 2012) (). In any event, his conclusory assertions do not demonstrate that the trial court erred or that the joinder of claims rendered his trial fundamentally unfair.
Third, Petitioner contends that the admission of Pellecer's statements violated the Sixth Amendment's Confrontation Clause by running afoul of the rule established in Bruton v. United States, 391 U.S. 123 (1968). This contention fails to consider Ninth Circuit law stating that “Bruton's rule now applies only to testimonial out-of-court codefendant statements.” Lucero v. Holland, 902 F.3d 979, 988 (9th Cir. 2018). In finding that Pellecer's statements to a confidential informant was not testimonial, the California Court of Appeal did not contravene clearly established law nor rely on an unreasonable determination of the facts. Indeed, this finding is consistent with the conclusion reached by a number of federal courts. See, e.g., United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (Sotomayor, J.) ().
Fourth, Petitioner contends that he was deprived of a fair trial as a result of cumulative error. However, he has not demonstrated any error.
Finally, Petitioner contends that Senate Bill 620 must be applied retroactively, and that this Court should remand the case to state court to give it an opportunity to decide whether to strike his firearm enhancements. He fails to consider, however, the threshold question whether his quintessential state claim is subject to federal habeas review. It is not. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ( the general rule that “a state court's misapplication of its own sentencing laws does not justify federal habeas relief”).
Petitioner requests leave to amend so that he can raise an ineffective assistance of counsel claim. At the end of his objections, he asserts:
Petitioner would ask to be allowed to amend a new Ineffective Assistance of trial counsel claim to appellants Habeas Corpus. Failure tocall defense witness, Sylvia Westby, Stevie Lamont Jenkins (jail house informant), Nipsey Hustle AKA Ermias Asgherdom, and second (jail house informant), and Queron Batteys brother Dante, who accussed Battey of the Westby murder and ultimately was held from defense before trial which is exculpatory evidence that more likely than not, the outcome would be favorable to appellants outcome at trial.
Leave to amend should be freely given “when justice so requires,” Fed.R.Civ.P. 15(a), but leave may be denied for “futility of amendment,” among other reasons. Foman v. Davis, 371 U.S. 178, 182 (1962); see also 28 U.S.C. § 2242 (). Because a state prisoner must exhaust the remedies available in state court before seeking federal habeas relief, 28 U.S.C. § 2254(b)(1)(A), an amendment would be futile if a petitioner seeks to add an unexhausted claim. SeeCaswell v. Calderon, 363 F.3d 832, 837 (9th Cir. 2004) ().
In seeking to pursue his claim for ineffective assistance of counsel, Petitioner has not shown that he has exhausted his state remedies. He did not mention this theory or claim in his briefs before the California Court of Appeal or the California Supreme Court. See Dkt. No. 11. Petitioner's request suffers from an additional flaw: he provides only conclusory information about the claim he belatedly seeks to advance. A petitioner who challenges his counsel's trial performance bears the burden of overcoming the presumption that the challenged action or omission was the product of “sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Petitioner contends that his trial counsel was ineffective by failing to call certain witnesses, but his contention is wholly conclusory. Indeed, he does not even disclose what the witnesses would have stated if called, except cursorily for one witness-the brother of Queron Battey (who allegedly accused Battey of one of the murders for which Petitioner was convicted). Even then, he does not provide sufficient information to evaluate whether his trial counsel spoke with these witnesses and made a strategic decision not to call them. Nor does he explain how he could satisfy the Strickland standard for prejudice in light of weighty evidence against him at trial. Dkt. No. 11-22 at 16-17 of 20 ( the “overwhelming evidence that [Petitioner] committed the murder”).
Accordingly, the Court finds that amendment would be futile and denies Petitioner's request for leave to amend.
IT IS THEREFORE ORDERED that:
IT IS SO ORDERED.
This Report and Recommendation is submitted to the Honorable Stanley Blumenfeld, Jr., United States District Judge, 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 February 26, 2020, petitioner Wayne Dinsmore Gray filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”). Petitioner challenges his 2017 convictions in Los Angeles County Superior Court for three counts of murder with firearm and gang enhancements, and one count of possession of a firearm by a felon, for which he was sentenced to two consecutive terms of life without the possibility of parole plus 100 years to life.
Petitioner raises five grounds for relief: (1) error in not giving an accomplice jury instruction; (2) error in refusing to sever the murder counts; (3) Confrontation Clause violation when the trial court allowed the prosecution to introduce a transcript of a co-defendant's conversation into evidence; (4) cumulative error; and (5) a state sentencing law applies retroactively to his case.
For the reasons discussed below, petitioner's claims do not merit habeas relief. It is therefore recommended that the Petition be denied with prejudice.
STATEMENT OF FACTS[1]
The Rollin' 60's are a criminal street gang with approximately 2,000 members. Their primary activities include robberies, burglaries, homicides, and vandalism. Members of the gang are known to murder each other to gain respect and prestige. The gang has a slogan related to these in-house murders: “[Y]ou are not really a true Rollin' 60 until you kill a Rollin' 60 gang member.”
Petitioner was a member of the Rollin' 60's. Columbus Campbell was also a Rollin' 60's Crips gang member. In September 2008, petitioner was involved in a fight with Campbell in the presence of a famous rapper and Rollin' 60's gang member. During the fight, Campbell struck petitioner “in a blind-sided shot and cut his eye.” Petitioner suffered a black eye. Campbell won the fight.
On October 6, 2008, petitioner asked Javier Pellecer, a fellow Rollin' 60's gang member, to help him kill Campbell. Pellecer agreed. They found Campbell sleeping in a parked car with Kavette Watson on 63rd Street and Crenshaw Boulevard. Pellecer pulled his car next to Campbell's car, a white Mercedes. Petitioner got out of the car and shot Campbell and Watson. Pellecer then drove away. The murders occurred within Rollin' 60's territory.
Los Angeles Police Department officer Thomas Callen arrived at the scene. He saw the white Mercedes with the windows shot out. Campbell's and Watson's bodies were inside; they both had been shot in the head. The police recovered 11 .40-caliber casings and an expended bullet.
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