Harrell v. Allison

Decision Date29 April 2022
Docket Number3:21-cv-0255-RBM-AHG
PartiesDEREK D. HARRELL, Petitioner, v. KATHLEEN ALLISON, Secretary, Respondent.
CourtU.S. District Court — Southern District of California

DEREK D. HARRELL, Petitioner,

KATHLEEN ALLISON, Secretary, Respondent.

No. 3:21-cv-0255-RBM-AHG

United States District Court, S.D. California

April 29, 2022


Hon. Ruth Bennudez Montenegro United States District Judge


Derek D. Harrell (“Harrell” or “Petitioner”), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”), challenging his San Diego Superior Court conviction in case number SCD272905. (See Pet., ECF No. 1 at 1.)[1] The Court has reviewed the Petition, the


Answer and Memorandum of Points and Authorities in Support of the Answer (ECF Nos. 10, 10-1), the lodgments, the Traverse (ECF No. 17) and all the supporting documents submitted by both parties. For the reasons discussed below, the Court denies Petitioner's request for an evidentiary hearing, denies the Petition and declines to issue a certificate of appealability.


This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are entitled to statutory presumption of correctness). The California Court of Appeal summarized the facts as follows:

A. The Stabbing
During the summer of 2017, Harrell was homeless and made a living selling drugs and giving haircuts to people on the street. In June 2017, he approached the 60-year-old victim with whom he was not previously acquainted, and offered to give him a haircut or sell him a set of hair clippers. The victim declined the offer, but Harrell and the victim became acquaintances and occasionally spent time together at the victim's apartment
The acquaintanceship between Harrell and the victim was short-lived. In July 2017, Harrell brought clothing to the victim's apartment and the clothing went missing. Harrell believed the victim took the clothing, repeatedly telephoned the victim about the clothing, and left voice messages demanding the return of the clothing. He also showed up at the victim's apartment several times screaming obscenities, blaming the victim for stealing the clothing and threatening violence. One evening after Harrell's clothing went missing, a rock was thrown through the window of the victim's upper-story apartment.
Soon after, Harrell and the victim got into a violent confrontation near the victim's apartment. The victim was intoxicated and later tested positive for methamphetamine, cocaine, and opiates. Harrell and the victim provided
differing accounts about the confrontation, with each blaming the other as the main aggressor. However, it is undisputed Harrell stabbed the unarmed victim several times during the confrontation. As a result of the stabbing, the victim suffered severe knife wounds on his neck and abdomen.
B. Prosecution Case
By amended information, Harrell was charged with one count of attempted murder and one count of assault with a deadly weapon. The amended information further alleged Harrell inflicted great bodily injury on the victim, used a deadly or dangerous weapon during commission of the offenses, and suffered four prior prison terms.
At trial, the primary disputed issues were whether Harrell instigated the confrontation and whether he reasonably acted in self-defense. The prosecution elicited testimony pertinent to these issues from two witnesses- the victim and a witness who drove by the victim's apartment building at or near the time of the confrontation. [Footnote 2 omitted.]
The victim testified he first encountered Harrell on the evening in question when he exited his apartment building and observed Harrell riding a bicycle. The victim testified Harrell screamed, “Man, where my clothes at? You know, you know, you got my shit. Where my stuff at?” The victim testified he replied that Harrell needed to “get some help” and returned inside the apartment building. The victim testified he encountered Harrell a second time a few hours later, at approximately 8:30 p.m., when he exited the apartment building to socialize with neighbors. The victim testified Harrell was still riding a bicycle and was “going off” about his missing clothing. The victim testified he responded, “Stop bothering. Just go and get some help.”
According to the victim, the confrontation occurred a few hours after the second encounter. He testified he exited the apartment building to smoke a cigarette and, although he usually carried a cane to walk distances, he did not have a cane with him. The victim testified he finished his cigarette and faced the apartment building to unlock the door, at which point Harrell approached him from behind. The victim testified he turned around and tried to restrain Harrell; however, Harrell pulled out a knife and repeatedly stabbed him. The victim initially testified he did not recall whether he and Harrell remained in front of the apartment building door during the confrontation. However, he later testified he “mov[ed] away” from the
apartment building door during the struggle and, at some point, ran into the street. The victim testified he escaped the confrontation by retreating into the apartment building and calling 911.
The prosecution also elicited testimony from a witness who drove by the victim's apartment building. The witness testified he had a work shift from 4:00 p.m. to midnight and drove by the building on his lunch break, which he believed he took at 9:00 or 9:30 p.m. He testified he was waiting for a red light to change at an intersection near the victim's apartment building when he heard a loud noise and yelling. He observed two men who appeared to be in an argument. According to the witness, one man had a bicycle and was situated on the sidewalk a block from the victim's apartment building and the second man was older, standing in the street, and “squaring off” with his fists raised. The witness testified the men were eight to 10 feet apart and the older man stepped toward the other man, but he did not see physical contact between them.
C. Defense Case
The defense elicited testimony from one witness regarding the circumstances of the confrontation-Harrell. He testified he first observed the victim at “news time” (or “five o'clock”) on the evening of the confrontation. He testified he witnessed the victim buy a bottle of alcohol from a female at a bus stop near his apartment building.
Harrell testified he encountered the victim a second time at “ten something” p.m. He testified he was standing with his bicycle at an intersection about a block from the victim's apartment building when the victim approached and pinned him and his bicycle against a gate. Harrell testified the victim used his elbow to push against Harrell's throat and used his knee to push the bicycle and Harrell into the gate. According to Harrell, the victim was intoxicated and had a “crazy look in his face.” Harrell testified he threw a beer can at the victim to try to stop him, but the victim did not relent. Harrell testified a knife fell from his pocket, which he picked up and swung to ward off the victim. Harrell testified he “absolutely” needed to defend himself with the knife and was trying to “get some space” between himself and the victim. Harrell testified the victim ultimately “backed up” and Harrell grabbed his bicycle and “got away.”

Resp't Lodgment No. 5, Cal.Ct.App. Opinion, ECF No. 11-28 at 3-7.



On October 2, 2017, and amended felony complaint was filed against Harrell, charging him with one count of attempted murder (Cal. Penal Code §§ 187(a); 664) and one count of assault with a deadly weapon (Cal. Penal Code. § 245(a)). Resp't Lodgment No. 1, Clerk's Tr., ECF No. 11-1 at 17-18. It was further alleged that Harrell personally used a deadly weapon (Cal. Penal Code § 12022(b)(1)) and inflicted great bodily injury (Cal. Penal. Code 12011.7(a)). Clerk's Tr., ECF No. 11-1 at 19. Finally, it was alleged that Harrell had suffered four prison priors for driving under the influence (Cal. Penal Code §667.5(b)(1)). Clerk's Tr., ECF No. 11-1 at 20-22.

Following a jury trial, Harrell was found guilty of attempted voluntary manslaughter[2] and assault with a deadly weapon. Clerk's Tr., ECF No. 11-6 at 554-56, 559. The jury also found true the allegations that Petitioner used a deadly weapon and inflicted great bodily injury on the victim. Id. at 553-56. On June 15, 20218, the trial court sentenced Harrell to 11 years in prison.[3] Id. at 481.

Harrell appealed his conviction to the California Court of Appeal. Clerk's Tr., ECF No. 11-5 at 484. On appeal, Harrell argued: (1) the evidence was insufficient to support his conviction; (2) the trial court improperly instructed the jury, in violation of his due process and Sixth Amendment rights; (3) the trial court required an extra bailiff to be posted near Harrell while he testified in violation of his right to a fair trial; (4) the prosecutor committed several instances of misconduct, in violation of his due process rights; (5) the trial court committed judicial misconduct in violation of his right to a fair trial; and (6) the cumulative effect of numerous trial errors amounted to a violation of due


process. See Resp't Lodgment No. 3, Appellant's Opening Br., ECF No. 11-26 at 45123. On February 6, 2020, the appellate court reversed the trial court's prison prior findings and remanded the case for...

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