Jacome v. Uribe

• Decision Date: 30 October 2014
• Docket Number: Case No. 1:13-cv-00072 AWI MJS (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: MELVIN ESTIWAR JACOME, Petitioner, v. DIMINGO URIBE, JR., Respondent.

MELVIN ESTIWAR JACOME, Petitioner, v. DIMINGO URIBE, JR., Respondent.

Case No. 1:13-cv-00072 AWI MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 30, 2014

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by David Eldridge of the office of the California Attorney General.

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on September 9, 2003, for attempted murder with gunenhancements. (Clerk's Tr. at 294-96.) On October 7, 2003, Petitioner was sentenced to a prison term of life plus twenty years. (Id.)

On April 27, 2004, Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District. (Lodged Doc. 14.) After full briefing (Lodged Docs. 1523), on May 20, 2005, the appellate court affirmed the conviction, but struck two gun enhancements, and remanded the matter to the trial court for further adjudication consistent with the order. (Answer, Ex. A.) On June 30, 2005, Petitioner sought a petition of review with the California Supreme Court. (Lodged Doc. 24.) The petition for review was summarily denied by the California Supreme Court on August 31, 2005. (Id.)

Upon remand, on May 9, 2006, Petitioner was resentenced by the trial court. (Answer, Ex. B.) Petitioner again appealed on November 27, 2006 to the California Court of Appeal. (Lodged Doc. 29) On June 21, 2007, the court affirmed the judgment, but vacated the sentence imposed, and provided Petitioner thirty days to file a Pitchess motion regarding information in the personnel files of the three police officers of the police officers in question. (Answer, Ex. B.)

On October 25, 2007, the trial court granted Petitioner's Pitchess motion. (Answer, Ex. C.) However, on November 1, 2007, upon receipt of the personnel files, the court found the motion without merit. (Id.) Petitioner filed a third appeal with the fifth District Court of Appeal on May 21, 2008. (Lodged Doc. 35.) The appeal was denied on December 30, 2008. (Answer, Ex. C.) Petitioner proceeded to file a petition for review with the California Supreme Court on February 10, 2009. (Lodged Doc. 38.) The petition was denied on April 1, 2009. (Id.)

After exhausting his direct review, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court on February 18, 2010. (See Lodged Doc. 39.) The petition was denied on September 15, 2010. (Id.)

Petitioner filed the instant federal habeas petition on November 5, 2010. (ECF No. 1.) The petition raised five grounds for relief: 1) that there was insufficient evidence to prove that Petitioner acted with premeditation and deliberation; 2) that Californiaevidentiary rules prevented Petitioner from presenting his defense; 3) that the prosecution committed misconduct in asking prejudicial questions regarding Petitioner's drug use; 4) that Petitioner's sentence was improper under United States v. Booker, 543 U.S. 220, 230 (2005); Blakely v. Washington, 542 U.S. 296, 301 (2004); and Apprendi v. New Jersey, 530 U.S. 466, 476-477 (2000); 5) that Petitioner's trial counsel was ineffective for failing to consult with a ballistics expert; and 6) that appellate counsel was ineffective.

Respondent filed an answer to the petition on March 18, 2013. (Answer, ECF No. 13.) Petitioner filed a traverse on July 18, 2013. (Traverse, ECF No. 23.)

II. STATEMENT OF THE FACTS¹

Appellant Melvin Estiwar Jacome led three Sanger police officers on a high speed chase, which culminated when he opened fire on them with a semi-automatic weapon and they returned fire and wounded him. He was convicted of premeditated attempted murder of a police officer and sentenced to life with the possibility of parole plus 20 years for a firearm enhancement.

...

At 12:30 a.m. on March 24, 2002, Sanger Police Officer Noel Johnson was working the night patrol shift in his community. Johnson was dressed in uniform and was operating a marked City of Sanger police car. While Johnson was stopped at a red traffic signal, a citizen pulled up next to his squad car and reported an apparent drunk driver. The citizen saw the driver at the nearby intersection of Annadale and Academy Avenues and said the driver was proceeding eastbound on Annadale in a pickup truck. Officer Johnson immediately headed eastbound on Annadale in an attempt to locate the vehicle. A few seconds later, the officer saw the taillights of the pickup truck ahead of him.

Officer Johnson attempted to overtake the pickup truck by accelerating the speed of the patrol car. He observed the pickup was swerving from side to side and was repeatedly crossing over into the westbound (oncoming) lane of traffic. Johnson activated the siren and light bar of his vehicle and the pickup responded by accelerating, requiring Johnson to accelerate to 80 miles per hour to "close the gap." The pickup continued to swerve into the westbound lanes despite the presence of oncoming traffic. To avoid creating a collision between the pickup and oncoming traffic, Johnson turned off his siren and emergency signals but continued to pursue the pickup truck at speeds from 70 to 80 miles per

hour. The pickup finally came to a stop in a rural area outside of the Sanger city limits. Officer Johnson pulled up behind the truck and began to get out of his patrol vehicle. Before Johnson was completely out of his car, the pickup started moving again, made a U-turn using both lanes of traffic and then headed back in the direction of Sanger.

By this time, two other Sanger police officers in marked police vehicles joined the pursuit. Officer Johnson's vehicle was first in pursuit. Sergeant Fred Sanders directed the pursuit from his position behind Johnson. Officer Robert Theile drove in the number three position. After the U-turn, the pickup proceeded westbound on Annadale with the three police vehicles in pursuit. All of the police vehicles had activated sirens and emergency signals. When the pickup reached a three-way intersection at Riverbend Avenue, it came to a skidding stop and locked its brakes for several seconds. The pickup then proceeded northbound on Riverbend into a rural ranching area. The police units followed the pickup at about 45 miles per hour. After traveling a half mile on Riverbend, the pickup turned westbound and traveled onto the Hedrick Ranch. The pickup went 100 to 150 yards on a private road and then stopped near a trailer and gate.

Officer Johnson began to step out of his police unit and made eye contact with the driver, the appellant. He saw that appellant was pointing a black pistol at him. Johnson moved to the rear of his police car and yelled "gun" several times to warn his fellow officers. Appellant almost instantly discharged his weapon. The volley lasted about four seconds and Sergeant Sanders and Officer Theile observed multiple muzzle flashes coming from the driver's side window of the pickup truck. From his vantage point, Theile could see appellant pointing the weapon at Officer Johnson before discharging it. All three officers returned fire with their .40-caliber Glock service pistols. Johnson yelled about 10 times, both in English and in Spanish, and ordered appellant to put his hands up and open his truck door. However, appellant did not comply.

After a 10- to 15-minute wait, Sergeant Sanders approached appellant in the pickup truck and took him into custody. Appellant had sustained a gunshot wound in the ribcage and injury to two fingers of his left hand. Officers examined the interior of the pickup cab and seized a nine-millimeter assault weapon from the seat. The weapon had been struck by a bullet during the exchange of gunfire. They also found cartridge casings, blood and broken glass inside the truck. Officer Johnson noted three holes in the driver's side door of his police car and saw that another round had shattered the passenger side window of that car.

District Attorney Investigator Lee Cotter testified the seized weapon was an Intratec AB-10 nine-millimeter semi-automatic weapon. Cotter said the weapon was self-loading but not self-firing. In other words, the firing of each round required a separate pull of the trigger. Cotter explained the weapon's magazine holds at least 18 nine-millimeter rounds but the magazine had been rendered inoperable by the bullet that struck the weapon. Officer Johnson testified this assault weapon uses a detachable magazine as well as a second handgrip.

Jose Guerrero, an identification technician with the Fresno County Sheriff's Department, said he examined Officer Johnson's police car and

found three bullet holes in the driver's side door and recovered three spent bullets inside the vehicle. He determined the bullet holes were made by shots fired from outside the vehicle. Nine expended casings were found at the scene. The casings and the spent projectiles were of nine-millimeter caliber. Michael Giborson, a criminalist with the Fresno County Sheriff's Department Forensics Laboratory, examined the expended projectiles found in Johnson's vehicle and said they had been fired from appellant's assault weapon. Jose Guerrero further testified the trajectory of the bullets was consistent with having come from appellant's position in the pickup truck.

There was also evidence that Officer Johnson's patrol car (No. 251) was equipped with a video camera. A videotape was removed from the video recorder in the trunk. There was no visible damage to the video recorder. It was stipulated that the videotape showed a series of traffic stops, with an end-date of February 25, 2002. The rest of the tape was blank and the videotape did not contain any images from the pursuit, exchange of fire, or apprehension of appellant.

A subpoena...