Jones v. Hill

• Decision Date: 12 September 2012
• Docket Number: 1:10-cv—02398-LJO-SKO-HC
• Court: U.S. District Court — Eastern District of California
• Parties: DANIEL LAQUINN JONES, Petitioner, v. WARDEN RICK HILL, Respondent.

DANIEL LAQUINN JONES, Petitioner,

v.WARDEN RICK HILL, Respondent.

1:10-cv—02398-LJO-SKO-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: September 12, 2012

ORDER DIRECTING THE CLERK TO

SUBSTITUTE WARDEN RICK HILL AS

RESPONDENT

FINDINGS AND RECOMMENDATIONS TO

DENY PETITIONER'S MOTIONS TO

EXPAND THE RECORD AND TO AMEND

THE PETITION (DOC. 22)

FINDINGS AND RECOMMENDATIONS TO

DENY THE PETITION FOR WRIT OF

HABEAS CORPUS (DOC. 1), ENTER

JUDGMENT FOR RESPONDENT, AND

DECLINE TO ISSUE A CERTIFICATE OF

APPEALABILITY

OBJECTIONS DEADLINE:

THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on November 9, 2010, along with supporting exhibits. Respondent filed an answer on March 15, 2011, with supporting documentation of the state court record. Petitioner filed a traverse on April 11, 2011.

I. Jurisdiction

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction and sentence, he suffered violations of his Constitutional rights. The challenged judgment was rendered by the Fresno County Superior Court (FCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).

Petitioner named, and Respondent filed an answer on behalf of, Respondent Anthony Hedgepeth, the warden of the Salinas Valley State Prison, where Petitioner was confined at the time the petition was filed. Thus, Petitioner named as Respondent a person who had custody of Petitioner. Although Petitioner is presently incarcerated at Folsom State Prison (FSP), the Court maintains its jurisdiction because "jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change." Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990)(citing Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971)).

Accordingly, the Court concludes that it has jurisdiction over the subject matter of the action and the person of the Respondent.

II. Order to the Clerk to Substitute the Respondent

The official website of the California Department of Corrections and Rehabilitation (CDCR)¹ indicates that Rick Hill is presently the warden of the FSP.

Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a civil action in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending, the officer's successor is automatically substituted as a party. It further provides that the Court may order substitution at any time, but the absence of such an order does not affect the substitution.

The record reflects that Petitioner's present custodian is Warden Rick Hill. It is, therefore, appropriate under rule 25(d) to order a substitution of the proper Respondent. Accordingly, it is ORDERED that Warden Rick Hill be SUBSTITUTED as the Respondent.

III. Procedural Summary

Petitioner was convicted by a court trial in the FCSC of shooting at an inhabited dwelling in violation of Cal. Pen. Code § 246 (count 3), unlawful possession of a firearm in violation ofCal. Pen. Code § 12021(c)(1) (count 4), and being an active participant in a criminal street gang in violation of Cal. Pen. Code § 186.22(a) (count 5). The court found true allegations that Petitioner had unlawfully discharged a firearm within the meaning of Cal. Pen. Code § 12022.53(c), personally used a firearm within the meaning of Cal. Pen. Code § 12022.5(a), and committed the unlawful shooting at the inhabited dwelling in association with, at the direction of, or for the benefit of a criminal street gang within the meaning of Cal. Pen. Code § 186.22(b). (LD 1, 1-2.)²

Petitioner was sentenced to a seven-year term for shooting at an inhabited dwelling, fifteen years to life for the street gang allegation, and twenty years for discharging a firearm; a ten-year term for personal use was stayed. (Id. at 2.)

On appeal, the California Court of Appeal for the Fifth Appellate District (CCA) affirmed the judgment of conviction but remanded the case for re-sentencing as follows:

The seven-year sentence imposed on the section 246 conviction is ordered stricken. The 10-year section 12022.5, subdivision (a) enhancement is ordered stricken. On remand, the court shall impose the 15 years to life called for by section 186.22, subdivision (b)(4) as a penalty for the section 246 count 3 conviction itself. (See part II of this opinion, supra.) The matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion.

(LD 1, 21.)

Petitioner sought review in the California Supreme Court (CSC). The CSC denied review of his claim of ineffectiveassistance of counsel, but granted review of whether a violation of Cal. Pen. Code § 246 (shooting at an inhabited dwelling) that is committed to benefit a criminal street gang pursuant to Cal. Pen. Code § 186.22(b)(4)(B) is a felony punishable by imprisonment in the state prison for life within the meaning of Cal. Pen. Code § 12022.53(a)(17) such that the sentence may be enhanced under § 12022.53(c) for the defendant's personal and intentional discharge of a firearm. (LD 2-4.) The CSC issued a decision rejecting Petitioner's challenge to the sentence and affirming the CCA's decision. (LD 5.)

While his petition for review was pending, Petitioner filed a petition for writ of habeas corpus in the FCSC alleging denial of his right to the effective assistance of counsel based on trial counsel's failure or refusal to investigate and present witnesses Batten and Clay, whose declarations or witness statements, which Petitioner characterized as new evidence, contradicted the testimony of prosecution witness Demont Wilson. Petitioner also raised appellate counsel's failure to raise an issue of instructional error on appeal. (LD 6.) The FCSC denied the petition. (LD 7.)

Petitioner filed a petition for writ of habeas corpus raising the same issues in the CCA. (LD 8.) The petition was denied "without prejudice to petitioner refiling his petition in the superior court." (LD 9.) Neither party has submitted any information that would indicate that Petitioner filed any additional petitions in the CSC.

IV. Facts

In a habeas proceeding brought by a person in custodypursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009).

Here, the CCA considered and decided Petitioner's ineffective assistance of counsel claim; however, the CSC denied review of all but Petitioner's sentencing claim, which presented an issue of law and did not involve different or disputed facts. Thus, to analyze Petitioner's claim that his trial counsel was ineffective, the CCA's version of the facts of Petitioner's offense and trial proceedings will be set forth. The following summary is taken from the decision of the Court of Appeal of the State of California, Fifth Appellate District, in People v. Daniel Laquinn Jones, case number F047448, filed on October 25, 2006 (LD 1):

FACTS

After members of one gang (the East Lane Six Deuce Diamond Crips, or simply "East Lane") exchanged words with a member of another gang (the Hoover Crips) outside of an apartment complex, one of the East Lane gang members fired several shots. No one was struck by any of the bullets, but one of the bullets passed through the living room window and into the inner wall of one of the apartments. Fragments of wall fell onto the hair of a 14-year-old girl who was sitting on a couch in the living room of that apartment. Appellant Daniel Jones, whose gang moniker was "D-Loc," was tried without a jury and convicted of assault with a semiautomatic firearm (§ 245, subd.(b)), discharging a firearm at an inhabited dwelling house (§ 246) and other crimes. Witnesses Demont Wilson and ElizabethBrown both identified appellant as the shooter. Demont Wilson testified that appellant had been only four or five feet away from him just prior to the shooting.

Appellant moved for a new trial on the ground of newly discovered evidence. The evidence was statements from two witnesses: Samuel "Trigger" Miles, one of the East Lane gang members who was present at the incident, and Lamont Wilson, the Hoover Crip.FN3 Both men had refused to cooperate with the police investigation prior to the trial. Both men said appellant was not the shooter, but would not say who the shooter was. Miles said he knew who the shooter was. Lamont Wilson claimed he did not know the shooter's name but had "seen him, uh, last weekend as a matter of fact" and said that if he saw the shooter again he could identify the shooter. Miles was charged along with appellant. He entered a plea to charges of assault with a firearm and

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