Love v. Yates

• Decision Date: 04 November 2008
• Docket Number: No. C 05-3995 JSW.,C 05-3995 JSW.
• Citation: 586 F.Supp.2d 1155
• Court: U.S. District Court — Northern District of California
• Parties: Terrell LOVE, Petitioner, v. James A. YATES, Warden, Respondent.

586 F.Supp.2d 1155

Terrell LOVE, Petitioner, v. James A. YATES, Warden, Respondent.

No. C 05-3995 JSW.

United States District Court, N.D. California.

November 4, 2008.

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Neoma Kenwood, Berkeley, CA, for Petitioner.

David H. Rose, Peggy S. Ruffra, State Attorney General's Office, San Francisco, CA, for Respondent.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

JEFFREY S. WHITE, District Judge.

INTRODUCTION

Terrell Love ("Petitioner"), a prisoner of the State of California, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. After consideration of Petitioner's claims on the merits, the petition for writ of habeas corpus is GRANTED.

PROCEDURAL BACKGROUND

Petitioner was tried before a jury in Alameda County for two counts of murder, one count of attempted murder, and of being an ex-felon in possession of a firearm. The prosecutor alleged a special circumstance for multiple murder under California Penal Code § 190.2, enhancements for use of a firearm and for great bodily injury, and two prior prison terms under California Penal Code § 667.5(b).

On December 6, 1999, the jury found Petitioner not guilty of the first count of murder, but guilty of the other count of first degree murder, attempted murder, and being an ex-felon in possession of a weapon. The jury also found that Petitioner personally used a firearm in violation of California Penal Code § 12021(a) and inflicted great bodily injury. (Cal.Penal Code § 12022.7.) Petitioner admitted the first charged prior conviction pursuant to Penal Code §§ 667.5(b) and 667(e)(1). On February 23, 2000, the trial court sentenced Petitioner to a state prison term of 66 years to life.

Petitioner appealed his convictions, arguing that he was denied due process and a fair trial by improper exclusion of African Americans from his jury and that a pattern of prosecutorial misconduct deprived him of due process and a fair trial. On September 25, 2002, the Court of Appeal found one sentencing error which required striking five years of the sentence imposed under the § 667.5(b) enhancement, but affirmed the judgment of the trial court in all other respects.

On November 6, 2002, Petitioner submitted a petition for review in the California Supreme Court. The Supreme Court denied the petition for review on December 11, 2002. On March 9, 2004, Petitioner filed a petition for writ of habeas corpus in the Supreme Court of California. He raised claims that his right to due process and a fair trial were violated when jurors committed misconduct and directed racial animus toward the sole deliberating black juror, when the trial court dismissed that black juror from the panel, and when jurors saw bailiffs use excessive force against petitioner when he objected to removal of the black juror from the panel. The Supreme Court summarily denied the petition on September 7, 2005.

Petitioner filed his petition for writ of habeas corpus in this Court on October 8, 2005. On June 15, 2006, the Court denied Respondent's motion to dismiss on the ground that the petition was untimely.¹ Respondent filed his Answer on September 14, 2006. On January 12, 2007, Petitioner filed his Traverse.

FACTUAL BACKGROUND

The facts underlying the charged offenses as found by the Court of Appeal are set forth as follows:

The victims in the two separate shootings involved in this case were Michael Johnson, Sean Johnson (not related), and Collette McDaniels. We abbreviate the review of the facts surrounding the Michael Johnson shooting because appellant was acquitted of that charge.

Count 1-Homicide of Michael Johnson

Cynthia S., the key eyewitness to the shooting of Michael Johnson, was involved in an intimate relationship with Johnson and with Doral Green, another prosecution witness. She met appellant when inquiring about a car he was selling and made plans to date appellant on New Year's Eve of 1994. Cynthia S. told appellant that she was ending her relationship with Johnson because he lied to her and hit her. Appellant told Cynthia S. to contact him every night by paging him and entering a code, and that he would call her back.

On New Year's Eve Cynthia S. was at her apartment with Green, who had taken her shopping. Johnson knocked on the door. When Cynthia S. opened the door, Johnson began yelling and hitting her. He forced her to have sex with him. Green engaged in a verbal altercation with Johnson. Eventually, Johnson left the apartment. Shortly afterwards, Cynthia S. heard shots.

When she and Green went outside, Cynthia S. saw Johnson lying on the ground and appellant running from the area. Cynthia S. went to another apartment and paged appellant. Eventually, Cynthia S. talked to the police and identified appellant as the man she saw running away from Johnson's body.

Green testified that when he looked outside after he heard the shots, he did not see who did the shooting, but only saw Johnson on the ground. He testified that Cynthia S. was not a truthful person. Another witness who lived across the street from the shooting could not identify the shooter.

Counts 2 and 3-Homicide of Sean Johnson; Attempted Murder of Collette McDaniels

Sean Johnson was shot and killed on March 3, 1995. At the time of his death, he lived with his girlfriend, Collette McDaniels, a prostitute and drug user. Johnson was a drug dealer who supplied McDaniels with crack cocaine. On the evening that Johnson was killed, he, McDaniels and some other people were at the corner store. McDaniels and another woman began walking back to the apartment when McDaniels saw appellant pull up in a small blue car, grab Johnson and push him down onto the back of a car. Appellant put a gun to Johnson's head and told him he was going to die. There were five or six men across the street encouraging appellant, saying: "Yeah, do it, man, do it. That's what you get."

Johnson told McDaniels and the other woman to go inside and they went into Lisa Travillian's apartment. Soon after McDaniels entered Travillian's apartment, Johnson arrived and got his sawed-off shotgun. She testified that he started calling his friends, or "comrades." Everyone on the street referred to their friends as "comrades." McDaniels knew that members of the Black Guerrilla Family gang also refer to each other as "comrades."

Johnson said something about drug traffic next to appellant's grandmother's house. McDaniels thought that might be why appellant was angry with Johnson. Also, Johnson had insulted appellant in front of appellant's girlfriend.

Eventually several of Johnson's friends arrived, including Mario and someone she referred to as an "old gangster," or "OG" whose name she did not know. The four of them drove around looking for another OG. She believed they had guns in the car, but didn't see any guns.

As the group drove up to Seminary Avenue and Foothill Boulevard, Johnson's friends jumped out of the car and Johnson drove around the block once. Johnson saw his friend "Shaka" and got out of the car to talk to him. Johnson told McDaniels to drive around the block and park. McDaniels parked on a cross street, facing Seminary. McDaniels heard another car pull up and saw that it looked like the small blue car she saw earlier.

Appellant jumped out of the blue car and started walking up the street. McDaniels then saw Johnson walking towards appellant with his hands up, saying: "I ain't got no gat. Can we talk?" Appellant, who had a gun in his hand, said: "Too bad, you should have thought about that before you came up here." Appellant then shot Johnson twice at close range, then walked up to Johnson as he lay on the ground and shot him in the head.

McDaniels started screaming and honking the horn of the car to try to alert Johnson's friends. Suddenly, she saw appellant at her car window, pointing a gun at her. As she turned and threw herself face down on the car seat, appellant shot her. She felt her legs go numb and lost consciousness. An ambulance arrived and took her to the hospital.

By the time McDaniels arrived at the hospital, she was experiencing severe pain in her legs, back and buttocks. She underwent surgery that night. After the surgery, she was unable to walk for a while, and had no control over her bowels. At the time of the trial, she still had a bullet in her spine. Both feet were still partially numb. While she was still in the hospital, she picked appellant's picture out of a photo lineup. She had never seen appellant before the evening of the shooting. She later picked appellant out of a live lineup as the shooter and identified him at the preliminary hearing.

Lydia Gomez, who witnessed the first altercation between appellant and Johnson, testified that they were arguing, but she did not see any kind of physical altercation. Lisa Travillian saw Johnson and another man pushing, shoving and fighting, but did not see a weapon. [FN: At the preliminary hearing, Travillian testified that she saw a gun in the other man's hand.] Travillian could not identify the man she saw fighting with Johnson, although she had identified appellant as the other man at the preliminary hearing.

"Appellant was arrested and interviewed by Oakland Police Lieutenant David Kozicki. On the tape recorded portion of the interview, appellant denied that he argued with Sean and that he shot him. After being told that witnesses had identified him, appellant admitted that he argued with Sean because his brother had paged him and told him that Sean was "hanging" in front of appellant's grandmother's house. He denied having a gun."

Petition Exh. A at 1-4.

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the...