Marshall v. Hedgepeth

• Decision Date: 13 April 2012
• Docket Number: No. 2:10-cv-00565-JKS,2:10-cv-00565-JKS
• Parties: RUDOLPH MARSHALL, Petitioner, v. ANTHONY HEDGEPETH,1 Warden, Salinas Valley State Prison, Respondent.
• Court: U.S. District Court — Eastern District of California

RUDOLPH MARSHALL, Petitioner, v. ANTHONY HEDGEPETH,¹ Warden, Salinas Valley State Prison, Respondent.

No. 2:10-cv-00565-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: April 13, 2012

MEMORANDUM DECISION

Rudolph Marshall, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Marshall is currently in the custody of the California Department of Corrections and Community Supervision, incarcerated at the Salinas Valley State Prison. Respondent has answered, and Marshall has replied. At Docket No. 31 Marshall filed a Motion for Appointment of Counsel.

I. BACKGROUND/PRIOR PROCEEDINGS

Marshall was convicted by a jury in the Sacramento County Superior Court of two counts of kidnapping with the intent to commit robbery, Cal. Penal Code § 209(b)(1), two counts of second degree robbery, Cal. Penal Code § 211, two counts of carjacking, Cal. Penal Code § 215(a), two counts of possession of a firearm by a felon, Cal. Penal Code § 12021(a)(1), and one count of assault with a semi-automatic firearm, Cal. Penal Code § 245(b). The jury also found that Marshall had used a firearm in the commission of these offenses, Cal. Penal Code §§ 1203.06(a)(1), 12022.5(a), and 12022.53(b). In a separate trial the trial court found that Marshallhad been previously convicted of a serious felony, Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d), and that he had served a prior prison term, Cal. Penal Code § 667.5(b). The trial court sentenced Marshall to two consecutive terms of life with the possibility of parole, plus a determinate term of thirty-six years, four months. The California Court of Appeal, Third Appellate District, affirmed Marshall's conviction and sentence in an unpublished decision,² and the California Supreme Court denied review on December 10, 2008.

On December 17, 2009, Marshall filed a petition for habeas corpus relief in the Sacramento County Superior Court. The Sacramento County Superior Court denied the Petition in an unreported, reasoned decision on February 10, 2010. Marshall timely filed his Petition for relief in this Court on March 7, 2010. On March 17, 2010, Marshall filed a petition for habeas relief in the California Court of Appeal, which was summarily denied without opinion or citation to authority on March 25, 2010. Marshall then filed a petition for habeas relief in the California Supreme Court on May 14, 2010, which was also summarily denied on May 20, 2010.

The facts underlying Marshall's conviction were recited by the California Court of Appeal:

August 21, 2005—Counts 1-4

On August 21, 2005, Jagdeep Johal was working the graveyard shift at the Penny Saver. On his lunch break, at about 11:00 p.m., he drove to the California Bank and Trust on Broadway. Johal deposited a paycheck of about $120 and withdrew $40 from his account. He got back in his car and headed toward the freeway to go back to work.

While Johal was stopped at a traffic light on the way to the freeway, an Hispanic woman approached the passenger side of his car and started talking to him. As she spoke with him, an African-American man, [Marshall], came up to the driver's side of the car and asked for a lighter. Johal told him he did not have a lighter as he did not smoke, and [Marshall] pulled a semiautomatic handgun from hispants, pointed it at Johal, and told him to turn off the car. Johal offered [Marshall] his wallet and the car keys so they would leave him alone. [Marshall] insisted Johal get into the back seat of the car. [Marshall] and the woman got into the car, and [Marshall] drove away. [Marshall] told Johal to keep his head down and threatened to shoot him. They drove around for 20 to 30 minutes.

[Marshall] reached into the back, felt Johal's pockets, and pulled out Johal's wallet and a pocket knife Johal carried. The woman went through Johal's wallet and took out his ATM card. [Marshall] asked him for his PIN and threatened to shoot him if Johal gave incorrect information. A few minutes later, they stopped at an ATM and tried to use Johal's ATM card. They unsuccessfully attempted to withdraw $280 or $300, then $200, then $100, and then $80. They did successfully withdraw $60 from Johal's account.

They drove around for another five to 10 minutes and then parked the car. [Marshall] told Johal not to look up for 10 minutes or he would shoot him. [Marshall] also told Johal he was going to throw his keys in the street, and after 10 minutes, Johal should pick up his keys, drive off, and not report the incident. [Marshall] also took Johal's cell phone, and [Marshall] told him not to deactivate it so [Marshall] could use it.

Johal kept his head down and heard them get out of the car. A few minutes later, he heard another car and people talking, and then he heard the car drive away. He could not hear the people talking anymore, so he got out of the car, retrieved his keys, and left the area. Johal and the car had been driven to the Fruitridge Road/Stockton Boulevard area.

Johal saw his wallet on the floor of the car, but the ATM card was gone. His cell phone and pocket knife were also taken. Johal spotted a police car, pulled up beside it, and told the officers he had just been carjacked.

About two months later, Johal was asked to look at a photographic lineup. After being given the standard admonition, Johal immediately identified [Marshall] as the person who had carjacked him. [Marshall's] fingerprints were also found on a manila envelope in Johal's car.

Johal's bank records showed a deposit of $126.45 and a simultaneous withdrawal of $40 were made on August 21, 2005, at 11:41 p.m. About 20 minutes later, a withdrawal of $81.50 was made from an ATM identified in the bank records as North Florin. Forty minutes after that, a $62 withdrawal was made from a Fruitridge Manor ATM. Johal did not make the latter two withdrawals.

Surveillance tapes from the bank at Fruitridge Manor showed an African-American man and a Hispanic woman in the front seat of Johal's car. While the woman was making the withdrawal from a drive-up ATM, it appeared the man was talking to someone in the back seat of the car.

[Marshall] denied kidnapping, carjacking, or robbing Johal. He denied ever being in Johal's car, but could not explain how his fingerprints were in the car or on the envelope. [Marshall] denied owning a chrome or black handgun.

September 14, 2005-Counts 5-9On September 14, 2005, Jose Lara worked at the Olive Garden restaurant in the Arden Fair Mall area. He had gotten off work around 11:00 p.m. and stopped at an ATM about 11:30 p.m. to get some cash on his way home. The ATM was at Florin Road and Stockton Boulevard near the Florin Mall. Lara parked his car and walked toward the ATM.

When he was about 13 feet away from the machine, two African-American men, one of them [Marshall], approached him and asked if he had a light. Lara told them he did not have a light. Then [Marshall] pulled out a semiautomatic handgun and pointed it at Lara. [Marshall] told Lara to get in the back seat of his car and the two men got in the front seats, with [Marshall] driving. [Marshall] reached into the back seat area and took the car keys from Lara. Lara was told to put his head between his legs. [Marshall] drove around for a while, parked, and asked Lara where his wallet was. [Marshall] then took Lara's wallet from his pants pocket, took $60 from Lara's shirt pocket, and asked for Lara's ATM PIN. Lara gave him the wrong number.

The other man got out of the passenger side of the car, and as Lara looked up he saw a blonde woman passing by the car. Lara heard car doors opening and closing, and the other car drove away. A few minutes later, [Marshall's] cell phone rang and Lara was again asked for his PIN. After giving [Marshall] the incorrect number once again, Lara gave him the correct number.

[Marshall] then asked for the PIN for Lara's wife's credit card, which was in Lara's wallet. Lara told him he did not know the number as it was not his card, and [Marshall] hit him in the head with the gun. [Marshall] asked Lara if he wanted to die. [Marshall] continued to speak on the cell phone, drove around for about 15 minutes, then stopped again. [Marshall] got out of the car; Lara heard [Marshall] open the trunk and take his CD player out.

[Marshall] again asked Lara if he wanted to die and Lara answered, "No." [Marshall] told him he was going to leave, throw his keys in the street, and that Lara was not to get up until at least 10 minutes had passed. [Marshall] then took an imitation fire extinguisher Lara had in his car, quarters from the ashtray, Lara's wallet, a ring his wife had given him, and his cell phone. Lara heard another car pull up, doors opening and closing, and the other car driving away.

About 30 seconds after [Marshall] left, Lara retrieved his keys from the street and went home. After informing the bank, credit card company, and cell phone provider that the cards and cell phone had been stolen, Lara and his wife went to a nearby sheriff's substation to report the crimes.

In the course of Detective Mike French's investigation of the case, he learned a Mary Walker might have been involved in the robbery. French showed Lara surveillance images from the ATM that depicted Walker using the ATM at the time Lara's account was accessed. Lara identified her as the woman he had seen walk by his car. After being given the standard admonition, Lara was shown a photographic lineup and again identified Walker as the blonde woman who had walked by his car. A few days later, in a live lineup, Lara once again identified Walker. Lara was separately shown a photographic lineup that included [Marshall], and Lara identified[Marshall] as the man holding the gun during the robbery. Walker and [Marshall] were friends prior to [Marshall's] arrest in this case.

Transaction records from Lara's bank show that between 12:29 a.m. and 12:37 a.m. on September 15, 2005, there were multiple attempts to withdraw money from Lara's account. There

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