McCreary v. Diaz, Case No.: 18cv0789-CAB (BGS)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtHon. Cathy Ann Bencivengo United States District Judge
PartiesJEFFREY STEVEN McCREARY, Petitioner, v. RALPH DIAZ, Secretary, Respondent.
Docket NumberCase No.: 18cv0789-CAB (BGS)
Decision Date16 December 2019

RALPH DIAZ, Secretary, Respondent.

Case No.: 18cv0789-CAB (BGS)


December 16, 2019


Jeffrey Steven McCreary (hereinafter "Petitioner"), is a state prisoner proceeding pro se and in forma pauperis with a Second Amended Petition for a Writ of Habeas Corpus filed under 28 U.S.C. § 2254. (Electronic Case Filing ["ECF"] No. 19.) He challenges his San Diego Superior Court conviction for first degree murder with the personal use of a firearm, for which he was sentenced to 100 years-to-life in state prison, enhanced by two prior felony convictions. (Id. at 1-2.) He claims his federal constitutional rights were violated by the denial of his motion to substitute counsel to file a motion for a new trial (claim one), introduction of evidence he had been in prison (claim two), omission of an element of the firearm use enhancement from the verdict form (claim three), use of his prior convictions to enhance his sentence (claim four), failure to give an instruction on aiding and abetting in response to a jury question (claim five), insufficient evidence of kidnapping (claim six), failure of the prosecutor to timely disclose a witness (claim seven),

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ineffective assistance of trial counsel (claims eight, eleven and twelve), prosecutorial misconduct and ineffective assistance of trial counsel for failing to object (claims nine and ten), failure of the state habeas court to hold an evidentiary hearing (claim thirteen), and because he is actually innocent (claim fourteen). (Id. at 6-20.) Petitioner requests an evidentiary hearing. (Id. at 19.)

Respondent has filed an Answer and lodged the state court record. (ECF Nos. 24-25, 36.) Respondent argues habeas relief is unavailable because claims three, eight through twelve, and fourteen are procedurally defaulted, claims two, four, five, thirteen and fourteen do not present cognizable claims, and the state court adjudication of all federal claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law, nor based on an unreasonable determination of the facts. (ECF No. 24 at 2-11.) Petitioner has filed a Traverse. (ECF No. 29.)

For the foregoing reasons, Petitioner's request for an evidentiary hearing is denied, the Petition is denied, and the Court declines to issue a Certificate of Appealability.


On March 27, 2012, Petitioner and his codefendant Destin Lee Withers were charged with murdering Denise Rodriguez. (ECF No. 25-32 at 11-12.) It was alleged both men were armed with and personally and intentionally discharged a semi-automatic handgun resulting in the victim's death. (Id.) It was further alleged Petitioner had two prior felony convictions which constituted strikes under California's Three Strikes law, and Withers had three prior felony convictions which constituted prison priors. (Id. at 12-13.)

Petitioner and Withers were jointly tried before a single jury. They both testified and named each other as the killer, and on June 13, 2014, were both found guilty of first-degree murder. (ECF No. 25-33 at 258.) The jury returned true findings that Petitioner was armed with and personally used a 9mm semi-automatic firearm, and that Withers was not armed with and did not personally use a 9mm semi-automatic firearm. (Id.)

On June 17, 2014, at a bifurcated bench trial, the court made true findings on all prior conviction allegations as to both defendants. (Id. at 260.) On January 21, 2015, a

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hearing was held on Petitioner's motion to substitute his appointed public defender for new counsel for the purpose of filing a new trial motion. (Id. at 264.) The court denied that motion, as well as his motions for a new trial and to strike his priors. (Id.) On January 28, 2015, he was sentenced to 25 years to life on the first-degree murder count, tripled as a result of his two prior strikes, plus a consecutive term of 25 years to life for the firearm enhancement, for a total of 100 years to life in state prison. (Id. at 263-64.)

Petitioner appealed, raising claims one though seven presented here. (ECF Nos. 25-35, 25-36 and 25-37.) The appellate court consolidated his appeal with Withers' and affirmed. (ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. (Cal.App.Ct. Sept. 26, 2016).) He presented the same claims in a petition for review in the California Supreme Court (ECF No. 25-39) which was summarily denied on January 18, 2017. (ECF No. 25-40.)

Petitioner raised claims eight through twelve presented here in a habeas petition filed in the superior court on August 31, 2017 (ECF No. 25-41), and in the appellate court on October 30, 2017 (ECF No. 25-43), which were both denied on procedural grounds. (ECF No. 25-42, In re McCreary, No. NCN1500, order (Cal.Sup.Ct. Sept. 6, 2017); ECF No. 25-44, In re McCreary, No. D073026, order (Cal.App.Ct. Oct. 31, 2017).) He then raised those same claims in a state supreme court habeas petition. (ECF No. 25-45.) The petition was denied on February 14, 2018, with an order that stated: "The petition for writ of habeas corpus is denied on the merits. (See Harrington v. Richter (2011) 562 U.S. 86, citing Ylst v. Nunnemaker (1991) 501 U.S. 797, 803.)" (ECF No. 25-46, In re McCreary, No. S245567, order (Cal. Feb. 14, 2018).)

Petitioner filed a second round of state habeas petitions in the superior court on April 13, 2018 (ECF No. 25-47) and in the appellate court on May 23, 2018 (ECF No. 25-49), raising, among other claims, claim fourteen here, which were both denied on procedural grounds. (ECF No. 25-48, In re McCreary, No. HCN1519, order (Cal.Sup.Ct. Apr. 19, 2018); ECF No. 25-50, In re McCreary, No. D074018, order (Cal.App.Ct. May 25, 2018).) He raised the same claims in a state supreme court habeas petition on July 30, 2018. (ECF

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No. 25-51.) This action was stayed pending disposition of that petition, which was denied with an order that stated: "The petition for writ of habeas corpus is denied. (See In re Clark (1993) 5 Cal.4th 750, 767-789 (courts will not entertain habeas corpus claims that are successive).)" (ECF No. 25-52, In re McCreary, No. S250337, order (Cal. Jan. 16, 2019).)


The following facts are taken from the appellate court opinion affirming Petitioner's convictions on direct appeal.

A. The People's Case

1. The Del Dios drug apartment

Jonathan Nick Griffith, a drug user and dealer, testified for the prosecution under a grant of immunity. He had convictions for auto theft, drug possession, and being under the influence. At the time of trial in this matter, Griffith was in custody for a parole violation for possessing methamphetamine.

Griffith testified that he shared a "crash-pad" apartment (the Del Dios apartment) with a man he identified as "Vid" at an apartment complex on Del Dios Highway in Escondido that was a regular place for people to come by, hang out, and take drugs. Griffith's bedroom was the "party spot." Griffith had known McCreary, whose nickname is "Lucky," for 20 years and they were close friends. McCreary came by the apartment four or five times each week, and Griffith often gave him methamphetamine because they were friends.

McCreary often carried a semiautomatic .45-caliber handgun, and he owned a bulletproof vest. McCreary acted as an "enforcer" for Griffith in connection with Griffith's various illegal activities.

David "Weasel" Renteria and Vid were friends, and Renteria would regularly hang out at the Del Dios apartment and use drugs. Renteria was a Chula Vista gang member who had been to prison for committing several assaults, including one on a police officer, and for auto theft. He was about six feet two inches tall and weighed about 230 to 240 pounds. Renteria was about two inches taller than Withers, and he was about five inches taller than McCreary and outweighed him by about 80 pounds.

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2. McCreary meets the victim, Rodriguez, on January 28, 2012, and brings her to the Del Dios apartment

In early 2012 McCreary had a crush on Jackie "Looney" Bravatti. [Footnote: The principal events from which this case arose occurred during a five-day period from January 28 to February 1, 2012, the day Rodriguez was fatally shot. All further dates are to calendar year 2012 unless otherwise specified.] On January 28 Bravatti called McCreary and asked him to pick up Denise Rodriguez and her baby. Although McCreary did not know Rodriguez, he did as Bravatti asked, and he and Griffith drove Rodriguez and her baby to the Del Dios apartment.

McCreary and Griffith left the apartment to buy beer and when they returned Rodriguez and Renteria were in the bathroom having sex. Rodriguez and Renteria used methamphetamine together and then had sex several more times that night. The next morning Renteria told Rodriguez he was married and then he left the apartment.

After Renteria left, Griffith saw Rodriguez crying hysterically on the bed. Griffith asked her what was wrong and attempted to console her by offering her something to calm her nerves.

Griffith testified he later heard from McCreary and Withers that Rodriguez was claiming Renteria had forcibly raped her. Griffith indicated he knew Renteria had not raped Rodriguez because he had heard Renteria and Rodriguez while they were having sex in the bathroom.

3. Withers meets Rodriguez at the Del Dios apartment on January 29

Withers met Rodriguez at the Del Dios apartment on January 29, the day after she arrived there, when he came to the apartment complex to buy methamphetamine from Griffith. Rodriguez told Withers and McCreary she had been forcibly raped, but she did not say who had raped her.

Withers drove Rodriguez and her baby from the Del Dios apartment to his house. Kassandra Barr and Leila Penman were at Withers's house when Withers and Rodriguez arrived there. Rodriguez and

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