McDaniels v. Samuel

• Decision Date: 30 August 2021
• Docket Number: 19-cv-01408-HSG (PR)
• Parties: ALPACINO MCDANIELS, Petitioner, v. DANNY SAMUEL, Acting Warden, [1] Respondent.
• Court: U.S. District Court — Northern District of California

ALPACINO MCDANIELS, Petitioner, v. DANNY SAMUEL, Acting Warden, ^[1] Respondent.

No. 19-cv-01408-HSG (PR)

United States District Court, N.D. California

August 30, 2021

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS DENYING CERTIFICATE OF APPEALABILITY

HAYWOOD S. GILLIAM, JR., UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Petitioner Alpacino McDaniels, a state prisoner currently incarcerated at the California Men's Colony, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of a conviction obtained against him in state court.

Respondent has filed an answer to the petition. Dkt. No. 22. Even though Petitioner was given the opportunity to do so, he has not filed a traverse, and the time frame for doing so has passed. For the reasons set forth below, the petition is denied.

II. PROCEDURAL HISTORY

Petitioner was charged with murder after 23-year-old Teric Traylor was shot and killed during a street fight in West Oakland. An Alameda County jury found Petitioner guilty of first-degree murder and possession of a firearm by a felon, and found firearm use enhancements alleged in connection with the murder count to be true. 2 Clerk's Transcript (“CT”)^[2] 154-156. In a bifurcated hearing, the trial court found that Petitioner had served four prior prison terms. 2 CT 162. The trial court sentenced Petitioner to fifty years to life in state prison. 2 CT 166-169.

Petitioner appealed the conviction, and contended that (1) the trial court erred by denying his request for a pinpoint jury instruction about suggestive identification procedures; (2) the prosecutor committed misconduct by commenting on Petitioner's failure to testify; (3) the trial court should have stayed his sentence for the firearm possession offense; and (4) he is entitled to two additional days of custody credits and the abstract of judgment inaccurately reflects the sentence imposed for the murder count. Dkt. No. 22-11 at 5-7; Resp't Ex. 5. On April 17, 2018, the California Court of Appeal remanded the case to consider whether to strike the firearm enhancements and to correct errors in the calculation of custody credits and the abstract of judgment, but otherwise affirmed the judgment. Dkt. No. 22-11; Resp't Ex. 8. On May 17, 2018, Petitioner filed a petition for review in the California Supreme Court, which was denied on June 20, 2018. Dkt. No. 22-11; Resp't Exs. 9, 10.

On September 25, 2018, Petitioner filed a petition for a writ of habeas corpus in the Alameda County Superior Court, which was denied on October 29, 2018. Dkt. No. 22-12; Resp't Exs. 11, 12.

On March 4, 2019, Petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. Dkt. No. 22-12; Resp't Ex. 13.

On March 18, 2019, Petitioner filed a petition for a writ of habeas corpus in this Court, which commenced this case. Dkt. No. 1. In his petition, Petitioner acknowledged that not all his claims were exhausted and stated his intention to file a motion for a stay and abeyance. Id. at 12.^[3]

On April 18, 2019, the Court found that the petition stated the following cognizable claims for federal habeas relief: (1) ineffective assistance of appellate counsel; (2) the trial court erred by admitting tainted evidence; (3) the prosecution failed to preserve or turn over exculpatory evidence; (4) the trial court erred in allowing the video reenactment; (5) the prosecutor committed misconduct by allowing false testimony at trial; (6) the trial court erred by denying Petitioner's request for a pinpoint jury instruction about suggestive identification procedures; (7) the prosecutor committed Griffin^[4] error by relying on Petitioner's jail conversations with his mother and girlfriend as evidence of his consciousness of guilt; and (8) the prosecutor committed Griffin error by making reference to the lack of alibi evidence as an indirect comment on Petitioner's failure to testify. Dkt. No. 11 at 2. The Court ordered Respondent to show cause why the petition should not be granted. Id. The Court noted that Petitioner had acknowledged that he had not exhausted all claims, but declined to sua sponte address the issue of exhaustion of state remedies because the Court could not determine from the record which claims had been exhausted. Id.

On May 9, 2019, the California Court of Appeal denied the petition for a writ of habeas corpus. Dkt. No. 22-12; Resp't Ex. 14.

On June 10, 2019, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court raising the same claims as his federal petition, except he did not include claim 3 (the prosecution failed to preserve or turn over exculpatory evidence).^[5] Dkt. No. 22-12; Resp't Ex. 15. On September 11, 2019, the state supreme court denied the petition. Dkt. No. 22-12; Resp't Ex. 16.

On July 17, 2019, Respondent filed a motion to dismiss claims 1-5 and 7^[6] of the federal habeas petition for failure to exhaust state court remedies. Dkt. No. 13.

Petitioner did not file an opposition to Respondent's motion. Nor did Petitioner file a motion to stay and abey this action. Instead, on September 29, 2019, Petitioner filed with the Court the California Supreme Court's September 11, 2019 summary denial of his state habeas petition. Dkt. No. 16.

On January 15, 2020, this Court granted the motion to dismiss as to claim 3, denied it as to claims 1, 2, 4, 5 and 7, and ordered Petitioner to make an election as to how he wished to proceed. Dkt. No. 18 at 10-11.

On June 9, 2020, the Court noted that Petitioner never informed the Court how he wished to proceed, and accordingly set a briefing schedule for an answer and traverse addressing claims 1-2 and 4-8. Dkt. No. 21. An answer was filed on August 10, 2020. Dkt. No. 22. Petitioner has not filed a traverse, and the time to do so has passed.

III. STATEMENT OF FACTS

The state appellate court handled the direct appeal filed by Petitioner in an unpublished opinion and described the relevant facts as follows:^[7]

A. 829 Mead Avenue.

The murder occurred around 7:30 a.m. on July 6, 2013, on Mead Avenue, a one-block street that runs between San Pablo Avenue and Market Street in West Oakland. An Oakland police sergeant testified that the block, which is commonly referred to as “Mead Street, ” was “basically a 24-hour open air drug market” and had been the site of “numerous shootings” and other “violent activity.” The primary site of drug sales was a liquor store at the corner of Mead and Market, but drug dealers would also station themselves elsewhere on Mead. The sergeant knew McDaniels, whose “street alias [was] Capone ” and had seen him on Mead. McDaniels's “name would come up in some . . . narcotics investigations out there as one of the main . . . dealers from the block.”

Charles F., who testified under a grant of immunity, lived at his stepmother's house at 829 Mead with several others. His father, Jeffrey F., lived in San Francisco but would visit the house on weekends. The night before the murder, Charles F. and Jeffrey F. were “up all night partying, drinking, smoking weed and just chillin'” at the house. Also present were Charles F.'s sister, L.F., and L.F.'s boyfriend, W.L., both of whom also lived at 829 Mead and had recently begun dating. Charles F. denied that drug sales or any other “illegal activities” occurred at the house. He admitted, however, that the month after the murder he was arrested in front of the home with “[f]ive rocks” in his pocket.

W.L. had moved into 829 Mead the previous winter after meeting one of Charles F.'s brothers in jail. W.L. testified that 829 Mead was a “trap house” where crack cocaine was used and sold. He knew McDaniels, who went by “Capone, ” because McDaniels was “a really good friend” of Charles F.'s and “would come over to 829 Mead” several times a week. W.L. had also seen McDaniels hanging out at the liquor store at Market and Mead, which he knew as a site of drug activity. W.L. testified that he never had any problems with McDaniels, though he did not consider him a friend.

According to W.L., the night before the murder McDaniels was outside on the porch of 829 Mead while everyone else was drinking and smoking. Charles F., on the other hand, claimed that McDaniels was not present. Indeed, he denied personally knowing McDaniels, although he was aware that McDaniels used to hang out on Mead. Charles F. claimed that he would greet McDaniels if he saw him on the street, but that McDaniels had never been to his house. Jeffrey F. acknowledged knowing McDaniels as “Capone” and similarly claimed to have seen him in the neighborhood but never at 829 Mead.

B. The Fight on Isabella Street.

The morning of the murder, Charles F. and Jeffrey F. went to a convenience market to buy food. Charles F. was wearing a tank top, and his father was wearing a brown sweatshirt. Although the market was on Isabella Street, only a few blocks away, Charles F. drove them there in his green Cutlass. The two men were still intoxicated, and after Charles F. got out of the car Jeffrey F. drove it away as a joke.

Left standing in the market's parking lot, Charles F. began yelling at his father. Traylor, whom neither Charles F. nor Jeffrey F. had seen before, became upset by the yelling and told Charles F. something to the effect of “shut the fuck up.” After Jeffrey F. came back, Charles F. and Traylor continued to argue as all three men walked into the middle of Isabella. Charles F. and Traylor “did a lot of circling” as if they were going to fight but did not throw any punches.

A man who lived in a nearby condominium testified that at about 7:15 that morning, he and his wife “heard a disturbance” outside their window, which faced onto Isabella. They observed a small group of people, two of whom were

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