Perkins v. Brazelton, Case No. 1:13-cv-01205 LJO MJS (HC)

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: Michael J. Seng UNITED STATES MAGISTRATE JUDGE
• Docket Number: Case No. 1:13-cv-01205 LJO MJS (HC)
• Parties: WAYNE DESHOWN PERKINS, Petitioner, v. P.D. BRAZELTON, Warden, Respondent.
• Decision Date: 28 May 2015

WAYNE DESHOWN PERKINS, Petitioner,
v.
P.D. BRAZELTON, Warden, Respondent.

Case No. 1:13-cv-01205 LJO MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 28, 2015

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Christina H. Simpson of the office of the Attorney General.

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on March 15, 2010, for first degree murder, possession of a firearm by a felon, attempt to prevent or dissuade a witness, and various enhancements. (Clerk's Tr. at 2384-85.) Petitioner was sentenced to an indeterminate term of life without the possibility of parole for murder consecutive to a term of seven (7) years to life in state prison for attempting to dissuade a witness. (Id.)

Page 2

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District, which affirmed the judgment on May 18, 2012. (Lodged Docs. 4-6, People v. Perkins, 2012 Cal. App. Unpub. LEXIS 3735 (May 18, 2012).) On August 8, 2012, the California Supreme Court denied review. (Lodged Docs. 7-8.) Petitioner did not seek collateral review of the conviction in state court.

Petitioner filed the instant federal habeas petition on August 2, 2013. (Pet., ECF No. 1.) Petitioner presents seven claims for relief in the instant petition. Petitioner alleges: (1) that the trial court coerced a verdict from the jury by requiring them to continue to deliberate and placing undue pressure on the holdout juror; (2) that his right to an open and public trial was violated by the court instructing the public to remain in the courtroom until after the jurors had left the building; (3) that the jury was provided overly prejudicial evidence regarding a previous shooting incident in which Petitioner was involved; (4) that he suffered ineffective assistance of counsel when trial counsel failed to request to redact portions of recorded statement Petitioner made to law enforcement; (5) that the prosecutor failed to present corroborating evidence of an accomplice, as required by state law; (6) that the trial court erred by denying his motion to bifurcate the trial with regard to the gang enhancements; and (7) that Petitioner was denied his right to be present at all critical stages of trial when he was denied his request to be personally present for read back of testimony to the jury during deliberations. (Id.) Respondent filed an answer to the petition on November 6, 2013. (ECF No. 12.) Petitioner filed a traverse on November 20, 2013. (ECF No. 13.) The matter stands ready for adjudication.

II. STATEMENT OF THE FACTS¹

INTRODUCTION

On the night of February 13, 2007, Deondre McGruder was shot and killed. Appellants Wayne Deshown Perkins and Anthony Jones were

Page 3

charged with McGruder's murder. After a mistrial in 2008, they were retried in 2010. A jury convicted Perkins and Jones of first degree murder (Pen. Code,[fn1] § 187, subd. (a); count 1), with a gang special circumstance (§ 190.2, subd. (a)(22)), a gang enhancement (§ 186.22, subd. (b)(1)), and firearm enhancements (§ 12022.53, subds. (d), (e)(1)). The jury also convicted Perkins of possession of a firearm by a felon (§ 12021, subd. (a)(1); count 2) and attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2); count 3), with a gang enhancement (§ 186.22, subd. (b)(1).) Perkins and Jones were sentenced to life in prison without the possibility of parole (LWOP) for the crime of first degree murder with the gang special circumstance. Perkins was also sentenced to a consecutive term of seven years to life for the crime of attempting to dissuade a witness and the associated gang enhancement.

FN1: Further statutory references are to the Penal Code unless otherwise specified.

...

FACTS[fn3]

FN3: In our summary of the facts, we do not include every single detail the parties have recounted in their extensive factual summaries, but we do include all the facts relevant to the issues raised on appeal and necessary to an understanding of the central events in the case. Relevant facts not included in our factual summary will be set forth as necessary in our discussion of appellate issues.

I. The Prosecution

A. The Shooting

Around 9:15 p.m. on February 13, 2007, gunshots were heard by residents of a house on Snapdragon Lane in Bakersfield. The residents described hearing two sets of gunshots, comprised of one or two gunshots followed by a brief pause and then a number of gunshots in quick succession. When the residents looked through their kitchen window, they saw the victim, later identified as Deondre McGruder, lying in the front yard. McGruder, who sustained multiple gunshot wounds, died from massive bleeding caused by a gunshot wound to the chest.

A criminalist examined eight spent cartridge casings found at the scene and expressed the opinion that all eight were fired from the same firearm. The firearm was a .40-caliber Glock semiautomatic pistol, either the Glock Model 22 or the Glock Model 23.[fn4] Police investigators also recovered one live round from the scene, but it was of a different caliber than that of the eight spent cartridge casings. Investigators found a piece of copper jacketing and a copper jacketed projectile at the scene, and another projectile was collected from the autopsy.

FN4: The murder weapon was never found.

B. Torino Jackson (Accomplice Testimony)

Torino Jackson attributed the shooting to appellants. Jackson testified that sometime during the afternoon on February 13, 2007, Perkins

Page 4

came to his house. Jones joined them later and they all hung out together on Jackson's front porch.

After it got dark, Jackson's friend, Nyesha Hendrix, came to the house and drove Jackson and appellants back to her apartment. Eventually, the three men left the apartment and got into Hendrix's red, two-door Ford Escort and started driving around. Perkins was the driver, Jones sat in the front passenger's seat, and Jackson sat in the backseat. While they were driving around, Jackson was busy texting on his cell phone.

Perkins eventually stopped the car on a residential street and got out with Jones, while Jackson stayed in the car. Jackson saw appellants walk towards a house close to where they parked. A few minutes later, appellants returned to the car and they started driving again.

Soon after they started driving again, Jackson saw McGruder walking down the street. McGruder appeared to be talking to someone in another car. Jackson testified that, as they drove by McGruder, Perkins asked him, "Watts up?" McGruder replied, "All day, every day." In a prior police interview, Jackson said McGruder addressed them first, asking "Watts up?" Perkins responded by asking the same question. McGruder then said "[a]ll day, every day" and yelled "South" as appellants' car passed by him.

Jackson testified that after this verbal exchange with McGruder, Perkins drove into a cul-de-sac and turned around. Perkins then stopped the car near where McGruder was walking and turned off the engine and lights on the car. Appellants both got out of the car, while Jackson remained in the back seat. Jones donned a ski mask, pulling it down so it covered his whole face.

Jackson saw appellants start walking towards McGruder. He was not paying close attention, however, because he was still on his phone. Suddenly, Jackson heard gunshots and ducked down. He then peeked out and saw Perkins pointing a gun at McGruder. Jackson heard two sets of gunshots that night.

When the gunshots ended, appellants returned to the car. As they were driving away, Jackson observed a silver gun on Jones's lap. On direct examination, Jackson testified that there was no conversation during the drive back to Hendrix's apartment, which took five to seven minutes. However, on cross-examination, Jackson testified that he remembered Jones saying that his gun had jammed.

Jackson acknowledged that he knew a person named James Beale, who had been shot and killed in February 2007. Jackson claimed he could not recall appellants discussing Beale on the drive back to Hendrix's apartment. He only recalled that they had discussed the subject earlier that day at his house, talking about how "messed up" it was that someone had killed Beale. However, during a prior police interview, Jackson said the shooting "probably was a retaliation," and reported that, during the drive back to Hendrix's apartment after the shooting, appellants were talking about what "a cool person" Beale had been and how they had known him for a long time.

Page 5

Jackson testified that when they got back to Hendrix's apartment, Hendrix opened the door and appellants went inside. Jackson claimed he stayed outside and called his sister. Eventually, two girls he knew from high school arrived at the apartment complex and gave him and appellants a ride home.

Jackson testified that the morning after the shooting, Hendrix texted him and then took him to breakfast at Denny's. After breakfast, Hendrix returned Perkins's gun to Jackson. Jackson hid the gun inside his house until Perkins came and got it from him on February 15, 2007.

C. Nyesha Hendrix

Hendrix testified that on February 13, 2007, she drove to Jackson's house around 8:00 p.m. She then drove Jackson and appellants back to her apartment, so she could get her wallet. When she was in her bedroom getting her wallet, Perkins came in and asked her if he could borrow her car. Hendrix was reluctant at first because Perkins had borrowed her car in the past and returned it late. She finally agreed to let him borrow the car after he promised to return it by 9:40 p.m. After Hendrix gave Perkins the keys to her car, he left the apartment together with

...