Powell v. Runnels

• Decision Date: 27 October 2011
• Docket Number: 2: 09 - cv - 1598 - MCE TJB
• Court: U.S. District Court — Eastern District of California
• Parties: GREGORY ANTHONY POWELL, Petitioner, v. D.L. RUNNELS, Respondent.

GREGORY ANTHONY POWELL, Petitioner,
v.
D.L. RUNNELS, Respondent.

2: 09 - cv - 1598 - MCE TJB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: October 27, 2011

FINDINGS AND RECOMMENDATIONS

Petitioner, Gregory Anthony Powell, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a maximum sentence of 19 years six months after a jury convicted him on one count of attempted voluntary manslaughter and one count of assault with a deadly weapon. The jury also found true the sentencing enhancements that Petitioner personally used a firearm in committing the offenses and that he inflicted great bodily injury. Petitioner raises five claims in this federal habeas petition; specifically: (1) the trial court erred in admitting into evidence the victim's preliminary hearing testimony when the victim was unavailable to testify at trial in violation of Petitioner's right to confront the witnesses against him ("Claim I"); (2) the prosecution removed a juror based on the juror's race in violation of Batson v. Kentucky, 476 U.S. 79, 96 (1986) ("Claim II"); (3) the erroneous jury instruction on attempted manslaughter, which included discussion of implied

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malice when the crime of attempt requires proving a specific intent to kill, allowed the jury to find Petitioner guilty without the prosecution proving each element of the offense beyond a reasonable doubt ("Claim III"); (4) the trial court erred in imposing the upper term sentence without relying on additional facts proven to the jury ("Claim IV"); and, (5) the trial court erred when it ruled on Petitioner's presentence time credits outside of Petitioner's presence and off the record ("Claim V"). For the reasons stated herein, the federal habeas petition should be denied.

I. FACTUAL BACKGROUND¹

Starkisha Green was shot and wounded in the parking lot of the Motel 7 in Vallejo at about 7 p.m. on July 5, 2002. She told a Vallejo police officer, who responded to reports of the shooting, that the man who shot her was an African American named "G". Both Green and Melissa Lujan [also referred to as Lisa], who had driven Green to the motel, later identified the shooter as appellant from photo lineups.
When Lujan's car entered the parking lot of the Motel 7, they encountered a car exiting the parking lot driven by one Nicole Fonseca, with whom Green had a prior altercation. Appellant was a passenger in Fonseca's car.
As the cars pulled alongside each other, Green and Fonseca started arguing, and soon an argument developed between Green and appellant, with Green accusing appellant of stealing some jewelry. As Lujan tried to drive away, Fonseca's car blocked Lujan's car from leaving. Appellant and another African-American male then jumped into the back seat of Lujan's vehicle, whereupon Green tried to get out of the car. While Green was attempting to get out of the vehicle, two shots were fired. Appellant continued to shoot at her as she ran away from the cars.
Green was helicoptered to John Muir Hospital in Walnut Creek, where doctors found two bullets in her, one in her stomach and one in her arm. A .22 caliber bullet was removed from Green's stomach.
The following day, July 6, 2002, another Vallejo police officer stopped appellant for driving without a license plate. A female was in the car with him. Appellant lacked identification. He said his

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name was John Lashawn Harris, but did not know his own age. The officer arrested him and, thereafter, found a loaded .22 caliber revolver under the right-front passenger seat. The gun held nine bullets, but had four bullets and four empty casings inside. In the passenger's purse was another single round.
On September 19, 2002, the Solano County District Attorney filed an information charging appellant with two counts, the first for attempted murder and the second for assault with a deadly weapon. Both counts included allegations of personal use of a firearm and personal infliction of great bodily injury, as well as an allegation of two prior felony convictions after which appellant had not remained free from prison custody for five years. (Pen.Code, §§ 187, subd. (a), 245, subd. (a)(2), 664, 667.5, subd. (b) & (c)(8), 1192.7, subd. (c)(8) & (23), 1203.095, 12022.5, subd. (a)(1), 12022.53, subd. (b), (c) & (d), 12022.7, subd. (a).)
Appellant pled not guilty and denied the various allegations on September 30, 2002.
The case was tried to a jury over three days starting on May 7, 2003. Lujan, who had driven Green to the motel, testified for the prosecution. Green herself could not be located, according to the prosecution; accordingly, her preliminary hearing testimony was read to the jury.
The prosecution also called the motel's manager, three Vallejo police officers involved in the events of July 5 and 6, 2002, and a deputy sheriff/criminalist who testified regarding the similarity between the bullet recovered from Green's stomach and the .22 revolver found in the car appellant was driving. On the last trial day, the prosecution called the court's own bailiff and a Solano County correctional officer who, in combination, testified that, during the trial, appellant had passed a note to another African-American detainee, one Andre Bryant, asking him to "be my alibi witness" for July 5, 2002. This note was read to the jury.
Appellant's trial counsel presented three witnesses, a motel employee named Summerville and two John Muir Medical Center doctors. Summerville testified that, after Green had been shot, she did not identify the shooter by name or other identification. One of the doctors testified that Green told her she used both heroin and methamphetamine, and the other that she had admitted smoking heroin earlier on July 5, 2002.
The prosecution recalled one of the Vallejo police officers who had previously testified as a rebuttal witness. He testified that, when he interviewed Summerville immediately after the shooting, he recalled Green identifying the shooter as "G."

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After a day and a half of deliberation, the jury returned verdicts finding appellant not guilty of attempted murder as charged in count I, but guilty of attempted voluntary manslaughter and also guilty of assault with a deadly weapon as charged in count II. Additionally, it found true each of the charged enhancements, except that relating to the two charged prior felony convictions (for which appellant was imprisoned at the same time). Appellant admitted those.
The trial court denied appellant's motion for a new trial on July 2, 2003; on July 11, 2003, it sentenced him to a total prison term of 19 years and six months. This consisted of the upper term of five years, six months, for attempted voluntary manslaughter, an upper term of ten years for personal use of a firearm, three years for the infliction of great bodily injury, and one year for the prior prison term enhancement. All of these sentences pertained to count I of the information; the court stayed any sentence under count II pursuant to [Penal Code] section 654.

II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000). Under section 2254(d)(1), a state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on the correctness of the state court's decision. Yarborough

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v. Alvarado, 541 U.S. 652, 664 (2004). "[A] habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of" the Supreme Court. Harrington v. Richter, 562 U.S. _, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S....