Ratliff v. Hedgepeth

• Decision Date: 04 May 2010
• Docket Number: Case No. ED CV 07-627-RSWL(RC).
• Citation: 712 F.Supp.2d 1038
• Court: U.S. District Court — Central District of California
• Parties: De'Veron J. RATLIFF, aka Deveron Jacques Ratliff, aka Christopher Hooper, aka Deveron Rattliff, Petitioner,v.Tony HEDGEPETH, Warden, Respondent.

712 F.Supp.2d 1038

De'Veron J. RATLIFF, aka Deveron Jacques Ratliff, aka Christopher Hooper, aka Deveron Rattliff, Petitioner,v.Tony HEDGEPETH, Warden, Respondent.

Case No. ED CV 07-627-RSWL(RC).

United States District Court C.D. California.

May 4, 2010.

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Deveron J. Ratliff, San Luis Obispo, CA, pro se.

Kevin R. Vienna, CAAG Office of Attorney General of California, San Diego, CA, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

RONALD S.W. LEW, Senior District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition and dismissing the action with prejudice.

This Court finds an appeal would not be taken in good faith, and petitioner has not made a substantial showing that he has been denied a constitutional right, for the reasons set forth in the Report and Recommendation; thus, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R.App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); Mayfield v. Calderon, 229 F.3d 895, 900 (9th Cir.2000).

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.

JUDGMENT

Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman,

IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action is dismissed with prejudice.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, Senior United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

I

On February 1, 2002, in Riverside County Superior Court case no. RIF091977, a jury convicted petitioner De'Veron J. Ratliff, aka Deveron Jacques Ratliff, aka Christopher Hooper, aka Deveron Rattliff, of one count of assault with a deadly weapon other than a firearm (knife) in violation of California Penal Code (“P.C.”) § 245(a)(1) (count 2) and one count of being a felon in possession of a firearm in violation of P.C. § 12021(a)(1) (count 4); as to both counts, the jury found petitioner committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with specific intent to promote, further and assist in criminal conduct by gang members within the meaning of P.C. § 186.22(b)(1); and, as to count 2, the jury found petitioner personally used a firearm within the meaning of P.C. §§ 12022.5(a) and 1192.7(c)(8); however, the jury found petitioner not guilty of attempted willful and premeditated murder in violation of P.C. §§ 664/87 (count 1). Clerk's Transcript (“CT”) 107-11, 154-55, 159-64.¹ In a bifurcated proceeding, the trial court found petitioner had suffered two prior strikes under California's Three Strikes law, within the meaning of P.C. §§ 667(c) and (e) and 1170.12(c). CT 301-02. The petitioner was sentenced under the Three Strikes law to the total term of 49 years to life in state prison. CT 380-81, 383.

The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 384-86, which in an unpublished opinion filed August 24, 2004, “modif[ied] the judgment ... by striking the two [P.C.] section 667.5, subdivision (b) enhancements imposed on count 2 and by amending the [P.C.] section 186.22 enhancement from a 10-year prison term under subdivision (b)(1) to a minimum 15-year parole term under subdivision (b)(5) [,]” and affirmed the judgment as modified. Lodgment nos. 1-4. On October 6, 2004, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court,² which denied review on November 10, 2004. Lodgment nos. 5-6.

On June 27, 2005,³ petitioner, proceeding pro se, filed a habeas corpus petition in the Riverside County Superior Court, which denied the petition on July 6, 2005. Lodgment nos. 7-8. On July 27, 2005, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on August 12, 2005. Lodgment nos. 9-10. Finally, on August 17, 2005, petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on June 28, 2006.⁴ Lodgment nos. 11-12.

On April 3, 2006, while his habeas corpus petition was pending in the California Supreme Court, petitioner filed a second habeas corpus petition in the Riverside County Superior Court, which denied the petition on May 1, 2006. Lodgment nos. 13-14. On May 17, 2006, petitioner filed a second habeas corpus petition in the California Court of Appeal, which denied the petition on May 26, 2006. Lodgment nos. 15-16. On July 14, 2006, petitioner filed a second habeas corpus petition in the California Supreme Court,⁵ which denied the petition on February 7, 2007, with citations to In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993); In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953); In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793 (1949); People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995); and In re Lindley, 29 Cal.2d 709, 177 P.2d 918 (1947). Lodgment nos. 17-18.

II

The California Court of Appeal, in affirming petitioner's convictions, made the following findings of facts underlying the offenses: ⁶ The charges in this case stem from three fights that occurred on May 25, 2000. The first fight occurred at Mel's Liquor store where petitioner pushed Vincent Thomas's friend in the head after the two had exchanged words about the Raymond Street Crips, a gang in which petitioner was a member. Vincent Thomas then hit petitioner in the back of the head and a fight between petitioner's friends and Thomas's friends broke out in the liquor store parking lot. Co-defendant Vanpool and her friends were also at the liquor store and she participated in the parking lot fight. That fight ended and the two groups went their separate ways. Vincent Thomas and his friends went to Thomas's house and petitioner and Vanpool went to a house on Victor Street.

The second fight took place at the house on Victor Street when Vincent Thomas and his friends arrived and confronted petitioner. A brawl broke out when Vincent Thomas's brother and one of his friends punched petitioner and one of his companions. That fight ended when the woman who owned the Victor Street house threatened to call the police.

The third and final fight occurred in a park where the two groups met again. There, Vincent Thomas saw petitioner holding what appeared to be a gun. When Vincent ran, he was chased and knocked to the ground where he was beaten and stabbed by several people, one of whom Vincent identified as petitioner. Another witness saw Vanpool stab Vincent several times. After stabbing Vincent, Vanpool drove off in the truck that Vincent's brother, along with Vincent and two others, had driven to the park. The truck belonged to Vincent Thomas's father. Vincent Thomas had five stab wounds-one on the upper left bicep, two on the buttocks, one of which was deep and considered serious, and three on his legs and thighs. The wounds required sutures.

According to various witnesses, petitioner was a member of the Raymond Street Crips and while at the Victor Street house had been heard to say, “All you niggas out here in Moreno Valley claimin' Raymond who never been in the hood are gonna get put on the hood or get smoked.” A witness also heard petitioner refer to Vincent Thomas and his friends as “busters,” a derogatory term that refers to a person who falsely claims to be in a gang. During the fight in the park, petitioner also was heard to say to Vincent, while the latter was on the ground being beaten and stabbed, not to “claim” petitioner's hood anymore. Witnesses also testified that while Vanpool was stabbing Vincent Thomas, she was heard to say, “Raymond Crip, whew, whew” and “Don't ever claim Raymond again.”

III

Effective April 17, 2007, petitioner, proceeding pro se, filed the pending habeas corpus petition under 28 U.S.C. § 2254, and on July 30, 2007, respondent filed a motion to dismiss the petition, arguing it is both untimely and a “mixed” petition. On November 13, 2007, the Court denied respondent's motion to dismiss, and on March 4, 2008, respondent filed his answer. The petitioner filed his reply on June 11, 2008.

The petition raises the following numerous grounds for habeas corpus relief:

Ground One-Petitioner “was denied his right[ ] to a fair trial due to the court[']s error in denying petitioner's motion to strike the testimony of ... Eric Thomas as to the plea[ ] bargain he entered into with the prosecutor [,] which left the prosecutor as sole mediater [sic] in determining whether [Eric's] testimony was truthful ... an[d] unduly pressured ... [Eric] to provide testimony which the prosecutor desired”;

Ground Two-“The prosecutor committed prejudicial misconduct by expressing his personal opinion as to who he believed ... during closing arguments”;

Ground Three-“The trial court erred [in violation of the Sixth Amendment] in admitting testimony of threats received by...