Rew v. Borders

• Decision Date: 05 April 2019
• Docket Number: Case No.: 18cv1481 LAB (MDD)
• Parties: TREVIYON DESHAWN REW, Petitioner, v. DEAN BORDERS, Warden, Respondent.
• Court: U.S. District Court — Southern District of California

TREVIYON DESHAWN REW, Petitioner, v. DEAN BORDERS, Warden, Respondent.

Case No.: 18cv1481 LAB (MDD)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

April 5, 2019

REPORT AND RECOMMENDATION RE: DENIAL OF HABEAS CORPUS PETITION

I. INTRODUCTION

Petitioner Treviyon Deshawn Rew, a state prisoner proceeding with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."), challenges his conviction for murder and torture in San Diego Superior Court case no. SCS263789. The Court has read and considered the Petition, [ECF No. 1], the Answer and Memorandum of Points and Authorities in Support of the Answer [ECF No. 7-1], the lodgments and other documents filed in this case, and the legal arguments presented by both parties.¹ For the reasons discussed below, the Court recommends the petition be DENIED.

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II. FACTUAL BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The state appellate court recounted the facts as follows:

Counts 1, 2, and 3 (Attempted Murder of Sean Simpson)

On July 22, 2010, at about 1:00 a.m., Sean Simpson parked his car at his apartment complex and got out of the car. Immediately afterwards, Rew pointed a gun in Simpson's face. Simpson told Rew to take the car, adding: "My bad, cuz." Rew replied, "Cuz what? I'm a Blood." Simpson immediately lay face down on the ground in the hope his life would be spared, and in order to facilitate Rew's taking the car. A male entered the passenger side of Simpson's car and Rew entered the driver's side. Shortly afterwards, Rew and the person in the passenger seat both fired gunshots at Simpson. Simpson was in a coma for almost one month. Simpson was required to use a colostomy bag for one year. At the time of trial, Simpson still suffered numbness in his leg, and between seven to nine bullets and bullet fragments were lodged in his body. He could no longer fully carry out his previous job duties. Simpson identified Rew in a photo lineup.

Counts 4, 5, and 6 (Robbery of Irish Tourists) [FN 4]

[FN 4: Although the jury deadlocked on these charges, we mention the underlying facts here to evaluate the trial court's decision to deny Rew's motion to sever the charges.]

San Diego Police Detective Mary Grace Gibbins testified that on July 22, 2010, three female tourists were robbed of their cell phones and cameras at gunpoint as they stood outside a hostel in Ocean Beach. Approximately two weeks later, police recovered a digital camera belonging to one of the victims. Rew's pictures were among those found in the camera.

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Counts 12, 13, 14, 15, and 16 (Crimes against Martin Rodriguez and Carlos Avila)

Martin Rodriguez testified that on July 24, 2010, at approximately 2:00 a.m., after a night of drinking, he and Carlos Avila slept in Rodriguez's car. Rodriguez heard a banging on the car window and someone shouting, "Get the fuck out." Shortly afterwards, Rew fired a gunshot that shattered the car window, causing glass to hit Rodriguez's face. Rew demanded Rodriguez's car keys, which fell. Rew grabbed them, fired another shot, ran and drove away in a different car. One bullet was lodged in the roof of Rodriguez's car and narrowly missed Avila's torso, while another bullet, which matched that used by Rew's .38-caliber gun, was lodged in Avila's shoe.

Counts 7, 8, 9 and 10 (Robbery of Jesse Aceves and Manuel Cuevas)

Jesse Aceves testified that on July 24, 2010, at approximately 3:00 a.m., finding no hotel in San Diego, he and Manuel Cuevas stopped in National City and slept in the car they had been driving. Aceves heard a noise and woke up. Rew pointed a gun at Aceves, and ordered him out of the car. Rew hit Aceves in the face with the gun, demanded money, fired a shot to the side of Aceves's head, and fired two more shots to the ground. Rew also demanded Cuevas's money. Rew took approximately $3,000 from the victims, their cell phones, a laptop and Cuevas's passport.

Count 17 (Possession of a Concealed Weapon)

On July 25, 2010, at approximately 8:55 p.m., San Diego Police Officer Mario Perez and his partner were on patrol when Officer Perez saw Rew quickly walking away from a Mazda and looking nervous upon seeing the police. Officer Perez exited his vehicle and talked to Rew. Rew put his hand in his right front shorts pocket. Officer Perez decided to pat down Rew for weapons and found in Rew's right front pocket a Taurus revolver that was loaded with five .38-caliber bullets. Officer Perez handcuffed Rew. Police later ascertained the Mazda belonged to Rew's great-great-grandfather who, along with Rew, gave police permission to search it. In the Mazda, police found a loaded .45-caliber Sig Sauer semiautomatic weapon, a cell phone and a camera.

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Count 18 (Evading a Peace Officer)

On July 28, 2010, San Diego Police Officer Tobia Terranova responded to a police call regarding a suspect travelling in a vehicle. Officer Terranova saw the suspect car, activated his overhead lights and siren, and followed it. Rew disregarded several traffic signs as he led police on a high speed chase. Eventually, Rew stopped the car in the middle of the road, got out, ran over fences and eluded the police. Rew ended up at the home of his good friend, David Ruiz, and told him he had just crashed a car in a high-speed chase. Hours later, police found Rew hiding in Ruiz's home. Police arrested both Rew and Ruiz, but never charged Ruiz.

Ruiz testified that in July 2010, Rew said he had shot someone who referred to Rew as "cuz," which Rew, as a Crip gang member, disliked. Ruiz knew Rew was calling people on the telephone and asking them to hide guns. Rew also was selling a cell phone, and Ruiz's relative, Daniel Camargo, bought the phone. One day, Rew went to Ruiz's house wanting to take some pictures with a camera, including pictures of Rew with a gun on his person. Ruiz had told police that he had seen Rew carry a .38-caliber gun, and another friend of Rew's carried a gun that looked like a .22-caliber pistol. Ruiz said he believed Rew belonged to the 5/9 Brim gang.

Police Investigation

National City Police Sergeant Derek Aydelotte investigated the attempted murder of Simpson, and learned Rew had recently been arrested in a Mazda vehicle. Pursuant to a warrant, Officer Aydelotte searched Rew's residence and found a key to Simpson's Toyota, Cuevas's passport, a sawed-off shotgun that was chambered with 30-30 rounds of ammunition and a box of .25-caliber ammunition. Officer Aydelotte learned of the Ocean Beach robbery, and saw photographs of Rew taken with a stolen camera. In one photo, Rew posed with a large amount of cash.

Salvador Moreno, with the aid of surveillance video footage showing Moreno in different stores, testified that on different occasions in July 2010, Rew gave him money to buy ammunition for Rew's different caliber weapons, including .25-caliber and 30-30 bullets. One day, Moreno saw Rew with a .38-caliber revolver in his pocket. Rew told Moreno that he had chopped the stalk of a rifle for ease of carry and for it to cause more damage. Moreno stated Rew was a member of the 5/9 Brim gang. Moreno identified a vehicle that Rew drove, which Rew had described as "hot," meaning it wasstolen. On July 27, 2010, Rew called Moreno and said, "Know who this is? I don't want to say any names. They got a video of someone buying bullets."

On cross-examination, Moreno testified police contacted him on July 27, 2010, and he was concerned he was a suspect in the criminal matters involving attempted robbery, carjacking, and robbery, but he was not arrested. Moreno testified that for the past two and a half years the district attorney had paid for his rent, utility expenses, food, clothes, and phone bill. On redirect examination, Moreno testified that the district attorney's payments were occasioned by his having to relocate due to safety concerns.

(Lodgment No. 26, ECF No. 8-26 at 4-8.)

III. PROCEDURAL BACKGROUND

Petitioner Treviyon Deshawn Rew was charged in a third amended consolidated information with three counts of attempted murder, a violation of California Penal Code (Penal Code) §§ 187(a) and 664 (counts one, twelve and thirteen), one count of carjacking, a violation of Penal Code § 215(a) (count two), three counts of assault with a firearm, a violation of Penal Code § 254(a)(1) (counts three, eight, and ten), five counts of robbery, a violation of Penal Code § 211 (counts four, five, six, seven and nine), one count of receiving stolen property, a violation of § 496(a), one count of attempted carjacking, a violation of Penal Code §§ 251(a) and 664 (count fourteen), two counts of assault with a deadly weapon, a violation of Penal Code § 245(a)(1) (counts fifteen and sixteen), one count of having a concealed weapon, a violation of Penal Code § 12025(a)(2) (count seventeen), and one count of evading a police officer, a violation of California Vehicle Code § 2800.1(a) (count eighteen). (Lodgment No. 17, ECF No. 8-17 at 51-59.) The information also alleged various firearm enhancements, specifically that Rew was armed with a firearm during the commission of the crimes, within the meaning of Penal Code § 12022(a)(1) (counts one, two, seven, nine, twelve, thirteen and fourteen), that Rew personally and intentionally used and discharged a firearm, within the meaning of Penal Code § 12022.53(d) and e(1) (counts one and two), and that Rew personally used a firearm, within the meaning of Penal Code § 12022.5(a) (counts four through six),as well as gang allegations, specifically that Rew committed the offenses for the benefit of, at the direction of and in association with a criminal street...