Ross v. Felker
| Decision Date | 30 October 2009 |
| Docket Number | Case No. CV 07-0390-MMM(RC). |
| Citation | 669 F.Supp.2d 1135 |
| Parties | David K. ROSS, Jr., aka David Kelvin Ross, Jr., Petitioner v. T. FELKER, Warden, Respondent. |
| Court | U.S. District Court — Central District of California |
David K. Ross, Jr., Eloy, AZ, pro se.
Bradley A. Weinreb, CAAG Office of Attorney General of California, San Diego, CA, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE 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 for writ of habeas corpus and dismissing the action with prejudice.
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.
This Report and Recommendation is submitted to the Honorable Margaret M. Morrow, 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.
On March 19, 2004, in Riverside County Superior Court case no. SWF001420, a jury convicted petitioner David K. Ross, Jr., aka David Kelvin Ross, Jr., of one count of attempted unpremeditated murder in violation of California Penal Code ("P.C.") §§ 664/187 (count 1), one count of shooting at an occupied vehicle in violation of P.C. § 246 (count 2), one count of possession of a loaded firearm in a vehicle in violation of P.C. § 12031(a)(1) (count 4), one count of possession of a concealed firearm in a vehicle in violation of P.C. § 12025(a)(1) (count 5), and one count of providing false information to a peace officer in violation of P.C. § 148.9(a) (count 7); as to count 1, the jury found petitioner personally discharged a firearm in commission of the offense within the meaning of P.C. § 12022.53(c); and, as to counts 1 and 2, the jury found petitioner personally used a firearm in the commission of the offense within the meaning of P.C. § 12022.5(a)(1).1 Clerk's Transcript ("CT") 99-107, 185-87. On April 30, 2004, petitioner was sentenced to the total term of 27 years in state prison. CT 207-10.
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 212, which affirmed the judgment in an unpublished opinion filed August 11, 2005, 2005 WL 1907245. Lodgment nos. 2-5. On September 7, 2005, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied the petition on October 19, 2005. Lodgment nos. 8-9.
On August 15, 2005, before petitioner's judgment became final, petitioner, proceeding pro se, filed a habeas corpus petition in the California Court of Appeal, which denied the petition on September 6, 2005. Lodgment nos. 6-7. On September 26, 2005, petitioner filed a petition for habeas corpus relief in the California Supreme Court, which denied the petition on July 19, 2006. Lodgment nos. 10-11.
On July 31, 2006, petitioner filed a habeas corpus petition in the Riverside County Superior Court, which denied the petition on August 10, 2006. Lodgment nos. 12-13. On August 21, 2006, petitioner filed a second habeas corpus petition in the California Supreme Court,2 which denied the petition on March 14, 2007, with citation to In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). Opposition, Exh. A.
The California Court of Appeal, in affirming petitioner's judgment, made the following findings of facts:3 Darrell Harris was acquainted with petitioner and codefendant, Rocco Caccavari. In the evening of October 22, 2002, Harris, who knew petitioner was looking for him, encountered petitioner in an alley off of Latham Street in Hemet, California. Harris and petitioner argued over money that Harris owed petitioner. After the argument ended, petitioner called for codefendant Caccavari, who was further down the alley inside his Jeep. Once Caccavari drove-up, petitioner opened the passenger door, then turned around and pulled out a gun. Petitioner pointed it at Harris and pulled the trigger, but the gun did not fire. Petitioner then got into the backseat, and the Jeep began to drive away and out of the alley.
Caccavari's Jeep then turned around and sped back toward Harris, who was inside his own vehicle and who was following the Jeep out of the alley. As the cars approached, Harris saw muzzle flashes from the gun. Harris did not know whether petitioner pointed the gun at Harris, but he knew it was fired in his general direction. Harris neither saw petitioner place a clip into the gun nor rack it before pulling the trigger. He was also unaware if the gun was loaded. Harris, who was not hit, hastily sped away.
Witness Wildredo Padilla was in the doorway to his house looking out onto the alley when he saw the Jeep and Harris's red car. Padilla observed the Jeep exit the alley and then make a U-turn back towards Harris's car. As Padilla turned, he heard gun shots. Padilla took cover in the doorway, noticing the driver of the red car ducking and trying to steer the car.
Hemet Police Detective Frank Pitette stopped the Jeep a few blocks from the alley, and petitioner denied any knowledge of the shooting. Petitioner, however, provided a false name to the officer. A .25 caliber Beretta was found on petitioner's person, with a bullet chambered and the hammer cocked and ready to fire.
Hemet Police Officer Donald Gardner investigated the scene around 6:40 p.m. on the night of the shooting. He found an expended bullet and four casings in the area. The casings matched petitioner's gun. He found no bullet damage on the exterior of the buildings in the vicinity. Padilla later discovered a waist-high "puncture" in a stucco wall that had not been there before the shooting.
Petitioner claimed there was no ammunition in the gun when he pointed it at Harris and that he then loaded the weapon but only fired it into the air. He presented two witnesses who were with him on the evening of the incident, who testified petitioner only fired the gun into the air and not at Harris's car.
Petitioner also testified and admitted he initially "dry fired" the gun without the clip at Harris's chest to scare Harris and to get him to pay his drug money. He also stated that once he got into the Jeep, he told Caccavari to turn around after they exited the alley because the Jeep was driving in the wrong direction. He then saw Harris leaving the alley; believing that Harris was following them, he grabbed the clip to his gun, put it into the gun, and cocked the hammer. Petitioner claimed that, as the cars passed each other, he fired a round into the ground and then continued to fire several times, but only into the air. Petitioner feared that Harris might have had a gun but admitted that he did not see a gun on Harris. Petitioner also admitted that out of fear he lied to the police about his identity and about the shooting.
On April 4, 2007, petitioner, proceeding pro se, filed the pending habeas corpus petition under 28 U.S.C. § 2254, and on May 22, 2007, respondent filed a motion to dismiss the petition, arguing it is a "mixed" petition containing both exhausted and unexhausted claims. On July 24, 2007, this Court denied the motion to dismiss, and on August 21, 2007, respondent filed an answer. The petitioner filed a reply on October 1, 2007.
The petitioner raises the following claims:
Ground One—"The trial court[] fail[ed] to require the People to elect which assualt [sic] constituted the charged count of attempted] murd[er] in violation of petitioner[']s right to due process" (Petition at 5);
Ground Two—"The trial court imposed an unlawful and illegal sentence enhancement" in violation of petitioner's Fifth, Sixth and Fourteen Amendment rights (Id.);
Ground Three—"The imposition of Penal Code § 12022.53(c) violates petitioner[']s [right against] double jeopardy" under the Fifth Amendment (Petition at 6);
Ground Four—"Ineffective assistance of appeal [sic] counsel [in violation of] 6th Amend[ment] right[s]" in that "counsel on appeal failed to raise": (a) "irregularty [sic] of the enhancements and the insufficiency of the evidence to support"; (b) "sufficiency of the evidence to convict"; (c) "prosecutor[ial] misconduct"; (d) "reasons for imposing enh[ancement] by judge"; and (e) "failure to argue any caselaw [sic] as to the jury not being fully instructed or not being instructed at all as to which enhancement could have been properly found true." (Petition at 6-6a);4 Ground Five—"Ineffective assistance of trial counsel" in violation of petitioner's Sixth Amendment right in that trial counsel failed: (a) "to object to prosecutor[']s misstatements of the evidence during closing argument" and (b) "refused to have charges droped [sic] when prosecutor sought to have charges droped [sic] ... [in] counts IV and V, which are both felonies" (Id.); and
Ground Six— in violation of petitioner's Fifth, Sixth and Fourteenth Amendment rights. (Petition at 6a).
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v....
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