Sithy Bin v. Hill

• Decision Date: 07 March 2014
• Docket Number: Case No.: 1:11-cv-01724-LJO-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: SITHY BIN, Petitioner, v. RICK M. HILL, Respondent.

SITHY BIN, Petitioner, v. RICK M. HILL, Respondent.

Case No.: 1:11-cv-01724-LJO-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: March 7, 2014

FINDINGS AND RECOMMENDATIONS TO

DENY PETITION FOR WRIT OF HABEAS

CORPUS (Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE

FILED WITHIN TWENTY-ONE DAYS

Petitioner is a state prisoner proceeding pro se/through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation serving an indeterminate sentence of forty years-to-life. The sentence was issued by the Stanislaus County Superior Court of California following his 2008 conviction by a jury of: (1) shooting at an inhabited building (Cal. Pen. Code § 246); ((2) assault with a semiautomatic firearm (Cal. Pen. Code § 245(b)); and (3) active participation in a criminal street gang. (Cal. Pen. Code § 186.22(a). (Clerk's Transcript on Appeal ("Volume CT") 364-367). The jury also found true a firearm enhancement related to each substantive conviction, pursuant to Cal. Pen. Code § 1022.5. (Id.).

Petitioner filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the"5^th DCA"), which issued an unpublished decision and affirmed Petitioner's conviction on September 24, 2009. (Doc. 18, Lodged Documents ("LD") 4, Ex. A.). On January 13, 2010, the California Supreme Court denied his petition for review. (LD 5).

On April 20, 2010, Petitioner filed a state habeas corpus petition in the Superior Court that was denied on June 30, 2010.) (LD 9, Ex. B). On August 19, 2010, Petitioner filed a habeas petition in the 5^th DC A that was denied on October 21, 2010. (LD 10). On December 8, 2010, Petitioner filed a state habeas petition in the California Supreme Court that was denied on May 18, 2011. (LD 11).

On October 17, 2011, Petitioner filed the instant petition. (Doc. 1). Respondent's answer was filed on January 18, 2012. (Doc. 12). On March 19, 2012, Petitioner filed his Traverse. (Doc. 15). Respondent concedes that the all grounds for relief in the petition have been fully exhausted. (Doc. 15, p. 9). However, Respondent contends that ground one is procedurally defaulted because the state court denied the claim for violating an adequate and independent state rule. (Id.).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision¹:

The family of T.Y. was having a barbecue at their residence (the residence). One of the guests was C.H. C.H.'s boyfriend was S.S. Before S.S. arrived at the barbecue, C.H. decided to go for a ride in the vehicle of another guest, Rathana Reach. C.H. was with Reach when S.S. arrived at the barbecue. When C.H. returned, a confrontation ensued between S.S. and Reach. Angry words were exchanged and then Reach walked toward his vehicle. As Reach approached his vehicle to leave, he exclaimed that he had a bullet waiting for S.S. About an hour later, Reach was observed repeatedly "speeding up and down the street" in front of the residence.

Several hours later, Reach returned to the residence with H.T. and P.N. in his vehicle. A white Mustang with four other people inside arrived at the same time. Rithy Khe was the driver of the Mustang, and Bin and two females were passengers in the vehicle.

Bin, Khe and the two girls headed to the front of the driveway. S.S., T.Y., and his brother, S.Y., approached the group of four. Angry verbal exchanges ensued. S.S. and S.Y. were telling the others that they did not want any trouble at their house. Khe was saying things like "C-dubb" and "why you trying to disrespect C-dubb." The girls also were yelling "C-dubb."

The group of four then returned to the white Mustang. S.S. followed and Bin hit S.S. in the back of the head. T.Y. and his brother went to the aid of S.S. T.Y. saw one of the girls pull out a gun and fire it into the air. T.Y. fell to the ground. When he looked up he saw Bin grab the gun from the girl's hand. Bin began firing the gun towards the residence. The people in front of the residence also fell to the ground. Bin then returned to the Mustang. Khe got into theMustang and drove away with his passengers. Reach returned to his vehicle and drove away with his passengers. T.Y.'s aunt was injured by one of the bullets. T.Y. denied that Khe attempted to calm the situation, recalling only gang-related statements.

P.N. admitted being a member of the Crips With Attitude (CWA) gang. On the day of the shooting, P.N. was at Bin's house for a few hours with Bin, Khe, Bin's brother, Bin's girlfriend, H.T., and another female. Reach drove up, parked his vehicle, and approached the group. Reach said he had dropped off S.S.'s girlfriend at the barbecue and S.S. became upset. The group decided to return to the barbecue and talk to them to solve the problem. They knew that the younger people at the barbecue belonged to a different gang, the Devils of the North (DOTN).

Everyone got out of their respective vehicles when they arrived at the barbecue. The two groups approached each other. P.N. intended to fight one of the other group members and was yelling "C-dubb." No one else was saying any other gang phrases. P.N. and his gang decided to leave for the park where the two groups could talk some more and probably fight. As P.N.'s group approached their vehicles, S.S. approached, holding an empty 40-ounce bottle of beer. Bin hit S.S., apparently believing S.S. was going to attack him with the beer bottle. A fight ensued, including many gang taunts. During the fight, P.N. heard gunshots and headed for a car. When he got to the car, he saw a girl shooting a gun into the air. The car he was in drove off and he did not see what happened to the gun. P.N. did not know where the second vehicle went. P.N. testified the second vehicle was a primer gray Honda driven by one of the girls. Khe was not the driver of the vehicle.

P.N. admitted being interviewed by an officer about the shooting, but he claimed he was drunk and high on ecstasy and did not know how he had answered the questions posed to him.

N.P. was attending the barbecue when she observed two vehicles arrive, a white Mustang and a small black Honda. The occupants of the vehicles got out and an argument ensued. Eventually a fight broke out between the two groups. N.P. observed a girl pull out a gun and start shooting into the air. A guy then grabbed the gun from the girl and started shooting towards the residence. After about five to seven shots at the residence, the group got into their vehicles and left. N.P. was not able to identify the individual shooting the gun or who was involved in the fight.

S.S. confirmed that when he arrived at the barbecue, his girlfriend, C.H., was not present because she was riding in Reach's vehicle. S.S. was upset when Reach and C.H. returned, and he exchanged heated words with Reach. Reach then left.

Reach returned later that evening driving his car and accompanied by a white Mustang. Six to eight people exited the two vehicles. Khe was driving the Mustang. The two groups approached each other and words were exchanged. Reach's group wanted to fight, so it was suggested that the two groups proceed to the park. Gang-related statements were made by both groups. When S.S. approached Khe to state that he did not want to fight, he was hit by Bin. That is when the fight began.

A short while later a female started shooting a gun into the air. When S.S. looked up again, he saw Bin with the gun shooting at the residence and the people standing near it. After the shooting stopped, the group got back into their vehicles and left. Khe drove away in the Mustang. S.S. heard Khe attempt to calm things down. He did not hear Khe make any gang-related statements.

Ten nine-millimeter casings were recovered from the scene. Ballistics testing established that the casings were fired from a Glock semiautomatic handgun located during a search of Bin'shouse.

The information charged Bin, Khe, and Reach with attempted murder (§§ 187, 664), discharge of a firearm at an inhabited dwelling (§ 246), assault with a semiautomatic firearm (§ 245, subd. (b)), and active participation in a criminal street gang (§ 186.22, subd. (a)). In addition the following enhancements were alleged: (1) in counts I and II it was alleged that each defendant was a principal in the offense, and at least one principal in the offense personally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d); (2) in counts I, II, and III it was alleged the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b); (3) in counts III and IV it was alleged that Bin personally used a firearm within the meaning of section 12022.5, subdivision (a); and (4) for each count it was alleged that Khe had a prior conviction that qualified as a strike within the meaning of section 667, subdivision (d).

The jury found Bin not guilty of attempted murder. Bin was found guilty of shooting at an inhabited building (§ 246), assault with a semiautomatic firearm (§ 245, subd. (b)), and participation in a criminal street gang (§ 186.22, subd. (a)). For the shooting at an occupied building count, the jury found true the allegation that a principal personally used a firearm causing great bodily injury (§ 12022.7), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). For the assault with a firearm count, the jury found true the allegation that Bin personally used a firearm (§ 12022.5, subd. (a)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).

The jury found Khe not guilty of attempted murder, discharge of a firearm at an inhabited dwelling, and assault with a semiautomatic firearm (counts I, II, and III). Khe was found guilty of active participation in a criminal street gang. The jury found Reach not guilty of

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