Townsend v. Neuschmid
| Decision Date | 28 November 2022 |
| Docket Number | 1:22-cv-00590-ADA-SKO (HC) |
| Parties | TABARRI TOWNSEND, Petitioner, v. ROBERT NEUSCHMID, Respondent. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [THIRTY DAY OBJECTION DEADLINE]
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 18, 2020, Petitioner filed the instant habeas petition challenging a Fresno County Superior Court conviction for multiple felonies. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.
On August 13, 2015, Petitioner was convicted by jury trial in the Fresno County Superior Court of two counts of attempted murder (Cal. Penal Code §§ 664/187(a)), two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)) one count of shooting at an occupied vehicle (Cal. Penal Code § 246), and one count of possession of a firearm by a felon (Cal. Penal Code § 29800(a)(1). (Doc. 12-2 at 211, 213.[1]) Various firearm enhancements were found true. (Doc. 122 at 211, 213.) On September 24, 2015, Petitioner was sentenced to an aggregate prison term of 80 years to life. (Doc. 12-2 at 211, 213.)
Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On February 15, 2018, the Fifth DCA vacated the sentences on counts 1 and 2 and remanded the matter to the trial court for resentencing on those counts. People v. Townsend, 2018 WL 898094 (Cal.Ct.App. Feb. 15, 2018). In all other respects, the judgment was affirmed. Id. Petitioner filed a petition for review in the California Supreme Court. (Doc. 12-14 at 1-36.) Review was denied on May 16, 2018. (Doc. 12-15 at 1.)
In December 2018, Petitioner was resentenced. People v. Townsend, No. F078604, 2021 WL 2351171, at *1 (Cal.Ct.App. June 9, 2021). As to count 1, Petitioner received a term of life with the possibility of parole, plus 20 years for a firearm enhancement (Cal. Penal Code § 12022.53(c)). Id. In count 2, Petitioner received a term of life with the possibility of parole, plus 20 years for a firearm enhancement (Cal. Penal Code § 12022.53(c)). Id. In count 6, the upper term of three years was imposed, which was to run concurrently to count 1. Id. On February 11, 2019, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Doc. 12-16.) The petition was summarily denied on June 12, 2019. (Doc. 12-17.)
On June 9, 2021, the Fifth DCA affirmed the resentencing. (Doc. 12-20.)
On May 18, 2022, Petitioner filed the instant petition for writ of habeas corpus, raising 12 grounds for relief. (Doc. 1.) On July 7, 2022, Respondent filed an answer to the petition. (Doc. 14.) Respondent contends claim 6 is procedurally defaulted and claim 12 is unexhausted. Respondent also contends all claims are without merit. On October 3, 2022, Petitioner filed a traverse. (Doc. 22.)
In the early morning hours of June 29, 2014, sometime after 2:30 a.m., Cecilia Hernandez and Jose Mendoza, her boyfriend, were sitting in Mendoza's vehicle. They were parked on the street in a residential neighborhood in the west side of Fresno. Hernandez was sitting on Mendoza's lap in the driver's seat. The driver's door was open. While they spoke, a vehicle drove past them and then returned, stopping parallel to them. The other vehicle's passenger side faced them. Three men were in the vehicle.
At trial, both Hernandez and Mendoza identified Petitioner as the rear passenger in the suspects' vehicle. They both testified that Petitioner held a gun with an attached laser beam, which he aimed at Mendoza's head. They both testified at trial that the front passenger also held a gun, which he aimed at them.
The three suspects asked Mendoza several times where he was from. They asked Mendoza if he was from Strother or Eden.[3] Petitioner asked if Mendoza was a Strother gang member, which Mendoza denied.[4] Petitioner said that Mexicans were going to die. Hernandez began crying and begging for her life. The suspects told her to shut up and they opened fire.
Bullets struck Hernandez in her abdomen, leg and an arm. Mendoza was shot in his arm and on his side. The suspects left “seconds later.” Mendoza called 911 and law enforcement responded at approximately 2:50 a.m. Hernandez and Mendoza were transported to a local hospital.
Mendoza's injuries were not life threatening; he was treated at the emergency room and released without surgery. Hernandez, however, underwent surgery and she was unconscious on life support for about one week. She remained hospitalized for almost two months. She was unable to walk for six months. At Petitioner's trial, she was still going through physical therapy, and taking medications for anxiety and depression. She walked with a noticeable limp.
At trial, both Hernandez and Mendoza identified Petitioner as one of the two shooters. They were both certain of their identifications and said the other shooter was the front passenger.
At trial, the prosecution offered evidence that corroborated, to some degree, the victims' identifications. Based on expended cartridge casings at the shooting scene, two handguns were used in this shooting: a .45-caliber and a .9-millimeter.
After law enforcement responded to the shooting scene, other officers were on patrol at approximately 3:00 a.m. These officers spotted a vehicle that matched Mendoza's description of the suspects' car. After a brief pursuit, police took three occupants into custody: Abdray Valentine was the driver; Eric Hughley was the front passenger; and Petitioner was the rear passenger. At trial, both Hernandez and Mendoza identified a photograph of this vehicle as the shooters' car.
Police located a .45-caliber handgun under the front passenger seat of the shooters' vehicle. The recovered .45-caliber handgun did not have an attached laser beam. However, it had a railing system that permitted a laser to be attached. No other firearm was located inside that car. Subsequent testing linked this recovered .45-caliber handgun to this shooting.
At trial, the jury learned that the suspects did not immediately yield to police when officers activated their lights and sirens. The suspects drove into a dark business area before stopping. The officers did not see the suspects throw anything from the vehicle, but it was possible they did so without being seen.
Police tested the suspects for gunshot residue. Valentine (the driver) had no residue on his hands. Hughley (the front passenger) had one particle “consistent” with gunshot residue on his hands (that is, it contained two out of three possible component metals) and he had one particle “characteristic” of gunshot residue (that is, it contained all three of the required metals of lead, barium and antimony). Petitioner had no particles “characteristic” of gunshot residue on his hands, but he had one particle “consistent” with gunshot residue (that is, it contained lead and antimony) on his non-dominant right hand.
During cross-examination, the prosecution's gunshot residue expert agreed that gunshot residue would “fly everywhere” inside a vehicle if a person fired a gun from that vehicle. It was possible gunshot residue would get onto surfaces in the vehicle, such as a seat, and a person could touch that seat and pick up the residue.
Although police never recovered the second gun involved in this crime, they recovered both .45-caliber and .9-millimeter expended cartridge casings from the shooters' vehicle. The expended .9-millimeter cartridge casings were recovered behind the rear passenger seat where Petitioner had been sitting. These casings matched the .9-millimeter casings found at the shooting scene.[5]
Prior to trial, Mendoza met with investigating detectives. Mendoza identified Petitioner from a photographic lineup. He also identified Valentine and Hughley. He was “certain” when making his pretrial identifications. Mendoza was able to tell the detectives where the suspects were sitting in the vehicle.
Prior to trial, law enforcement conducted an experiment at night at the scene of this crime to determine if sufficient light existed for the victims to see the shooters' faces. Officers positioned two vehicles parallel to each other in a similar fashion as occurred in this incident. A participating officer testified at trial that the lighting conditions at that location were sufficient for a person situated in Mendoza's vehicle to make a positive identification of a potential suspect in the adjoining vehicle. During cross-examination, however, the officer acknowledged that he was familiar with the detective who sat in the adjoining vehicle during the experiment. The other detective was Caucasian and did not have dark skin like Petitioner.
Despite the corroborating evidence, other evidence called into question the reliability of the trial identifications.
On the night of the shooting, Mendoza had consumed about three 24-ounce cans of beer. At the shooting scene, right after calling 911, he told a responding police officer, Nathan Jaime, that the suspects were three or four Black males.[6] He told Jaime that there was only one shooter. While speaking with Mendoza, Jaime noticed a strong odor of alcoholic...
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