Turner v. Neuschmid, 20-cv-06324-WHO (PR)

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE
• Decision Date: 21 March 2022
• Parties: TAJIRI TURNER, Petitioner, v. ROBERT NEUSCHMID, Respondent.
• Docket Number: 20-cv-06324-WHO (PR)

TAJIRI TURNER, Petitioner,
v.
ROBERT NEUSCHMID, Respondent.

No. 20-cv-06324-WHO (PR)

United States District Court, N.D. California

March 21, 2022

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS DKT. NO. 20

WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

INTRODUCTION

Petitioner Tajiri Turner seeks federal habeas relief from his state convictions for robbery and other crimes. His claim of actual innocence is unsupported; his claim that the police used an impermissibly suggestive identification procedure is undone by the reliability of witness's identification and the soundness of the procedure used; his claims of ineffective assistance show neither a deficient performance nor prejudice; and he has not shown that false evidence was presented at trial. The petition for habeas relief is DENIED.

BACKGROUND

In 2016, Turner was convicted by a San Mateo County Superior Court jury of one count of kidnapping to commit robbery, three counts of second degree robbery, two counts of simple kidnapping, and one count of dissuading a witness by threat or force. (Ans., State Appellate Opinion, Dkt. No. 16-28 at 6.)^[1] The jury also found true all sentencing enhancement allegations. (Id.) A sentence of 144 years to life was imposed. (Id.)

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In 2018, on direct appeal, the two counts of simple kidnapping were reversed; the case was remanded to the trial court to modify the abstract of judgment to award 84 days of presentence conduct credits; and the judgment was otherwise affirmed. (Id.) The state supreme court denied Turner's petition for direct review. (Ans., Dkt. No. 16-31 at 2.)

In March 2019, on remand, the superior court dismissed the simple kidnapping counts; imposed sentence on the two counts of second degree robbery that had been stayed; and resentenced Turner to 144 years to life. (Id., Dkt. No. 16-33 at 173-177.) Turner appealed. (Id. at 167.) The state appellate court denied the appeal he filed after resentencing, and the state supreme court denied his petition for direct review. (Id., Dkt. No. 16-40 at 2-3.) Turner's state petitions for collateral review were denied. (Id., Dkt. No. 16-32 at 3-4; Dkt. No. 16-37 at 2; Dkt. No. 16-39 at 2.)

The state appellate court summarized Turner's crimes as follows:

[Turner] was charged with robbing three cell phone stores in San Mateo County using a similar modus operandi. The first such robbery occurred at a Radio Shack in San Bruno on February 13, 2014; the second at another Radio Shack in San Bruno on May 14, 2014; and the third at a Verizon store in San Mateo on September 3, 2014. The prosecution also presented evidence that [Turner] committed three additional cell phone store robberies, in San Francisco, San Mateo and Alameda Counties, respectively

(Id., State Appellate Opinion, Dkt. No. 16-28 at 3.)

As grounds for federal habeas relief, Turner alleges (i) new evidence shows he is actually innocent; (ii) the identification procedure violated due process; (iii) trial counsel rendered ineffective assistance; and (iv) false, manipulated, and planted evidence was presented at trial in violation of due process.

STANDARD OF REVIEW

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), this Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

“Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

“Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” Id. at 409.

DISCUSSION

i. Claim of Actual Innocence

Turner claims that he is innocent of the Verizon store robbery. (Pet., Dkt. No. 1 at 25.) The facts of the crime were summarized by the state appellate court:

On September 3, 2014, Yuanjiun Men was working alone at a Verizon store in San Mateo. [Turner] entered at about 11:00 a.m., wearing a hat and backpack. [Turner] approached the counter and asked Men for information about opening a cell phone account. Men advised [Turner] he would need to visit a different store and, initially, [Turner] turned to leave However, he

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then closed the store door and pointed a gun at Men. [Turner] told Men he wanted all the cell phones in the store. Scared, Men walked toward the back room, as [Turner] placed his hand at her collar. Confused from her fear, Men first took [Turner] to the employee break room, about 19 feet from the front counter, before correcting herself and taking him to the inventory room where the phones were kept, about four feet from the front counter. The inventory room, where the cell phones were kept in a locked closet, had no windows. Once there, Men realized the key to unlock this closet was in a drawer at the front counter, so she walked back to the front counter and retrieved it. Men then returned to the inventory room and complied with [Turner]'s order to unlock the closet and to load the phones into his duffel bag. Once she had placed about 16 or 17 cell phones in his duffel bag, [Turner] told her to leave the inventory room and they walked back toward the break room. At some point during their walk, Men noticed [Turner] looking away, so she took the opportunity to run out the back door, screaming for help. [Turner], in turn, went out the door behind her and escaped in his car. After this incident, Men suffered from constant fear and nightmares.

(Ans., State Appellate Opinion, Dkt. No. 16-28 at 5.)

At trial, several witnesses testified they saw the suspect run or walk to an old green Camaro and drive away. (Id., Reporter's Transcript, Dkt. No. 16-15 at 21, 25, 163-164; Dkt. No. 16-16 at 53, 106-107.) The police found the car about ten minutes after the robbery and stayed to watch it. (Id., Dkt. No. 16-16 at 119-123.) A few hours later, Symone Bullock, with Turner in her passenger seat, drove up to the car. (Id. at 123-128.) He exited the vehicle, walked to the Camaro, and rummaged around via the passenger side window. (Id., Dkt. No. 16-16 at 126-127.) An officer walked toward Turner, identified himself, and yelled “Stop, police.” Turner ran, but was soon apprehended after a chase. (Id. at 128-130, 132; Dkt. No. 16-17 at 27-38.) A set of car keys that fit the Camaro was found on him. (Id., Dkt. No. 16-17 at 131.)

Turner claims that he has new evidence showing he did not rob the Verizon store. (Pet., Dkt. No. 1 at 28.) This evidence is an affidavit from John Sanford, a prisoner at Solano State Prison, who states that he committed the Verizon store robbery. (Pet., Sanford Affidavit, Dkt. No. 1-1 at 2-4.) According to the affidavit, Turner picked Sanford up on the day of the robbery so that Sanford could take Turner's car to a friend to have it fixed. (Id. at 2.) The pair drove to a T-Mobile store “in the San Mateo area” where Turner

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had his cell service reconnected. (Id.) At 10:30am, Sanford dropped Turner off at CSM, where he had business to attend to, and promised to pick him up at noon, after the car had been fixed.^[2] (Id.) Rather than taking the car to be fixed, Sanford drove to “the Verizon store on El Camino Real in San Mateo, ” which he had “case[d]” a few days earlier, and robbed it at gunpoint. (Id.) After the robbery, he parked the car in an alleyway in San Mateo, removed the hat and hoodie he had been wearing and put them in a garbage bag, placed the car keys under the passenger seat, left the phones and the BB gun he had used to simulate a real gun during the robbery, exited the vehicle and took the garbage bag with him. (Id.) When he returned to San Francisco, Sanford sent a message to Turner through Snapchat saying that he “[f]ucked up” and the car was “hot, ” though he did not tell Turner exactly what he had done. (Id. at 3.) He later learned that Turner had been blamed for the robbery at “1701 Gum Street[, ] San Mateo.” (Id.) Sanford avers that he acted alone and that Turner is innocent of the robbery. (Id.)

This evidence failed to convince the state superior court sitting in habeas review:

Petitioner has not presented ‘new evidence.' The purported involvement of John Sanford could have been discovered prior to trial through the exercise of due diligence. According to John Sanford's statement, Petitioner and Sanford were in Petitioner's vehicle at 10:30 am on the morning of the

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