Wilson v. Woodford, Case No. EDCV 06-0388-CJC(RC).

• Decision Date: 25 January 2010
• Docket Number: Case No. EDCV 06-0388-CJC(RC).
• Parties: Caylie Ryan WILSON, Petitioner, v. Jeanne S. WOODFORD, Director, Bill Lockyer, Respondents.
• Court: U.S. District Court — Central District of California

682 F.Supp.2d 1082

Caylie Ryan WILSON, Petitioner,
v.
Jeanne S. WOODFORD, Director, Bill Lockyer, Respondents.

Case No. EDCV 06-0388-CJC(RC).

United States District Court,
CD. California.

Decided: Jan. 25, 2010.

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COPYRIGHT MATERIAL OMITTED

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Caylie Ryan Wilson, Lancaster, CA, pro se.

Anthony Da Silva, CAAG Office of Attorney General of California, San Diego, CA, for Respondents.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

GEORGE H. WU, District 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, 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

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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.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable George H. Wu, 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.

BACKGROUND
I

On June 9, 2004, in San Bernardino County Superior Court case no. FSB039256, a jury convicted petitioner Caylie Ryan Wilson of one count of attempted murder in violation of California Penal Code ("P.C") §§ 664/187(a) (count 1), one count of attempted carjacking in violation of P.C. §§ 664/215 (count 2), and one count of possession of a short-barreled rifle in violation of P.C. § 12020(a) (count 3), and, as to counts 1 and 2, the jury found petitioner intentionally and personally discharged a firearm proximately causing great bodily injury within the meaning of P.C. § 12022.53(d); however, as to count 1, the jury found it not to be true that the attempted murder was willful, deliberate and premeditated. Clerk's Transcript ("CT") 183-84, 192-97; Reporter's Transcript ("RT") 528:7-531:25. The petitioner was sentenced to the total term of 34 years and eight months to life in state prison. CT 203-04, 208-09; RT 542:7-544:11.

The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 205, which affirmed the judgment in an unpublished opinion filed October 13, 2005, 2005 WL 2592727. Lodgment no. 7. On November 4, 2005, petitioner sought review from the California Supreme Court, which denied review on December 21, 2005. Lodgment nos. 8-9.

II

The California Court of Appeal, in affirming petitioner's judgment, made the following factual findings: ¹ At about 6:15 in the evening of May 3, 2003, George Vignon was returning to his apartment on West 21st Street in San Bernardino when he noticed a man sitting on the curb in a slouched position with his knees up to his chin. The man was wearing a black hooded sweatshirt and dark jeans. Vignon drove past the man to his garage, got out of his car, and unlocked and opened his garage door. He backed his car into the garage, got out, and went to the back of his car to unload his groceries. Out of the corner of his eye, he saw the man standing-near the front wheel of the driver's side of the car. The man was pointing a short rifle towards Vignon's head. Vignon dropped his keys on the ground. The person thumped the hood of the car twice and said, "Put the keys on top of the car." Vignon replied, "If you are going to shoot, go ahead and shoot." The person again told Vignon to put the keys on top of the car. A few seconds later, Vignon heard a bang and felt pain. He realized he had

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been shot. The shooter disappeared. The shooter never took the keys or attempted to get into the car.

Officer John Combado responded at 6:21 p.m. to a report of the shooting. He saw Vignon standing outside his garage holding his head, which was bleeding profusely. Combado found an expended.22-caliber bullet on the pavement outside the garage and a.22-caliber cartridge on the rim of the left front tire of Vignon's car. Vignon told Combado that a white man in his mid-20's, wearing a black pullover shirt, and black pants, had shot him.

Vignon was transported to the hospital. A CAT scan showed that he had received a gunshot wound to the left side of his face. The bullet shattered the cheek bone and the bone underneath the eye socket and had traveled to underneath the right jaw. The shot had nearly killed him, in that the carotid artery had suffered some damage. The bullet shattered into fragments, and the doctors were unable to remove all of the fragments because doing so might have caused more damage.

Between 11:30 p.m. that night and 3:50 a.m. the next morning, Vignon was given a combination of morphine sulfate and Ativan. Ativan is an anti-anxiety medication that may cause grogginess and may cause amnesia. Vignon identified petitioner at the emergency room as the shooter.

Police Officers Daniel Gomez and Eric Fyvie responded to a report that the shooter had last been seen in the area of Highland Avenue and 21st Streets and "E" and "D" Streets. In that area, the officers saw a man matching the description of the shooter. Fyvie got out of the car and chased the suspect on foot. Gomez backed up the police car, and he saw the suspect approach him pointing a sawed-off rifle. Gomez pulled his car out of the line of fire, got out of his car, and pointed his own rifle at the suspect, who ran away and dropped the rifle.

The officers lost sight of the suspect, so they sealed off the block and began a search of the area. At 416 West 21st Street, the officers saw that the front door had apparently been forced open. Several officers and the SWAT team entered the house and announced their presence. Petitioner eventually came out and was arrested at 6:49 p.m. Petitioner was no longer wearing a hooded sweatshirt, but during a search of the house, the officers found a black hooded sweatshirt in the bedroom and a dark Pendleton shirt in the closet. When petitioner was booked, the officers found an unexpended.22-caliber cartridge of the same type found at the shooting scene in his pants pocket. The owner of the house testified that petitioner had not had permission to enter the house, and the clothing found there did not belong to any resident of the house.

Gomez later found two live.22-caliber cartridges at the location where he had seen the suspect point the rifle at him. Gomez was in the area of the perimeter the entire time, and he and other officers watched the area to make sure no one came into or left the area.

Officer George Gabera retrieved the rifle, a sawed-off.22-caliber rifle, from where petitioner had dropped it. The rifle was damaged; wire held the wood stock to the rifle, and the handheld portion of the stock was separated. No fingerprints were found on the rifle. The rifle had an overall length of 21 1/4 inches and a length of 11 3/4 inches from the chamber to the end of the barrel.

Officer John Echevarria saw Fyvie chasing the suspect on foot at about 6:24 p.m. The suspect held a gun and was manipulating the trigger area. The suspect put the barrel of the gun into his mouth and began pulling the trigger. Echevarria yelled at

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him to not shoot himself, but the suspect ignored him and continued to pull the trigger. Echevarria then saw the suspect run down the alley. Echevarria also saw petitioner pointing the rifle in Gomez's direction.

Officer Jennifer Fawcett interviewed Vignon at the hospital on May 3. Vignon stated he was afraid of the assailant and had dropped his keys at the back of his car. The assailant demanded the keys twice. Vignon tried to leave the garage, and the assailant asked for the keys again and then shot Vignon.

III

On April 10, 2006, petitioner, proceeding pro se, filed the pending petition for writ of habeas corpus under 28 U.S.C. § 2254, and on May 30, 2006, respondents filed their answer. On August 2, 2006, petitioner filed his traverse.²

The petition raises the following claims:

Ground One—"Petitioner's right to a fair trial was prejudiced by the introduction of incurably prejudicial evidence." (Petition at 5, 10-11);

Ground Two—"The evidence was insufficient to support petitioner's conviction of count two." (Petition at 5, 12-14); and

Ground Three—"The imposition of an upper term sentence violated Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)] and violated the Sixth Amendment right to jury trial." (Petition at 6, 15-17).

DISCUSSION
IV

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—[11] (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 [11] (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). Further, under...