Brown v. Gastelo

1

JOHN CHRISTOPHER BROWN, Petitioner, v. JOSIE GASTELO, Respondent.

No. 2:20-cv-02051-FLA-MAR

United States District Court, C.D. California

March 15, 2023

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HONORABLE MARGO A. ROCCONI UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Fernando Aenlle-Rocha, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I. SUMMARY OF RECOMMENDATION

John Christopher Brown (“Petitioner”), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C § 2254 (section 2254) challenging his 2017 conviction. ECF Docket No. (Dkt.) 1-1 at 2. ^[1]

Respondent filed an answer (“Answer”), arguing that Petitioner is not entitled to relief. Dkt. 48 at 7-29. For the reasons below, the Court recommends DENYING the Petition.

II. PROCEDURAL HISTORY

A. STATE COURT PROCEEDINGS

On April 27, 2017, following a jury trial in the Los Angeles County Superior Court, Petitioner was found guilty of first-degree murder (Cal. Pen. Code § 187(a)) and premeditated attempted murder (Cal. Pen. Code § 664(a)). Dkts. 1 at 2; 10-3 at 5.^[2] The jury also found true a firearm enhancement. (Cal. Pen. Code § 12022.53(c)- (d)). Id. Petitioner was sentenced to 114 years to life. Dkts. 1 at 2; 49-16 at 4.

Petitioner and co-defendant appealed and on February 16, 2019, in case number B282339, the California Court of Appeal affirmed the convictions and remanded the matter for the trial court to determine whether to strike any enhancements imposed under Cal. Pen. Code sections 667(a)(1) and 12022.53, pursuant to newly enacted statutory provisions allowing courts to strike such enhancements. Dkt. 10-3. Petitioner filed a petition for review in the California Supreme Court in case number S254631, which was denied on March 29, 2019. Dkts. 10-4; 49-15.

On remand, the trial court declined to strike any enhancements; Petitioner appealed a second time, and on March 18, 2021, in case number B306915, the Court of Appeal affirmed the trial court ruling. Dkt. 49-16. Petitioner filed a second petition for review in the California Supreme Court in case number S268458, which was denied on June 9, 2021. Dkts. 49-17; 49-18.

B. FEDERAL HABEAS PETITION

On March 2, 2020, Petitioner filed the instant Petition. Dkt. 1. On April 8, 2020, Respondent filed a Motion to Dismiss contending Petitioner failed to exhaust his state remedies for Claim Four. Dkt. 9 at 4. On July 9, 2020, the Court ordered Petitioner to either request a stay or voluntarily dismiss Claim Four by July 30, 2020. Dkt. 16.

Petitioner failed to meet this deadline, possibly because he may not have received the Court's order. See Dkt. 17 (notice of change of address filed after Court issued order and asking Court for “next step in [his] proceedings”). Accordingly, the Court issued an Order to Show Cause on September 14, 2020, extending Petitioner's deadline to October 5, 2020. Id. On October 1, 2020, Petitioner requested an extension due to COVID-19's impact on Petitioner's access to legal resources. Dkt. 22. On October 29, 2020, the Court granted Petitioner's request and extended his deadline to November 28, 2020. Dkt. 23 at 2. Petitioner requested an additional extension on November 20, 2020, which the Court granted on December 16, 2020, extending Petitioner's time to respond till January 30, 2021. Dkts. 24, 25. However, Petitioner failed to respond, and so, on April 1, 2021, the Court dismissed the Petition, without prejudice, for failure to make any further filings. Dkt. 28 at 2-4.

On April 14, 2021, Petitioner requested reconsideration of the judgment dismissing his Petition, citing limited access to resources due to COVID-19. Dkt. 30. On May 24, 2021, this Court granted Petitioner's motion for reconsideration, setting a deadline of June 30, 2021, to respond. Dkt. 31 at 5. Petitioner subsequently filed a motion for a Rhines stay on Claim Four, explaining that he “didn't claim ground four on 07/09/20 [because he was] financially emb[a]rass[ed.]” Dkt. 32.

On July 28, 2021, the undersigned issued a Report and Recommendation that Claim Four be dismissed as unexhausted. Dkt. 35. On October 5, 2021, the Court accepted the Report and Recommendation and ordered Respondent to Answer Petitioner's remaining three (3) claims. Dkt. 36. After several extensions, Respondent filed an Answer on January 12, 2022. Dkt. 48. Petitioner did not file a traverse.

On May 13, 2022, the undersigned issued a Report and Recommendation that relief be granted on Claim One. Dkt. 55. The District Judge did not adopt the Report and Recommendation and remanded the Petition back to the undersigned for consideration of Claims Two and Three. Dkt. 61.

III. SUMMARY OF FACTS

The California Court of Appeal summarized the facts as follows:

A. The Incident

Ballard was at one time in a romantic relationship with Faviana Richardson, who by January 2015 was engaged to Johnny Jones. In January 2015, Ballard posted negative comments about Richardson on social media.

On the evening of January 17, 2015, Richardson and several friends went to the home of Ballard's current girlfriend, Toni Cook, and demanded to see Ballard, who was asleep in a back room. Cassie Jones (no relation to the victim) and Shakira W. answered the door and said Ballard was not home. After Richardson left, Jones informed Ballard about the confrontation, and he telephoned [Petitioner] and asked him to come to Cook's house.

Later that evening Ballard attended a neighborhood barbeque event. Richardson and her group arrived and she and Ballard argued, and at one point Ballard told her, “Fuck You. I'll get you popped. I'll kill you.”

Richardson left the event but later returned and again argued with Ballard, who again said, “I'll kill you.”

Ballard left the event and walked back to Cook's residence, where [Petitioner] arrived a short time later. Ballard and [Petitioner] then returned to the barbeque, where they confronted Richardson.

With [Petitioner] standing next to Ballard and Johnny Jones behind Richardson, Ballard and [Petitioner] called Richardson “bitch” several times, to which Jones strongly objected. As he and Ballard prepared to fight, Ballard passed a revolver to [Petitioner] and said, “Kill that bitch.”

[Petitioner] fired a shot at Richardson just as Johnny Jones pushed her out of the way. The bullet struck Jones, killing him.

B. Investigation

After first misidentifying Ballard's “brother,” a man she knew only as “Suge,” as the shooter, Richardson identified [Petitioner], whom she knew as “Smoke,” as the shooter. ^[3]

[Petitioner] was arrested two weeks later. Richardson identified him at the preliminary hearing, testifying she was “100 percent” certain he was the shooter.

C. Trial

Trial was by jury. [Petitioner's defenses were misidentification and alibi. Ballard presented no evidence.

Richardson testified [Petitioner] had accompanied Ballard to the barbeque, received a gun from him, and shot Johnny Jones. She heard the shot and saw the gun flash. When asked, “who pulled the trigger?” She testified, “[Petitioner], whatever.... I looked around and turned around and saw Johnny Jones on the floor, and I also saw [Petitioner] standing over him with the gun pointed on him.” She testified she was “100 percent sure” [Petitioner] was the shooter.

Toni Cook and Shakira W. testified [Petitioner] was known by his moniker, “Smoke,” and had come to their home in response to Ballard's call after Richardson was turned away from the Jones home. However, neither identified [Petitioner] in court as the shooter. Drenae Thomas; a member of Richardson's group, testified “Smoke” was the shooter, but apparently did not identify [Petitioner] in court as Smoke.

Sheriff s Detective Dawn Retzlaff testified that Richardson initially identified “Suge” as the shooter but the next day said it had been [Petitioner]. She further testified that nine months later, in October 2016, Richardson identified [Petitioner] from, a photo array. Retzlaff testified that Toni Cook told her a few hours after the shooting that [Petitioner] had been in her house that night.

Further testimony revealed that Savon Conway, [Petitioner's wife, was at the shooting, as was her car, which [Petitioner] sometimes drove. And cell tower records indicated Conway's cell phone, which [Petitioner] sometimes used, was near the scene at the time of the shooting.

Dkt. 10-3 at 2-4.

IV.

PETITIONER'S CLAIMS FOR RELIEF

Petitioner presents the following remaining claims:

(1) “The insufficiency of the evidence proving appellant was the perpetrator of the charged murder compels a reversal of the judgment” (“Claim Two”); and (2) “Appellant joins his [co-defendant/appellant's] argument that the trial court[']s refusal to instruct on self-defense and imperfect self-defense constitutes reversible error” (“Claim Three”).

Dkt. 1 at 5-6.

V. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless the adjudication:

(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).

“Clearly established Federal law” for purposes of § 2254(d)(1) consists of the “the holdings, as opposed to the dicta, of th[e] [United States...