Craig v. Ducart

DONTAYE CRAIG, Petitioner, v. C.E. DUCART, Warden, Respondent.

Case No.: 3:16-cv-02531-GPC-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

July 3, 2019

ORDER

(1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS;

(2) GRANTING CERTIFICATE OF APPEALABILITY

[DKT. NO. 14.]

I. INTRODUCTION

On October 6, 2016, Petitioner Dontaye Craig ("Craig"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his conviction in San Diego Superior Court Consolidated Case No. SCD 225297.¹ Dkt. No. 1, at 1.² The Petition raises a single issue—whether the state trial court violated Craig's constitutional right to Due Process when it denied his request for access to recorded jail telephone conversations of a key witness for the prosecution that Craig subpoenaed. Dkt. No. 1, at 6-7. On February 16, 2017, respondent filed a Response and supporting Lodgments. Dkt. Nos. 11, 12. On March 20, 2017, Craig filed a Traverse³ as to the matters raised in the Response, arguing that access to the recorded jail telephone conversations would have resulted in a different outcome at trial because of the overall "closeness" of the case. Dkt. No. 13.

On November 22, 2017, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California, Magistrate Judge Karen S. Crawford filed a Report and Recommendation ("Report") recommending that this Court deny the Petition. Dkt. No. 14. On May 9, 2018, Craig filed objections ("Objections") to the Magistrate Judge's Report. Dkt. No. 19.⁴ On August 1, 2018, this Court directed Respondent to supplement the record regarding three sealed documents referenced during state court trial proceedings. Dkt. No. 20. As a result of this directive, two packages—issued under seal—were received by this Court. One package, from the trial judge, the Honorable Charles G. Rogers, contained Craig's February 29, 2012 motionto disclose subpoena duces tecum of informant, Dkt. No. 31-1, at 14, and the trial court's March 7, 2012 order denying that motion, Dkt. No. 31-3. The other package, from the California Court of Appeal, Fourth Appellate District, Division One, contained a declaration of Investigator Jon Lane, which had been filed as an exhibit to Craig's motion for reconsideration of a motion to disclose. Dkt. No. 31-2, at 5. After receipt of the aforementioned, the Court caused the documents to be filed under seal to the docket. Dkt. No. 30.

After a thorough review of the issues, supporting documents, and applicable law, the Court ADOPTS the Magistrate Judge's Report, OVERRULES Craig's objections, and DENIES the petition for writ of habeas corpus, but will GRANT a certificate of appealability.

II. FACTUAL BACKGROUND⁵

On the evening of May 23, 2009, Craig and his friends, Marlon Johnson, Frederick Roberson, and Rashad Scott, all active members of the Emerald Hills street gang, went to the Gaslamp Quarter in downtown San Diego. Lodgment 14 at 2, 4. After Johnson, the driver, parked the car near the intersection of E Street and Fifth Avenue, the group walked west together on E Street. Lodgment 14 at 5. In the early morning of May 24, 2009, Craig and his friends encountered rival gang members and a fight began on the crowded street, during which multiple shots were fired. Lodgment 14 at 5-7. A rival gang member, Richard Turner, was shot multiple times and seriously injured. Lodgment 14 at5, 7. Two bystanders were also shot, including Lakeisha Mason, who was killed. Lodgment 14 at 7. Craig and his friends ran back to Johnson's car and drove away. Lodgment 14 at 7.

In March 2010, Johnson was arrested, and after being in jail for more than a year, agreed to cooperate with the investigation and to testify against his friends and fellow gang members in exchange for a guilty plea to voluntary manslaughter and an admission to a gang allegation with a potential prison term of three to eleven years. Lodgment 1-6 at 25; Lodgment 14 at 7-8 n.4.

Although there was other evidence connecting Craig, Roberson, and Scott to the shooting, Johnson was the prosecution's key witness. In video and photographs taken around the time of the shooting, Johnson identified himself, Roberson, and Scott. He also testified that Craig was standing to his left and slightly behind him when the photographs were taken, and in one of the photographs, it appeared that Craig's arm was extended. Lodgment 14 at 8. Johnson also testified that when they were all inside of his car after the incident, he asked who did the shooting. According to Johnson, "Craig, who was in the front seat, was holding a gun and admitted he was the shooter." Lodgment 14 at 8.

There was also some evidence indicating that Roberson was the shooter. Lodgment 14 at 2. Roberson was the first member of the group to initiate the physical fight when he "threw off his hoodie and sucker punched a member of Turner's group." Lodgment 14 at 7. Craig, Roberson, and Scott wore black hoodies. Lodgment 14 at 5. Roberson also wore a gray baseball cap with an "SD" insignia on it. Lodgment 14 at 5. A black hoodie, a gray baseball cap with an "SD" insignia with Roberson's DNA, and four .38-special-caliber bullet fragments were found at the scene. Lodgment 14 at 7. Gunshot residue was found on the hoodie. Lodgment 14 at 7. When Roberson was arrested in August 2010, he had a baseball cap with an "SD" insignia that was nearly identical to the one found at the scene. Lodgment 14 at 7.

III. PROCEDURAL HISTORY⁶

A. Pre-Trial Proceedings

On August 27, 2010, a grand jury returned an indictment against Johnson and Roberson for the murder of Lakeisha Mason; the attempted murder of Richard Turner; and assault with a firearm on James Aldridge under Case No. SCD 225297. Lodgment 5-7 at 26. On June 7, 2011, Johnson signed an agreement to testify for the prosecution against Craig, Roberson, and Scott. Lodgment 3-1 at 74-79. On June 17, 2011, Craig and Scott were arraigned on the same charges under Case No. SCD 234772. Lodgment 5-7 at 27. The case was later consolidated under Case No. SCD 225297.⁷

A preliminary hearing commenced on September 29, 2011, and Johnson, who had been placed in protective custody, testified for the prosecution as agreed. Lodgment 3-1 at 6-7, 12-23, 80-102. His testimony at the preliminary hearing was consistent with his later testimony at trial. Johnson implicated Craig, Roberson, and Scott in the incident and testified that Craig admitted he was the shooter. Lodgment 3-1 at 74 et seq.

On November 14, 2011, two investigators for the prosecution went to the jail and advised the facility commander they wanted to search cells occupied by Roberson and Craig. They were then given access to the cells and were able to "tag and bag" all pieces of mail, letters, envelopes, correspondence, writings, and legal mail belonging to Craig and Roberson in the presence of the facility commander. Lodgment 5-1 at 62-65, 71-72 (Exhibit A). The bag of evidence was then turned over to the prosecution unit for processing.Lodgment 5-1 at 72.

On December 6, 2011, about three months after Johnson testified for the prosecution at the preliminary hearing, Craig served the San Diego County Sheriff with a Subpoena Duces Tecum requesting production of the following documents and information: (1) a list of Johnson's visitors; (2) copies of Johnson's mail and e-mails; (3) a list of Johnson's phone calls; (4) copies of Johnson's recorded phone calls; (5) Johnson's housing records, including names of all cell mates; and (6) all of Johnson's movement records. Lodgment 5-1, part 1 at 30-32. The San Diego County Sheriff complied with the subpoena by delivering the requested materials to the trial court. Lodgment 5-1, part 1 at 24.

The portion of Craig's subpoena that sought access to Johnson's recorded jail calls was extensively litigated in the trial court starting on January 13, 2012 with an "informal conference to address records subpoenaed pursuant to a subpoena duces tecum issued . . . on behalf of [Craig]." Lodgment 1-1 at 9; Lodgment 5-6 at 62. During this initial conference, the trial court asked whether anyone objected to the release of the subpoenaed records to Craig's counsel. The prosecutor said, "I don't object." Lodgment 1-1 at 11. However, the prosecutor and Johnson's counsel indicated it would be necessary for the trial court to conduct an in camera review of the records to avoid the release of any private, sensitive, or attorney-client privileged information. Lodgment 1-1 at 11-12. The trial court indicated it would complete a "quick review" of the records, remove any privileged materials, and release "everything else" to Craig's counsel. Lodgment 1-1 at 13. The trial court added as follows: "My thought is that the record is clear, I don't see what's happening here to be a fishing expedition, and I think that, frankly, the Sixth Amendment right to have counsel be able to function effectively and to confront and cross-examine effectively are implicated here, and I think that unless there is some really strong privilege that would outweigh that, [Craig's counsel] gets them. But I think it would be a good idea if I looked through them in camera." Lodgment 1-1 at 13. In addition, the trial court stated that its"Sixth Amendment comments" were based on the fact that Johnson testified for the prosecution and was cooperating in the case. Lodgment 1-1 at 14.

On January 26, 2012, at the next pre-trial conference, the trial court requested briefing from the parties on the subpoena matter and set the matter for hearing on February 15, 2012. Lodgment 5-1, part 1 at 37. On February 7, 2012, Craig filed a Motion for Order to Disclose. In the Motion, Craig argued that Johnson's recorded jail telephone conversations should be transcribed for an in camera review by the trial court. To the extent the conversations included impeachment or...