Dean v. McDonald

JERMAINE MICHAEL DEAN, Petitioner, v. M. McDONALD, Respondent.

Case No.: 1:11-cv-00970-LJO-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: February 13, 2014

FINDINGS AND RECOMMENDATION TO

DENY PETITION FOR WRIT OF HABEAS

CORPUS (Doc. 3)

ORDER DIRECTING THAT OBJECTIONS BE

FILED WITHIN TWENTY-ONE DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of life without the possibility of parole, pursuant to a judgment of the Superior Court of California, County of Stanislaus (the "Superior Court") for his 2007 conviction following a jury trial for, inter alia, first degree murder with special circumstances. The jury also found that Petitioner had suffered two prior felony convictions and that he had used a firearm in the commission of a robbery. Petitioner was sentenced to a term of life without the possibility of parole plus a 25-years-to-life term for the firearm enhancement plus additional five-year terms for each of the two prior felony convictions. (Clerk's Transcript ("CT") 1608; 1610; 1613-1616).

Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth AppellateDistrict (the "5^th DCA"), which, in an unpublished decision, affirmed Petitioner's conviction on June 29, 2010. (Lodged Document ("LD") 4). On August 4, 2010, Petitioner filed a petition for review in the California Supreme Court that was summarily denied on October 13, 2010. (LD 5; 6).

On June 3, 2011, Petitioner filed the instant petition. (Doc. 3). Respondent's answer was filed on September 13, 2011. (Doc. 22). On November 14, 2011, Petitioner filed his Traverse. (Doc. 27). Respondent does not content that any grounds for relief are unexhausted.

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision¹:

I. Prosecution Evidence

The Homicide and Investigation

In March 2002, T. and Jose "JoJo" Ruiz lived with their two children, eight-year-old R. and five-year-old E., in a house on Montilla Lane, a small cul-de-sac in Modesto. Ruiz was known to police as a member of the West Side Boyz, a Norteno gang. He was also known as one of the major distributors of base cocaine in west Modesto, and federal authorities planned to serve a search warrant on his residence within a matter of days. In the year or so before the events of this case, Ruiz regularly bought cocaine by the kilo, cooked the cocaine and turned it into rock form, and then sold the product mostly by the ounce. According to T., Ruiz did not sell drugs from their residence or keep more than small amounts of cocaine there, although he sometimes prepared, cooked, or packaged the drugs at the house. During the time period, he sometimes had large sums of cash hidden in different parts of the house. There was a safe with an electronic lock in the master bedroom closet. Ruiz usually did not keep any money there, however; instead, he kept a Taurus nine-millimeter semiautomatic pistol in the safe for protection.

Phillip Collins and Ruiz had known each other since about the third grade and, at the time of Ruiz's death, were, according to Collins, "pretty much best friends." T. was acquainted with Collins and was aware that he and Ruiz were in the drug business together. T. felt Collins could potentially be a backstabber to Ruiz.

In July 2000, Collins, having twice sold crack cocaine to an undercover officer and informant, was given the option of getting eight to 10 years in prison or turning in his friend. He chose to turn in his friend and, to that end, signed a contract with the Modesto Police Department that was approved by the district attorney's office. Pursuant to the agreement, Collins was required to buy drugs from Ruiz, Ruiz's brother Javier Ruiz, and another individual in controlled settings, and to testify as needed, in return for which he would plead guilty to one count of selling drugs, and be sentenced to local time and three years' probation. He was required to obey all laws and make all court appearances, and to keep Modesto Police Sergeant Helton advised of his residence and whereabouts. Helton would contact Collins when a purchase was to be made, then tell him from whom to make the buy. Collins would then arrange the deal, buy the drugs, and give the drugs to the police. He was wired for sound during the transactions, and the police gave him money to make the purchases.

Under the supervision of Helton and FBI Agent Tim Hammond, Collins made approximately 20 controlled buys from Ruiz or his associates. The quantities purchased ranged from an ounce to a quarter kilo. Helton considered Collins very reliable and one of the better informants with whom Helton had worked. Federal grand jury indictments were obtained in February 2002, and served in March, with the prosecution of Ruiz's associates concluding in late spring 2003, when they all pled guilty in federal court. According to Helton, Collins would not have been privy to the status of the investigation and would not have been told when arrests and indictments were imminent. He was not to receive any consideration for his participation in the case concerning the Ruiz homicide. Ultimately, Collins never pled guilty to anything or served time in jail, and was told he would not be prosecuted on his case.

In 2002, Collins was acquainted with Trice (known to him as Roach), knew of Nichols (known as Bam or Bam Bam), and came into contact with Dean (known as J Dogg). Collins, who had suffered two felony convictions prior to 2002 and been sent to the California Rehabilitation Center (CRC) for one, had gotten to know Trice during the 13 months both were at CRC. During the time Collins was at CRC, Blood, Crip, and Sureno gang members were there. The Bloods wore red and the Crips wore blue. Trice, who was from the Pasadena Denver Lane Bloods (PDL) and had "Pasadena" and "DL" tattoos, mostly associated with those wearing red, and Collins saw him "throw[ ]" a Blood sign with his hands. Bobby Blueford was also in CRC with Collins and Trice.

As CRC's inmates were all there for drug offenses, they sometimes bragged about the drug crimes they committed or the great connections they had. Collins did so with PDL members. He let Trice and Blueford know that if they were ever in his area, he had a good drug connection in Modesto. He probably told them that he had his main connection, and that the person was his Mexican partner. He also probably talked about the quality of the drugs the man had, that the man was able to get as much as they wanted or needed, and that he would sell it to Collins for a fair price. Collins was talking about Ruiz, but he did not believe he ever mentioned the name to any of the PDL members.

While in CRC, Collins and Trice associated on a daily basis. After they got out of CRC, they ran into each other in Merced, where Trice had family. This was a couple of years before Ruiz was killed. Collins observed Trice making hand-to-hand drug sales. Whenever Trice was coming to Merced from Pasadena, he would give Collins a call and they would get together.

The week before the weekend of Ruiz's murder, Trice called Collins at Collins's home in Atwater and said he was coming down for the weekend and would call when he got into town. Trice came by Collins's house sometime on Friday. Blueford, Dean, and Nichols were with him. They arrived in a silver Lincoln Town Car. The car looked new, and one of them said it was a rental. After some general conversation, the topic turned to drugs. Collins mostly spoke with Trice, who wanted to know how and where to get a quarter kilo of rock cocaine. Trice asked Collins several times that day to hook him up with someone who had that much. Trice asked Collins if Collins could hook them up with Collins's "Mexican homeboy," the connection about whom Collins had talked while in CRC. Trice kept asking when they could go get it and how much it would cost. Collins knew that under the terms of his contract with the police department, the whole deal could be off if he broke the law or sold drugs, so he knew he could not set up the contact. He told Trice he would hook them (appellants and Blueford) up and to give him a call the next day or the day after, but he was just playing Trice. He was drinking at the time, however, and told appellants and Blueford that his connection had a lot of drugs stashed and a lot of money, and the kind and color of his car. Helton had contact with Collins late Friday morning; Collins said nothing about knowing of people who were trying to make buys from Ruiz, even though he was under an obligation to notify Helton anytime there was a possible sale of drugs involving Ruiz. Likewise, Collins did not contact Hammond, his federal handler, although he knew Hammond would be very interested.

Berenice Sanchez lived on Hasley Drive, across the street from the Ruiz home. One or two days before Sunday, March 3, a black, lowered Chevrolet pickup truck drove slowly by and then stopped briefly on Hasley. Its two occupants looked at the Ruiz house. A little while later, another vehicle—a newer, possibly four-door, light-colored or grayish or white Lincoln with tinted windows—did the same thing, although this one stopped around the corner. This was odd, because usually someone turning into the cul-de-sac by mistake would just drive on around in a U-turn and go back out.

On Saturday, Collins was at a wedding, but caller identification records on his phone showed that Trice called several times during the day. Collins called him back at least once and said he was busy that day and would call Trice back. Trice was calling too much, "bugging" Collins about drug sales. Collins did not know whether Trice called on Sunday; it was Collins's daughter's birthday, and Collins was away from home all day.

Around 8:00 p.m. on

...