Hosley v. Peery

DASHEME KAREME HOSLEY, Petitioner, v. SUZANNE M. PEERY, Respondent.

Case No. 1:15-cv-01374-LJO-JDP

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 29, 2018

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR A WRIT OF HABEAS CORPUS

ECF No. 1

OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS

Dasheme Kareme Hosley is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Hosley raises the following claims for relief: (1) prosecutorial misconduct; (2) improper jury instructions; (3) prejudicial error to post extra security near petitioner during his live testimony; (4) cumulative error; and (5) erroneous denial of post-verdict motion to substitute counsel. ECF No. 1. For the reasons discussed below, we recommend that the court deny the petition.

I. FACTS¹

PROSECUTION EVIDENCE

As of 2008, defendant's mother, Carol Harris, was married to Karl Johnson. The couple resided at a house in the 2900 block of Lincoln Oak in Modesto. Harris was the pastor of a church in Oakland. She often discussed her own life story in her preaching. According to what she said, she overcame a history of drug use and prostitution. During that period of her life, which was when she was raising defendant, she shot and killed her husband (defendant's father) to protect herself from domestic violence. The shooting took place in front of her children, and was very traumatic for them.

On the night of August 29 to August 30, Robert Barnes, Harris, Johnson, Harris's best friend, and Harris's mother, drove from Oakland to the Modesto house. Once there, they started to play dominoes. At first, the mood was good. As time passed, however, tension developed between Harris and Johnson.

Barnes spent about an hour and a half on the front porch, talking on a cell phone. During that time, he heard Harris and Johnson arguing. At one point, Johnson came outside and asked Barnes for a cigarette. Barnes could tell he was upset. Johnson then went back inside. Barnes heard Harris say something like, "You want to challenge me?" Then she turned over a coffee table in the front living room and threw it at Johnson. Johnson tried to block himself from the table and candlestick holder coming at him, then he grabbed Harris with both hands on her upper bicep area near the shoulders and sat her forcefully down on the couch in the living room. She got up swinging with closed fists, and Johnson did it again. He was saying, "Is this what you want me to do? Is this what you want me to do?"

Barnes came inside and asked Johnson what was going on. Johnson never swung at or hit Harris in Barnes's presence, but merely sat her on the couch. Johnson asked for the keys to his car so he could leave. Harris refused.

Harris went upstairs to her room. A short time later, Barnes heard her on her cell phone, saying she was "this little bitty old woman and this big old man is over here beating on her." She said she was afraid for her life. At some point, Harris told Johnson, "That's all right," "I called my son, and he'll handle this." Johnson responded, "I don't give a fuck," and "Call your mother fucking son. I'm waiting." Johnson, who did not act scared of defendant, asked, "What was hegonna do, shoot me? I'll shoot him back. What's he gonna do, stab me? I'll stab him back. But he ain't gonna beat my mother fucking ass." Johnson had a box cutter tucked in his shorts.

Barnes heard Harris speaking on the phone to Alfred Newton, a close family friend. Harris kept saying, "I know. I know[,]" and that she could not get on "his" line because the phone was off. Barnes thought defendant was coming to the house. Concerned about the potential for violence, Barnes told Harris she had "fucked up" and needed to get on the phone and tell defendant not to come. She said she knew, and she tried to call, but defendant's phone was off.

In 2008, Desamona Crowder was involved in an on-again, off-again relationship with defendant, with whom she had a child. Defendant and Alisia Brown stayed in a residence in San Leandro, and Crowder also stayed there a few times.

On the night of August 29 to 30, defendant, Crowder, Crowder's daughter, Brown, and Lamar Vincent were "[h]anging out" at the San Leandro residence. Everyone except Brown was ingesting cocaine. At some point during the evening (Crowder believed it was sometime between 10:00 p.m. and 1:00 a.m.), defendant received a call from Harris. He told Crowder that Harris was crying and said she and Johnson had gotten into an argument.

After the telephone call, defendant kept trying to call Harris back, but he was unable to reach her. He grew irritated and frustrated, wondering why she called, crying, and suddenly could not answer her phone. About 30 minutes after Harris called, defendant told Crowder he wanted to go to Modesto to check on her. Crowder did not have a car, so she texted George Willoughby that "something went down." She added "911" to indicate it was an emergency.

Willoughby left his job sometime after 1:00 a.m. and drove to the San Leandro residence. Defendant told him that Johnson had hit Harris. When defendant, Crowder, and Vincent got into his car, Willoughby assumed they were going to the house to get Johnson "off Harris, although he had never known Johnson to be violent and had only rarely heard him raise his voice to Harris. He knew Harris had shot defendant's father in front of defendant, and that it had had a profound effect on defendant, who was extremely protective of Harris.

During the drive to Modesto, those in the car were upset Harris had been hit. Crowder saw defendant spin the cylinder of, and dry fire, a silver revolver. Willoughby saw defendant going through different caliber bullets he had in his sock and putting about six in the gun. Willoughby thought they were going to fight Johnson and defendant would be the first person to hit him, but believed defendant was just going to use the gun to scare Johnson.

At some point after Harris telephoned him, but (according to Crowder's recollection) before the shooting, defendant said to Crowder, "Why did she call me and tell me this? What did she think I was going to do?" Crowder alsorecalled someone in the car receiving a call from Harris, saying that things had worked out and it was "just a gin night." In addition, defendant received a call from Barnes, who tried to convince defendant that everything was okay and not to come to Modesto.

Willoughby, a fast driver, estimated it took about 30 minutes to get from San Leandro to Modesto. When they arrived at Harris's house, Willoughby parked at the curb in front of the house. According to Crowder, the house was dark. According to Willoughby, however, the front porch and stairwell lights were on.

According to Barnes, he, Johnson, Harris, and Harris's friend were upstairs in the master bedroom, discussing a class Harris had to teach at church the next day, when Johnson said it sounded like someone was at the door. Harris told Johnson, "You bad. Go answer it." Johnson went to answer the door, and Harris left the room 10 or 20 seconds later. Barnes went to the window and called down, "It's not that serious, you know, you need [to] go home."

When Johnson opened the door, Barnes heard him say, "No, no, no." Barnes heard a gunshot and saw a flash. Barnes went downstairs. He saw blood at the bottom step that led through to the back living room and kitchen. Johnson was lying on the carpet and the linoleum. He was bleeding from the stomach area. He and Harris professed their love for each other, then Johnson fell silent. Barnes got some towels to hold against his wound, then called 911. Harris told him not to say Johnson had been shot.

Crowder recalled that she got out of the car and rang the doorbell, then, when nobody answered, the others got out of the car. Willoughby and Vincent remained near the vehicle, but defendant went up to the doorway and knocked on the window next to the door. Crowder and defendant remained in the doorway for about five minutes, then Johnson opened the door and asked defendant, "What's up?" Crowder did not see anything in his hands. Defendant responded, "What do you mean?" Although his voice was calm, he appeared shocked that Johnson answered the door instead of Harris. Johnson raised his hands with his fists closed, although he did not swing at defendant. Crowder did not see defendant pull anything from his pocket or see anything in his hand, but she saw a flash in between defendant and Johnson. Johnson was in the doorway; defendant was outside the house. Johnson fell backwards, about three feet inside the house. He said he did not want to die and he pleaded with defendant not to kill him. Johnson was sitting on the floor, slumped against the couch and holding his stomach. Crowder then saw defendant holding the gun he had previously had in the car. He was pointing it at Johnson's face. Defendant was about a foot away from Johnson. Harris came down the stairs, screaming and crying. She pushed defendant away from Johnson.

Crowder urged defendant to leave, then ran to the car. Willoughby was already in the driver's seat, and the others got in. The group returned to San Leandro, stopping only at a gas station on the way. Defendant talked to hisbrother and told him what had happened, and that Johnson was still alive when they left. When they arrived at the San Leandro apartment, Brown, defendant's brother, and some other people were there. Defendant's brother was drunk and laughing about what happened. Crowder told police defendant was not happy about this. He said several times that he hoped Harris did not move Johnson, because the bullet would move and might kill him. Crowder also told police defendant said he did not want to kill Johnson, just mark him with a bullet.

According to Willoughby, defendant got out of the car first and went to the front door, and the others followed. Defendant rang the doorbell, then, when no one answered, started knocking. He was

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