Jones v. Moss

THEODORE WALTER JONES, Petitioner, v. JOSEPH W. MOSS, Chief of Delano Community Correctional Facility, Respondent.

Case No. 5:18-cv-05698-BLF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

March 3, 2020

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DENYING REQUEST FOR AN EVIDENTIARY HEARING AND DISCOVERY; DIRECTIONS TO CLERK

[Re: ECF 1, 28]

Petitioner Theodore Walter Jones ("Petitioner") petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his state conviction. Pet. for Writ of Habeas Corpus ("Petition" or "Pet."), ECF 1. Chief of Delano Community Correctional Facility Joseph W. Moss ("Respondent") filed an answer on the merits. Mem. P. & A. in Supp. of Answer ("Response" or "Resp."), ECF 21-1. Petitioner filed a traverse. Pet'r's Traverse to Resp't's Ans. ("Traverse" or "Trav."), ECF 26. Petitioner also requested an evidentiary hearing or new discovery on the matter. Req. for an Evid. Hr'g or, in the Alternative, Disc. ("Request" or "Req."), ECF 28. Respondents opposed the Request, and Petitioner replied. Opp'n to Req. ("Opposition" or "Opp."), ECF 29; Opp'n to Req. ("Reply"), ECF 32. For the reasons set forth below, both the Petition and the Request are DENIED.

I. BACKGROUND

On October 24, 2012, a jury in Alameda County Superior Court found Petitioner guilty of voluntary manslaughter and possession of a firearm by a felon. Pet. 2-3. On January 7, 2010, the Trial Court sentenced Petitioner to 15 years and 8 months, and he is currently confined at Delano Community Correctional Facility. Pet. 3.

Petitioner filed a direct appeal (People v. Jones, Court of Appeal Case No. A137714) and a petition for writ of habeas corpus (People v. Jones, Court of Appeal Case No. A141861) with the Court of Appeal of the State of California. Pet. 3, 4. Petitioner appealed his convictions asserting ten claims, including multiple sub-claims of ineffective assistance of counsel.¹ Resp. Exh. 4, ECF 21-17. On November 18, 2016, the California Court of Appeal, First Appellate District ("State Appellate Court") affirmed the judgment of convictions and denied petition for writ of habeas corpus.² Pet. 4, 5 (citing People v. Jones, Cal. Court of Appeal No. A137714, available at Pet. Exh. 1, ECF 1-1). The California Supreme Court denied review on February 15, 2017. Pet. 6-7; id., Exh. 2, People v. Jones, Cal. Case No. S239112. On October 2, 2017, the Supreme Court of the United States denied the petition. Pet., Exh. 3; Jones v. California, U.S. Case No. 19-9046.

Petitioner filed the instant habeas petition on September 18, 2018, raising the claims from his direct review and the State Appellate Court habeas petition. See generally Pet.

II. STATEMENT OF FACTS

The following background facts describing the crime and evidence presented at trial are from the opinion of the State Appellate Court on direct appeal³:

A. Trial Testimony

The charges against defendant arose from an incident that occurred on the evening of September 8, 2010, near a taco food truck located in a parking lot in East Oakland. Defendant and the victim D'Mario Anderson engaged in an altercation during which defendant disarmed the victim of his firearm. Defendant then fired several shots at the victim, fatally wounding him. Forensic pathologist John Iocco, M.D., performed an autopsy on the victim. According to Iocco's report, the victim sustained four wounds from three shots, which together caused the victim's death. Specifically, the victim was wounded by a bullet striking and entering the front shoulder area and exiting the armpit; a bullet striking the front right parietal scalp; and a bullet striking the front mastoid area near the ear and entering the victim's brain. Iocco believed the bullets striking the victim's shoulder and scalp areas were non-fatal, and the bullet striking the mastoid area was fatal.

However, Iocco was not able to determine the order in which the bullets struck the victim.

At a jury trial held two years after the incident, the prosecution called as percipient witnesses to the shooting, the victim's companions and friends Cornelius Hawkins (Hawkins) and Victor Wilkins (Wilkins); defendant's companion and then girlfriend Brandy Davis (Davis); and three taco food truck workers, Luis Fernando Rivas-Castanellos (Rivas), and brothers Jorge Estrada and Eleazar Estrada. [FN4] Defendant testified in his own behalf.

FN4. Because the Estrada brothers share the same last name, we will hereafter refer to them by their first names, for clarity and convenience, and intend no disrespect.

The testimony given during the trial revealed that on the evening of the shooting, two groups were present at the taco food truck awaiting preparation of their food orders: (1) defendant, Davis, defendant's then best friend Fred Thompkins (Thompkins), and Thompkins' girlfriend Monique Broussard (Broussard); and (2) the victim, Hawkins, and Wilkins. There is no material dispute concerning the circumstances that gave rise to defendant's possession of the victim's firearm. While both groups waited to receive their orders at the taco food truck, Thompkins and Hawkins engaged in a fistfight. As the men fought, the victim drew a gun and defendant grabbed the victim in a bear hug to prevent him from using the gun. During the struggle, the gun was fired and defendant sustained a through-and-through gunshot wound in his leg. After this gunshot, defendant and the victim continued to struggle for the gun, and defendant ultimately disarmed the victim. What occurred after the victim was disarmed was hotly disputed by the parties at trial.

The prosecution's theory was that after the victim was disarmed by defendant, the victim tried to run away. Defendant, now armed with the victim's gun, pursued the victim, firing several shots at him. One bullet struck the victim in the shoulder, and another bullet struck the victim in the scalp, causing him to fall to the ground on his stomach. While the victim was prone on the ground and bleeding from two gunshot wounds, defendant paused for about four seconds. At this point, defendant's best friend Thompkins said something to him, and defendant readjusted the gun's position, took a step or two, and shot the victim from a distance of about six or seven inches. This last gunshot, which entered the victim's mastoid area behind his ear, killed the victim, "finishing him off." Defendant took the victim's gun with him when he left the scene.

The defense, in turn, contended that while the defendant held the victim in a bear hug during the struggle for the victim's gun, defendant felt an unidentified object in the victim's waistband. After the victim was disarmed he ran, and as he ran, he turned back towards defendant. Defendant observed the victim reaching for his waistband and reasonably believed the victim had a second loaded gun based on what he had felt earlier as he held the victim in a bear hug. Believing there was no time to retreat, defendant pursued the fleeing victim, firing the victim's gun and striking the victim in the scalp and mastoid area. Falling to the ground, the victim slid and twisted as a result of those gunshots. The victim came to rest on his back and facing up. Defendant saw the victim's arms move and believed the victim was still reaching for a loaded gun. In response to the victim's movement, defendant fired a final gunshot into the shoulder area of the victim. According to the defense, when defendant fired the final gunshot into the victim, the victim was already dead from the mastoid wound. At the time of the final gunshot, defendant was standing alone.

Several Oakland police officers, medical personnel, and a member of the coroner's office responded to the scene of the shooting after the receipt of a 911 call, which was played for the jury. The victim was found lying on his back, with visible gunshot wounds to his head and shoulder. The victim was declared dead at the scene.

The investigating police officers found eight .22 caliber expended shell casings, fired from the same gun, in a pattern suggesting a firearm was fired multiple times in an arc from the taco food truck to the victim's prone body. There were no visible firearms on or near the victim. However, when a member of the coroner's office rolled the victim's body over, a gun fell out of the back of the victim's clothing from an area near the waistband of his pants. The victim was the owner of the gun, which was loaded but with no round in the chamber. After testing, it was determined the gun had not fired the shell casings found at the scene or the bullet recovered from the victim's body.

Following the shooting, defendant fled in a car driven by Broussard, and accompanied by Thompkins and Davis. When he entered the car, defendant dropped the victim's gun on the floor of the car where he was seated. Defendant said he had been shot and he acted in self-defense. Defendant told Thompkins to take him to a hospital. Thompkins told Broussard to drive to a hospital in Tracy. There was no discussion about whether to go to a nearby hospital in Oakland. During the one-hour drive to the Tracy hospital, defendant did not attempt to call the police because he was scared and wanted to distance himself from the situation.

When they arrived at the hospital, defendant and Davis got out of the car and went into the emergency room. Thompkins and Broussard drove away. Defendant's main focus "was getting to the hospital," and once he got there, he left the gun in the car and there was no further discussion about the gun. Defendant testified he never asked anyone to turn over the gun to the authorities because "[w]e went straight to the hospital, went in, and left the gun in the car." He last saw the gun "in [Thompkins'] car." Defendant also testified that before he exited the car, there was "a preexisting plan" that he would not tell the truth about the shooting if questioned by the hospital staff in the hope of

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