Lewis v. Allison

DONALD R. LEWIS, Petitioner, v. KATHLEEN ALLISON, Respondent.

No. 20-cv-1042-MMA (MSB)

United States District Court, S.D. California

August 10, 2022

ORDER DENYING PETITIONER'S MOTION TO AMEND; [DOC. NO. 45] ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; AND [DOC. NO. 41] DENYING PETITION FOR WRIT OF HABEAS CORPUS

HON MICHAEL M. ANELLO, United States District Judge.

Petitioner Donald R. Lewis (“Petitioner”), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the validity of his state court conviction for first-degree murder. See Doc. No. 1. On October 26, 2020 Petitioner filed an amended petition. See Doc. No 17 (the “Amended Petition”). Respondent filed an answer on July 15, 2021. See Doc. No. 38. Petitioner was provided the opportunity to file a traverse by August 16, 2021, see Doc. No. 30, but failed to do so. The matter was referred to United States Magistrate Judge Michael S. Berg for preparation of a Report and Recommendation pursuant to Title 28, section 636(b)(1) and Civil Local Rule HC.2. Judge Berg has issued a thorough and well-reasoned Report recommending that the Amended Petition be denied. See Doc. No. 41 (the “R&R”).

All objections to the R&R were due by no later than June 9, 2022. See Doc. No. 44. On May 11, 2022, Petitioner filed a proposed further amended petition, Doc. No. 45, as well as a filing entitled “Supplement to Motion to Alter or Amend Judgment,” Doc. No. 46. The Court treats the former as a motion for leave to amend and the latter as an objection to the R&R.

For the reasons set forth below, the Court DENIES Petitioner's motion for leave to file the further amended petition. The Court further OVERRULES Petitioner's objection, ADOPTS the R&R in its entirety, and DENIES the Amended Petition for writ of habeas corpus.

I. Background

The following facts are taken from the State Court Record, see Doc Nos. 12, 27, 40, including the California Court of Appeal's opinion in People v. Lewis, Appeal No. D071434, see Doc. No. 12-7. The Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992).

A. State Court Trial, Conviction, and Direct Appeal

Prosecution

On August 19, 2015, Lewis was at an apartment complex in El Cajon where his then-girlfriend, Erica Howard, lived. Around 7:00 p.m., Lewis, Howard, James Crawford (Lewis's friend), and at least two other men were arguing and yelling outside. Lewis was hollering. He pulled out a gun and waived it around “kind of wildly.” The men told Lewis to calm down and stated they were just trying to “get wet,” a reference to smoking PCP. Howard pled for Lewis to not shoot and asked him to leave. She pulled his arm, but Lewis ignored her. Lewis, while yelling, pointed his gun at Crawford's chest. No one was threatening Lewis, and Crawford did not act aggressively toward him.

Everyone except for Crawford fled from the area. Lewis lowered his gun and stared at it. Crawford walked away, toward an adjacent street, and Lewis followed him. They stopped in the complex's parking lot. Crawford backed away as Lewis pointed his gun at Crawford's chest. Crawford was unarmed and begged for his life. Lewis fired one bullet into Crawford, paused for a few seconds, and then shot him again. Neighbors who heard the shots called 911.

After shooting Crawford, Lewis fled to an apartment in a nearby complex, where his friend Angelica Villegas resided with her parents. Villegas was not home at the time and did not give permission for Lewis to enter her parents' home. Villegas's stepfather, Ramon Lozano, discovered Lewis half-naked in the shower. When he asked Lewis what he was doing inside of his house, Lewis told him to be quiet. Lozano tried to call 911 and Lewis attempted to grab his phone. Lozano pushed Lewis out of his house. Lewis appeared “not totally normal, like a person that is drugged.” Lozano found Lewis's wet underwear and white tank top in his trashcan, which he turned over to police.

Later that evening, Lewis called Villegas and told her there was “something” in her parents' refrigerator. Villegas went to her parents' apartment and found a gun inside of the refrigerator. She later found Lewis's sweater and a bag of bullets in the living room. The gun and ammunition were subsequently turned over to the police.

Two weeks after the murder, Lewis turned himself in to the police. Crawford died at the hospital from his gunshot wounds. Crawford suffered two bullet wounds to his torso. One of the bullets went through his lung and his aortic artery. The other bullet, which was fired when the muzzle of the gun was pressed against Crawford's skin, was lodged in his spine. Crawford's toxicology report showed that his blood alcohol content was .14 and he had 27 nanograms per milliliter of PCP in his system. Defense

Howard testified that she was in a romantic relationship with Lewis at the time of the shooting. She and Lewis had a child together.

On the day of the shooting, Lewis showed up at her apartment. It had been a day or two since Howard had seen Lewis. Howard believed Lewis was intoxicated on “something else” besides alcohol because his behavior was “a little different.” However, Lewis could find Howard's apartment, knew who she was, and was able to sustain a conversation with her.

Later that day, Howard saw Lewis sitting on a cinderblock retaining wall outside her apartment complex. Lewis was with Crawford and three or four other young men. Howard talked to Lewis while he was on the cinderblock retaining wall, but she left to buy beer at a store. When Howard returned from the store, Lewis still was sitting on the retaining wall. She gave Lewis a beer and went to her apartment. At that point, it appeared that the men were socializing.

Howard later saw Lewis hanging out with a group of his friends in the apartment parking lot. They were drinking beer and passing around a few cigarettes. Howard could smell PCP and became angry with Lewis.

Howard approached Lewis, and they had a heated conversation. Lewis did not appear to be in his “right mind.” He was slurring his words, which were “mushing together.” Howard believed Lewis was under the influence of PCP.

Howard walked back to the apartment, and Lewis followed. Some of the men called out Lewis's nickname (Maceo) in anger. Lewis walked up the stairs slowly; he appeared sluggish.

After they were inside the apartment, Crawford knocked very loudly on the front door. As Howard opened the door, Crawford said, “Where the F is Maceo?” Crawford's demeanor was aggressive, nasty, and very rude. However, there was no physical altercation, and Crawford did not threaten Howard. Howard told Crawford to leave, and he did.

Lewis stayed in the apartment for less than 20 minutes before leaving again. Before he left, Howard and Lewis got into an argument about Lewis's friends, like Crawford, coming to Howard's apartment. There was “a lot of language” and Howard yelled at Lewis. They were aggressive toward each other. Lewis appeared to be upset with Crawford, saying, “I don't like the fact that he [Crawford] keeps knocking on my fucking door[.]” After making this comment, Lewis left Howard's apartment. He was “still sort of stumbling” but “clearly able to move and function.” Howard followed about five minutes later. She dropped her baby off with a neighbor downstairs and headed to where Lewis was standing.

Three men, including Crawford, were standing with Lewis. Lewis was holding a gun and yelling at the men to “get up out of here.” Howard tried to pull his arm and stop him, but Lewis pushed her away. At some point, Lewis fired a warning shot up into the air. The other two men ran, but Crawford stayed. Crawford walked up to Lewis aggressively, and they got into a “struggle” while Howard yelled for them to stop. Crawford and Lewis were throwing punches. During the struggle, Lewis fired a second shot, which appeared to hit Crawford in his stomach.

Howard ran to her apartment. She heard, but did not see, the final gunshot. After the incident, Howard feared for her life, from Lewis and others who might want to retaliate.

In an interview with the police, Howard did not mention a physical altercation between Lewis and Crawford. She shook her head when police asked her if Crawford was “chipping back and forth” at Lewis.

The defense called two experts witnesses at trial. The first, a neuropsychologist, concluded that Lewis had low cognitive functioning because of a brain injury suffered as a young child. The second, a medical doctor who specializes in pain and addiction, testified that (1) PCP is a dissociative anesthetic that creates a separation of awareness between one's body and surroundings; and (2) symptoms of confusion and agitation can be magnified if the person has a brain injury or simultaneously abuses other substances.

Doc. No. 12-7 at 3-7.

On October 19, 2016, a San Diego County jury convicted Petitioner of first-degree murder, in violation of California Penal Code section 187(a), and found true the allegation that he discharged a firearm, in violation of California Penal Code section 12022.53(d). See Doc. No. 12-1 at 1. On November 17, 2016, the trial judge sentenced Petitioner to a state prison term of fifty years to life as follows: (1) indeterminate term of twenty-five years to life for the underlying count of murder; and (2) indeterminate term of twenty-five years to life for the firearm enhancement, to run consecutively. See id.

On July 11, 2017, Petitioner appealed his sentence to the ...