Mays v. Clark

DARIOUS A. MAYS, Petitioner,

v.KEN CLARK, Warden, Respondent.

No. CIV S-10-533 LKK CHS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: March 26, 2012

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Mays, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue is his first degree murder conviction in the Sacramento County Superior Court, case number 05F01223, for which he is serving life in prison without the possibility of parole.

II. BACKGROUND

Mays was charged with the first degree murder of Sheppard Scott, with a special circumstance of lying-in-wait and an enhancement for personal discharge of a firearm causing death. The state court of appeal summarized the evidence adduced at trial:

Yalandria Narcisse testified she was the victim's girlfriend and was with him when he was shot.FN2 Around 4:30 a.m. on January 24, 2005, they were in a car waiting to order food at the Jack InThe Box drive-through on Norwood Avenue. Two persons standing outside the adjacent AM/PM asked if the victim had any weed, and he said no. The victim told Narcisse one of the two persons insulted him, calling him a "bitch-ass nigger or something." She said she did not hear that. The victim got out of the car and engaged in an animated conversation with the two persons, during which the victim stated a gang affiliation. As the victim walked back to the car, Narcisse saw one of the persons, dressed in orange (an Orioles jacket), pass something to the other person, who was dressed in a gray hooded sweatshirt. The victim collected the food and drove to the exit. Somebody yelled, "hey, homey," and the victim stopped the car. The gray-clad male came up to the car and said he wanted to apologize. The victim said to forget about it. The person in gray held out his hand to shake. The victim, still seated in the car, held out his hand. The person in gray pulled out a gun, fired several shots at the victim, and ran off (following the person in the orange jacket).

FN2. Narcisse, who was not the victim's only girlfriend, had misdemeanor convictions for prostitution and loitering with intent to commit prostitution. In a hearing on admissibility of her prior convictions for impeachment, she acknowledged the victim was her pimp.

Narcisse (and other witnesses) said the shooter fired the gun with his right hand. [Mays] (and others) testified [Mays] is left-handed. Narcisse testified, "The guy in the gray sweater took out his hand, took out his hand to shake, to shake Sheppard's and then Sheppard stuck out his hand and when the guy pulled out his hand he had a gun and he started shooting." This would only make sense if the shooter had the gun in the hand other than the one he extended to shake hands. Narcisse thought the shooter had gold teeth ([Mays] does not have and denies ever having worn gold teeth), and from her seated position she thought the shooter stood about 5 feet 1 inch tall ([Mays] is 5 feet 7 inches tall).

Narcisse and the victim had been drinking alcohol that night. The police did not determine the extent of Narcisse's drinking.

An autopsy revealed the victim, who had a blood alcohol level of .11 percent, was shot six times.

Surveillance cameras at AM/PM did not capture images of the shooting but did capture images of the persons wearing gray and orange and shows one of them pointing at the victim's vehicle as it passes through the AM/PM parking lot on its way to Jack In The Box. The images of the suspects are not clear.

Witness Sharla Flores was across the street, heard the shots, looked and saw the male in the gray sweatshirt, whom she had encountered earlier that night, firing a gun at a car. When shown aphoto lineup, she indicated [Mays]'s photo could possibly be the shooter. She rated her level of certainty as five out of 10. When shown the AM/PM photo, she said it looked like the shooter (four on a scale of 10) but she could not tell because she could not make out the face in the photo. She believed the shooter used his right hand but was not positive.

Lisa Faupula, who was pumping gas at the AM/PM, saw a young Black male rapidly approach a car, pull out a gun, fire multiple shots with his right hand ([Mays] testified he is left-handed), and run off. She estimated his height at 5 feet 7 or 8 inches. She "guessed" his weight at 145 or 150 pounds. She said he wore a white "doo-rag" on his head, tied in back with a piece of cloth hanging down, and white trousers. (The pants of the gray-clad male in the AM/PM photo appear to be white or gray.) She admitted her eyesight was not good and she was in shock. She was unsure whether the gray-clad person in the AM/PM photo was the shooter and could not identify anyone.

Edward Kim was pumping gas. He noticed a male wearing an orange jacket walk past him. Kim returned his attention to his task, then heard gunshots, turned, and saw two persons running away—the male in the orange jacket, and another male wearing dark clothing.

The prosecution sought (over defense objection) to conduct a conditional examination of Tamara Schallenberg, a neighbor who considers [Mays] like a son, on the ground she had phobias precluding testimony in open court. A psychiatry resident who treated her testified Schallenberg has a panic disorder with agoraphobia, characterized by sudden onset of shortness of breath, chest pain, dizziness, and extreme fear. Schallenberg has reported passing out when a panic attack brought on an asthma attack. The doctor did not believe Schallenberg was faking. The doctor said Schallenberg may be able to testify if she takes a sedative, but the risk was oversedation. The court allowed a conditional examination of Schallenberg in a courtroom, in the presence of the judge, court staff, counsel for both sides, and [Mays]; the jury and the public were excluded. The conditional examination was videotaped. The court found the witness's infirmity made her unavailable to testify in open court. The videotaped conditional examination was played for the jury in open court.

In her conditional examination, Schallenberg denied making statements to the police, including identification of [Mays] and his brother as the persons depicted in the AM/PM photos. She testified that she told the officer the person in the photo might be [Mays], but she was not sure. She testified she never saw [Mays] wear a light gray sweatshirt. She denied ever seeing [Mays] deal drugs and denied that he ever said he was a gang member. Schallenberg testified she has known [Mays] since 1999, and he is like a son toher. She admitted that one day in January 2005, she received a phone call from [Mays]'s mother around 5:00 a.m. As a result of the call, Schallenberg went out looking for [Mays], but she did not find him. The next day, she saw [Mays] and asked him what was going on. [Mays] said he was with his brother at the AM/PM, and his brother shot somebody. In her conditional examination, Schallenberg said [Mays] laughed when he told her, but it was a "scared" laugh. Schallenberg also admitted that she and [Mays] had a telephone conversation while he was in jail, in which he said the investigator said she should testify in court that she made false statements to the police because she was mad at [Mays].

Detective Charles Husted testified about his audiotaped interview of Schallenberg. He showed Schallenberg the AM/PM photo, and she stated without hesitation that the person in the gray sweatshirt was [Mays]. Husted asked how she knew, and she said she knew because she knows him. She also recognized his sweatshirt, which he wore all the time, which had "South Pole" written on its back.FN4 She also said the person in the orange Orioles hat and jacket was [Mays]'s older brother "Rico" (Deladier Montue). Husted said Schallenberg said [Mays] laughed like "he thought it was funny" when he told her about his being at the AM/PM when his brother shot someone. Husted said Schallenberg said [Mays] said he was a gang member, and she had seen him apparently selling drugs.

FN4. No lettering is apparent on the sweatshirt in the AM/PM photos. A gray hooded sweatshirt bearing the lettering "South Pole" was seized when [Mays] was arrested. However, the People acknowledge [Mays]'s South Pole sweatshirt is not the sweatshirt depicted in the AM/PM photos.

When shown a book of mug shots, Narcisse focused on a photograph of someone other than [Mays] and said he looked like the shooter. After the interview with Schallenberg, the police showed Narcisse a photo line-up. Narcisse focused on photo number three ([Mays]) and said everything about it looked like the shooter, and she believed it was the shooter.

Flores, the witness who stood across the street, also identified photo number three as "possibly" the shooter, expressing her certainty level as five on a scale of one to 10. At trial, Flores said her certainty level was four that the gray-clad person in the AM/PM image was the shooter.

[Mays]'s girlfriend, Judy Perez, testified she never spoke with [Mays] about the shooting. She denied telling the police that [Mays] said his brother was involved. After the prosecutor showed Perez portions of her videotaped conversation with police, she admitted she told them that [Mays] said his brother was involved(though she did not remember telling them that).

Detective Husted testified he questioned [Mays], who initially denied any involvement, denied being present at the shooting, and denied being the gray-clad person in the AM/PM photo. [Mays] said the police had no murder weapon. When asked how he knew that, [Mays] said it was common sense, and they would have locked him up if they had a weapon, and his brother said the police went to his home looking for the weapon. [Mays] denied telling Schallenberg about a shooting at the AM/PM.

[Mays] repeatedly asked the detective for a lie detector test. Because no polygraph examiner was available, the detective's supervisor authorized a mock polygraph test, i.e.,

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