Rushing v. Neuschmid

RUSHING, Plaintiff, v. ROBERT NEUSCHMID, Defendant.

Case No. 18-cv-02351-BLF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

May 12, 2020

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

[Re: ECF 11]

Petitioner Pierre Rushing (a.k.a. Pierre Smith) is currently in the custody of Robert Neuschmid, warden at California State Prison, Solano in Vacaville, California. In 2011, Rushing was convicted in Alameda County Superior Court of one count of first degree murder. He was then sentenced to fifty years to life in prison. Rushing has since unsuccessfully pursued direct and collateral review in California state court. This matter now comes before the Court on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). ECF 11. Having considered the parties' submissions, the record in the case, and the applicable law, the Court DENIES the petition and the request for an evidentiary hearing.

I. PROCEDURAL HISTORY

The following procedural history is undisputed, and therefore drawn from the Amended Petition (ECF 11 at p-1 to p-2) and the Answer (ECF 19-1 at 1-2).

On September 28, 2011, an Alameda County jury convicted Pierre Rushing of one count of first degree murder, Cal. Penal Code § 187; the jury also found several firearm enhancements, i.e., that Petitioner personally and intentionally discharged a firearm and caused great bodily injury (id. §§ 12022.7(a), 12022.53(d)), that Petitioner personally and intentionally discharged a firearm (id. § 12022.53(c)), and that Petitioner personally used a firearm (id. §§ 12022.5 (a), 12022.53(b), (g)).

Petitioner appealed to the California Court of Appeal, Case No. A133769, and, while the direct appeal was pending, also filed a state habeas petition, Case No. A137965. The California Court of Appeal consolidated the two cases and, in 2013, issued an unpublished decision as to both. People v. Smith, No. A133769, 2013 WL 4017400 (Cal. Ct. App. Aug. 1, 2013), as modified (Aug. 27, 2013).

As to the direct appeal, the Court of Appeal affirmed the judgment against petitioner. The California Supreme Court later denied Petitioner's petition for review of the direct appeal (Case No. S212883). See ECF 18-16 (Exhibit 6: Petition and Order).

As to the habeas petition, the Court of Appeal found that petitioner had stated a prima facie case for relief on a claim of factual innocence based on newly discovered evidence and remanded the petition to the Superior Court for an evidentiary hearing; the court denied relief on the remainder of petitioner's habeas claims. People v. Smith, 2013 WL 4017400 at *12. The Superior Court held a 3-day evidentiary hearing in February and March 2017, after which it denied Petitioner's state habeas petition (Case No. 166345). See ECF 18-17 (Exhibit 8: Reporter's Transcript of evidentiary hearing; Exhibit 9: Order).

In September 2017, Petitioner filed a pro se federal habeas petition before this Court. See Docket for Case No. 17-CV-05195-BLF at ECF 1. After Respondent moved to dismiss for failure to exhaust state remedies for certain claims, the Court granted Rushing leave to withdraw the petition without prejudice to later refiling it. Id. at ECF 17. Shortly thereafter, in April 2018, Petitioner filed a second state habeas petition before the California Court of Appeal (Case No. A154055) in order to exhaust his claims. See ECF 18-18 (Exhibit 10: Petition). A few days later, Petitioner returned to federal court, this time represented by counsel. Petitioner filed a second federal habeas petition and a motion to stay the federal proceedings pending resolution of his second state habeas petition. ECF 1. This Court granted the motion for stay and abeyance. ECF 9.

Back in state court, the Court of Appeal denied the second state habeas petition (Case No. A154055) without a written opinion and Petitioner sought review by the California Supreme Court (S248512). In June 2018, the California Supreme Court denied review of the habeas denial. SeeECF 18-19 (Exhibit 11: Petition, Answer, Reply and Order).

Petitioner subsequently filed an Amended Petition and this Court lifted the stay and reopened the proceedings. ECF 11, 12. That Amended Petition has been fully briefed and is now before the Court.

II. FACTUAL BACKGROUND

Below, the Court summarizes the factual evidence presented in this case (A) at trial and (B) at the evidentiary hearing conducted by the Superior Court on collateral review.

A. Facts Established at Trial

Petitioner adopts the California Court of Appeal's summary of the evidence presented at trial. ECF 11("Pet.") at p-2; see People v. Smith, No. A133769, 2013 WL 4017400 (Cal. Ct. App. Aug. 1, 2013), as modified (Aug. 27, 2013). That summary is duplicated in full below, with footnotes renumbered for continuity and alterations preserved. Note that "Green" is Robert Green, the only witness who "identified defendant as a participant in the killing" at trial. People v. Smith, 2013 WL 4017400, at *1.

Green's testimony regarding the April 15, 2011, shooting

In the early morning hours of April 15, 2011—between 3:30 and 3:45 a.m.—Green and Pat Smith (Smith)¹ arrived at an apartment building at 1406 77th Avenue in Oakland "to buy drugs." Green testified that he had previously accompanied Smith when he bought drugs from defendant at this same location, the first time a week or two before the incident. On that occasion, Green stated, he clearly observed defendant's face and heard his voice. Green had also seen defendant driving around the neighborhood in a grey sedan.

On the occasion in question, Green testified that he and Smith arrived at the apartment building in a red Volkswagen Jetta driven by Smith. Green stayed in the car while Smith went inside to buy the drugs. A few minutes later, Green saw a man, later identified as the victim, Dawonye Taylor, exit the building and walk down the street. Shortly thereafter, Smith and two men came out of the apartment building. Green identified one of the men as Andre, who he recognized "through buying drugs off him," and the third individual as defendant. Green testified that when he first saw defendant that night, his "name didn't click" but he recognized defendant "from somewhere." Later that night he remembered that defendant had introduced himself as "C" during their initial meeting. Green testified that defendant is in fact the person he knew as "C."

The three men got into the red Jetta. Defendant, wearing a black "puff coat," sat in the rear passenger seat behind Green. As the car took off in the direction Taylor was walking, defendant told someone on his cell phone "that somebody stole his iPod" and that "[he] shouldn't have left his iPod plugged up in the house." As the car approached Taylor, Green heard defendant say, "there he go right there" and defendant told Smith to "let him out of the car." Smith made a u-turn next to Taylor, stopping by a Giant Quarter-Pound Burger restaurant. Green testified that defendant and Andre got out of the car, pinned Taylor against the passenger door, and began hitting and kicking him in the face and chest. Defendant accused Taylor of stealing his iPod. As Green turned to speak to Smith, a single gunshot was fired. Green turned and saw defendant "holding a gun towards" Taylor, "pointing [the gun] towards [Taylor's] stomach." Green stated, "it appear[ed] that [defendant] had his hand on the trigger." Defendant and Andre got back in the car and Smith drove off, leaving Taylor to die on the street.

DeCarla Smith (Carla) testified that as these events unfolded, she was standing at a bus stop two blocks away. She saw a red Volkswagen make a u-turn and pull in front of the Giant Burgers restaurant. She recognized the car as belonging to Smith because two weeks before she had been in the car with him. She recognized Smith as the driver of the car, and saw that there were three occupants. Carla testified that after the car parked, someone exited the car, confronted the victim, and then one gunshot was fired. About 15 to 20 minutes later, Carla crossed the street and identified the victim as "2." Carla acknowledged that she had previously given different accounts of the incident to the police because she did not want to be seen as a snitch. She said the "theory on the street is what you see you don't see" but swore that her trial testimony was truthful.

Events leading to defendant's arrest

On the following day, April 16, Green approached an Oakland police officer and asked to speak with him about the shooting the day before. Officer Steve Walker confirmed that Green had approached him and he gave Green's contact information to a homicide investigator, Steven Nowak. Green met with Nowak on April 21, 2011. Green testified that during this initial meeting, he was shown a photo lineup from which he identified Andre as one of the men in the car on April 15, but he was unable to identify the other two men. Green gave the officer a description of "C" as brown skinned, about 5 feet 10 inches tall, with short hair, 20 years old, and around 120 pounds with a slim build. Green met with Nowak the next day, April 22, and identified Smith from a photo lineup, but was still unable to identify any photograph as a picture of "C."

On April 22, 2011, Officer Michele Melham spotted the red Jetta in a parking lot with Smith asleep in the front seat. Aware of the ongoing homicide investigation, Melham detained both Smith and the car. The car was dusted for fingerprints. Those of Smith, Green, and Carla were taken from the car, but no fingerprints of Andre or defendant were found.

On April 30, Green fortuitously saw defendant at a BART station wearing a red cap. He called Nowak and told him that he had just seen "C" and that his prior description of him was wrong, as the man had a darker complexion and wastaller than he initially thought. Green told Nowak that his height was in fact 6 feet 2 inches. At trial, Green attributed his mistake to the fact that the night of the incident he was

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