See v. McDonald

CHAWA SEE, Petitioner,

v.McDONALD, Respondent.

Case No.: 1:10-cv-01520-AWI-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: March 26, 2013

FINDINGS AND RECOMMENDATIONS TO

DENY PETITION FOR WRIT OF HABEAS

CORPUS (Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE

FILED WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of life without the possibility of parole pursuant to a judgment of the Superior Court of California, County of Tulare (the "Superior Court"). On April 17, 2008, Petitioner was convicted by jury trial of first degree murder and conspiracy to commit murder. (Cal. Pen. Code §§ 182, 187). (Doc. 15, Lodged Documents ("LD") 1, p. 1; Doc. 1, p. 1). The jury found that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (Cal. Pen. Code § 186.22(b)), that the murder was committed while Petitioner was an active participant in a criminal street gang (Cal. Pen. Code § 190.2(a)(22)), that Petitioner personally and intentionally discharged a firearm proximately causing the death of the victim (Cal.Pen. Code § 12022.53(d) & (e)(1)), and that Petitioner personally discharged a firearm. (Cal. Pen. Code § 12022.53(c) & (e)(1)). (LD 1, pp. 1-2). Petitioner was sentenced to an indeterminate term of life without the possibility of parole plus a consecutive 25 years to life sentence for the firearm enhancement. (LD 1, p. 2).

Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA") which, on December 19, 2009, affirmed the judgment of conviction and sentence. (LD 1). Subsequently, the California Supreme Court denied Petitioner's petition for review. (LD 2).

On August 23, 2010, Petitioner filed the instant petition, raising three grounds for relief. (Doc. 1). Respondent's answer was filed on October 29, 2010. (Doc. 14). On November 17, 2010, Petitioner filed his Traverse. (Doc. 16). Respondent concedes that the all grounds for relief in the petition have been fully exhausted. (Doc. 14, p. 6).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:

Around 6:30 p.m. on October 1, 2006, 16-year-old Robert Trevino was throwing a football with other neighborhood children on a residential street. Five Asian males approached him; one had a handgun in his waistband. Four of the males wore blue and black bandannas, covering their faces from the nose down. The one male whose face was uncovered shook hands with Trevino. He then pointed behind Trevino and Trevino turned around. The individual with the handgun shot Trevino in the head, from a distance of three or four feet. The five Asian males then fled.

Police officers arrived at the scene and found Trevino lying on the side of the road, bleeding from a head wound. A police officer checked his pulse, but found none. A .380-caliber shell casing was found in the middle of the road.

Witnesses identified four of the five Asian males as Chawa, Lavang, Aitang, and Billy Her. Her was identified as the individual who shook hands with Trevino. Chawa was identified as the person who shot Trevino.

On October 6, 2006, the police obtained and executed a search warrant for appellants' residences. Police arrested Aitang at his apartment and found writings and clothing relating to the Oriental Troops (OT) gang in his bedroom.

Police were unable to locate Chawa, but located a .380-caliber semiautomatic handgun beneath the mattress in Chawa's bedroom. Three live rounds were retrieved from the magazine.

Subsequent test bullets from the handgun were found to match the bullet retrieved from Trevino's head.

Lavang was arrested on October 17, 2006, and Chawa the following day. Lavang admitted to the officers that he was one of the individuals who approached Trevino right before the shooting, but denied that he shot him or that the group planned to shoot him.

At trial, Lavang's former girlfriend, Tawny Chamberlain, testified that she hung out with members of the OT gang, and that, at the time of the shooting, she was pregnant with Lavang's child. Chamberlain spoke to Chawa sometime after the shooting. When she asked him why he shot Trevino, Chawa said that he "deserved it" and was "dissing the hood."

Her, who was offered a plea of voluntary manslaughter with a criminal street gang enhancement, testified as a prosecution witness. He testified that he, Chawa, Lavang, Aitang, and Chawa's younger brother approached Trevino. Her shook hands with Trevino and asked him about his brother. He denied pointing his finger to distract Trevino and he denied having any knowledge that Chawa, whom he identified as the shooter, planned to shoot Trevino.

According to Her, he overheard a conversation between Chawa and an OT gang member, Jack Noi, a few weeks prior to the shooting. Noi told Chawa that he was having a problem with Trevino in juvenile hall. Chawa told Noi "don't worry about it," and said he would take care of it.

Officer Luma Fahoum testified as an expert on the OT gang in Tulare County. According to Fahoum, the OT is a predominately Asian male gang, and the location where Trevino was shot is an area OT claims as its "turf." The Nortenos, a Hispanic gang, is a rival gang to the OT in Tulare County. The Nortenos identify with the color red, number 14, and the letter N. The OT identify with the color blue, numbers 15 and 20, and the letters O and T. But due to criminal street gang prosecutions, OT members often wore neutral colors, such as white, black and gray. As of October 1, 2006, there were about 50 documented OT members.

Officer Fahoum described the OT as the "most vicious and deadly gang in Visalia" for its size. The primary activities of the OT include murder, carjacking, witness intimidation, assault with a firearm, drive-by-shootings, robbery, and burglary. Officer Fahoum described multiple "predicate offenses" committed by various OT members.

Based on self-admissions, associations, tattoos, and clothing, Officer Fahoum opined that Chawa, Lavang, Aitang, Chawa's brother, and Her were active members of the OT. Fahoum described the Mongolian Boys Society (MBS) and the Lahu Pride Crips (LPC) as "entry-level" OT gang members. According to Fahoum, Trevino was a validated Norteno.

In response to the following hypothetical-if a group of OT members, most of whom had blue or black bandannas covering their faces, approach a rival gang member and shoot him in the head-Officer Fahoum opined that the shooting was committed in association with and for the benefit of the OT.

DefenseChawa's younger brother testified and suggested Her was the shooter. Although Chawa's brother acknowledged that he lived with Chawa and his family in the house where the handgun was found, he claimed Her had asked him prior to the search to take and store the handgun. Chawa's brother said he took the gun and put it under the bed because he and Her were both in the same gang, the MBS.

(LD 1, pp. 1-3).

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S. at 412-413.

A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams v. Taylor, 529 U.S. 326, 405-406 (2000). A state court decision involves an "unreasonable application" of clearly established federal law "if the state court applies [the Supreme Court's precedents] to the facts in an objectively unreasonable manner." Id., quoting Williams, 529 U.S. at 409-410; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)(per curiam).

Consequently, a federal court may not grant habeas relief simply because the state court's decision is incorrect or erroneous; the state court's decision must also be objectively unreasonable. Wiggins v....