Shine v. Soto

SHANNON DION SHINE, Petitioner, v. J. SOTO, Warden, Respondent.

Case No.: 1:14-cv-00021-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

February 11, 2016

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)

ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE FILE

ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

In 2011, a jury convicted Petitioner of two counts of corporal injury to a cohabitant with a prior conviction and one count of assault with force likely to produce great bodily injury. The court enhanced Petitioner's sentence due to his prior "strike" convictions and prior prison term. Here, Petitioner raises errors he claims occurred at his trial including the court admitting evidence of an earlier act of domestic violence and refusing to dismiss a prior "strike," and his attorney's failure to properly advise him regarding a plea agreement and his failure to properly investigate the case and to call certain witnesses to testify at trial. Because the Court's finds Petitioner has failed to demonstrate his entitlement to relief, the Court DENIES his petition for writ of habeas corpus.

II. Procedural History

After suffering the convictions noted above, the Kings County Superior Court sentenced Petitioner to an indeterminate sentence of fifty-one years-to-life. (Doc. 1, pp. 97-114). He appealed to the California Court of Appeals, Fifth Appellate District (the "5^th DCA"), which affirmed. (Id.). The California Supreme Court denied his petition for review. (Lodged Document ("LD") 26). Petitioner then filed numerous state habeas petitions, all of which were denied.

Respondent concedes that grounds one and two were fully exhausted in state court; however, Respondent argues that grounds three and four are unexhausted. (Doc. 8, p. 10).

III. Factual Background

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision¹:

In the summer of 2008, P.A. was involved in a romantic relationship with defendant. Defendant and P.A. lived together in her apartment in Lemoore, and defendant had his own key to her apartment. Defendant and P.A. occasionally argued. On one occasion, defendant scared P.A. and she ran out of the room. However, there had never been any physical violence in their relationship.

Incident of August 17, 2008 (count IV)

In the early morning hours of August 17, 2008, P.A. locked herself out of her apartment. P.A. walked to a nearby store and called defendant, who was at a friend's house in Merced. She asked defendant to return to Lemoore to use his own key so she could get back into her apartment. Defendant agreed and had someone give him a ride back to Lemoore.

P.A. testified that defendant returned to the apartment about three hours later. When defendant arrived, he started "talking smack" because he was angry about having to return to Lemoore. P.A. testified that defendant used his cell phone to record himself as he repeatedly said that he was going to "woop" her. Defendant and P.A. verbally argued as they walked upstairs to the apartment. Defendant unlocked the apartment with his key, closed the door, and locked P.A. out for a few minutes. Defendant emerged from the apartment and said he was going to leave in P.A.'s van. P.A. objected and they argued about whether he could use her van. Defendant told P.A. that she better stop arguing.

P.A. testified that defendant went downstairs and headed for her van. P.A. followed him and repeatedly told him not to take her van. P.A. testified that defendant pushed her to the ground and into mud. When P.A. tried to get up, defendant "stomped" her down into the mud more than once. Defendant grabbed P.A.'s hair and tried to drag her. P.A. said he was going to pull her hair out. Defendant replied, "Good." Defendant eventually left in P.A.'s van.

After defendant left, P.A. went to the nearby apartment of Dorris Johnson, who was also the property manager. P.A. told Johnson what happened. P.A. was frightened and asked Johnson not to let defendant or anyone else in the apartment. P.A. was muddy, and she had scratches on her arm and a bruise on her side. Johnson encouraged P.A. to go to the hospital. P.A. refused and stayed with Johnson almost the entire day.

Later that evening, P.A. went to the hospital for treatment of her injuries. She told medical personnel that she suffered the bruise while doing "hip hop aerobics" at home. P.A. testified she lied because she was scared and terrified of defendant.

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Text messages

P.A. testified she had previously programmed defendant's cell phone number into her cell phone. She identified the contact as "Deon," misspelling defendant's middle name of "Dion." P.A. testified that she received a series of threatening text messages from "Deon," beginning on August 17, 2008, and continuing into September 2008. She also received a threatening text message that was directed to Dorris Johnson.

On September 9, 2008, P.A. received a text message from "Deon," in which he threatened to "[t]orch" her apartment. P.A. believed defendant was capable of doing it. Another message stated: "'I not known for playin [sic].'" Yet another message stated: "'I figure eventually you would get tired of getting your ass wooped and straight up,'" and "'I'm a knock you out.'"

Incident of September 11, 2008 (counts II & III)

P.A. testified about an assaultive incident which occurred on September 11, 2008. Defendant called P.A. at her apartment and asked to use her van. P.A. refused. Defendant asked if he should pick up his things from the apartment. P.A. replied, "'If that's what you want.'" Defendant said he was on his way.

P.A. testified she was in bed when defendant arrived at her apartment. Defendant was angry, and they argued as he gathered his belongings. Defendant suddenly rushed to the bed and started to hit P.A. Defendant hit P.A. in the face with a closed fist more than once. As defendant hit her, P.A. repeatedly asked defendant, "'What did I do? What did I do?'"

P.A.'s 14-year-old daughter was in the apartment, and she heard P.A. crying. The girl looked toward the bedroom and saw the bed moving. She went to the doorway but someone closed the bedroom door. She knocked and asked what was wrong. P.A. was still in bed, and she asked defendant if she could tell her daughter that she was okay. Defendant replied, "'You're not okay.'" P.A.'s daughter testified that she heard part of this exchange.

P.A. asked defendant to get some ice for her. Defendant replied, "'You don't need any ice.'" Defendant left the apartment and drove away in P.A.'s van.

P.A. testified she suffered bruises on her face. She went to the emergency room, and again told hospital personnel that she suffered the injuries doing "hip hop aerobics" at home. P.A. testified that she lied because she was still afraid of defendant.

Dorris Johnson saw P.A. after she returned from the hospital. P.A. had bruises and an injury on her forehead, black eyes, and appeared to be in shock.

P.A.'s report to the police

On September 12, 2008, P.A. went to the Hanford Police Department to report the assaults. P.A. testified she went to Hanford instead of Lemoore because she was afraid defendant would see her or find out that she was talking to the police. P.A. spoke to Officer Alvaro Santos from the Lemoore Police Department. They went back to Lemoore for the interview.

Santos testified P.A. was shaking, crying, and very upset. As Santos interviewed P.A., she received a text message from "Deon" which stated: "'You ready for round two?'"

Prior domestic violence incident

K.L. testified that she dated defendant in 2004 during which time defendant physically assaulted her. He hit her more than once and he hit her in the face with his hands. He threatened her, andhe told her, "'You think this is over but it's not.'" K.L. testified she sought medical attention as a result of the attack.

Expert testimony

Pamela Tejada testified she was the victim/witness advocate coordinator for Lemoore Naval Air Station, and she had previously testified in other cases as an expert in domestic violence. Tejada testified that in her experience, it was common for victims to lie about domestic violence to health care providers because they typically do not want to send a loved one to jail.

DEFENSE EVIDENCE

Amanda Murphy testified she met defendant for the first time on September 11, 2008. Defendant was driving a friend's van and picked her up at a park. They spent the entire afternoon and evening together, and spent time with defendant's friends, Eric Bruce, Sandra Briceno, and Rodolfo Valdez.

Murphy testified that they were stopped by Lemoore police officers that evening because the van's registration tags were expired. Defendant dropped off Murphy at her mother's house around 3:00 a.m. the next morning. Murphy testified she had only met defendant twice, but she thought he was a really good person.

Bruce, Briceno, and Valdez testified that they spent the evening with defendant and Murphy, although their accounts were somewhat inconsistent with Murphy's testimony about their activities that night.

Defendant's trial testimony

Defendant admitted he had five prior felony convictions, which were for domestic violence, false imprisonment, criminal threat, and two counts of assault with force likely to produce great bodily injury. He went to prison in 2004. Defendant admitted he hit K.L. in the face more than once, but claimed he did so because she cut him with a knife. Defendant complained that he was the only person who went to jail even though K.L. was also fighting.

Defendant testified he had been in a dating relationship with P.A., but he only stayed at her apartment a couple of times, and he did not have a key. Defendant and P.A.'s former husband were good friends, and he was upset when defendant started to date P.A. P.A. allowed defendant to use her van. Defendant ended their relationship in mid-August 2008, and she was unhappy about it. Defendant testified that P.A. was an alcoholic. She regularly threatened to do

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