Stevens v. Beard

JOSEPH E. STEVENS, Plaintiff, v. JERRY BEARD, et al., Defendants.

Case No. 5:13-cv-03877-EJD

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

August 22, 2018

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

Re: Dkt. No. 1

Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. Respondent filed an answer on the merits (Dkt. No. 13) and Petitioner filed a traverse (Dkt. No. 15). For the reasons set forth below, the petition for a writ of habeas corpus is GRANTED.

I. BACKGROUND

On March 21, 2007, a jury found Petitioner guilty of two counts of murder (Cal. Penal Code § 187) and found true enhancement allegations that Petitioner intentionally discharged a firearm that proximately caused death or great bodily injury (Cal. Penal Code § 12022.53(d)) and the special circumstance of multiple murder (Cal. Penal Code § 190.2(a)(3)). The jury acquitted Petitioner of a third count of murder but found him guilty of the lesser included offense of aggravated assault with a firearm (Cal. Penal Code § 245(a)(2)). On July 13, 2007, the trial court sentenced Petitioner to two life terms without the possibility of parole, two consecutive 25 years to life terms on the firearm enhancements, plus three years for the assault conviction.

On March 9, 2012, the California Court of Appeal, First Appellate District, affirmed the judgment in an unpublished opinion. Dkt. No. 13-3. The California Supreme Court denied review on June 13, 2012. Dkt. No. 13-4.

Petitioner filed the instant petition on August 22, 2013. Dkt. No. 1. However, because petitioner had only initially petitioned for review by the California Supreme Court with respect to his juror misconduct claim but not his evidence spoliation claim, the Court found that he had not fully exhausted his state remedies. Dkt. No. 9. The Court held his petition in abeyance and stayed the case pending resolution of all issues by the California Supreme Court. Id. Petitioner then filed an original habeas petition with the California Supreme Court based on his evidence spoliation claim, and the California Supreme Court summarily denied it on November 24, 2015. Dkt. Nos. 11, 13-5. The Court reopened this case on December 3, 2015. Dkt. No. 12.

II. STATEMENT OF THE FACTS

The California Court of Appeal summarized the facts of the case as follows:

On October 14, 2005, Demae Wysinger and his girlfriend, Jazmanika Ridout, drove from their home to the home of Ridout's aunt so their two-year-old son, Naemon Wysinger, could play with the aunt's grandson. They arrived at the aunt's house less than an hour after sunset. They parked in front of the house and Ridout exited the passenger seat. As she was standing next to the car she heard Wysinger¹ say, "Who's that coming with a Ralo?"²

Ridout looked up and saw a man dressed all in black, with a black hoodie pulled up over his head, approaching on foot carrying a long black gun with a drum-style magazine. As the man neared their car he fired at least 18 shots from a .223 caliber semiautomatic firearm into and around the car, killing both Wysinger, who was seated in the driver's seat, and the little boy, who was strapped into a child seat in the rear of the car. The spray of gunfire likely lasted less than 20 seconds. When the shooting began, Ridout dropped to the ground and pulled herself forward to avoid being shot. She was nevertheless hit in the hand, leg, and foot by bullets or metal fragments. The murder weapon was never recovered.

The shooter then ran back in the direction from which he had come (toward Missouri Street) and disappeared. Two other witnesses offered information about a possible getaway car. One neighbor who lived on Missouri Street said he saw a black, dark blue, or dark green Volvo station wagon speeding away shortly after he heard theshots fired. Another neighbor on Missouri Street, looking out his window after he heard the shots, saw a dark-skinned African American man, dressed in black and holding a gun, run to a Chevrolet truck or SUV and get into the rear passenger seat before it sped away. He described the suspect to the police as approximately 20 years old, 5 feet 9 inches to 5 feet 11 inches tall, weighing 170 pounds, with a thin build, wearing all black clothes, and carrying a 9 millimeter handgun.³

Ridout, who had known defendant from her neighborhood since her early teens, identified him by name as the shooter at the scene⁴ and also in an ambulance on the way to the hospital. She picked out his photo at the hospital from a photo lineup and identified him at trial. Ridout described defendant to police as a light skinned black male with freckles, 5 feet 2 inches to 5 feet 3 inches tall, weighing 130 pounds. Despite the poor lighting and hooded sweatshirt, Ridout claimed she could see defendant's eyes, eyebrows, mouth, and nose as he approached the car. She made eye contact with him and recognized him instantly from his face and the way he walked. She was very confident of her identification.

Ridout was unable to put forth a motive for the shooting, since she had long been close friends with defendant in an almost brother-sister relationship. Defendant and Wysinger had also been on friendly terms. The prosecution hypothesized, however, that defendant shot Wysinger to avenge the killing of defendant's girlfriend's brother, who had been killed by Wysinger's stepbrother, Michael Howard, some 20 months earlier.⁵

The defense was mistaken identity. Other immediate eyewitnesses (three of Ridout's cousins), called by the defense, failed to identify defendant or anyone else as the killer, testifying it was too dark to see who did the shooting. A 13-year-old cousin, however, "guessed" the shooter was "probably" 5 feet 9 inches tall. Another 16-year-old cousin, who was located farther from the shooting scene, said the shooter was 5 feet 7 inches to 5 feet 9 inches and "assumed" he was "probably dark skinned" because if he had been light skinned the witness "probably would have seen a little something." The shooter's hood, he testified, came down to his eyebrows. One adult cousin, who was sitting in the doorway of Ridout's aunt's residence, estimated the gunman was 5 feet 6 inches to 5 feet 9 inches (including his hood) and weighed 175 pounds. She also testified the shooter's hood came down over his eyes and nose.

The defense also presented an expert witness on perception and memory who testified that even a confident eyewitness identification may be erroneous due to factors such as poor lighting,distance, brevity of observation, obstacles to vision, the viewer's expectations, and the filling in of memory gaps with postevent information.

Ridout was placed in a witness protection program after the shooting. In one of defendant's jailhouse telephone conversations he made a statement that could be construed as an offer to pay Ridout $10,000 if she failed to appear in court. In a different recorded jailhouse conversation defendant said, "shit if nigga, if that's what they come with nigga [i.e., a plea bargain of six to eight years l, I'm jumpin on it."

Dkt. No. 13-3 at 2-4 (footnotes in original).

III. DISCUSSION

A. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the 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).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (20000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on thestate courts and only those holdings need be "reasonably" applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

"Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "Under § 2254(d)(1)'s 'unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. The federal habeas court must presume to be correct any determination of a factual issue made by a state court unless ...