Simpson v. Moore

• Court: District Court, S.D. California
• Decided: March 18, 2025
• Docket: 3:21-cv-01763
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIONTE JAMAL SIMPSON, Case No.: 21cv1763-CAB-JLB

12 Petitioner, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION [Doc. No. 42], OVERRULING OBJECTIONS, 14 MOORE, et al, DENYING AMENDED PETITION, 15 Respondent. AND DENYING CERTIFICATE OF APPEALABILITY 16

17 Dionte Jamal Simpson (“Petitioner”), is a state prisoner proceeding (with counsel) 18 with an Amended Petition for Writ of Habeas Corpus by a Person in State Custody 19 pursuant to 28 U.S.C. § 2254. [Doc. No. 30.] This matter was referred to United States 20 Magistrate Judge Jill L. Burkhardt pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate 21 Judge Burkhardt issued a Report and Recommendation (“Report”) recommending the 22 Court deny the petition. [Doc. No. 42.] Petitioner filed objections to the Report. [Doc. 23 No. 43.] 24 Following de novo review of Petitioner’s claims, the Court finds the Report to be 25 thorough, complete, and an accurate analysis of the legal issues presented in the petition. 26 For the reasons explained below, the Court: (1) adopts the Report in full; (2) rejects 27 28 1 Petitioner’s objections; (3) denies the Amended Petition for Writ of Habeas Corpus; and 2 (4) denies a certificate of appealability. 3 BACKGROUND 4 I. Factual Background 5 The Report contains an accurate recital of the facts as determined by the California 6 Court of Appeal, and the Court fully adopts the Report’s statement of facts. [Doc. No. 42 7 at 2.] As Judge Burkhardt correctly noted, the Court presumes state court findings of fact 8 to be correct. 9 II. State Procedural Background 10 The Report contains a complete and accurate summary of the state court 11 proceedings, and the Court fully adopts the Report’s statement of state procedural 12 background. [Doc. No. 42 at 12.] 13 III. Federal Procedural Background 14 On October 12, 2021, Petitioner filed a Petition for Writ of Habeas Corpus 15 challenging his San Diego County Superior Court conviction. [Doc. No. 1.] On July 8, 16 2022, this Court granted Petitioner’s motion for stay and abeyance. [Doc. No. 15.] On 17 April 8, 2024, the stay was lifted, the case reopened, and Petitioner was granted leave to 18 file an amended petition. [Doc. No. 29.] Now proceeding with counsel, on April 30, 19 2024, Petitioner filed an Amended Petition. [Doc. No. 30.] On July 1, 2024, Respondent 20 filed a Response to the Petition, and lodged portions of the state court record. [Doc. Nos. 21 34-39.] On July 29, 2024, Petitioner filed a Traverse. [Doc. No. 41.] 22 On January 31, 2025, Magistrate Judge Burkhardt issued a Report recommending 23 that the petition be denied. [Doc. No. 42.] On February 14, 2025, Petitioner filed an 24 Objection to the Report. [Doc. No. 43.] In his objection, Petitioner argues that the 25 magistrate judge erred in finding that the state court did not make an unreasonable 26 application of clearly established federal law or an unreasonable determination of the 27 facts in light of the evidence. Petitioner also requests an evidentiary hearing. Because 28 1 Petitioner has objected to the Report in its entirety, the Court reviews the Report de novo. 2 28 U.S.C. § 636(b)(1)(C); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004). 3 4 DISCUSSION 5 I. Legal Standard 6 The Report sets forth the correct standard of review for a petition for writ of habeas 7 corpus. Under 28 U.S.C. § 2254(d): 8 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with 9 respect to any claim that was adjudicated on the merits in State court 10 proceedings unless the adjudication of the claim- (1) resulted in a decision that was contrary to, or involved an unreasonable 11 application of, clearly established Federal law, as determined by the 12 Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of 13 the facts in light of the evidence presented in the State court proceeding. 14 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000). 15 Under § 2254(d)(1), a state court's decision is “contrary to” clearly established 16 federal law if the state court (1) “arrives at a conclusion opposite to that reached by this 17 Court on a question of law” or (2) “confronts facts that are materially indistinguishable 18 from a relevant Supreme Court precedent and arrives at a result opposite to ours.” 19 Williams, 529 U.S. at 405. A state court's decision is an “unreasonable application” if the 20 application was “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 21 (2003). 22 Under § 2254(d)(2), habeas relief is not available due to a state court's 23 “unreasonable determination of the facts” unless the underlying factual determinations 24 were objectively unreasonable. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see 25 also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds 26 reviewing the record might disagree” does not render a decision objectively 27 unreasonable). 28 1 II. Analysis of Petitioner’s Claims 2 In his petition, Petitioner claims that he should be granted habeas relief on the 3 following grounds: (1) he was denied his federal right to due process where the People 4 failed to present sufficient evidence to sustain Petitioner’s conviction for conspiracy in 5 Count 1 (Claim One); (2) he was denied his federal right to due process where the jury 6 was permitted to consider overt acts after the conspiracy terminated and overt acts that 7 were not proven to support Count 1 (Claim Two); (3) he was denied his federal right to 8 due process where the reading of CALCRIM 418 permitted the jury to convict Petitioner 9 based on a lesser burden of proof (Claim Three); (4) he was denied his federal right to 10 due process where there was insufficient evidence to prove that Petitioner committed 11 attempted murder in Counts 2 and 3 or assault with a semi-automatic firearm in Counts 4 12 and 5 (Claim Four); (5) he was denied his federal right to due process based on the 13 cumulative prejudicial effect of the above errors (Claim Five); (6) he was denied his 14 federal right to due process due to trial counsel’s ineffective assistance of counsel (Claim 15 Six); and (7) he was denied his federal right to due process due to prosecutorial 16 misconduct (Claim Seven). [Doc. No. 30 at 15–18.] 17 18 A. Claims One and Four: Insufficiency of Evidence Claims 19 In Claim One, Petitioner argues that his federal right to due process under the 20 Fifth, Sixth, and Fourteenth Amendments was violated because the People failed to 21 present sufficient evidence to sustain his conviction for conspiracy (Count 1). [Doc. No. 22 30-1 at 14-21.] Judge Burkhard correctly found that the Court of Appeal’s decision was 23 neither contrary to, nor involved an unreasonable application of, the Jackson1 standard; 24 nor was it based on an unreasonable determination of the facts in light of the evidence 25 presented. [Doc. No. 42 at 52.] In his objections, Petitioner argues he properly asserted 26 27 28 1 and exhausted the claim based upon Assembly Bill 333. [Doc. No. 43 at 3.] As correctly 2 noted by Judge Burkhardt, this claim was not properly exhausted but, even if it was 3 exhausted, it did not raise a colorable claim. [Doc. No. 42 at 46.] In his objections, 4 Petitioner also argues the Magistrate Judge misconstrued United States v. Garcia, 151 5 F.3d 1243, 1247 (9th Cir. 1998), because the excerpted language only applies “in some 6 cases.” [Doc. No. 43 at 4.] However, the Magistrate Judge correctly noted that “evidence 7 of gang membership may help to link gang members to [an illegal] objective.” Id. at 8 1247 (emphasis added). Moreover, as noted by the Magistrate Judge, the Court of 9 Appeals reasonably found that there was ample evidence to support the jury’s finding and 10 was not limited to Petitioner’s membership in a gang. [Doc. No. 42 at 49.] Accordingly, 11 the Court adopts the Report, overrules the objections, and denies the petition as to Claim 12 One. 13 In Claim Four, Petitioner argues that his federal right to due process under the 14 Fifth, Sixth, and Fourteenth Amendments was violated because the People failed to 15 present sufficient evidence to sustain his convictions for attempted murder (Counts 2 and 16 3) and assault with a semi-automatic firearm (Counts 4 and 5). [Id. at 26-29.] In his 17 objections, Petitioner merely reiterates his previous arguments. As Judge Burkhardt 18 correctly analyzed, however, the Court of Appeal’s rejection of this claim was not 19 objectively unreasonable, as a rational trier of fact could have found beyond a reasonable 20 doubt that Petitioner was guilty of attempted murder and assault with a semi-automatic 21 firearm, based upon Petitioner’s actions and all the circumstances surrounding the 22 shooting. [Doc. No. 42 at 27.] Accordingly, the Court adopts the Report, overrules the 23 objections, and denies the petition as to Claim Four. 24 25 B. Claims Two and Three: 26 In Claim Two, Petitioner argues that he was denied his federal due process rights 27 in violation of the Fifth, Sixth, and Fourteenth Amendments where the jury was permitted 28 to consider overt acts after the conspiracy terminated and overt acts that were not proven 1 to support Count 1. [Doc. No. 30-1 at 21-23.] In his objections Petitioner argues that 2 while the Magistrate Judge acknowledged the “lack of evidence presented to support the 3 overt acts [15 and 44], she declined to acknowledge that it follows that it would be 4 inappropriate for a jury to convict based on those acts. [Doc. No. 43 at 6.] As noted by 5 the Magistrate Judge and the Court of Appeal, because the jury was instructed that the 6 People were required to prove the commission of at least one overt act, the jurors could 7 not have relied on these two overt acts to support the conspiracy convictions; thus 8 inclusion of those overt acts did not, by itself, violate due process. [Doc. No. 42 at 68.] 9 Accordingly, the Court adopts the Report, overrules the objections, and denies the 10 Petition as to Claim Two. 11 In Claim Three, Petitioner argues that he was denied his federal due process rights 12 in violation of the Fifth, Sixth, and Fourteenth Amendments when the jury was instructed 13 using CALCRIM 418. [Doc. No. 30-1 at 23-26.] In his objections, Petitioner argues that 14 the trial court’s use of the language “specifically otherwise” when referring to an 15 exception of the beyond reasonable doubt standard did, in fact unconstitutionally lower 16 the burden of proof in Petitioner’s case. [Doc. No. 43 at 6.] As correctly noted by the 17 Magistrate Judge, the trial court’s single discussion of the preponderance standard for the 18 People was limited to the circumstances under which the jury could consider the co- 19 conspirator statements; otherwise, the jury was repeatedly instructed that the standard 20 was beyond a reasonable doubt as to Petitioner’s guilt. [Doc. No. 42 at 62.] Therefore, 21 there was no due process violation. Accordingly, the Court adopts the Report, overrules 22 the objections, and denies the petition as to Claim Three. 23 24 C. Claim Five: 25 In Claim Five, Petitioner argues he was denied his federal right to due process 26 under the Fifth, Sixth, and Fourteenth Amendments due to the cumulative prejudicial 27 effect of the above errors. [Doc. No. 30-1 at 29-30.] In his objections, Petitioner argues 28 that “Petitioner’s trial counsel repeatedly failed, at all stages of the proceedings, to 1 investigate the available evidence and witnesses” and the cumulative effects of such 2 errors was prejudicial to him. [Doc. No. 43 at 6.] However, this argument was not raised 3 to the Magistrate Judge regarding this claim. Moreover, as correctly noted by the 4 Magistrate Judge, because there have been no errors, this Court need not address the 5 “cumulative effect” of such alleged errors. [Doc. No. 42 at 69.] Accordingly, the Court 6 adopts the Report, overrules the objections, and denies the petition as to Claim Five. 7 8 D. Claims Six and Seven – Procedural Default: 9 In Claim Six, Petitioner argues that he was denied his federal right to due process 10 under the Fifth, Sixth, and Fourteenth Amendments due to ineffective assistance of trial 11 counsel. [Doc. No. 30-1 at 31-33.] In Claim Seven, Petitioner argues that he was 12 deprived of his federal right to due process under the Fifth, Sixth, and Fourteenth 13 Amendments due to prosecutorial misconduct. [Doc. No. 30-1 at 39-41.] However, as 14 the Magistrate Judge correctly analyzed, these claims are procedurally defaulted. [Doc. 15 No. 42 at 75.] In his objections, Petitioner disagrees with the Magistrate Judge’s 16 conclusions, but fails to respond to the procedural default analysis and merely reiterates 17 arguments about trial counsel’s alleged failures. [Doc. No. 43 at 7.] Accordingly, the 18 Court adopts the Report, overrules the objections, and denies the petition as to Claims Six 19 and Seven because they are procedurally defaulted. 20 21 E. Claim Six: 22 In Claim Six, Petitioner argues that he was denied his federal right to due process 23 under the Fifth, Sixth, and Fourteenth Amendments due to ineffective assistance of trial 24 counsel. [Doc. No. 30-1 at 31-33.] The Magistrate Judge correctly concluded that Court 25 of Appeal’s decision on this claim was not contrary to, nor an unreasonable application of 26 27 28 1 the Strickland standard, as counsel’s conduct fell within the wide range of reasonable 2 professional assistance. [Doc. No. 42 at 80.] In his objections, Petitioner merely 3 reiterates his previous arguments. [Doc. No. 43 at 8.] Accordingly, the Court adopts the 4 Report, overrules the objections, and denies the petition as to Claim Six. 5 6 F. Claim Seven: 7 In Claim Seven, Petitioner argues that he was deprived of his federal right to due 8 process under the Fifth, Sixth, and Fourteenth Amendments due to prosecutorial 9 misconduct. [Doc. No. 30-1 at 39-41.] The Magistrate Judge found that the Court of 10 Appeal’s rejection of the prosecutorial misconduct claim was not contrary to, or based on 11 an unreasonable application of, clearly established federal law; nor was it based on an 12 unreasonable determination of the facts in light of the evidence presented in the State 13 court proceeding. [Doc. No. 42 at 88.] In his objections, Petitioner reiterates his 14 concerns regarding Tiana Jasicki’s identification of Petitioner as the shooter. [Doc. No. 15 43 at 9.] As correctly noted by the Magistrate Judge, there was no showing of 16 prosecutorial misconduct because the totality of the circumstances indicates there was no 17 substantial likelihood of misidentification, and there was no evidence the prosecutor 18 knowingly or intentionally elicited inadmissible evidence. [Doc. No. 42 at 87.] 19 Accordingly, the Court adopts the Report, overrules the objections, and denies the 20 petition as to Claim Seven. 21 22 III. Petitioner's Request for an Evidentiary Hearing 23 In his Petition, Petitioner requests an evidentiary hearing. Section 2254(e) 24 “substantially restricts the district court's discretion to grant an evidentiary hearing.” Baja 25 v. Ducharme, 187 F.3d 1075, 1077 (9th Cir.1999). Section 2254(e)(2) provides: 26 27 28 1 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the 2 claim unless the applicant shows that- 3 (A) the claim relies on- (i) a new rule of constitutional law, made retroactive to cases on collateral 4 review by the Supreme Court, that was previously unavailable; or 5 (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and 6 (B) the facts underlying the claim would be sufficient to establish by clear 7 and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 8 28 U.S.C. § 2254(e)(2). 9 As the magistrate judge correctly noted, there is a sufficient factual basis in the 10 record to resolve Petitioner’s claims. The Court therefore DENIES Petitioner's request 11 for an evidentiary hearing. 12

13 CERTIFICATE OF APPEALABILITY 14 A petitioner complaining of detention arising from state court proceedings must 15 obtain a certificate of appealability to file an appeal of the final order in a federal habeas 16 proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate 17 of appealability if the petitioner “has made a substantial showing of the denial of a 18 constitutional right.” Id. § 2253(c)(2). To make a “substantial showing,” the petitioner 19 must “demonstrat[e] that ‘reasonable jurists would find the district court's assessment of 20 the constitutional claims debatable[.]’ ” Beaty v. Stewart, 303 F.3d 975, 984 (9th 21 Cir.2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has not 22 made a “substantial showing” as to any of the claims raised by his petition, and thus the 23 Court sua sponte denies a certificate of appealability. 24

25 CONCLUSION 26 In sum, Petitioner has not established that the appellate court's decision was 27 contrary to, or involved an unreasonable application of, clearly established federal law, or 28 1 || was based on an unreasonable determination of the facts in light of the evidence 2 || presented in the state courts. The Court hereby: (1) adopts the Report in full; (2) rejects 3 || Petitioner's objections; (3) denies the Amended Petition for Writ of Habeas Corpus; and 4 denies a certificate of appealability. 5 IT IS SO ORDERED. 6 || Dated: March 18, 2025 € ZL 7 Hon. Cathy Ann Bencivengo 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28