McGowen v. Bird et al, No. 5:2020cv07286 - Document 27 (N.D. Cal. 2023)

Court Description: ORDER DENYING 1 Petition for Writ of Habeas Corpus. Signed by Judge Edward J. Davila on 7/28/2023. (ejdlc2, COURT STAFF) (Filed on 7/28/2023)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 MYKOLAY MCGOWEN, 8 Plaintiff, 9 v. 10 LANDON BIRD, et al., United States District Court Northern District of California 11 Case No. 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Re: ECF No. 1 Defendants. 12 13 Petitioner Mykolay McGowen has filed a petition for a writ of habeas corpus under 28 14 15 U.S.C § 2254, challenging his state convictions for attempted murder. Respondents Warden 16 Landon Bird and the People of the State of California (collectively, “Respondents”) filed a 17 memorandum of points and authorities in support of their answer (ECF. No. 23), and Petitioner 18 filed a traverse (ECF. No. 26). For the reasons set forth below, the petition for a writ of habeas 19 corpus is DENIED. 20 I. BACKGROUND 21 A. 22 On April 13, 2015, Christian and Myzil Waters were shot in front of their house in East Incident and Petitioners’ Trial 23 Oakland. ECF No. 23-3, at 1417. Another victim, Dan Tran, was caught in the crossfire and shot 24 while he was working in his mechanics shop. Id. Surveillance video from Tran’s shop shows a 25 man resembling Petitioner exiting the passenger side of a black SUV before shooting at the Waters 26 brothers and the direction of Tran’s shop. Id. Christian and Myzil Waters are associated with the 27 64th Avenue group whereas Petitioner Mykolay McGowen is alleged to be from and associated 28 Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 1 with the 57th Avenue group. Id. at 990–991, 1024–25. These rival groups are alleged to be in an 2 ongoing feud. Id. at 1419. 3 4 investigation with Christian Waters (“Mr. Waters”) after he was shot. Id. at 753. During this 5 interview, Mr. Waters made statements to Sergeant Sanchez concerning his injury and discussed 6 the feud between the two street groups at length. Id. at 999–1000. During that interview, Mr. 7 Waters also told Sergeant Sanchez that he believed he was shot at because he was a person of 8 interest in a different murder. Id. at 1000. 9 United States District Court Northern District of California Oakland Police Department Sergeant Leo Sanchez conducted an interview as a part of the Before trial, the judge and counsel discussed possible hearsay issues regarding certain 10 statements made by Mr. Waters but ultimately decided that testimony of the ongoing feud would 11 be admissible either directly through Mr. Waters or through impeachment. Id. at 461–463. 12 During his trial testimony, Mr. Waters denied telling Sergeant Sanchez why he thought he 13 was being shot at or having been asked about it. Mr. Waters claimed that he did not know who 14 had shot him and denied having ever been asked who had shot him or why during police 15 interviews. Id. at 745–46. He further testified there were no shootings between the two street 16 groups. Id. at 751–52. On re-direct, Mr. Waters denied stating or having any belief that he was 17 shot at because he was a suspect in the murder of a member of the rival street group. Id. at 768. 18 After Mr. Waters testified, the prosecutor disclosed the potential inconsistencies from his 19 testimony to the court and defense counsel. Id. at 935. The judge found that there were in fact 20 inconsistencies in Mr. Waters’s testimony, and that the impeachment testimony of Sergeant 21 Sanchez would be allowed. Id. at 935–36. Oakland Police Department Sergeants Smoak, Birch 22 and Sanchez all testified at trial. 23 Sergeant Sanchez was called to impeach Mr. Waters’s trial testimony. He testified to 24 conducting over 30 interviews during his investigation of another murder between the rival 25 groups. Id. at 987. This investigation included interviewing Mr. Waters after he was shot. Id. at 26 999. Sergeant Sanchez further testified, in his investigation, he learned that the feud between the 27 two groups often involved shootings back and forth in connection with two previous murders. Id. 28 Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 2 1 at 991. Sergeant Sanchez also stated, contrary to Mr. Waters’s testimony, that Mr. Waters had 2 told him he believed he was shot at because he was a suspect in the murder of one of the members 3 from the rival street group. Id. at 1000. 4 5 he had worked in East Oakland for nine years and that he was familiar with the area and groups 6 around 57th and 64th Avenues. Id. at 878–79. He further testified that there was an increase in 7 the frequency of shootings in that area after the murder of a member of one of the street groups. 8 Id. at 880–881. 9 United States District Court Northern District of California Sergeants Birch and Smoak also testified at trial. Id. at 545. Sergeant Birch testified that Sergeant Smoak was the first officer to arrive where Mr. Waters had been shot. Id. at 10 1012. He also testified that he had been a supervisor of the gang unit in East Oakland for about a 11 year and a half, and that he knew the Waters brothers because of prior contact with the brothers 12 stemming from investigations of the ongoing feud between the two street groups. Id. at 1014–15. 13 On May 4, 2017, a jury found Mykolay McGowen guilty of premeditated attempted 14 murder of two brothers, Myzil and Christian Waters; the attempted murder of Dan Tran; assault 15 with a semiautomatic firearm; and unlawful possession of a firearm by a prohibited person. He 16 was sentenced to prison for a term of over 85 years to life. 17 B. 18 On June 17, 2019, the California Court of Appeal reversed the attempted murder Appellate Proceedings 19 conviction for Tran but upheld the convictions for attempted murder of Myzil and Christian 20 Waters. ECF. No. 23-3, at 1428. The Court of Appeal also denied a petition for habeas corpus 21 filed by McGowen as moot because of its decision on direct appeal. Id. at 1570. The case was 22 remanded for resentencing, which resulted in a sentence of over 38 years to life. Id. at 1432. The 23 California Supreme Court denied review on August 28, 2019. ECF. No. 1, at 8. 24 C. 25 Petitioner filed a petition for a writ of habeas corpus in this Court on October 16, 2020. Procedural History 26 Respondents filed a memorandum of points and authorities in support of their answer on 27 September 23, 2022. Petitioner filed a traverse on November 16, 2022. 28 Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 3 1 United States District Court Northern District of California 2 II. STANDARD OF REVIEW This Court may entertain a petition for a writ of habeas corpus “on behalf of a person in 3 custody pursuant to the judgement of a state court only on the ground that he is in custody in 4 violation of the constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 5 Hodges, 423 U.S. 19, 21 (1975). Where the writ is filed by a state court defendant in relation to 6 his or her trial proceedings, the writ may not be granted with respect to any claim that was 7 adjudicated on the merits in the state court unless the state court’s adjudication of the claim: “(1) 8 resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 9 established Federal law, as determined by the Supreme Court of the United States; or (2) resulted 10 in a decision that was based on an unreasonable determination of the facts in light of the evidence 11 presented in the State court proceeding.” 28 U.S.C. § 2254(d). 12 A state court decision is “contrary to” Supreme Court precedent if “the state court arrives 13 at a conclusion opposite that reached by [the Supreme] Court on a question of law or if the state 14 court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” 15 Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A state court decision is an “unreasonable 16 application” of Supreme Court precedent if “the state court identifies the correct governing legal 17 principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts 18 of the prisoner’s case.” Id. at 413. “Under § 2254(d)(1)’s ‘unreasonable application’ clause, . . . a 19 federal habeas court may not issue the writ simply because that court concludes in its independent 20 judgement that the relevant state-court decision applied clearly established federal law erroneously 21 or incorrectly.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry 22 should ask whether the state court’s application of clearly established federal law was “objectively 23 unreasonable.” Id. 409. The federal habeas court must presume as correct any determination of a 24 factual issue made by a state court unless the petitioner shows by clear and convincing evidence 25 that the determination was incorrect. 28 U.S.C. § 2254(e)(1). 26 Under 2254(d), a federal habeas court must impose a highly deferential standard for 27 evaluating state court rulings. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal 28 Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 4 1 citation omitted). This demands that state court decisions be given the benefit of the doubt. Id. 2 See also, Burt v. Titlow, 571 U.S. 12, 15 (2013). They must be reviewed solely on “the record that 3 was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 4 170, 180 (2011). “In determining whether a state court decision is contrary to federal law, we look 5 to the state's last reasoned decision.” Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). 6 federal habeas scheme leaves primary responsibility with the state court for these judgements and 7 authorizes federal court intervention only when a state court decision is objectively unreasonable. 8 Woodford, 537 U.S. at 27. 9 III. United States District Court Northern District of California 10 The DISCUSSION The Court of Appeal was the last court to have reviewed Petitioner’s claims in a reasoned 11 decision, and accordingly it is the Court of Appeal’s decision that this Court reviews herein. 12 Barker v. Fleming, 423 F.3d 1085, 1091–1092 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 13 U.S. 797, 803–804 (1991)). 14 Petitioner asserts three grounds for relief: (1) the introduction of testimonial hearsay 15 concerning the alleged feud between the 64th and 57th street groups violated the Sixth 16 Amendment Confrontation Clause; (2) trial counsel was constitutionally ineffective in failing to 17 challenge introduction of testimonial hearsay concerning the alleged feud between the 64th and 18 57th street groups; and (3) even if that evidence was admissible, there was constitutionally 19 insufficient evidence under the Fourteenth Amendment Due Process clause for the jury to 20 conclude that McGowen was the shooter. 21 A. 22 First, Petitioner contends that the admission of testimonial hearsay concerning the alleged Sixth Amendment Confrontation Clause 23 feud between the 64th and 57th street groups violated the Sixth Amendment Confrontation Clause. 24 ECF. No. 1, at 15–16. 25 The “Sixth Amendment Confrontation Clause provides that, ‘[i]n all criminal prosecutions, 26 the accused shall enjoy the right . . . to be confronted with the witnesses against him.’” Crawford 27 v. Washington, 541 U.S. 36, 42 (2004). A witness’s testimony against the defendant is 28 Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 5 1 inadmissible unless the witness appears at trial, or the defendant had a prior opportunity to cross 2 examine the witness if they were unavailable at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 3 305, 309 (2009) (citing Crawford, 541 U.S. at 54). United States District Court Northern District of California 4 The Petitioner argues that Sergeant Sanchez’s testimony relied on testimonial hearsay from 5 Mr. Waters, which violated the Confrontation Clause. ECF. No. 1, at 20. However, Sergeant 6 Sanchez’s testimony was for the purposes of impeaching Mr. Waters by way of prior inconsistent 7 statements. Mr. Waters had denied, at trial, having told Sergeant Sanchez that he believed he was 8 shot at because he was a suspect in the murder of a member of the rival street group. ECF. No. 9 23-3, at 768. Sergeant Sanchez, however, testified that Mr. Waters previously stated that he 10 believed he was shot at because he was a person of interest in the murder of a member of the rival 11 street group. Id. at 1000. Admission of a prior inconsistent statement, however, does not violate 12 the Confrontation Clause when the declarant was present at trial and was cross examined. See 13 California v. Green, 399 U.S. 149, 164 (1970) (“[T]he Confrontation Clause does not require 14 excluding from evidence the prior statements of a witness who concedes making the statements, 15 and who may be asked to defend or otherwise explain the inconsistency between his prior and his 16 present version of the events in question, thus opening himself to full cross-examination at trial as 17 to both stories.”). This was reiterated in Crawford: “when the declarant appears for cross- 18 examination at trial, the Confrontation Clause places no constraints at all on the use of his prior 19 testimonial statements.” 541 U.S. 59 n.9. Petitioner’s trial counsel had the opportunity to, and did 20 in fact, cross examine Mr. Waters. Thus, the Court finds that the Court of Appeal reasonably 21 determined that the evidence did not violate the Confrontation Clause and was admissible. ECF. 22 No. 23-3, at 1421. 23 The Petitioner also argues that Sergeants Birch and Smoak relied on testimonial hearsay 24 when giving their testimony at trial. ECF. No. 1, at 20. The Supreme Court held in Crawford that 25 testimonial hearsay cannot be introduced in a criminal case—specifically including prior 26 testimony from police interrogations—unless there was an opportunity for cross examination. 541 27 U.S. at 68. However, neither Sergeants’ testimony relied on any hearsay statements. Their 28 Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 6 United States District Court Northern District of California 1 testimony of the alleged feud between the two street groups were based on the Sergeants’ own 2 experiences working in the area. Neither officer testified as to any out-of-court statements but 3 instead kept their testimony to knowledge within their own experience and investigations. 4 Sergeant Birch testified that during his time working in the area there was an increase in shootings 5 between both street groups after a member of one of the groups was murdered. Id. at 880–881. 6 Sergeant Smoak testified that he recognized the Waters brothers when he arrived where they had 7 been shot. Id. at 1011-12. He further testified his recognition was because he was familiar with 8 an ongoing feud between the two street groups and thus was somewhat familiar with the members 9 of the groups. Id. at 1014-15. He also testified that it was because of his knowledge of this feud 10 that he drove to 57th Avenue to locate the vehicle he saw in the surveillance video. The testimony 11 of both officers did not specify any out-of-court statements and, therefore, were not hearsay 12 statements in contravention of the Confrontation Clause. 13 In addition, both officers were cross examined by trial counsel which is independent basis 14 that would frustrate Petitioner’s Confrontation Clause claim. Melendez-Diaz, 557 U.S. at 309. 15 Therefore, the Court of Appeal did not unreasonably apply Supreme Court precedent in deciding 16 the testimony was not inadmissible hearsay. ECF. No. 23-3, at 1421. 17 B. 18 Second, the Petitioner argues that his trial counsel was ineffective in failing to challenge 19 20 Ineffective Assistance of Counsel the admission of the aforementioned testimonial hearsay. ECF. No. 1, at 16. A claim of ineffective counsel is cognizable as a claim for denial of the Sixth Amendment 21 right to counsel, which guarantees not only assistance but effective assistance of counsel. 22 Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of 23 ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the 24 adversarial process that the trial cannot be relied upon as having produced a just result. Id. The 25 proper standard for attorney performance is “reasonably effective assistance.” Id. at 668. 26 In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, Petitioner must 27 establish two elements. First, he must establish that counsel’s performance was deficient, i.e., that 28 Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 7 1 it fell below an “objective standard of reasonableness” under prevailing professional norms. Id. at 2 687–88. Second, he must establish that he was prejudiced by counsel’s deficient performance, i.e., 3 that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 4 proceeding would have been different.” Id. at 694. A reasonable probability is a probability 5 sufficient to undermine confidence in the outcomes. Id. A doubly deferential standard of review 6 is appropriate when analyzing ineffective assistance of counsel claims under § 2254 that accords 7 both the state court and the defense attorney the benefit of the doubt. Burt, 571 U.S. at 15 (citing 8 Cullen, 563 U.S. at 201). United States District Court Northern District of California 9 Petitioner argues that his trial counsel was deficient in failing to object to the admission of 10 claimed inadmissible hearsay. ECF. No. 1, at 22. However, as stated above, the testimony of 11 Sergeant Sanchez was used for impeachment purposes in response to inconsistent statements from 12 Mr. Waters. Because Mr. Waters testified at trial, his own testimonial statements were admissible. 13 In addition, the testimony from Sergeants Birch and Smoak were drawn from their own 14 experiences and observations from working in the area as Oakland police officers. Because these 15 officers were not recalling another’s out-of-court statement, their testimony was not hearsay. Any 16 hearsay objection would have been without merit and, therefore, trial counsel did not render 17 ineffective assistance. Furthermore, the Court of Appeal astutely pointed out that there was no 18 specific instance or testimony where the Petitioner alleges an objection should have been made; 19 Petitioner merely postulates vaguely that some objection should have been made. ECF. No. 23-3, 20 at 1421 n. 4. ECF. No 1, at 22. Therefore, the Court of Appeal correctly determined that trial 21 counsel did not give ineffective assistance by failing to challenge the testimony. 22 In summary, trial counsel’s failure to object did not violate the “objective standard of 23 reasonableness.” See Strickland, 466 U.S. at 687–88. Because the Court finds that the state court 24 reasonably determined that Petitioner had failed to establish at least one of the elements for 25 ineffective assistance of counsel, Petitioner is not entitled to federal habeas relief on this claim. 26 C. 27 Third, Petitioner argues that, even if the evidence was properly admitted, there was 28 Sufficiency of the Evidence Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 8 1 constitutionally insufficient evidence for the jury to conclude McGowen was the shooter. ECF. 2 No. 1, at 16. 3 The controlling inquiry in a legal sufficiency analysis is “whether, after viewing the 4 evidence in the light most favorable to the prosecution, any rational trier of fact could have found 5 the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 6 307, 319 (1979). On habeas review, the Court presumes the factual findings of the state courts to 7 be correct unless it is rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Here, the Court finds that, viewed in the light most favorable to the prosecution, there is 8 United States District Court Northern District of California 9 sufficient evidence to uphold the conviction. For instance, although Petitioner claims there was no 10 substantial evidence placing him at the scene or tying him to it (ECF. No. 1, at 25), the security 11 video of the shooting showed the shooter had the same complexion, build, and hairline as the 12 Petitioner. ECF. No. 23-3, at 1024. In addition, the car in the video also matched the Petitioner’s 13 car. The Court of Appeal further noted that the disputed motive testimony was not essential but 14 rather supported the conclusion that the defendant was the shooter. Id. at 1422. Thus, the Court 15 of Appeal’s decision was not contrary to clearly established federal law because there was 16 sufficient evidence to support the Petitioner’s convictions for attempted murder.1 17 IV. CERTIFICATE OF APPEALABILITY 18 Rule 11 of the Rules Governing Section 2254 Cases requires the District Court to issue or 19 deny a Certificate of Appealability when entering a final order adverse to the applicant. See Rule 20 11(a) of the Rules Governing Section 2254 Cases. The Court here declines to issue a Certificate of 21 Appealability. Petitioner has not made “a substantial showing of the denial of a constitutional 22 right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on 23 the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must 24 demonstrate that reasonable jurists would find this Court's assessment of the constitutional claims 25 26 27 28 1 Petitioner also argues that the cumulative effect of errors during his trial rendered it unfair. Petitioner has only identified three issues, all of which stem from the same general facts. As discussed, none of the purported errors have any merit, nor would they have any cumulative effect that would render the trial unfair given that they all arose from the same set of facts. Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 9 1 to be debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds the 2 Petitioner has not demonstrated that a reasonable jurist would find the district court’s assessment 3 of the constitutional claims to be debatable. For the reasons discussed above, the alleged 4 constitutional claims are wholly without merit: the testimony of the officers did not violate the 5 Confrontation Clause, and Petitioner’s trial attorney was not ineffective in failing to challenge the 6 entry of the testimony. Petitioner may not appeal the denial of a Certificate of Appealability in this 7 Court but may seek a certificate from the Ninth Circuit Court of Appeals under Rule 22 of the 8 Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases. 9 V. 10 United States District Court Northern District of California 11 12 13 CONCLUSION After reviewing the record and pertinent law, the Court DENIES the petition for writ of habeas corpus and DECLINES to issue a Certificate of Appealability. IT IS SO ORDERED. Dated: July 28, 2023 14 15 16 EDWARD J. DAVILA United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 5:20-cv-07286-EJD ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 10

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