1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 RICHARD LAWRENCE, Case No. 2:19-cv-04410-MWF (AFM) 12 Petitioner, ORDER ACCEPTING FINDINGS v. 13 AND RECOMMENDATIONS OF 14 NEUSCHMID, Warden, UNITED STATES MAGISTRATE JUDGE 15 Respondent. 16 17 Pursuant to

, the Court has reviewed the Petition, the records 18 on file, the initial Report and Recommendation of United States Magistrate Judge 19 (“August 29, 2019 Report”), and the Amended Report and Recommendation of 20 United States Magistrate Judge (“Amended Report”). While Petitioner did not file 21 objections to the Amended Report, the Court has considered the objections to the 22 August 29, 2019 Report and has engaged in a de novo review of those portions of the 23 Report to which objections have been made. 24 Petitioner’s objections are overruled. The Court adopts the findings and 25 recommendations contained in the Amended Report with the following exceptions 26 and additions: 27 First, the Amended Report is corrected to reflect that the petition was 28 constructively filed on May 8, 2019 – the date on which Petitioner signed the proof 1 of service and handed his petition to the appropriate prison official for mailing. (See 2 ECF No. 1 at 68, 70.) See Houston v. Lack,

(1988); Roberts v. 3 Marshall,

, 770 n.1 (9th Cir. 2010).Thus, the petition was filed after the 4 one-year statute of limitation expired. 5 Second, while the Court agrees with the conclusion that Petitioner has failed 6 to demonstrate that the actual innocence exception applies to him, the Court makes 7 additional findings supporting that conclusion. As the Amended Report states, the 8 Supreme Court has held that “actual innocence, if proved, serves as a gateway 9 through which a petitioner may pass” when his claims would otherwise be barred by 10 the statute of limitations. McQuiggin v. Perkins,

(2013). In 11 McQuiggin, the Supreme Court emphasized that “tenable actual-innocence gateway 12 pleas are rare,” explaining that: “[A] petitioner does not meet the threshold 13 requirement unless he persuades the district court that, in light of the new evidence, 14 no juror, acting reasonably, would have voted to find him guilty beyond a reasonable 15 doubt.” McQuiggin,

, 399 (quoting Schlup v. Delo,

, 329 16 (1995)). 17 A credible claim of actual innocence requires a petitioner to “support his 18 allegations of constitutional error with new reliable evidence – whether it be 19 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 20 evidence – that was not presented at trial.” Schlup,

. In determining 21 whether the petitioner has made the requisite showing, the court considers “all the 22 evidence, old and new, incriminating and exculpatory, admissible at trial or not.” Lee 23 v. Lampert,

(9th Cir. 2011) (en banc) (internal quotations omitted; 24 citing House v. Bell,

(2006)). On this record, the court makes 25 “‘probabilistic determination about what reasonable, properly instructed jurors would 26 do.’” House,

(quoting Schlup,

). 27 Petitioner here has failed to meet Schlup’s exacting standard. In order to 28 analyze the effect of Petitioner’s evidence of innocence, the Court begins by 1 considering the evidence of guilt.1 2 Petitioner was convicted of one count of first degree murder; multiple counts 3 of willful, deliberate, and premeditated attempted murder; and shooting at an 4 occupied vehicle. All of the charges stemmed from three shootings that took place in 5 an area known to be the territory of the Mona Park crips – a street gang that is a rival 6 of Petitioner’s gang, the Anzac Grape crips. 7 The first shooting occurred on the night of April 5, 2014. Erik Desarden, a 8 member of the Mona Park crips, and his girlfriend, D’Anna Eleby, had parked 9 Eleby’s car on 122nd Street near Willowbrook Avenue. Desarden left the car to talk 10 to five or six men he knew, who were standing in the street. Eleby was standing at 11 the back of the vehicle when she heard gunshots. Desarden was struck by multiple 12 bullets and killed. Keisa Sims, who lived nearby, was standing outside when gunfire 13 erupted. The shots appeared to be coming from two men in hoodies standing at the 14 stop sign on Willowbrook Avenue.Abullet struck Sims in the back. After the gunfire 15 ceased, Sims saw the two men jogging quickly away. Numerous bullet shell casings 16 were found at the scene. 17 The second shooting occurred approximately three weeks later. Jesse 18 Drumgole drove with a friend to an apartment complex on Willowbrook Avenue just 19 around the corner from the scene of the Desarden shooting. After purchasing 20 marijuana, Drumgole was backing his car out of the driveway when a man started 21 shooting at him and his passenger, shattering the vehicle’s front window. Drumgole 22 ducked and kept driving, realizing at some point that bullets had hit him in the back 23 of the head and on his right shoulder. At the hospital later that night, a police detective 24 showed Drumgole an array of six photographs. Drumgole identified Petitioner, 25 whom he did not know, as the shooter. 26 1 The followingfactual summary is drawn from the opinion of the California Court of Appeal.See 27 People v. Lawrence,

, at *1–3 (Jan. 6, 2017). Where petitioner has not challenged the accuracy of a state court’s summary of evidence, it is entitled to a presumption of correctness. 28 See

(e)(1); Tilcock v. Budge,

(9th Cir. 2008). 1 The third shooting took place approximately one week later. Havon Williams, 2 who was a member of the Mona Park crips, was walking in the vicinity of the other 3 shootings when he heard gunfire. He saw a couple of people pointing guns, and 4 started running. He was struck by a bullet in his buttocks. Williams was unable to 5 identify the shooter. 6 Petitioner was linked to all three of the shootings by the testimony of 7 Demontrey Cunningham, who had known Petitioner for about seven years. 8 Cunningham lived on the block where the shooting of Desarden and Sims took place. 9 At the time of trial, Cunningham was serving time on a gun possession charge. He 10 testified that he received no special treatment or financial benefit from the 11 government in exchange for his testimony. According to Cunningham, after 12 Petitioner moved out of the neighborhood, he became an “all star” member of Anzac 13 Grape gang. Anzac Grape had developed a rivalry with Mona Park as a result of a 14 personal dispute between Petitioner and a member of Mona Park named Ohage.2 15 Cunningham associated with members of Mona Park, but he testified that he was not 16 a member of the gang. 17 On the night of the first shooting, Cunningham was walking on 122nd Street 18 near Willowbrook Avenue. Cunningham saw a car pull up to the corner and saw 19 Petitioner and another man exit the vehicle. Cunningham heard shots fired. He saw 20 Petitioner with a gun and also saw that Desarden had been hit. Cunningham left the 21 scene before authorities arrived, explaining that he did not want to give a statement 22 because he was not part of the dispute between Anzac Grape and Mona Park and 23 wanted “to leave that within their hood.” 24 On the night that Drumgole was shot, Cunningham was again on Willowbrook 25 Avenue near 122ndStreet when he saw a car stop about 100 feet away. Petitioner 26 2 The California Court of Appeal opinion refers to this individual as“Ohaji,” as do portions of the 27 Reporter’s Transcript provided by Petitioner. (See, e.g., ECF No. 1 at 23.) On the other hand, Petitioner and the law enforcement record attached to the petition both refer to the individual as 28 Ohage Newton.(ECF No. 1 at 5, 66.) The Court adopts the name used by Petitioner. 1 exited the vehicle and started shooting at a car pulling out of an apartment building’s 2 parking structure. Cunningham had seen the victim’s car when it initially pulled into 3 the driveway. After this shooting, Cunningham called 911 “because [the victims] 4 were innocent and they had nothing to do with Mona” and because he was concerned 5 about the number of shootings occurring near his home. An audio recording of the 6 911 call was played for the jury. In the phone call, Cunningham identified himself 7 using a pseudonym, but law enforcement officers subsequently ascertained his true 8 name. 9 With regard to the third shooting victim (Williams), Cunningham testified that 10 he knew Williams, and that Williams had called him shortly after the shooting. 11 According to Cunningham’s account of that phone call, Williams said that Petitioner 12 had shot him on 119th Street. Williams, however, claimed he did not know and had 13 never met or spoken with Cunningham. 14 All three shootings were also linked by forensic evidence. Specifically, the .45 15 caliber casings found at all three locations were fired from the same gun. 16 Finally, a police officer gang expert testified that Petitioner was a member of 17 Anzac Grape, with a gang moniker of “Little Duss.” The expert’s opinion was based 18 on admissions Petitioner had made directly to the officer and in rap videos posted on 19 YouTube. One of those videos was played for the jury and included lyrics referring 20 to the rivalry between the Anzac Grape and Mona Park gangs. The expert also 21 explained the gang concept of “going hunting,” which referred to going on a mission 22 to hunt rival gang members, possibly in rival gang territory. In the expert’s opinion, 23 given in response to a hypothetical question, an Anzac Grape member who went to 24 the area of 122nd Street and Willowbrook Avenue – rival territory of Mona Park – 25 to shoot up a party committed the shooting for the benefit of Anzac Grape. 26 Here, Petitioner’s evidence of actual innocence relates to a particular aspect of 27 Cunningham’s testimony. As Petitioner points out, Cunningham testified that after 28 the first shooting, Cunningham called Ohage to warn him that Petitioner was looking 1 for him. (ECF No. 1 at 23, 53.) Petitioner contends that Ohage was in prison at the 2 time Cunningham allegedly called him. (ECF No. 1 at 5, 66; ECF No. at 9-3 at 10.) 3 He submits a declaration from Ohage in which Ohage states that he did not receive a 4 phone call from Cunningham3 on April 4 or 5, 2014; did not receive a warning from 5 Cunningham “regarding anything” on those dates; did not see Petitioner on 6 Willowbrook on those dates; and did not have “a problem with [Petitioner] of any 7 kind” on those dates. (ECF No. 9-3 at 10.) Petitioner also submits evidence showing 8 that Ohage was arrested on January 19, 2015. (ECF No. 1 at 66.) Based upon that 9 evidence, Ohage must have been released from the April 2014 incarceration at some 10 point. 11 Assuming that Ohage was in prison in April 2014, such evidence suggests 12 Cunningham’s testimony that he called Ohage was false. Ohage’s declaration also 13 conflicts with Cunningham’s testimony that Petitioner had a personal dispute with 14 Ohage. Impeaching Cunningham on these two points, however, does not necessarily 15 undermine his testimony regarding Petitioner’s involvement in the three shootings. 16 As the Supreme Court observed in Sawyer v. Whitley,

(1992), 17 “evidence brought forward to impeach a prosecution witness will seldom, if ever, 18 make a clear and convincing showing that no reasonable juror would have believed 19 the heart of [the witness’] account of petitioner’s actions.” At best, Petitioner’s 20 evidence undercuts trial testimony offered by the prosecution. Casting doubt on the 21 prosecution’s case, however, does not affirmatively prove Petitioner’s innocence. See 22 Jones v. Taylor,

(9th Cir. 2014). 23 Moreover, Petitioner was positively identified by an independent witness – 24 Drumgole. Nothing about the evidence relating to Cunningham and/or Ohage affects 25 the reliability of Drumgole’s testimony that Petitioner shot him. Nor does it impact 26 the forensic evidence that the bullets used in the three shootings came from the same 27 28 3 The declaration refers to “Mr. Cummings,” which the Court presumes refers to Cunningham. 1 || gun. Considering all of the evidence, old and new, the Court cannot conclude that no 2 || reasonable juror would have convicted Petitioner even if the juror heard evidence 3 || suggesting that Cunningham testified falsely regarding making a phone call to Ohage 4 || and evidence conflicting with Cunningham’s testimony that Petitioner and Ohage 5 || had a personal dispute. 6 IT THEREFORE IS ORDERED that (1) with the foregoing exceptions, the 7 || Amended Report and Recommendation of the Magistrate Judge is accepted and 8 || adopted, and (2) Judgment shall be entered denying the Petition and dismissing the 9 || action with prejudice. 10 11 || DATED: April 7, 2020 12 (] 0 —.

1 MICHAEL W. FILZGHRALD| UNITED STATES DISFRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28