McGowen v. Bird

Background

Mykolay McGowen petitioned under 28 U.S.C. § 2254 for federal review of his California convictions. A jury found him guilty of the premeditated attempted murders of Myzil and Christian Waters, the attempted murder of Dan Tran, assault with a semiautomatic firearm, and unlawful possession of a firearm by a prohibited person. He initially received a sentence of more than 85 years to life.

The California Court of Appeal later reversed the attempted-murder conviction involving Tran but upheld the attempted-murder convictions involving the Waters brothers. The case was remanded for resentencing, resulting in a sentence of more than 38 years to life. The California Supreme Court denied review.

The trial evidence included surveillance video showing a man resembling McGowen leaving the passenger side of a black sport utility vehicle and shooting toward the Waters brothers and Tran’s mechanics shop. The prosecution also presented testimony from Oakland police officers about an alleged feud between groups associated with 57th and 64th Avenues. Sergeant Sanchez testified about a statement Christian Waters had made during an earlier police interview, after Waters gave different testimony at trial. Sergeants Birch and Smoak testified based on their own experiences and investigations.

Claims and analysis

McGowen raised three grounds for relief:

Under the federal habeas statute, the court could grant relief on claims decided by a state court only if the state court’s decision was contrary to, or an unreasonable application of, clearly established United States Supreme Court law, or was based on an unreasonable determination of the facts. The federal court also was required to presume that the state court’s factual findings were correct unless McGowen rebutted them with clear and convincing evidence.

Confrontation Clause claim

The court held that Sergeant Sanchez’s testimony did not violate the Confrontation Clause. Sanchez testified about Waters’s prior inconsistent statement to impeach Waters after Waters denied at trial making the statement. Because Waters appeared at trial and McGowen’s lawyer cross-examined him, the prior statement could be used without violating the Confrontation Clause.

The court also held that the testimony of Sergeants Birch and Smoak was not hearsay testimony violating the Confrontation Clause. Their testimony about the alleged feud was based on their own experiences and observations, not on statements made outside court by another person. The court further noted that both officers were cross-examined. It concluded that the California Court of Appeal had not unreasonably applied Supreme Court precedent.

Ineffective-assistance claim

To establish ineffective assistance of counsel, McGowen had to show both that his lawyer’s performance fell below an objective standard of reasonableness and that the deficient performance probably affected the result. The court rejected the claim because an objection to the challenged testimony would not have had merit. The court also noted that McGowen had not identified a specific instance or piece of testimony to which counsel should have objected. The court concluded that the California Court of Appeal reasonably found no ineffective assistance.

Sufficiency-of-the-evidence claim

The court applied the rule that the evidence is sufficient if, viewing it in the prosecution’s favor, any rational factfinder could find the crime’s essential elements beyond a reasonable doubt. It found sufficient evidence to support the attempted-murder convictions. The surveillance video showed a shooter with the same complexion, build, and hairline as McGowen, and the vehicle in the video matched McGowen’s vehicle. The court also noted that the alleged motive testimony supported, but was not essential to, the conclusion that McGowen was the shooter.

The court additionally rejected McGowen’s argument that the combined effect of the alleged errors made the trial unfair, because it found no merit in the individual claims and no cumulative effect that would render the trial unfair.

Disposition

The court DENIED the petition for a writ of habeas corpus. It also DECLINED to issue a Certificate of Appealability because McGowen had not made the required showing that the denial of a constitutional right was reasonably debatable. The court stated that McGowen could seek a certificate from the Ninth Circuit Court of Appeals.