Jonathan C. Shaw v. Cal Terhune

353 F.3d 697 Jonathan C. SHAW, Petitioner-Appellant, v. Cal TERHUNE, Respondent-Appellee. No. 02-16829. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 13, 2003 — San Francisco, California. Filed December 22, 2003. Suzanne A. Luban, Oakland, California, for the appellant. Christopher W. Grove, Deputy Attorney General, San Francisco, California, for the appellee. Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior Judge, Presiding. D.C. No. CV-98-02194-LKK. Before: J. Clifford Wallace, Cynthia Holcomb Hall, and Diarmuid F. O'Scannlain, Circuit Judges. OPINION CYNTHIA HOLCOMB HALL, Senior Circuit Judge: 1 Jonathan Shaw appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Shaw was convicted in a California state court on multiple counts of, assault, robbery, and attempted robbery in connection with an armed robbery of a Lyon's restaurant. Shaw was sentenced to 136 months in prison, which included a sentence enhancement imposed for "personal use" of a firearm during the assault and attempted robbery of Cheryl Bishop, the restaurant manager. 1…

Jonathan Shaw appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Shaw was convicted in a California state court *699 on multiple counts of, assault, robbery, and attempted robbery in connection with an armed robbery of a Lyon’s restaurant. Shaw was sentenced to 136 months in prison, which included a sentence enhancement imposed for “personal use” of a firearm during the assault and attempted robbery of Cheryl Bishop, the restaurant manager. 1 More than two years after Shaw’s conviction, his accomplice in the armed robbery, Mango Watts, was convicted on the same counts. Watts’s sentence also included a “personal use” enhancement, despite the fact that the evidence presented at both trials indicated that only one person directly participated in the assault and attempted robbery of Bishop, and therefore that only one person had personally used a firearm during the incident. Shaw asserts that his due process rights were violated by the state prosecutor’s advancement of factually inconsistent arguments at the two trials, which precipitated inconsistent jury verdicts. His habeas petition was denied by the district court on August 5,…

dissenting:

On September 2, 1995, three armed men robbed a Lyons Restaurant in Santa Clara, California. One — and only one — of the three held a gun to Cheryl Bishop’s head in an unsuccessful attempt to gain access to the restaurant’s safe. People v. Watts, 76 Cal.App.4th 1250 , 91 Cal.Rptr.2d 1, 7 (1999) (“[Ujnder any version of the evidence, only one man actually held a gun to Bishop’s head as she attempted to open the safe.”). Nevertheless, state prosecutors acting in bad faith secured convictions and sentence enhancements against two individual defendants for an offense that only one could commit.

Prosecutors first charged Jonathan “Pee-Wee” Shaw with multiple counts associated with the armed robbery, including several counts related to Bishop’s alleged assault (Cal-Penal Code §§ 211, 245(a)(2)). At trial, prosecutors argued that Shaw was Bishop’s armed assailant, and the jury found Shaw guilty on these counts. Having secured Shaw’s conviction, prosecutors then reversed course and filed similar charges against Mango Watts. During Watts’s trial, prosecutors contended that it was Watts — not Shaw — who threatened Bishop with the gun. As a result, both Shaw and Watts were…