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United States District Court, Northern District of California

January 22, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge.

Before the Court is Edwaun Victor Moore's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In response to the Court's order to show cause why the petition should not be granted, respondent James Rowland filed an answer and a brief in support thereof, to which petitioner replied by filing a traverse. Having reviewed the papers filed in support and in opposition to the petition, the Court rules as follows.


On September 22, 1997, petitioner was convicted of second degree murder after a jury trial conducted in the Alameda County Superior Court, and, on October 10, 1997, was sentenced to a term of fifteen years to life, which term was enhanced by five years for use of a gun. Additionally, petitioner was convicted of firing at an inhabited dwelling and was sentenced to a term of seven years, which term was enhanced by three years for infliction of great bodily injury. The sentences were imposed consecutively. In the aggregate, the prison term imposed was thirty years to life.

On March 25, 1999, the California Court of Appeal affirmed the convictions and, on April 1, 1999, denied petitioner's petition for a writ of habeas corpus. On July 14, 1999, the California Supreme Court denied review of both decisions.


On January 17, 1993, at about 6:25 p.m., the Oakland Police Department received a report of a shooting on the 9600 block of Walnut Street. Officer Oliver Cunningham responded to the scene where he saw that a tan Honda had crashed into a front yard. The engine was running, the windows were up, and the doors were locked. The glass of the rear window had been shot out. The driver was unconscious and appeared to have a gunshot wound to the back of his head. His face and head were bloody. An autopsy the next day revealed the victim, Carlos Chambers ("Chambers"), died of a gunshot wound to the head. The bullet, which passed through the victim's skull and brain, entered the back of his head on the left side and exited close to the left eyebrow. The victim had no needle or track marks and there were no narcotics in his system. His blood alcohol level was .10.

Crime scene technician Officer Monica Russo and others found evidence indicating the Honda had begun skidding at 9638 Walnut and sideswiped two parked cars in the 9700 block. They found glass slivers in front of 9839 Walnut, and nearby they found an unfired, nine-millimeter Luger bullet manufactured by PMC. There were seven bullet holes in the car, including one each in the top of the trunk, the left side of the roof, and the headrest portion of the driver's seat. Officer Russo found a baton made out of a tree branch on the driver's side floor. There were no drugs or drug paraphernalia, firearms or other weapons in the car.

At the time of the shooting David Price ("Price") was in the home of his girlfriend, Joyce Watson, and her daughters Genita and Brandy (ages 13 and 9). He heard four or five gunshots outside. He went out later that evening and returned between 9:30 and 10:00 p.m. Petitioner, whom Price had known for six to eight months, arrived at the house around 10:00 p.m. with Donald Brown ("Donny"). Donny used the phone while petitioner spoke with Darnell Richardson ("Omar"). Price knew petitioner as a drug dealer in the neighborhood from whom he had bought crack cocaine. Price named other drug dealers in the neighborhood as including Donny, Omar, "Lamore," "Tyrone" (petitioner's brother), and "Chumley."

Price testified he heard Omar tell petitioner: "You shot the fool. It was stupid." Petitioner responded that "he didn't give a fuck," explaining: "The fool tried to rob me." Omar replied, "he's dead." Petitioner again said he "didn't give a fuck" and: "I pulled out my nine and blasted him. Smoked him. Blasted him, same thing." Price understood "my nine" to refer to petitioner's nine-millimeter gun, which Price had seen petitioner carry on numerous occasions, including the day before the shooting. Omar said petitioner was stupid, that he did not have to do that. Petitioner replied, "Fuck it;" "I don't give a fuck if he's dead." Omar advised petitioner to clean himself up because he had powder on his hands and "they can detect powder."

Price, who was concerned for the security of the house and family, told petitioner he had to leave the house because police would be looking for him. This angered petitioner, and he started calling Price "a bunch of motherfuckers and punks and telling [him] that it wasn't [his] house" because he did not pay the bills; only Joyce could tell him to leave her house. Petitioner was holding an empty liquor bottle; Price did not know whether petitioner was drunk, but he was "foaming at the mouth."

Price told Donny to get off the phone and take petitioner away. Donny, too, became angry and called Price names. Price opened the front door and told the men to leave; petitioner seemed to want to fight. He "got in [Price's] face" and continued to call him names. Omar stood between Price and petitioner; eventually petitioner and Donny left. Price locked the door and sat on the couch. Within a couple of minutes he heard gunshots. He was struck in the hip by two bullets; he saw bullet holes in the walls of his house. On the exterior of the house police technicians found 11 nine-millimeter PMC luger shell casings. There were 9 strike marks on the exterior of the house, and 7 bullets had penetrated into the interior.

Genita Henry, Joyce Watson's daughter, also testified about the argument between Price and petitioner, and the shots fired into the house shortly after petitioner left.

According to the testimony of Mario Cleveland ("Cleveland"), two days after the shooting, petitioner brought three guns, including a nine-millimeter pistol, to Cleveland's home. Petitioner told Cleveland he shot the victim in the car because the victim had "disrespected him." Petitioner said he was standing on Walnut Street with a group of men selling drugs. The victim drove up and got out of his car. He walked up to one of the men, talked to him and purchased drugs, then walked back to his car. The other drug dealers were "belittling" and "teasing" petitioner because the victim did not come to him first to make his purchase. Petitioner waited until the driver got into his car, walked up to the car, and fired a shot. The car moved and petitioner kept shooting until his clip was empty.

Petitioner also told Cleveland he shot a man named "Dave" because Dave was disrespecting him. When Cleveland saw petitioner two weeks later, petitioner bragged to him and others about shooting someone.

Petitioner was arrested on May 19, 1993. He did not appear to be under the influence of alcohol or drugs. Oakland Police Officers Douglas Wayne and Paul Berlin gave petitioner his Miranda rights, interviewed him, and took a taped statement, during which he did not appear to be under the influence of narcotics. Petitioner appeared to understand the questions, and he answered them. The statement was played for the jury.

In his statement, petitioner stated that about a week before January 17, petitioner was approached on Walnut Street by Price and a stranger, who later turned out to be the victim, Chambers. Chambers pointed a gun at petitioner and demanded money, robbing petitioner of $400 petitioner had won in a dice game. About a week later, petitioner was on Walnut Street carrying a nine-millimeter pistol. He saw a brown compact car arrive; Price got in, and they drove off. The car returned about 20 minutes later, and when Price got out and the car drove away, petitioner recognized the driver as the man who robbed him the week before. He got his gun, which he had stowed on top of a tire in the wheel well of a car, walked into the street and cocked his gun, although he just wanted to talk to the man. The car began to drive away; petitioner saw the driver reach down. Thinking the driver was reaching for a gun, petitioner fired at the driver's side door. He could not remember how many shots he fired and did not know if he hit the driver. Just then Donny drove up; petitioner got in his car and they left. The next day, petitioner read in the paper that Chambers had died.

In his statement, petitioner also stated that petitioner and Donny went to Price's house, where petitioner confronted Price about Chambers robbing petitioner. Price threatened to kick petitioner's ass and told him to leave. Petitioner left, retrieved his gun from the same car where he had previously stored it, shot into Price's house, hid the gun in a nearby yard and left the area.

The homicide victim's sister, Latanja Chambers, testified she saw her brother the afternoon of the shooting when he and others were watching a football game in his home. The victim was a law clerk who had worked at the same firm for three years. His sister never saw him carry a gun or ingest narcotics, and to her knowledge he had never done either.

Petitioner testified in his own behalf and denied shooting Chambers but said he witnessed the crime. On January 17, he was behind a gate of an apartment complex selling drugs to pedestrians. He owned a nine-millimeter gun for protection but was not carrying it that day. He was one of about 10 to 15 people who dealt drugs on Walnut near 98th Street. Among them were his brother Tyrone, Omar, Donny, Chris, Corey and Chumley. Petitioner and his brother were each known as "Twin" because they looked alike. It would not bother him if his brother took a drug sale from him.

Petitioner saw the victim's car pull up around 6:00 p.m. He recognized the car from previous times the victim had bought drugs. Three drug dealers "rushed" the car, that is, ran up to it hoping to make a sale. Petitioner knew the three but refused to state their names. Petitioner saw what he thought was a drug transaction with one of the dealers. As the car drove away, one dealer shot at the car. Petitioner left the area of the shooting, went to a friend's house and then drove around or "got high or something." He probably bought heroin, which was a daily habit, and a pint of cognac.

Later that night petitioner was high. He went to Price's house where he talked to Omar. Petitioner thought Donny arrived after him. Price told petitioner the police were after him and he would have to leave. Petitioner "got attitude" and asked Price "what the fuck he was talking about." Petitioner said he had done nothing, so why would the police be looking for him? Omar stepped in to prevent a fight; Price told Donny to get off the phone, which angered Donny, who left the house with petitioner. Petitioner and Omar got in petitioner's car and drove away, leaving Donny and Price shouting at each other. Petitioner did not hear any shots and he remained with Omar that night.

Petitioner did not learn he was a suspect until February 1. Although he knew the police were looking for him, he made no effort to contact them. In fact, he evaded the police so that the people on Walnut Street would not think he was telling anything he knew. He was concerned for himself, his mother, and his brother.

Petitioner admitted that when he was arrested he denied being Edwaun Moore and gave a false name, "Brown." When he arrived at the police station he asked to call his mother, but was refused. He normally used heroin every two hours, and he had used the drug at about 2:00 a.m., just before his arrest. He had not slept for 20 hours before the arrest and was suffering from heroin withdrawal.

Petitioner waived his Miranda rights because he "wasn't going to snitch and . . . didn't know what to do and . . . was under the influence of drugs, so basically [he] felt that it . . . would be best for [him] to make up a story than, on the other hand, snitch on somebody." He asked to talk to his mother but was refused. Sergeant Berlin wrote on a piece of paper: "death penalty," "first degree," "second degree," and "manslaughter." He pointed to the words "death penalty" and told petitioner that if he kept going on the route he was on he would fall right there.

Because the man who had shot Chambers had threatened him if he snitched, petitioner was worried about himself and his family and decided to make up a story. He decided not to snitch even if that meant receiving the death penalty, but he tried to invent a story that would result in a manslaughter conviction. The first thing that came to mind was to say Chambers had robbed him the week before and was reaching under the seat of the car, so he shot Chambers in self-defense. In fact, neither Chambers nor Price had robbed petitioner, and he did not see Chambers reaching. He admitted shooting at Price's house because the police had the two crimes connected in their minds. He had not shot at Price's house.

Omar testified for petitioner. He said he had seen the victim's car a number of times when the driver bought drugs from him and others. He recounted drug transactions in which the driver had angered two other drug dealers, Chris and Corey, both of whom owned guns.


A. Standard of Review

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254 (d). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155 (9th Cir.), cert. denied, 531 U.S. 944 (2000). In addition, habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" See Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).

B. Legal Claims

Petitioner raises five claims: (1) petitioner was deprived of due process when he was convicted of second degree murder under the felony-murder rule, because the "doctrine of second degree felony-murder was not enacted by the California Legislature or pursuant to popular initiative," but was "created through judicial decision," (see Pet. at 4:12-16); (2) petitioner was deprived of due process when an "unforeseen and unexpected" California Supreme Court decision, holding that second degree felony-murder may be predicated upon a violation of § 246 of the California Penal Code, was retroactively applied to his case, (see id. at 5:4-6, 5:12-15); (3) petitioner was deprived of his right to confrontation when the trial court overruled his objection to a hearsay statement that "failed to meet the foundational requirements of a firmly established exception to the hearsay rule," (see id. at 6:9-11); (4) petitioner was deprived of due process when his sentence was enhanced based on the jury's finding that petitioner intended to inflict great bodily injury because "no reasonable trier of fact could conclude beyond a reasonable doubt that petitioner specifically intended to inflict great bodily injury," (see id. at 7:2-4); and (5) petitioner was deprived of due process when the Court of Appeal denied his petition for a writ of habeas corpus, which was based on a showing that after the conviction one of the trial witnesses, Omar, signed a declaration stating that his "testimony was false." (See id. at 7:6-9.)

1. Separation of Powers

Petitioner first argues that he was deprived of due process because the trial court, over his objection, instructed the jury on the elements of second degree felony-murder predicated on the crime of discharging a firearm at an occupied motor vehicle, a violation of § 246 of the California Penal Code. Petitioner contends that the second degree felony murder rule was not created by the California Legislature or by initiative, but rather was judicially created in violation of the separation of powers guaranteed by the California Constitution.*fn2 Petitioner further asserts that California's guarantee of separation of powers protects a liberty interest and, thus, instructing the jury on a doctrine created by courts, in violation of the state constitutional separation of powers guarantee, constituted an arbitrary deprivation of petitioner's liberty.

In support of this argument, petitioner relies on Hicks v. Oklahoma, 447 U.S. 343 (1980). In Hicks, the Supreme Court held that where state law provides that a jury is to impose sentence, "[t]he defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion." See id. at 346. Consequently, where a state, having provided such a right, arbitrarily disregards that right, the state has deprived the defendant of due process. See id.

Here, the California Court of Appeal did not reach the issue of whether Hicks would apply to bar a conviction for a judicially-created crime because it rejected petitioner's underlying argument that he was convicted of a crime not created by statute. In reliance on an earlier opinion of that court, the appellate court held: "`We are compelled to conclude the statutes do prohibit as second degree murder an unlawful killing committed in the perpetration or attempted perpetration of a nonenumerated felony inherently dangerous to human life.'" See Slip. Op. at 9-10 (quoting People v. Landry, 212 Cal.App.3d 1428, 1437 (1989) (emphasis added)).

In considering a petition for a writ of habeas corpus, a federal court "may re-examine a state court's interpretation of its own law only if "the court's interpretation is untenable or amounts to a subterfuge to avoid federal review of a constitutional violation.'" See Brodheim v. Rowland, 993 F.2d 716, 717 (9th Cir. 1993). Petitioner contends that the Court of Appeal's reliance on Landry, the opinion on which it relied, is untenable because the California Supreme Court, in People v. Dillon, 34 Cal.3d 441 (1983), stated that the second degree felony-murder rule was judicially created. In other words, petitioner argues it was untenable for the Court of Appeal not to follow Dillon.

In Dillon, the California Supreme Court, in reviewing a conviction for first degree felony-murder, held that first degree felony-murder was prohibited by § 189 of the California Penal Code. See id. at 472. In a footnote, the California Supreme Court stated: "[W]e reach [this] conclusion as to the first degree felony-murder rule only by piling inference on inference; and the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code." See id. at 472 n. 19. Landry interpreted Dillon's observations on the second degree felony-murder rule as "dictum," see Landry, 212 Cal.App.3d at 1435, citing, inter alia, a 1980 decision of the California Court of Appeal which had expressly held that second degree felony-murder was proscribed by statute. See id. at 1436 (citing People v. Taylor, 112 Cal.App.3d 348 (1980)).*fn3

The issue before the Court is whether the Court of Appeal's holding that, as a matter of state law, petitioner was not convicted of a judicially-created crime is untenable. The Court finds that it is not. Irrespective of whether the California Legislature has itself proscribed second degree murder under the felony-murder doctrine, the crime for which petitioner was convicted, second degree murder, is plainly proscribed by statute in California. See Cal. Penal Code § 187(a) (defining murder as the "unlawful killing of a human being, or a fetus, with malice aforethought"); Cal. Penal Code § 189 (defining certain types of murder as being "murder of the first degree," and providing that "[a]ll other kinds of murder are of the second degree"). The California Supreme Court has interpreted the statutory element "malice aforethought," as set forth in § 187(a), to include a showing that the defendant was engaged in an inherently dangerous felony:

Under well-settled principles of criminal liability a person who kills — whether or not he is engaged in an independent felony at the time — is guilty of murder if he acts with malice aforethought. The felony-murder doctrine, whose ostensible purpose is to deter those engaged in felonies from killing negligently or accidentally, operates to posit the existence of that crucial mental state — and thereby to render irrelevant evidence of actual malice or the lack thereof — when the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.
See People v. Satchell, 6 Cal.3d 28, 43 (1971) (reversing conviction for second degree murder where conviction based on commission of felony not inherently dangerous to human life because, in such an instance, jury was relieved of finding essential element of malice aforethought).

The California Legislature, having been on notice of the judicial branch's interpretation of the statutory term "malice aforethought" for many years, has taken no steps to indicate its disagreement with such interpretation. Thus, it is reasonable to presume that the legislative branch is in accord with the judicial branch's interpretation of "malice aforethought." See People v. Patterson, 49 Cal.3d 615, 621-22, 628 (1989) (observing "second degree felony-murder doctrine has been a part of California's criminal law for many decades," and that the Legislature has taken "no action to alter this judicially created rule"). Under the separation of powers guarantee set forth in the California Constitution, the judicial branch is responsible for interpreting and applying existing laws. See People v. Bunn, 27 Cal.4th 1, 15 (2002). Under the circumstances, petitioner cannot demonstrate that the second degree felony-murder instruction given to the jury was violative of California's guarantee of separation of powers.

Accordingly, petitioner has not shown that he is entitled to relief based on his claim that was deprived of due process, under a separation of powers theory, when he was convicted of second degree murder under the felony-murder rule.

2. Retroactive Application of Judicial Decision

The homicide victim, Chambers, was shot while inside a vehicle. The prosecution's theory of felony-murder was predicated on a violation of § 246 of the California Penal Code, which provides: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar . . . or inhabited camper . . . is guilty of a felony . . . ." See Cal. Penal Code § 246. The jury was instructed that "murder of the second degree" includes an unlawful killing that occurs during the commission of the crime of discharging a firearm at an occupied motor vehicle. (See Reporter's Transcript ("RT") 1349.) Petitioner argues that the instruction violated his due process rights because the instruction was based on retroactive application of an unforeseeable holding announced by the California Supreme Court in People v. Hansen, 9 Cal.4th 300 (1994).*fn4 Hansen held that a trial court did not err by instructing a jury that second degree felony-murder may be "based upon the underlying felony of discharging a firearm at an inhabited dwelling house," a violation of § 246. See id. at 316.*fn5 The Court of Appeal, after acknowledging the principle that due process prohibits retroactive application of a decision expanding the scope of a criminal statute in an unforeseeable manner, rejected petitioner's argument, stating: "Application of Hansen to appellant's case does not violate these principles." See Slip. Op. at 10.*fn6

"[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." United States v. Lanier, 520 U.S. 259, 266 (1997). When an "unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime." See Bouie v. City of Columbia, 378 U.S. 347, 354-55 (1964). Thus, "if a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect." See id. (internal quotation omitted).

In Hansen, the California Supreme Court held that second degree felony-murder may be predicated upon a violation of § 246 because the felony did not "merge" with a resulting homicide. See Hansen, 9 Cal.4th at 316. Under the merger doctrine, certain felonies are said to "merge" with the resulting homicide such that those felonies may not serve as a predicate felony for purposes of the felony-murder rule. See id. at 311. Petitioner argues that Hansen's holding that a violation of § 246 does not merge with a resulting homicide was unforeseeable because an earlier decision of the California Court of Appeal, People v. Wesley, 10 Cal.App.3d 902 (1970), held to the contrary.*fn7

In Wesley, the California Court of Appeal held that "neither the commission of the offense of discharging a firearm at an inhabited dwelling (Pen. Code, § 246) nor the commission of the offense of assault with a deadly weapon (Pen. Code, § 245) [is] a felony independent of the homicide charged and that the giving of an instruction on the felony-murder rule constituted prejudicial error." See id. at 907. In so holding, Wesley cited to the California Supreme Court's decision in People v. Ireland, 70 Cal.2d 522 (1969), in which the Supreme Court, in holding that the felonious assault with a deadly weapon at issue therein merged with the resulting homicide, stated: "[A] second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." See Ireland, 70 Cal.2d at 539.

Relying in large measure on Ireland's "integral part" language, the Court of Appeal in Wesley concluded that because "[t]he discharge of the firearms by defendants [into an inhabited dwelling] was the means by which the homicide was committed and was in fact an "integral part' and a "necessary element' of the homicide," the offense of discharging a firearm at an inhabited dwelling "merged" into the resulting homicide. See Wesley, 10 Cal.App.3d at 907. In People v. Taylor, 11 Cal.App.3d 57 (1970), however, decided shortly after Wesley, the Court of Appeal rejected the test on which Wesley relied, concluding: "Unless the Supreme Court intended to abolish second degree felony murder, we must assume that there are situations where a felony inherently dangerous to human life can be the direct cause of a homicide without, at the same time, being an integral part thereof and included in fact therein." See Taylor, 11 Cal.App.3d at 64 (holding felony of "furnishing of heroin" did not merge with resulting homicide).

In Hansen, the California Supreme Court addressed both Wesley and Taylor, disapproving of the holding in the former and explaining that Taylor was correct in "its rejection of the premise that Ireland's "integral part of the homicide' language constitutes the crucial test in determining the existence of merger." See Hansen, 9 Cal.4th at 314. As the Hansen Court observed:

[S]uch a test would be inconsistent with the underlying rule that only felonies "inherently dangerous to human life" are sufficiently indicative of a defendant's culpable mens rea to warrant application of the felony-murder rule. The more dangerous the felony, the more likely it is that a death may result directly from the commission of the felony, but resort to the "integral part of the homicide" language would preclude application of the felony-murder rule for those felonies that are most likely to result in death . . . .
See id. at 314 (internal citation omitted). The Court explained that the merger rule had developed as "a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or "predicate') felony committed by the defendant was assault," see id. at 311 (emphasis in original), and pointed out that subsequent to Ireland, the Supreme Court "has not extended the Ireland doctrine beyond the context of assault." See id. at 312-13 (citing People v. Smith, 35 Cal.3d 798, 806-08 (1984) (holding "felony child abuse of assaultive variety" merged);*fn8 People v. Wilson, 1 Cal.3d 431, 440 (1969) (holding "burglary with intent to commit the felony of assault with a deadly weapon" merged); People v. Mattison, 4 Cal.3d 177, 185 (1971) (holding "felony of mixing poison with a beverage" did not merge; distinguishing Ireland as involving an "entirely different situation")). The Court concluded that "application of the felony-murder rule, when a violation of section 246 results in the death of a person, clearly is consistent with the traditionally recognized purpose of the second degree felony-murder doctrine — namely the deterrence of negligent or accidental killings that occur in the course of the commission of dangerous felonies." See id. at 315.*fn9

The opinion in Hansen, as discussed above, indicates that the California Supreme Court was reiterating its then-existing interpretation of the merger rule, rather than announcing, as petitioner asserts, a new interpretation of the merger rule. Hansen's disapproval of Wesley was explicitly based on the ground that Wesley did not adhere to then-existing law, rather than a finding that Wesley was inconsistent with any newly-announced principle of law. Hansen announced new law only in the sense that it applied an existing rule of law, as set forth in Ireland, to a new set of facts, a violation of § 246. As noted, the United States Supreme Court has held that a criminal defendant is deprived of due process where a new judicial construction of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." See Bouie, 378 U.S. at 354. Here, because Hansen is grounded in law "which had been expressed prior to the conduct at issue," petitioner's due process rights were not violated by application of the decision announced in that case. Consequently, the Court of Appeal did not err by rejecting petitioner's argument that retroactive application of Hansen deprived petitioner of due process.

Accordingly, petitioner has not shown he is entitled to relief based on his claim that he was deprived of due process by application of the holding in Hansen.

3. Right to Confrontation

Petitioner argues that he was deprived of his Sixth Amendment right to confrontation when the trial court, over his objection, allowed Omar to testify as to out-of-court statements made to Omar by Chumley concerning the shooting of Chambers.

The Court of Appeal described Omar's testimony as follows:

Omar testified that he was in Price's house and that five or ten minutes after he heard shots Chumley came in and wanted to talk to him. They went into the kitchen and Chumley said, "That nigger just shoot somebody." Omar asked who he was talking about, and Chumley said Edwaun (appellant). Omar asked why appellant had shot someone, and Chumley explained that "Tyrone had rushed a knock or something like that," meaning that Tyrone had gotten to someone else's regular customer first and taken the sale. Chumley said he saw appellant shoot at the car and that he thought he had hit him.
See Slip Op. at 11. The trial court allowed Omar to testify as to Chumley's hearsay statements, finding that the statements met the foundational requirements of a spontaneous declaration under § 1240 of the California Evidence Code.*fn10 (See RT at 695-24 96.) The Court of Appeal, reviewing the trial court's finding that the foundational requirements for the hearsay exception were met, found no abuse of discretion. See Slip Op. at 11-12.

The Confrontation Clause of the Sixth Amendment provides that the accused has the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Supreme Court has interpreted the Confrontation Clause as limiting the circumstances under which hearsay statements may be admitted in a criminal trial:

In its 1980 decision in Ohio v. Roberts, [448 U.S. 56 (1980)] the Supreme Court set forth the requirements for admission of a hearsay statement in a criminal trial when the declarant is unavailable, consistent with the requirements of the Confrontation Clause. The Court explained that such a statement is admissible only if it bears adequate indicia of reliability. Adequate reliability, the Court continued, can be demonstrated in one of two ways. First, reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. Second, if the evidence does not fall within a firmly rooted exception, it may be admitted if there is a sufficient showing of particularized guarantees of trustworthiness.
Hernandez v. Small, 282 F.3d 1132, 1137 (9th Cir.)(internal quotations and citations omitted), cert. denied, 123 S.Ct. 205 (2002)

The "spontaneous declarations" exception to the hearsay rule is a "firmly rooted" exception. See White v. Illinois, 502 U.S. 346, 355 and n. 8 (1992) ("The exception for spontaneous declarations is at least two centuries old, [citation], and may date to the late 7th century.") "[A] statement that qualifies for admission under a "firmly rooted' hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability." Id. at 357.

Petitioner does not quarrel with the spontaneous declaration exception as a general proposition. Rather, petitioner argues that the Court of Appeal, in reviewing the trial court's ruling that the statements were properly admitted as spontaneous statements, "failed to apply settled law by applying a standard of abuse of discretion," rather than a de novo standard. (See Pet. at 17.) Specifically, petitioner contends that under a de novo standard of review, "the only reasonable conclusion was that Chumley's statement was not spontaneous." (See id.) Before the Court of Appeal, petitioner conceded that "if subject to review for abuse of discretion, [the Court of Appeal] must affirm the ruling on both evidentiary and constitutional grounds." (See Respt.'s Ex. E at 21.) Thus, the only issue before this Court is whether the Court of Appeal failed to apply "clearly established Federal law, as determined by the Supreme Court of the United States" when it reviewed the trial court's ruling for abuse of discretion rather than reviewing the ruling de novo. See 28 U.S.C. § 2254 (d)(1).

Petitioner cites to no case in which the Supreme Court has held that an appellate court must conduct a de novo review of a trial court's finding that a hearsay statement falls within a firmly rooted exception, and the Court has found none.*fn11 Indeed, the Ninth Circuit, in the context of direct review, has held that an appellate court reviews a trial court's "admission of evidence under an exception to the hearsay rule for abuse of discretion." See United States v. Hernandez Herrera, 273 F.3d 1213, 1217 (9th Cir. 2001). In short, the Court of Appeal did not err in reviewing the trial court's decision to admit the statements as spontaneous declarations under an abuse of discretion standard.

Accordingly, petitioner has not shown that he is entitled to relief based on his claim that admission of Chumley's out-of-court statements violated the Confrontation Clause.

4. Sufficiency of Evidence to Support Enhancement

As noted, in addition to one count of murder, petitioner was charged with one count of violating § 246 by discharging a firearm at an inhabited dwelling. With respect to that count, the information additionally charged "that in and during the commission and attempted commission of the []offense, the said defendant []with the intent to inflict such injury, personally inflicted great bodily injury on David Price." (See Respt.'s Ex. B at 82-83.) The jury found that petitioner violated § 246 by discharging a firearm at an inhabited dwelling and, additionally, that in so doing petitioner intended to inflict great bodily injury on Price. Petitioner argues that no rational trier of fact could have concluded he had the specific intent to inflict bodily injury. Consequently, petitioner argues, the trial court deprived him of due process by enhancing the sentence imposed for his violation of § 246 (with respect to the shooting at Price's house) by three years. See Cal. Penal Code § 12022.7(a) (providing that defendant who, in commission of felony, personally inflicts great bodily injury on any person other than accomplice shall be punished by additional term of three years).

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court held that a petitioner is entitled to habeas relief "if it is found that upon the record evidence adduced at trial that no rational trier of fact could have found proof of guilt beyond a reasonable doubt." See id. at 324. This standard is "applied with explicit reference to the substantive elements of the criminal offense as defined by state law." See id. at 324 n. 16. Here, the Court of Appeal found that at the time the crime was committed, an enhancement under § 12022.7 required evidence that the defendant had the specific intent to cause great bodily injury, and also found that sufficient evidence supported the jury's determination that petitioner had such an intent. Petitioner argues that no rational trier of fact could have concluded that he intended to cause great bodily injury because he "shot eleven times at the house" and "[t]his barrage [was] focused on the face of the structure." (See Pet. at 18.)

At trial, Price testified that on the night of the shooting, petitioner and Omar were in Price's home; that he heard petitioner and Omar discussing the fact that petitioner had shot, in petitioner's words, "the fool that tried to rob me;" and that, in response to Omar's statement, "He's dead," petitioner stated he "didn't give a fuck." (See RT at 211.) Price further testified that after hearing that conversation, Price asked petitioner to leave because the police would be looking for petitioner and Price did not want to jeopardize the safety of the house and his family. (See id.) At that point, petitioner and, shortly thereafter, petitioner's friend Donny, got mad at Price, and it appeared that petitioner was on the verge of fighting with Price until Omar intervened. (See RT at 214-15.) Finally, Price testified that petitioner and Donny then left the house and, within minutes, Price heard shots being fired from outside the house, one of which struck Price. (See RT at 215-16.)

Omar testified that when petitioner came to Price's home, petitioner was "drunk;" that he (Omar) went to the bathroom about five minutes after petitioner arrived; and that when he returned from the bathroom, petitioner, Donny and Price were arguing.*fn12 (See RT at 652-56.) Omar testified: "I was holding David [Price] back and then I had grabbed Edwaun [petitioner] and I walked Edwaun outside." (See RT at 656.) Outside the house, petitioner told Omar: "Fuck you all. You going against me for them." (See RT at 716.) Omar went back in the house, and soon thereafter heard Donny's car starting, then three shots, then four shots, then Donny's car taking off at the same time as the shots were happening; he heard Price say "I'm hit." (See RT at 716-18.)

Cleveland testified that two days after the shooting, petitioner had three guns with him and told Cleveland that "he shot a guy named Dave." (See RT at 343-44, 348.) According to Cleveland, petitioner stated that he shot Dave "because Dave was teasing him, making fun of him" and "because he disrespected him." (See RT at 349, 377.) Petitioner testified that he told the police he was the person who had shot into Price's house, but that he had made up that statement to take the blame for someone else. (See RT at 1103.)

When a court reviews a trial record for sufficiency of the evidence, "all of the evidence is to be considered in the light most favorable to the prosecution." See Jackson, 443 U.S. at 319 (emphasis in original). Given the evidence set forth above, construed in the light most favorable to the prosecution, the Court finds that a "rational trier of fact could have found proof of guilt beyond a reasonable doubt" see id. at 324, in other words, that petitioner, after becoming angry with Price, fired into Price's house with the requisite state of mind to support a finding on the enhancement, specifically, the intent to inflict great bodily injury on Price.

Accordingly, petitioner is not entitled to relief on his claim that no rational trier of fact could have concluded that he harbored the specific intent to cause great bodily injury when he shot at an inhabited dwelling.

5. Recanted Testimony

As discussed, Omar testified that Chumley told him that petitioner had shot Chambers because of a dispute over a drug sale. Approximately eleven months after the jury convicted petitioner of second degree murder, Omar stated in a declaration that his testimony about Chumley's statements was "false." (See Respt.'s Ex. G.)*fn13 In his declaration Omar stated: "What happened is that some time after the shooting I went out on the street, saw a man named Chris down the street near his place, and asked him what had happened. Chris told me that a guy named Chumly had told him that Edwuan had done it." (See id.)

In reliance on Omar's declaration, petitioner filed a petition for a writ of habeas corpus with the California Court of Appeal, arguing that "[p]etitioner suffers from an illegal restraint because false evidence was used against him in violation of the laws of the state of California and of due process as guaranteed by both the California and Federal Constitutions." (See id. at 12.) The Court of Appeal denied the petition without comment. (See Respt.'s Ex. J.)

In his petition filed before this Court, petitioner argues that "[i]t is a violation of the Fourteenth Amendment of the United States Constitution to use false evidence in obtaining a conviction," (see Pet. at 19), and that "[t]he state court's refusal ta grant habeas relief based on the his [sic] was an unreasonable application of settled federal law." (See id.) Petitioner, however, cites to no decision of the United States Supreme Court to support this claim. As noted above, a petition for writ of habeas corpus is properly granted upon a showing that the state court's adjudication of a federal claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254 (d)(1).

The Supreme Court has held that "a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment," see Napue v. Illinois, 360 U.S. 264, 269 (1959), and that "[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." See id. (holding where witness testified prosecutor had not offered any consideration for testimony, and prosecutor knew consideration had been offered, petitioner's due process rights were violated by "knowing use of false evidence").

Here, assuming, arguendo, that Omar's testimony at trial was false, petitioner has not made the showing required under Napue. Petitioner offered no evidence to the Court of Appeal that the prosecution knew Omar's testimony was false when given, nor does petitioner allege the knowing use of false testimony in his petition before this Court.

The Supreme Court has never determined whether a prosecutor's non-deliberate use of false evidence violates due process.*fn14 The Ninth Circuit, however, has examined that issue and has held that a sentence may not be vacated on the ground of false testimony unless "the prosecuting officials knew at the time such testimony was used that it was perjured." See United States v. Reynoso-Ulloa, 548 F.2d 1329, 1340 (9th Cir. 1977) ("Although the record indicates that [the subject] testimony was perjured, there is no evidence that the Government knowingly used the false testimony."), cert. denied, 436 U.S. 926 (1978); see also In re Roberts, 29 Cal.4th 726 (2003) (holding where petitioner "failed to show that the prosecution knowingly presented false evidence," petitioner did not establish violation of due process); United States v. Walker, 535 F.2d 383, 387 (7th Cir. 1976) ("The introduction of perjured testimony without more does not violate the constitutional rights of the accused. It is the knowing and intentional use of such testimony by the prosecuting authorities that is a denial of due process of law."); but see Sanders v. Sullivan, 863 F.2d 218 (2nd Cir. 1988) (holding "recantations of material testimony that would most likely affect the verdict rise to the level of a due process violation, if a state, alerted to the recantation, leaves the conviction in place"). Ninth Circuit case law may be used as "persuasive authority for deciding whether a state court decision unreasonably applied Supreme Court precedent, or it may help the court determine what law is clearly established." See Chia v. Cambra, 281 F.3d 1032, 1037 (9th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3117 (July 19, 2002) (No. 02-127). Under the circumstances, petitioner has not shown that federal law on this issue is "clearly established . . . as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254 (d)(1).

Accordingly, petitioner is not entitled to relief on his claim that his due process rights were violated when the state did not agree that petitioner was entitled to relief upon learning that Omar had recanted a portion of his trial testimony.


For the reasons stated, the petition for a writ of habeas corpus is hereby DENIED.

The clerk shall close the file.


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