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April 1, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge


This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. The matter is submitted.


Petitioner was convicted by a jury of attempted first degree burglary. The jury also found true allegations that petitioner had suffered two prior serious felony convictions and served prison terms for several prior felony convictions. He was sentenced to 38 years to life in state prison pursuant to California's Three Strikes Law and other enhancements. Petitioner unsuccessfully appealed his conviction and sentence to the California Court of Appeal and the Supreme Court of California. He also unsuccessfully sought collateral relief from the state courts.

As grounds for habeas relief here he asserts that: (1) the trial court violated his right to due process by refusing to give a jury instruction relating voluntary intoxication to the specific intent element of attempted burglary; (2) trial counsel was constitutionally ineffective; (3) the cumulative effect of the errors rendered the trial fundamentally unfair in violation of due process; and (4) the sentence given petitioner under the circumstances of this case constitutes cruel and unusual punishment.

Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.

On May 17, 1995, at around 3 a.m., Kent Clark was awakened by "rustling sounds" in his backyard. His backyard was surrounded by a six-foot high fence, and the only gate was padlocked. Clark's house was equipped with an alarm system, but the alarm was off at the time. When the alarm system was off, it would still beep for a few seconds whenever a door or window was jiggled, moved or opened. A sign on Clark's front door said "day sleeper."
Clark thought the sounds that had awakened him were being produced by a possum. He tried and failed to get back to sleep. He remained in bed listening to the rustling sounds for at least 15 minutes. Clark attempted to "ignore" the sounds, but then he heard "thumping sounds" and "crunching." Clark became curious as to what "the possum" was doing to his house, so he got out of bed, went into this living room and looked out of the sliding glass doors into the backyard. Since he expected to see a possum, he looked "low." The first thing he saw were some feet. When he looked up, he saw a man "trying to get into my window." The man was about five or six feet away from Clark. He had dark hair in a ponytail and was wearing a plaid shirt. Clark retreated and called 911.
While he was speaking to the 911 operator, his house alarm began beeping. The beeping could be heard throughout Clark's house. At 3:30 a.m., Clark's clock radio went off and started loudly playing the radio. The radio could be easily heard throughout the house and outside the house. Clark returned to the sliding glass doors and found the man "pressed against" the doors trying to look into the house. Clark got a good look at the man. It was defendant. Clark was not acquainted with defendant and had never seen him before. Clark left the room and informed the 911 operator that the man was still there. The 911 operator almost immediately informed him that a suspect was in custody.
A police officer arrived in front of Clark's house at 3:30 a.m. As the officer approached the house, he heard the rustling of leaves and then sounds "like shaking of a gate." He illuminated the gate with his flashlight and saw defendant standing with his back toward the officer urinating on the ground. Defendant turned around and looked at the officer with "a blank stare." Defendant was wearing a plaid shirt and had his hair in a ponytail. The officer placed defendant under arrest. In defendant's shirt pocket, the officer found an object the size of a large straw which was a combination of a flashlight and a screwdriver. The officer immediately identified this item as a "burglary tool." Defendant identified himself as "Joe Lua." The arresting officer did not detect the odor of alcohol on defendant's breath nor did he observe any other sign that defendant was under the influence of alcohol. He did notice that defendant had "glassy eyes" and seemed "nervous," "dazed," "confused," and "passive." Defendant also had "very slow speech." Defendant had no difficulty understanding the officer's instructions.
A couple of screens had been removed from the windows of Clark's house. A "cooler" had been moved from Clark's patio to a spot under one of the windows. The frames of the screens were bent, and there were 1-inch diameter holes in the bottoms of two of the screens. A window that had had no outside screen had been "half-pried apart."
Defendant's blood was drawn at 4:22 a.m. A presumptive test for the presence of methamphetamine in defendant's blood was performed nearly a year later on May 10, 1996. This test was positive. On the same date, defendant's blood sample was also tested for the presence of alcohol. No alcohol whatsoever was detected in defendant's blood sample.
Defendant was charged by information with attempted burglary, and it was further alleged that he had suffered two prior serious felony convictions (Pen. Code, § § 667, subds. (a), (b) to (i), 1170.12) and had served prison terms for several prior felony convictions (Pen. Code, § 667.5, subd. (b)). The prior conviction and prison prior allegations were bifurcated.
At trial, defendant's friend Andrew Gomez testified for the defense. Gomez lived across the street from Clark in May 1995. Gomez testified that defendant had come to visit him on May 17 about 1 a.m. When he arrived, Gomez noticed that defendant was "[n]ot drunk" but [a] little bit tipsy" as if he had consumed three or four beers. Gomez was aware that defendant was a diabetic who used insulin. Yet he offered defendant a beer and, according to Gomez, defendant consumed one or two beers during his two-hour visit. Gomez expressed the opinion that defendant was "drunk" when defendant departed shortly after 3 a.m. When asked to explain what "signs" he associated with drunkenness, Gomez said "[b]asically being loud-mouthed, ornery."
The court refused defendant's request for instructions on voluntary intoxication. The jury was instructed that attempted burglary required "the specific intent to steal. . . ." The jury found defendant guilty of attempted first degree burglary.
Ex. F at 1-4.*fn1


A. Standard of review

The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA 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." 28 U.S.C. § 2254 (d).

B. Issues Presented

1. Instruction

Petitioner asserts that the trial court violated his due process rights when it refused to give a voluntary intoxication instruction.

A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. Id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995).

The omission of an instruction is less likely to be prejudicial than a misstatement of the law. Walker v. Endell, 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S. at 155). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "`especially heavy burden.'" Villafuerte v. Stewart, 111 ...

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