The opinion of the court was delivered by: William Alsup, United States District Judge
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
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
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
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
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).
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 ...