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April 2, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.


Now before the Court is David A. Lowrie's petition for habeas corpus.


Petitioner David A. Lowrie ("petitioner") was charged by information filed on June 25, 1998 in Mendocino County, California, with two counts: (1) the murder of Jerry Adams, accompanied by great bodily injury and (2) shooting at an occupied motor vehicle, in violation of California Penal Code (hereinafter "Penal Code") section 246. Two additional allegations included personal discharge of a firearm resulting in great bodily injury in violation of Penal Code section 12022.53(d) and personal use of a firearm in violation of Penal Code section 12022.5(a)(1).

On September 1, 1998, the jury acquitted petitioner of first-degree murder, but convicted him of second-degree murder and shooting at an occupied vehicle. The trial court found the additional allegations under Penal Code sections 12022.53(d) and 12022.5(a)(1) true.

After a mistrial, the case was retried on September 10, 1999 and the jury convicted petitioner of voluntary manslaughter and the accompanying offense of shooting at an occupied motor vehicle, accompanied by the fire arm use enhancement. On December 15, 1999, petitioner was sentenced to 11 years in prison. The California Court of Appeal affirmed petitioner's conviction in an unpublished opinion on May 23, 2001 and the California Supreme Court denied review on September 12, 2001. Petitioner then filed the instant federal petition for writ of habeas corpus under 28 U.S.C. § 2254.


The pertinent facts of the case are as follows:*fn1

On May 14, 1998, Lowrie shot and killed his stepson, Jerry Adams, as Adams was driving toward him in his car. Several months before the shooting, Lowrie had demanded that Adams vacate a house on Lowrie's property that he was renting to Adams and his girlfriend and Adams had physically threatened him at that time. Lowrie tried to evict Adams because he was concerned about what he perceived as Adams' increasingly aggressive behavior and serious drug habit. The day of the shooting, Lowrie had a restraining order served on Adams. Adams again physically threatened Lowrie and Lowrie's son phoned 911. Shortly after this call, Lowrie's wife also called 911. No one responded and Adams did not leave. Lowrie, fearful of Adams, armed himself and, when Lowrie saw Adams get in his car, rev up the engine and begin to drive toward him, he shot Adams. At trial, Lowrie claimed that he acted in self-defense and that his stepson had been driving toward him while waving a pistol. He also testified that Adams shot at him through the passenger window of the car.
Mendocino Sheriff's Deputy Andrew Cash was one of the first police officers to arrive at the scene. He testified that Lowrie told him, "I shot him. I shot him, officer." Cash testified that when he arrived there was no bullet holes in any of the windows. The driver's window was in the "down" position and the passenger window was in the "up" position. Cash did not find either a gun or bullet casings inside Adams' car. Lowrie did not say anything to Cash about returning fire or having been shot at by Adams.
After a second trial, Lowrie was found guilty of voluntary manslaughter (§ 192, subd. (a and of having discharged a weapon into an occupied vehicle. (§ 246.) The jury also found true, with regard to the section 2246 charge, a gun use enhancement under section 12022.53, subdivision (d). Lowrie was sentenced to eleven years in state prison on the manslaughter charge. All other charges and enhancements were stayed. This timely appeal followed.

I. Legal Standard

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).

The writ may not be granted with respect to any claim that was adjudicated 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." Id. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

An unreasonable application of federal law is different from an incorrect application of federal law. Id. at 410. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

II. Legal Claims

Petitioner raises three claims: (1) deprivation of his constitutional rights to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments by the trial court's refusal to instruct on imperfect self-defense as to the Penal Code section 246 charge*fn2; (2) deprivation of due process and a fair trial by the failure of the investigating authorities to conduct a gunshot residue test on decedent Adams and on the interior of his car; and (3) deprivation of due process and ...

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