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KING v. YARBOROUGH

United States District Court, Northern District of California


April 17, 2003

IRA C. KING, PETITIONER,
v.
M. YARBOROUGH, RESPONDENT.

The opinion of the court was delivered by: Thelton E. Henderson, United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

This matter is now before the Court for consideration of Ira Carl King's pro se petition for writ of habeas corpus concerning his 2000 conviction for first-degree murder in Alameda County Superior Court. Petitioner challenges his incarceration on six grounds: (1) his conviction violated due process because the evidence introduced at trial was insufficient to convict him of first-degree murder; (2) the jury's finding that the alleged murder-robbery special circumstance was true violated due process because the evidence introduced at trial was insufficient to support such a finding; (3) the trial court's modified jury instruction regarding the claim of right defense violated due process and deprived him of his right to a fair trial because it was an erroneous statement of law; (4) trial counsel's submission of an erroneous claim of right jury instruction deprived him of effective assistance of counsel; (5) the trial court's failure to specifically instruct the jury on the prosecution's burden in disproving his claim of right defense violated due process; and (6) the trial court's instructions to the jury regarding the order of deliberations violated due process.

For the reasons discussed below, the petition is DENIED.

BACKGROUND

A. Procedural History

After receiving a trial by jury, Ira Carl King ("Petitioner") was convicted of first degree murder on May 8, 2000. People v. King, A092494, at 2 (Cal. Ct. App., 1st App. Dist. Feb. 8, 2002) ("Slip Op."); Reporter's Transcript ("R.T.") at 1000-07. The information charged him with first degree murder (Cal. Penal Code § 187) for his alleged role in causing the death of Claude Williamson. Slip Op. at 2. The information also alleged the following, which affect sentencing under California law: that Petitioner caused Williamson's death through use of a deadly and dangerous weapon; that Petitioner knew or should have known that Williamson was over 65 years old; that Petitioner caused Williamson's death during the course of a robbery, a "special circumstance" under California law; and that Petitioner had suffered three prior felony convictions. Slip Op. at 2. After finding Petitioner guilty of first-degree murder, the jury found the special circumstance of robbery to be true, found the deadly weapon allegation to be true, but found the elderly victim allegation untrue. Slip Op. at 10. The trial court struck the prior conviction allegations and stayed the deadly weapon sentencing enhancement. Slip Op. at 10. Following the jury's conviction, the court sentenced Petitioner to life in prison without the possibility of parole. Slip Op. at 10.

B. Jurisdiction and Venue

This Court has subject matter jurisdiction over this habeas petition pursuant to Title 28, Section 2254 of the United States Code. 28 U.S.C. § 1331. This Court is the proper venue for consideration of the petition because the conviction occurred in Alameda County, which is located within this judicial district. 28 U.S.C. § 2241(d).

C. Exhaustion and Timeliness

The parties do not dispute that Petitioner has exhausted all present claims in state court. 28 U.S.C. § 2254(b), (c). Likewise, the petition is timely. 28 U.S.C. § 2244(d).

D. Facts

1. Evidence Regarding Petitioner's Attack on Claude Williamson

On the evening of October 14, 1996, Petitioner struck Claude Williamson in the head with an axe handle. Williamson died as a result of his injuries. Undisputed evidence at trial showed that prior to arriving at the scene of the assault, Petitioner was carrying less than $17 in cash. Also undisputed was that upon observing Petitioner's actions immediately following the assault, Petitioner's companions — his brother and nephew — asked Petitioner whether he had managed to get any money from Williamson's pocket.

Claude Williamson was a scrap-metal dealer who conducted business and lived with his wife in the upstairs portion of his house in Oakland. On the evening Williamson was killed, Petitioner, along with brother Lee King and nephew Frank Workman, brought a shopping cart of cans to Williamson's house. They sought to sell the cans on behalf of a friend, Mary. Whatever proceeds might be garnered were to be split such that Lee would get half and Mary would receive the other half. Mary was then to allocate an indeterminate amount of her share to Petitioner.

On arriving at Williamson's house, Lee climbed the stairs to Williamson's living quarters. Paul Smith, an acquaintance of the men and a neighbor of Williamson's, wished to speak with Williamson regarding other matters and joined Lee on the stairs. Petitioner and Workman waited below, in Williamson's backyard, with the cans. Lee then knocked on the door.

Inside the house, a short while before the knock at his door, Williamson had counted out $1,250 in cash and placed the money in his front pants pocket. Williamson then counted another $600 in cash, which he placed into a wallet in his back pants pocket. Williamson's wife observed him count the money and place it in his pockets.

After Williamson answered Lee's knock, he and Lee negotiated a sale price of $20 for the cans. Williamson gave Lee the $20 while Williamson, Lee and Smith remained on the stairs and Petitioner and Workman stayed in the yard below. Lee disclosed the $20 payment to Workman, who then informed Petitioner of the amount. Once the transaction was complete, Petitioner, Lee, and Workman left Williamson's yard and headed for a local store while Williamson began unloading the cans.

Upon arriving at the store, Lee told his companions that he had lost the money. Petitioner grew angry and suspicious of Lee, who he did not trust based on past experience. The three returned to Williamson's yard to look for the money. Petitioner believed that Lee, perhaps conspiring with Williamson, was engaged in a scheme to deprive him of his share of the proceeds. After repeatedly stating that he would not return to Mary empty-handed, Petitioner said, "Fuck this, I'm going to get my money from someone somehow." He then picked up an axe handle and swung it with both hands, striking Williamson in the head. As he left the yard, Petitioner encountered Smith, who he invited to accompany him to the store and elsewhere.

About 20 minutes after the assault, a friend notified Williamson's nephew, Ronald Archie, that Williamson lay prone in his yard, his head bloodied. Archie then observed Williamson lying on the ground with his pants pockets turned out and empty.

a) Defense Evidence at Trial

For his defense at trial, Petitioner relied in part on his own testimony, in which he denied that he had removed anything from Williamson's person after striking him, denied that he had struck Williamson with the intent to harm him, and denied that he had struck Williamson with the intent to rob him. Petitioner contested the intent element of robbery, as required for both the felony murder conviction and a finding of true on the special circumstance, by arguing that he had a "claim of right" under California law. In so doing, Petitioner testified that his intent in striking Williamson was to reclaim property that Petitioner believed was his. Additionally, Petitioner relied on testimony from his nephew that it appeared Petitioner was trying to strike his brother, not Williamson. Petitioner further relied on a psychiatrist's expert testimony, which stated that because Petitioner had smoked $10 worth of crack and consumed about 12 drinks over the course of the day, he was incapable of forming the "logical intent" to kill or rob.

b) Prosecution Evidence at Trial

The prosecution presented testimony from Petitioner's brother and nephew, who were present during the attack, that Petitioner removed an unidentified "wad" from Williamson's front pants pocket immediately after striking him, that Petitioner removed money from Williamson's front pants pocket, and that while leaving the scene of the attack, Petitioner told the nephew and brother that he had removed money from Williamson's person. The prosecution also presented testimony from Paul Smith, an acquaintance of Petitioner's who was not present during the attack. Smith testified that following the attack, Petitioner invited him to the store and then to a local park. Smith further testified that during that time; Petitioner admitted that he had taken between $80 and $85 from Williamson after felling him, that Petitioner had at least three $20 bills in his possession, and that Petitioner spent over $50. Additional testimony from Petitioner's brother and nephew indicated that between the time Petitioner picked up the axe handle and the time he struck Williamson with it, no one stood between the two men.

2. Jury Instructions

The first of three jury instructions requested by Petitioner's trial counsel concerning the "claim of right" defense was incorrect under California law. The instruction was nonetheless given by the court.

In addition to granting trial counsel's first proposed "claim of right" instruction, the trial court gave an additional instruction to the jury concerning the claim of right defense. The second jury instruction on claim of right was also an erroneous statement of California law. The trial court also defined the burden of proof and repeatedly instructed the jury as to its application.

Finally, the trial court's instruction to the jury regarding the order of jury deliberations, given in accordance with CALJIC 17.10, stated:

You are to determine whether the defendant is guilty or not guilty of the crime charged in Count One or any lesser crimes. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdict. However, the Court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the charged crime. In other words, you can't find the defendant guilty of voluntary manslaughter unless everybody — 12-`zip' — says he is not guilty of murder.
Other instructions from the court advised the jury that it had to consider all possible crimes before deciding the degree of murder and distinguishing between murder and manslaughter.

DISCUSSION

A. Standard of Review

This Court may entertain a petition for 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 petition 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." 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 409-12 (2000).

A state court decision is "contrary to" clearly established federal law 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, 529 U.S. at 412-13. Accordingly, "a run-of-the-mill state-court decision" that correctly identifies the controlling Supreme court framework and applies it to the facts of a prisoner's case "would not fit comfortably within § 2254(d)(1)'s `contrary to' clause." Id. at 413.

A federal district court may grant a writ of habeas corpus under the "unreasonable application" clause if the state court identifies the correct governing legal principle from the Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Id. However, the writ may not be granted simply because the federal habeas court concludes in its independent judgment that the relevant state court decision applied clearly established federal law "erroneously or incorrectly." Id. at 411. Rather, the state court's application must also be unreasonable. Id. Thus, a federal habeas court making the "unreasonable application" inquiry asks whether the state court's application of clearly established law was objectively unreasonable. Id. at 409.

B. Analysis of Petitioner's Legal Claims

1. The Claim of Right Defense

Five of Petitioner's six claims depend on the availability of the claim of right defense. Those claims are the insufficiency of evidence claims, the ineffective assistance of counsel claim, the incorrect jury instruction claim, and the burden of proof claim (Claims 1-5). Each relies on the argument that the improper definition of the claim of right defense led to the complained-of harm. Pet., Ex. C at 4, 11 (insufficiency of evidence), 12 (claim of right instruction), 14 (ineffective assistance of counsel), 16 (burden of proof instruction). However, since the claim of right defense was not available to Petitioner as a matter of law, those claims were rejected by the Court of Appeal. Slip Op. at 11. For the same reason, those claims are rejected here.

a) Definition and Context of the Claim of Right Defense

Because of Petitioner's reliance on the claim of right defense, analysis of the petition requires that the doctrine be set forth as it relates to Petitioner's case. In California, murder is of the first degree if perpetrated during the commission of a robbery. See Cal. Penal Code § 189.*fn1 This type of first-degree murder, known as felony murder, requires proof beyond a reasonable doubt of the defendant's specific intent to commit the underlying felony. People v. Hart, 20 Cal.4th 546, 608 (1999). Thus, the jury's conviction of Petitioner required it to find that the prosecution had proven beyond a reasonable doubt that Petitioner struck Williamson with the felonious intent to permanently deprive Williamson of Williamson's property. Cal. Penal Code § 211; People v. Butler, 65 Cal.2d 569, 572-73 (1967).

California common law provides a defense to robbery's intent element. This defense, known as the "claim of right" defense, provides: "a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent." Butler, 65 Cal.2d at 572-73. Thus, a good faith belief on Petitioner's part that the property or money he took belonged to him, or that he had a right to that property or money, would have been sufficient to preclude felonious intent. Id. In order for the defense to become available, and for a trial court to instruct the jury on the defense, the defendant bears the burden of presenting sufficient evidence to support an inference that he acted with a subjective belief that he had a lawful claim to the property or money taken. People v. Romo, 220 Cal.App.3d 514, 519 (1990). Whether the defense is available is a question of law. Id. Doubts as to the sufficiency of the evidence supporting the availability of the defense should be resolved in the accused's favor, and the trial court should not measure the substantiality of the evidence by weighing witnesses' credibility. People v. Barnett, 17 Cal.4th 1044, 1145 (1998). However, the supporting evidence must be more than minimal and insubstantial before the defense becomes available. Id.

b) Analysis

The Court of Appeal determined that Petitioner was not entitled to the claim of right instruction as a matter of California law for two reasons, prefacing its analysis with the California Supreme Court's admonition that the claim of right defense must be construed narrowly. Slip Op. at 11-12. First, the appellate court concluded that the claim of right defense was unavailable under state law because the claimed debt was uncertain and subject to dispute. Slip Op. at 11 (citing People v. Barnett, 17 Cal.4th 1044, 1146 (1998)). Second, the defense was also unavailable under state law since Petitioner failed to put forth credible evidence that Petitioner believed in good faith that Williamson possessed the $20 he was to pay Lee for the cans, regardless of the certainty of the amount itself. Slip Op. at, 12, citing Barnett, 17 Cal.4th at 1146. The Court of Appeal's holding that the claim of right defense was unavailable under state law is binding on this court see Hicks v. Feiock, 485 U.S. 624, 629-30, 630 n. 3 (1988), and is neither contrary to nor an incorrect application of clearly established federal law.

2. Sufficiency of Evidence Claims

Petitioner's first two claims — that the jury's felony murder conviction and robbery special circumstance finding violated due process — are premised on the assertion that insufficient evidence was presented at trial to sustain a finding of intent to rob. When considering a collateral attack of a state court conviction, a federal court determines only whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Carranza, 289 F.3d 634, 641-42 (9th Cir. 1994). Sufficiency of the evidence claims must be judged by the elements of the crime as defined by state law. Id. at 326; McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994). A federal court may grant a habeas writ only if "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324.

The specific element of the crime charged which Petitioner contests is the element of intent of the underlying charge of robbery. Petitioner must therefore show that in light of the evidence, no rational juror could have determined, beyond a reasonable doubt, that Petitioner struck Williamson with the intent to permanently deprive him of money. On viewing the evidence in the light most favorable to the prosecution, as this Court must, it is apparent that a rational trier of fact could have reached the conclusion that Petitioner struck Williamson with the intent to permanently deprive him of money and that Petitioner did not believe in good faith that he had a right to that money. Petitioner argues that "overwhelming evidence" showed that Petitioner "believed in good faith that he had a claim of right to the money or the cans," albeit a belief borne of "intoxication and paranoia." Pet., Ex. C at p. 7. However, this argument goes first to whether the claim of right defense should have been offered. Since the defense was unavailable, evidence of Petitioner's "good faith" is not relevant to the intent element.*fn2

Contrary to Petitioner's assertion, the evidence presented at trial indicates that Petitioner took at least $60 from Williamson's prone body and as much as $1250 — purportedly to settle a debt of $20 or less. Slip Op. at 12. A rational trier of fact easily could have found as the jury did. There was simply no showing made at trial that Petitioner had a good faith belief that any money removed from Williamson's body was his.

In rejecting King's contention that both the first degree murder verdict and the special circumstance finding were reached on insufficient evidence, the California Court of Appeal cited the standard enunciated in People v. Barnes, a California Supreme Court case relying, as this Court does, on the standard announced by the Supreme Court in Jackson. Slip Op. at 10, citing Barnes, 42 Cal.3d 284, 303 (1986). The Court of Appeal rejected, as this Court does, Petitioner's argument that the prosecution's evidence was insufficient in light of his claim of right defense since the defense was unavailable as a matter of law. Id. at 13. Even if Petitioner had presented enough credible evidence for a jury instruction on the claim of right defense, the appellate court reasoned, there was substantial evidence to support the jury's conclusion that the prosecution had disproved the defense and met its burden. Id. at 12-13. The Court of Appeal further determined that the jury's finding regarding the special circumstances allegation, i.e. that the murder was in commission of and in furtherance of robbery, was supported for the same reasons as the felony murder conviction. Id. at 13.

The California Court of Appeal's rejection of Petitioner's insufficient evidence claims was neither contrary to nor an unreasonable application of clearly established federal law. Petitioner's claims that there was insufficient evidence presented at trial to sustain either the jury's felony murder conviction (Claim 1) or its finding that the special circumstance of robbery was true (Claim 2) are therefore rejected.

3. Ineffective Assistance of Counsel Claim

Petitioner alleges that trial counsel's proposal of a legally insufficient jury instruction amounted to ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668 (1984). In order to prove that counsel's assistance was ineffective, Strickland requires Petitioner to show that: (1) trial counsel's performance was deficient, and (2) resulting prejudice.

a) Deficiency

A showing that counsel's performance was deficient requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See id. at 687. The defendant must show that counsel's representation fell below an objective standard of reasonableness. See id. at 688. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

Trial counsel's proposed jury instruction, which the court gave to the jury, stated: "There is a distinction between a forcible taking — or an attempt to forcibly take property — to satisfy, settle, or collect on a debt, as opposed to a forcible taking intended to recover specific property in which the person has a good faith belief or claim of right in the property. . . ." (R.T. 954.) As applied to the facts of this case, all of which occurred in 1996, California law makes no such distinction; the instruction was therefore an error of law. Slip Op. at 14 n. 9, 14-15; compare People v. Tufunga, 21 Cal.4th 935 (1999) (establishing the distinction that debt settlement does not support a claim of right but that collection of specific property does) with People v. Sakarias, 22 Cal.4th 596 (2000) (holding that Tufunga can only be applied prospectively). Petitioner has therefore satisfied Strickland's deficiency prong since no reasonable attorney would seek instructions to the jury that are incorrect as a matter of law. Moreover, counsel's failure to properly avail himself of the law cannot be considered a choice or strategy, much less a reasonable one. See, e.g., Babbitt, 151 F.3d at 1173.

b) Prejudice

The prejudice prong of the Strickland analysis requires that the petitioner show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 688. The test for prejudice is not outcome-determinative, i.e., defendant need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. Id. at 693. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694.

Petitioner attempts to show prejudice here by arguing that "evidence supporting the claim of right defense was overwhelming," and that therefore, "a reasonable, properly instructed juror could well have found" that Petitioner's good faith belief negated the alleged intent to rob Williamson. Pet., Ex. C, at 15. However, since the claim of right defense was not available to Petitioner under California law, his counsel's misstatement of the requirements of the defense did not result in any prejudice to Petitioner. Moreover, as discussed above, the very reason the defense was legally unavailable was that the evidence did not allow for a reasonable inference that Petitioner had the requisite good faith as a matter of law. Petitioner has therefore failed to show that but for trial counsel's proposed instruction, there is a reasonable probability that the result of the proceeding would have been different.

The California Court of Appeal likewise rejected Petitioner's ineffective assistance of counsel claim for lack of prejudice on the basis that Petitioner was not entitled to any instruction on the claim of right defense. Slip Op. at 15. That decision was neither contrary to nor an unreasonable application of clearly established federal law. Petitioner's claim that he was denied effective assistance of counsel (Claim 4) is therefore rejected.

4. The Trial Court's Jury Instructions

To obtain federal collateral relief for errors in the jury charge, Petitioner must show that the challenged instruction, by itself, so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991). A challenged instruction must be considered in the context of the instructions as a whole and of the trial record. Id. Petitioner is entitled to relief only if the record demonstrates that an instructional error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In other words, Petitioner must show that any instructional error resulted in actual prejudice. Id.

a) The Trial Court's Substantive Claim of Right Instruction

Petitioner claims that the trial court's legally incorrect instruction on the claim of right defense, which was offered in addition to the instruction proposed by counsel, deprived him of due process. Pet., Ex. C at 12-13.*fn3 As given by the court, the instruction was: "If Defendant has a bona fide belief of a right or claim to specific property other than money, even if mistaken, it negates the element of felonious intent and the defendant is not guilty of robbery or theft. . . ." (R.T. 954:22-25.) The phrase "other than money," which followed the phrase "specific property," is the source of the legal error in the instruction; it was inserted by the court to modify an instruction proposed by trial counsel. Slip Op. at 14.

Again, Petitioner's argument succumbs to the fact that no legally recognized prejudice flowed from the incorrect defense instruction because the defense itself was not available. Whether the defense was correctly described simply does not matter. The Court of Appeal also rejected this claim, again because Petitioner "had no claim of right defense as a matter of law anyway, and was not entitled to any instruction on that defense." Slip Op. at 15 (emphasis in original). The Court again notes that the lack of evidence which foreclosed the availability of the defense also precludes the argument that a reasonable juror could have concluded that Petitioner's conduct fell within its ambit.

The California Court of Appeal's rejection of Petitioner's claim of instructional error was neither contrary to nor an unreasonable application of clearly established federal law. Petitioner's due process claim in regard to the trial court's instruction on claim of right (Claim 3) is therefore rejected.

b) Trial Court's Instruction on the Prosecution's Burden of Proof

Petitioner claims that he was denied due process because the trial court did not specifically instruct the jury that the prosecution was required to disprove the claim of right theory beyond a reasonable doubt. Pet., Ex. C, pp. 16-18. The Constitution is satisfied so long as the trial court instructs the jury that the defendant's guilt must be proven beyond a reasonable doubt where the instructions, taken as a whole, correctly convey the concept of reasonable doubt to the jury. Victor v. Nebraska, 511 U.S. 1, 6 (1994). Thus, the proper inquiry is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on insufficient proof of any element of the crimes charged Id.; In re Winship, 397 U.S. 358, 364 (1970). When reviewing an ambiguous instruction, this Court inquires whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Estelle v. McGuire, 502 U.S. 72 & n. 4.

The claim of right defense's unavailability as a matter of law is dispositive since it means that the prosecution bore absolutely no burden of disproving that defense. Furthermore, the instructions provided by the court do not show any reasonable likelihood that the jury could have understood that the prosecution's burden was anything less than to prove every element charged beyond a reasonable doubt. At the close of the trial, the court instructed the jury three separate times that the prosecution was required to prove, beyond a reasonable doubt, that Petitioner was guilty of the crime charged. (R.T. 943:24-944:1, 963:20-964:2, 971:11-12.) The court twice instructed that the prosecution's burden was to be specifically applied to every element of every crime. (R.T. 936:14-21, 962:26-963:2.) The court also instructed the jury that the prosecution's burden extended to the special circumstance of robbery (R.T. 966:24-27), and was to be specifically applied to every element of that special circumstance (R.T. 968:8-12). The court listed intent as an element of both the felony murder charge and the robbery special circumstance. (R.T. 954:3-4, 15-25.) The court also defined the term "reasonable doubt" for the jury (R.T. 944:2-9).

The California Court of Appeal rejected the claim that the jury instructions improperly failed to instruct on the burden of proof on Petitioner's claim of right defense because no prejudice resulted from the lack of a specific instruction. Slip Op. at 16. The state court reasoned that Petitioner had no right to an instruction on the defense at all and that furthermore, the instructions given, when considered as a whole, conveyed the prosecution's burden of proving guilt beyond a reasonable doubt. Slip Op. at 16. The California Court of Appeal's rejection of Petitioner's instructional error claim was not contrary to or an unreasonable application of clearly established federal law. Petitioner's claim of a due process deprivation arising from failure to instruct as to the prosecution's burden (Claim 5) is therefore rejected.

c) Trial Court's Instruction on the Order of Deliberations

Petitioner claims that the trial court's "acquittal first" instruction to the jury violated due process because it prevented the jurors from deliberating on the lesser offenses. Pet., Ex. C at 19-23. This claim is rejected because it necessarily rests either on a misunderstanding of the record, of case law, or both. Petitioner's argument relies in part on United States v. Jackson, 726 F.2d 1466 (9th Cir. 1984), and in part on United States v. Tsanas, 572 F.2d 340, 344 (2d Cir. 1978), both of which involved order of deliberation instructions that violated due process. Unlike the present case, the Jackson and Tsanas trial courts' instructions shared the critical attribute that they prohibited the juries from even considering lesser charges before reaching a verdict on the crime charged. Jackson, 726 F.2d at 69-70; Tsanas, 572 F.2d at 344. In material contrast, the trial court here did not preclude deliberation on the lesser offenses, instead specifically encouraging the jury to deliberate on and reach "tentative verdicts" on all lesser offenses before reaching an actual verdict. (R.T. 971:25-27.)

The Court of Appeal rejected Petitioner's argument because, as in his federal claim before this Court, Petitioner's state court argument had misapplied analogous California case law. Slip Op. at 17-19. The California Court of Appeal's rejection of Petitioner's claim regarding the order of deliberation instruction was neither contrary to nor an unreasonable application of clearly established federal law. Slip Op. at 19. Petitioner's claim regarding the jury instruction on the order of deliberations (Claim 6) is therefore rejected.

CONCLUSION

For the reasons discussed above, Petitioner's petition for a writ of habeas corpus is DENIED. The clerk shall close the file.

IT IS SO ORDERED.


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