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April 30, 2003


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

Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of the murder of Timothy Byers with the use of a firearm, the attempted murder of Michael White with the use of a firearm and with infliction of great bodily injury, the attempted murder of James Hammonds with infliction of great bodily injury, and possession of a firearm by a felon. The jury also found true allegations that petitioner had suffered two prior convictions for possession of narcotics for sale.

On April 18, 1997, petitioner was sentenced to one term of 25 years to life, plus two indeterminate terms of life, plus a 38-year determinate sentence. The California Court of Appeal affirmed the judgment of conviction and the Supreme Court of California, after initially granting review, dismissed review on February 28, 2001.

Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on February 13, 2002, the court found that the petition, when liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.


The California Court of Appeal summarized the facts of the case as follows:

The victims, Byers, White and Hammonds, were smoking crack cocaine with Hammonds' fiancé, Denise Conley, in room 16 of the Maya Motel in Oakland around 8:45 p.m. on April 3, 1996, when they heard a knock on the door. When Conley opened the door, someone with a semi-automatic rifle fired 17 shots into the room. Byers was hit by at least five bullets and died from the bullet wounds. Hammonds was shot in the leg and had to have surgery to repair his left thigh bone. White was found in an alley behind the motel, lying on top of what had been a window in room 16 on the second story. White had been shot twice, and had a major fracture on his left arm as well as multiple rib fractures. Hammonds and Conley testified that when they saw White after the shooting they noticed that part of his arm had been amputated.
Witnesses testified that appellant and Shaun "Holiday" Carter both sold drugs in the area around the Maya Motel. Appellant and his girlfriend, Brandi Pratt, stayed on and off at Janet Walker's house next to the motel. About two weeks before the shooting at the motel, appellant had been shot and grazed in the head by a bullet in front of Walker's house.
On the evening of April 3, appellant borrowed a car from his sister, Stephanie Young, and he went with Pratt to San Leandro to look at a car being sold by Doug Matichak. They called Matichak twice from the cellular phone in Young's car to ask for directions, and billing records for the phone showed that the second call was placed at 8:08 p.m. Matichak remembered an African-American couple coming by to look at his car that night. He testified that they arrived about five minutes after their second call for directions, and stayed for 10-15 minutes at most before they left without buying the car.
An investigator for the District Attorney's office confirmed that it takes 13 to 14 minutes to drive under the speed limit from Matichak's house to the Maya Motel. Walker testified that appellant came by her house between 8:30 p.m. and 9:00 p.m. on April 3rd to pick up the "big gun" he had asked her to hold for him the night before. According to Walker, appellant was "upset cursing, mad." As he left her house with the gun he said, "nobody is selling dope around here but me." A few minutes later, Walker heard gunshots at the Maya Motel. Walker said she was nervous about testifying at trial because two months earlier some of appellant's friends had told her they would kill her if she testified against him.
Hammonds and Conley were staying in room 16 at the motel. They had both bought drugs from time to time from appellant and Holiday Carter. Carter, who also lived at the motel, had stopped by their room on the day of the shooting.
Conley testified at trial that she knew appellant by his nickname, "D," and she identified "D" as the gunman when she was interviewed by Sergeants Banks and Olivas in the hours after the shooting. Banks testified that Conley was very upset during the interview, and started screaming when she was shown appellants' picture in a photo lineup. Conley's audiotaped statement on the night of the shooting was played for the jury. In it, she said that the man in picture number two in the lineup did the shooting and that the man in the picture was "D" for "Daryl." Before identifying appellant by name on the tape, Conley asked, "Do I have to?" Conley said on the tape that, after the knock on the door, someone identified himself as "Marty, Mitch" or something that started with an "M," and that she heard two different voices outside the room during the incident. Banks testified that Conley called her three weeks after the incident and said that "Mike" had been with appellant when the shooting occurred.
An officer who first arrived at the scene of the shooting testified that Hammonds said he knew who had shot him and would "get" him. Banks and Olivas spoke to Hammonds in the hospital the morning after the shooting. His leg was heavily bandaged and he was in pain, but according to Banks he was alert and cooperative. Hammonds told them "D" had shot him, identified appellant in a photo lineup, and with some difficulty signed the back of appellant's picture. Hammonds' taped statement was played for the jury. In it, he said that he saw his friend "D" standing outside the door to room 16 with a gun. Hammonds said, "man, you don't need that thing," but appellant started shooting. Hammonds thought that appellant might have been mad at him because Carter had been over to the room about an hour before the incident. He thought appellant was having "business" problems with Carter, and he knew that appellant had recently been shot. Hammonds denied at trial that he had dealt drugs out of room 16 in the three or four months he lived there.
On the evening of the shooting, Claire Urmson was visiting a friend who lived near the Maya Motel. When she heard the shots, she went out on the porch and saw an African American male running from the direction of the motel with a rifle sticking out of his jacket. She got a good look at the man and saw his face from a "three quarter angle profile." She is an art student, trained to remember features, and she recalled that there was a "smooth roundness" to the man's head, and that the man had "full lips" and a "puggish nose." Urmson testified that appellant looked "similar" to the man she saw. She said he had a "smooth and good looking face" like the man she saw.
Appellant did not take the stand in his defense. Pratt testified that she and appellant went straight back to Stephanie Young's house after looking at Matichak's car. She said they arrived there around 9:25 or 9:30 p.m. Appellant's brother John testified that appellant was at Young's house when he arrived there around 9:20 or 9:30 that night. He said it takes about 20 to 25 minutes in light traffic to drive from the vicinity of the Maya Hotel to Young's house.
Young testified that appellant and Pratt had returned to her home about 8:30 or 8:35 p.m. She said she remembered the time because her husband had returned home earlier than usual that in g from his regular basketball game, and arrived there five minutes before appellant and Pratt. Young said she has "a habit at looking at the clock whenever something happens. I watch too many cop shows." She said she is "an avid crime drama fan and always amazes me when people are asked what time a certain event occurs, no one ever knows. So, I just became a time watcher, I guess." Young admitted that her cell phone was not taken out of the car that night, and could not explain the calls listed on the bill for that phone at 8:57 and 9:22 p.m.
The incriminating evidence elicited from the prosecution s principal witnesses was impeached in various ways.
At trial Hammonds recanted his earlier identification of appellant. Hammonds denied having seen appellant with a rifle in the doorway of room 16. He testified that when Conley opened the door he could see a rifle but not the person holding it, who was behind the door. Hammonds said it is difficult to focus your eyes when you are smoking crack. Hammonds said that the signature on the back of appellant's picture from the photo lineup start[ed] off like his signature, but that it was messy and he could not remember writing it. He was on medication when he spoke to the police at the hospital and did not remember saying that he had seen two people at the door. He did not remember telling the police that he heard someone at the door say "It's Mike," or that he thought he heard appellant's voice at the door.
In the statement Conley gave to the police at the scene, she denied seeing who was at the door when the shots were fired. The officer who took Conley's statement testified that people at the scene are sometimes not "being totally up front" because they are nervous or scared and there are a lot of people around. Thus, Conley was taken to the police station for more questioning.
At trial Conley said she remembered being interviewed by the police six or seven hours after the shooting, but said she could not remember what she told them. She did not remember telling Sergeant Banks that she had heard someone outside the door of room 16 say "hey Tim." She did not remember saying that she saw "D" fire the shots. She remembered that Banks showed her a series of photographs, and acknowledged that she "probably" identified appellant as the shooter from the photos. However, she was "upset" and "high" at the time, and insisted at trial that she did not see who did the shooting.
According to the transcript of the preliminary hearing, Conley had testified that she "saw Daryl with a gun." At trial, she said her statement was that she "saw the barrel of a gun." She could not remember testifying that she heard appellant's voice when she saw the gun. She vaguely remembered testifying that she heard a voice that "could have been Daryl" say "what's up. Hey Tim. Mike, what's up."
Conley testified at trial that after hearing the knock on the door she went over to the door and asked who it was. Conley first said she did not remember whether there was any response to the question. She then said a voice outside might "possibly" have said, "it's Mike." She then said she "guess[ed]" she had heard a voice say Marty or something like that. It was "Marty, Mitch," or something that maybe started with an "M." When he opened the door to see who it was, all she saw was the barrel of a gun through the door; she did not see who was holding the gun. She ended up behind the door, and saw only dark pants through the door. Conley said she did not want to be in court testifying. She did not "want to have anything to do with this."
Walker admitted at trial that when she was questioned by a police officer on the night of the shooting, she said only that she had heard shots and did not mention that appellant had stopped by her house to get a gun. She said she was afraid when she was first asked about the incident. About three weeks alter, when the police brought her in for further questioning, she told Sergeant Olivas about appellant and his gun. Walker said that she was high on crack and alcohol during her interview with Olivas, but was "clean and sober" by the time of trial. Walker variously testified that she had bought cocaine from appellant, that she had not bought cocaine from appellant, and that when she told the police that she had bought cocaine from appellant, that was wrong.
In cross-examination, Walker said that when she was brought in for questioning, the police told her that they would lock her up if she did not give them a statement. They said he would arrest her for the drugs she had in her house when they picked her up, so she was going to give them a statement, "anything they wanted to hear." However, she insisted that she had told Sergeant Olivas the truth.
Urmson's testimony was called into question by her friend Kami Springer. Urmson was at Springer's house when she observed the man running from the Maya Motel. Urmson told Springer on the night of the shooting that the man she saw had a rifle, but then later said it was not a rifle. After Urmson testified at trial, she told Springer that while appellant could have been the one she saw running that night, she did not think it was him because the man she saw that night was heavier than appellant. She said that appellant looked similar to the man she saw that night, but that she could not really tell if it was the same person. Urmson also said that appellant was "a fine looking young man," whereas the man she saw running was not. Springer said that Urmson did not want to get involved, and was worried about everyone's safety.
Appellant's brief notes that the prosecution's case depended on the testimony of witnesses who were "drug addicts, drug sellers, liars, convicted felons, people testifying to avoid prosecution (Janet Walker), and people who would change their own story at the drop of a hat. . . . Every percipient prosecution witness totally changed their story from one point to another. Each necessarily lied in court, or to a police officer, or perhaps both." Respondent notes that appellant's alibi defense was weak because Young's testimony that he was at her house when the shooting occurred was contradicted by her car phone records and by Pratt.
After hearing evidence and argument over the course of about eight court days, the jury deliberated for over four days before reaching its verdicts.
People v. Haynes, No. A078379, slip op. at 2-7 (Cal. Ct. App. May 20, 1999) (Resp't Ex. B) (emphasis in original).


A. Standard of Review

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.

"[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.

The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the ...

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