The opinion of the court was delivered by: Charles R. Breyer, United States District Judge
ORDER DENYING PETITION
FOR A WRIT OF HABEAS
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
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
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
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
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
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).
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 ...