The opinion of the court was delivered by: Charles Breyer, District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Nathan James Smart was convicted in 1999 by a jury in the Superior Court of the State of California in and for the County of Sonoma of two counts of gross vehicular manslaughter while intoxicated (Cal. Penal Code § 191.5(a)) and one count of leaving the scene of an accident (Cal. Veh. Code § 20001(a)). The jury also found the following allegations to be true: (1) that Smart proximately caused death to more than one victim (Cal. Veh. Code § 23182); (2) that he personally inflicted great bodily injury on the victims (Cal. Penal Code §§ 667.5(c) & 1192.7(c)); and (3) that he fled the scene of the crime (Cal. Veh. Code § 20001(c)). The jury acquitted Smart on two counts of murder (Cal. Penal Code § 187(a)).
On August 13, 1999, the state trial court denied probation and sentenced Smart to a total determinate term of seventeen years imprisonment, less 571 days credit. The California Court of Appeal affirmed Smart's conviction on June 11, 2001, and the California Supreme Court denied review on September 19, 2001.
Smart then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on September 27, 2002, the Court found that the petition, liberally construed, stated cognizable claims under section 2254 and directed the respondent to show cause why a writ of habeas corpus should not be granted. The Attorney General for the State of California has filed an answer to the order to show cause; Smart has not filed a traverse.
Smart's convictions arose from a car accident in which two people died. The Court takes the following account from the opinion of the California Court of Appeal.
On July 29, 1998, at approximately 10:45 p.m.
witnesses observed a Geo Metro proceed on Fulton
Road, into the intersection with West College
Avenue, on the green light. A second vehicle,
driven by appellant, entered the intersection on
West College Avenue, at an estimated speed of 80 to
85 miles per hour, and collided with the Geo Metro.
The posted speed limit was 40 miles per hour. The
Geo Metro "was pretty destroyed. The whole back end
seemed missing[.]" Witnesses went to a nearby
residence to call for assistance. The two occupants
of the Geo Metro died at the scene of the accident
of massive injuries.
As Officer Noland drove to the scene, he saw
two men on West College Avenue walking away from
the intersection with Fulton. They were
approximately a half mile from the accident, and
when he shined his spotlight on them, appellant ran
away. When Officer Wallace responded to the scene,
he observed appellant, approximately 350 yards from
the intersection with Fulton Road, walking back on
West College Avenue, towards Fulton. He pulled over
to talk with appellant. He observed that appellant
was bleeding near his left eye, and asked if
appellant had been driving a car in the accident.
Appellant replied, "Yeah, I was driving." Officer
Wallace could smell alcohol on appellant's breath
and observed that his speech was slow and slurred,
and his eyes were red and glassy.
Officer Noland approached appellant as he sat
in Officer Wallace's car, and asked him what caused
the crash. Appellant replied, "Me." Appellant
elaborated that he "[c]ouldn't stop on the red
light and I think I slammed in the car. I don't
remember." He admitted consuming some "Olde English
and a Mickey's and Budweiser," and repeatedly
stated, "I'm drunk." Officer Noland gave appellant
a field sobriety test, which he failed, and placed
him under arrest.
At the police station, Officer Noland used an
Intoxilizer 5000 machine to test appellant's blood
alcohol level. Two tests, one at 12:43 a.m., and
the other at 12:44 a.m., showed a blood alcohol
level of .13. A blood sample taken at 12:35 a.m.
showed a .13 blood alcohol level, and a second, at
1:34 a.m. showed a .12 level.
Appellant also was advised of, and waived, his
Miranda rights. He stated he began drinking a
40-ounce bottle of Olde English beer at about 4:30
p.m., and then drank a second 40-ounce bottle of
beer. He left his residence after having an
argument with his mother who warned him he would
lose his license if he drove. He met his friend,
Benjamin Schiewe, in Rincon Valley and had a third
person buy them two 40-ounce bottles of beer
because they were under age. Appellant drank half
of his bottle while in Rincon Valley, and then
drove with Schiewe to a Foster Freeze restaurant in
downtown Santa Rosa, where he finished his third
40-ounce bottle of beer about 15 minutes before the
Appellant stated that he remembered "seeing a
red light, and when I stopped, the next think I
know I hit the car." He did not recall his speed at
the moment of the collision, but did recall that he
earlier, had "put the pedal to the metal," and at
one point was driving 100 miles per hour. He
explained that he drove at that speed because he
was "[d]runk and stupid," and "was driving fast,
not caring bout nothin." He also admitted that he
was "driving too fast, and didn't pay attention to
the red light until too late." He saw the other car
in the intersection, but hoped that he would pass
the car before it hit him. After the collision,
appellant crawled out the window of his car and
walked away. He saw the victim's vehicle, and
worried that he might have killed someone, but did
not stop to help them.
Steve McJunkins, an expert in the analysis of
blood alcohol content, was asked what the blood
alcohol content would be, at 6:30 p.m., of a male
weighing 160 pounds who consumed 40 ounces of beer,
and 40 ounces of malt liquor between 4:30 and 6:30
p.m. He estimated that person would have a blood
alcohol level of. 14. If that person consumed
another 40-ounce malt liquor between 9:30 and 10:30
that person would have a blood alcohol level at
10:30 p.m. of .17 percent, and .13 at 12:30 a.m.,
assuming all the alcohol had been fully absorbed
into the blood stream. McJunkins also testified
that if the last 40 ounces consumed between 9:30
and 10:30 p.m. had not yet been absorbed into the
bloodstream, the same person could have a blood
alcohol level as low as .08 percent, immediately
thereafter, and it would rise later in the evening
as it was absorbed.
People v. Smart, No. A088617, unpublished op. at 1-3 (Cal. Ct. App. June 11, 2001) (Resp't Ex. F).
This Court may grant a writ of habeas corpus with respect to any claim adjudicated on the merits in state court only when 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).
"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 the 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 at the time of the state court decision. Williams, 529 U.S. 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 ...