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July 16, 2003


The opinion of the court was delivered by: Charles Breyer, District Judge



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 crash.
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).


A. Standard of Review

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 ...

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