The opinion of the court was delivered by: Charles Breyer, District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of first degree murder and second degree burglary. The jury also found that he personally used a dangerous weapon in committing the murder. In a bifurcated proceeding, the court found that petitioner had previously been convicted of a serious felony and, on July 11, 1999, sentenced him to 56 years to life in state prison.
On December 21, 2000, the California Court of Appeal reversed the burglary conviction, but affirmed the judgment in all other respects. On February 28, 2001, the Supreme Court of California denied review and, on October 31, 2001, denied petitioner's request for state habeas relief. [ Page 2]
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on July 2, 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 parties stipulated that on January 19, 1998,
appellant — stabbed Tiffany Boyce once and killed
her. The issue for the jury. was the degree of
Appellant and Boyce began dating in 1996. After they
broke up in the spring of 1997, Boyce told her close
friend, Brande Brown, that appellant was "smothering"
her. Appellant contacted Brown for advice about
Boyce, repeatedly saying, "I can't let her go." When
Brown asked him to "back off" and let Boyce "have her
space," he replied he did not understand how a woman
as beautiful as Boyce would "want someone like him,"
and for that reason he could not let her go.
Boyce and appellant continued to date occasionally
in the summer of 1997. One evening in August, Brown
and Boyce were talking from their respective
apartments on the telephone when Boyce cried out that
appellant was at her window. On Brown's advice, Boyce
told appellant that Brown was calling the police and
coming with her boyfriend to pick up Boyce. Brown and
her boyfriend then drove to Boyce's apartment, where
Boyce, who was very scared, was waiting for them. They
took her to Brown's apartment, and she stayed there
for approximately a week.
In the summer of 1997, Boyce's supervisor allowed
her to transfer from the satellite facility where she
was working to the main facility because she was
receiving harassing telephone calls and visits from
her boyfriend at the satellite facility. Calls at the
main facility are screened by the administrative
On one occasion, in late summer 1997, Connie
Marcial, who had the apartment directly above Boyce,
saw and heard Boyce and appellant quarreling in the
apartment parking lot. She heard Boyce
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yelling, "I'm tired of this. I'm tired of this," after
which Boyce and appellant went into Boyce's
apartment. Marcial then heard objects being thrown
against the wall and dishes breaking. One evening
during the same time frame, Marcial heard Boyce
screaming, "Get away from my window or I'm going to
call the police." She then heard appellant say,
"Tiff, Tiff, I just came by to see how you are doing."
On another nighttime occasion, Marcial heard footsteps
in the apartment parking lot, but had not heard a
car. She saw appellant walking away from Boyce's
window. He caught Marcial's eye, then walked out of
the parking lot to his parked car on the street. He
previously always parked in the apartment parking
lot, which had empty spaces that night. He drove away
without turning on his headlights.
On one occasion in autumn 1997, appellant drove
Brande Brown and Boyce to an ice cream parlor. Boyce
became upset at appellant and told Brown, "Let's go;
we are walking." Appellant followed them in his car.
He yelled at Boyce to get in the car, and she yelled
at him to go away. He drove onto the sidewalk, nearly
hitting the two women. He got out of the car, grabbed
Boyce, and tried to force her into the car. Boyce,
with Brown's assistance, tried to pull away from him.
The struggle ended when "a lot of lights" came on, and
Boyce and Brown walked home.
Appellant and Boyce continued to have a rocky
relationship for the rest of the year.
On December 26, 1997, Boyce took a 10-day vacation
to New York to visit her sister Tanya. Before leaving
she told Brown that she wanted to be friends with
appellant but planned to "get rid" of him as a
boyfriend. Boyce returned from New York very
enthusiastic about a man named Jason Bobb, whom she
met through her sister. She and Bobb agreed on an
exclusive relationship, and she planned to transfer to
a New York school the following semester. She
continued to see appellant in January 1998 as a
friend, and he did favors for her, such as driving her
to buy her school books.
On January 15, 1998, appellant told a friend and
neighbor, Veronica Davis, that he was angry with Boyce
because he thought she wanted to see other men. He
specifically mentioned a man from New York. When Davis
asked appellant why he should be upset with Boyce,
given that he was seeing other woman, he replied he
was going to "do what [I] want to do."
January 19, 1998
On January 19, the Martin Luther King, Jr.,
holiday, Jason Bobb telephoned Boyce from the East
Coast sometime between 2:00 p.m. and 4:00 p.m.,
California time. They spoke less than a minute.
Usually talkative, Boyce sounded sad and nervous and
said she would return his call later, but never did.
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At approximately 2:15 p.m., Boyce's upstairs
neighbor saw appellant's car in the building parking
lot. The neighbor did not hear any commotion or
argument from Boyce's apartment in the ensuing hours.
At approximately 3:45 p.m., appellant, in response
to a page from Veronica Davis, telephoned Davis, who
said it was time to collect his daughter, who had been
staying at her house for several days.
Between 4:00 and 5:00 p.m., Brown spoke with
Boyce, who sounded fine and said she would see
Brown at work the next day.
On January 20 at approximately 5:30 a.m., a ground
floor resident of appellant's apartment heard a
clanking sound coming from the area outside her
bedroom at the back of the building. At 6:45 a.m., she
investigated the area to determine the origin of the
noise. She saw a shovel "sitting up" alongside a small
hole behind an outbuilding. She departed for the day,
and when she returned at 5:30 p.m., she looked again
and saw the hole covered with vines and old tires. The
shovel was gone.
On January 21, after Boyce, a reliable employee, had
failed to appear at work for two days, her supervisor
filed a missing persons report with the local police
department. Later that same day, Gina Withers, a
friend and coworker, went to appellant's apartment to
inquire about Boyce. He replied he had no idea where
she was, and did not seem concerned that she was
missing. Withers then went to Boyce's apartment. The
landlord let her into Boyce's apartment, which
During the week of January 21, Withers and Brande
Brown spoke to appellant daily about Boyce's
disappearance. He denied any knowledge of her
On January 25, when Veronica Davis learned that
Boyce was missing, she asked appellant if he had done
something to her. He replied that "one time he choked
her, but he had never beaten her or "nothing like
that." He denied having anything to do with her
On February 9, in a statement to a police
investigator, appellant denied any knowledge of
Boyce's disappearance. He told the investigator he and
Boyce were "just close friends" and that he had last
seen her Sunday night, January 18.
On February 14, the police, pursuant to a search
warrant, investigated Boyce's studio apartment. They
found a large blood stain that had soaked through the
carpet to the padding in the southwest corner of the
living room. The bathroom contained
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blood in multiple locations. The kitchen contained
blood above the faucet and on the floor.
On February 18, 1998, Boyce's dismembered body was
found buried in the backyard behind appellant's
apartment building. Cause of death was a single stab
to the lower part of the heart, which would have
caused death within three to five minutes. The wound
was consistent with a nonserrated kitchen knife. There
were no defensive wounds on the body. The
dismemberment was postmortem.
Appellant testified in his own defense. During their
relationship, he and Boyce argued because her friends
disapproved of him. They broke up several times but
were "together" at Christmas 1997. He took her to the
airport for her trip to New York, she telephoned him
three times during her visit, and he picked her up
when she returned on January 6. She told him she was
glad to have reconciled with her sister. He and Boyce
saw each other almost every day thereafter and did not
quarrel. He was unaware that Boyce had another
On January 19, he arrived at her house at
approximately 2:00 p.m. with dinner. They spend the
afternoon together, smoked marijuana and drank. Boyce
received several telephone calls during the
afternoon, including one from Brande Brown. When Brown
called, appellant's head was in Boyce's lap. After
Brown's call, he got a page call from his daughter and
told her he would pick her up soon.
When he told Boyce he was leaving to collect his
daughter, she became angry and said they needed to
talk. She complained that she needed a man who would
care for her financially and not depart every time his
pager beeped. She criticized him as a father and
belittled his children, saying his daughter smoked
marijuana and his son got poor grades. He went into
the kitchen, got a glass of water, stood in the
kitchen doorway, and said he had to leave. She pushed
him and said, "That's why I am fucking someone else."
In reaction to her last remark he grabbed a knife
from a cutting board in the kitchen and poked her with
it. He dropped the knife, and she stumbled backwards.
He grabbed her, laid her down, and said he "didn't
mean to do that." He breathed into her mouth, but when
she stopped gasping, his mind "blew up" and he did not
know what to do. He laid her in the bathtub and
splashed water on her. When she did not respond, he
paced for a while and left to pick up his daughter and
leave her with Veronica Davis. He returned to Boyce's
apartment, cleaned up some blood, and took her body to
his apartment. He again returned to Boyce's
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cleaned some more, and tossed objects about with
the intent to "make it look like something else
happened," not to steal. He left with Boyce's
television and stereo, which he dropped off at
Goodwill, and her VCR, which he forgot to drop
off and subsequently hooked up to his television.
He could not explain why he dismembered Boyce's
body; his action was beyond his control. He thought he
should hide the body, so he buried it in his
He acknowledged a previous felony assault
Tanya Boyce testified that when Boyce was visiting
her in New York, she said she had terminated her
relationship with appellant several times and was
currently in the process of ending it. On Sunday,
January 18, Boyce spoke by telephone to Tanya. She
told Tanya she ended her relationship with appellant
shortly after returning from New York. She also said
she told appellant — about Jason Bobb, and on
January 16 had reiterated the break-up to appellant by
returning his belonging and asking for hers.
People v. Smith, No. A088298, slip op. at 1-6 (Cal. Ct. App. Dec. 21, 2000) (Resp't Ex. I).
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). [ Page 7]
"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, 331 F.3d 1062, 1069 (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 Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
Petitioner raises six claims for relief under § 2254: (1) the trial court erred in admitting a prejudicial videotape; (2) the trial court erred in determining that [ Page 8]
petitioner did not make a showing of discriminatory use of peremptory challenges;'(3) the first degree murder conviction is not supported by substantial evidence; (4) the trial court erred in admitting prejudicial evidence of prior acts of violence; (5) erroneous jury instructions; and (6) denial of fair trial due to the cumulative effect of the errors.
1. Admission of videotape
Petitioner claims that the trial court's admission of a videotape of the recovery of the victim's body deprived him of his due process right to a fair trial. Petitioner argues that the tape was cumulative and inflammatory.
At trial, the prosecutor offered a videotape of the recovery of the body of Tiffany Boyce as probative evidence on the issue of intent and premeditation and, over defense counsel's unspecified objection, the court allowed the tape to be played to the jury. The videotape showed the excavation and recovery of a canvas duffel bag and three plastic bags, and had no sound. After the tape was played and the jury was excused, defense counsel articulated his objection that the tape was more prejudicial than probative under California Evidence Code section 352. The court disagreed:
The court conducted a 352 analysis just based on the
offer of proof both from [the prosecutor] and [defense
counsel], and it appears that it has more probative
value. There is nothing gory about it other than the
fact we are dealing with the recovery of a body. And I
think it has ...