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August 15, 2003


The opinion of the court was delivered by: Charles Breyer, 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 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 his culpability.
Appellant/Boyce Relationship
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 assistant.
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 [ Page 3]
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. [ Page 4]
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.
Subsequent Events
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 appeared ransacked.
During the week of January 21, Withers and Brande Brown spoke to appellant daily about Boyce's disappearance. He denied any knowledge of her whereabouts.
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 disappearance.
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 [ Page 5]
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 romantic relationship.
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 apartment, [ Page 6]
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 backyard.
He acknowledged a previous felony assault conviction.
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).


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). [ 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.

B. Claims

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 ...

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