The opinion of the court was delivered by: VAUGHN WALKER, 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 San Francisco of involuntary
manslaughter. The jury also found true an allegation of personal use of a
deadly weapon. On February 18, 2000, the trial court denied probation and
sentenced petitioner to three years in prison with a one-year enhancement
for use of a weapon.
The California Court of Appeal affirmed the judgment and, on January 3,
2002, the Supreme Court of California denied review.
Petitioner then filed a timely federal petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Per order filed on April 8, 2003, the
court found that the petition, when liberally construed, stated a
cognizable claim under § 2254 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. BACKGROUND
The California Court of Appeal summarized the factual and procedural
background of the case as follows:
Charles Scott, a Jamaican known as Ras-I (Ras),
was killed during an altercation with appellant.
The men were acquainted; both were part-time
musicians. The main prosecution witnesses were
appellant's ex-wife, Elizabeth Luis (Elizabeth),
and Wadadah, proprietor of the Reggae Runnins,
where the homicide occurred at midday on January
29, 1999, and where the victim was employed as a
The prosecutor's theory of the case was that
appellant was dissatisfied with the assets
allocation in his divorce proceeding and jealous
of the victim, who had become his ex-wife's
friend and lover. He confronted the victim at
Reggae Runnins. During the fight that ensued, Ras
suffered a fatal stab wound. The defense
attempted to prove that appellant carried no
knife when he confronted the victim, a womanizer
who appellant feared was intending to "con"
Elizabeth out of her money.
Elizabeth testified that she and appellant were
married for eight years and separated in June
1998, when appellant left her for another woman.
The divorce was final in early December 1998.
Elizabeth is a biochemist, interested in African
music, and during their marriage had helped
appellant, a songwriter and musician, produce his
music. They frequented Reggae Runnins, a store
that sold African art, Reggae music, and
vegetarian food. She met Ras there in December
1998, two months before he was killed.
In early January, appellant made an unannounced
visit to Elizabeth's house; she refused to let
him in and later told him she was "seeing
someone" and did not want unannounced visits. On
the evening before the homicide, she and Ras
arrived home to find the lock on her security
gate had been broken. They had seen appellant
several times in the course of the evening and,
on returning home, saw him in his van a
half-block from the house.
The next day, the morning of the homicide,
appellant called her three times: On the first
call, Elizabeth immediately accused him, "Rex,
did you bust open the gate?" Appellant responded,
"I don't want to talk about the gate." He told
her he was angry about the divorce settlement and
she "had to agree to a new settlement for him to
have peace of mind." Elizabeth agreed to give him
the additional $5,000 he wanted. He seemed
satisfied, but called back 15 minutes later and
again complained about the divorce settlement. An
hour later, on the third call, appellant was
still very angry, threatening to "take us all
down with mm." Although appellant did not mention
Ras by name, he told her she was
"putting that young man's life at danger." When
Elizabeth threatened to call the police, appellant said, "I
don't care about the police." Appellant told
Elizabeth that if she wanted to have a
relationship with "that Jamaican" she "would have
to settle to his satisfaction." Ras was present
at the time of the telephone calls. She thought
appellant was jealous. She told Ras that she was
scared of appellant and he should be too. She
told him to stay away from appellant and not
antagonize him. He replied that he was not
Wadadah testified that both men were friends. He
was aware Ras was involved with Elizabeth; Ras
told him she was "nice" and "had some money" and
he was looking for someone to produce his music.
Wadadah advised Ras not to get in between the
couple's "unfinished business," and not to get
involved on a personal basis.
On the day of the homicide, appellant called
Wadadah, looking for Ras to tell him he was going
between "me and my wife," that Ras was "a little
too deep in the water," and that he was "prepared
to go all the way." Soon thereafter, appellant
appeared, agitated and upset, stating "I have to
talk to Ras-I, he's between me and my wife."
Wadadah tried to call him down, but appellant
brandished a knife and said, "I'll kill everyone
in the house. I'll slit their throats." Wadadah
told him to put the knife away, which appellant
did. He "calmed down," and Wadadah suggested he
talk to Ras over some tea and settle "this
thing." At that point Wadadah thought it was
Wadadah described the confrontation: Appellant
sat at a table near the entrance while Wadadah
worked in the rear of the store. When Ras rand
the doorbell, appellant opened the door and
pulled him inside, stating, "We have to talk. We
have unfinished business to talk about." Ras
replied "we don't have any blood clot business,"
meaning "no business." The men commenced to
wrestle. Appellant had Ras trapped against a
table. Wadadah yelled at them to stop, but when
he approached and saw blood on the floor, he ran
to the back to get a gun. When he returned, Ras
was falling backward and appellant was pulling a
knife out of Ras. The knife appeared to be the
knife he had seen earlier. He called 911, and
appellant ran out.
Appellant testified to his version of the events.
He was acquainted with Ras and, on occasion, let
him use his recording studio. During one
conversation, Ras indicated he had no job, but
had a lot of white women who took care of him;
what he wanted was a white woman who would use
her line of credit to get him recording equipment
like appellant had. Appellant was "uncomfortable"
about that and called Elizabeth to warn her. She
accused him of breaking into her apartment and he
denied it. She accused him of being jealous. Then
they agreed to settle all their differences by
her paying him $5,000. When he voiced his
concerns to Wadadah, his friend suggested he talk
to Ras. He had no knife when he came to the store and did not
threaten anyone. When Ras arrived, he stood up
and said, "I have to talk to you." Ras pushed him
violently and yelled "Bamba clot," Jamaican slang
for "I'm ready for anything." He saw a knife in
Ras's hand. Appellant grabbed him, they
struggled, and when they landed on the floor, the
knife left Ras's hand and appellant grabbed it.
Both men were bloody. When he stood up, Wadadah
was pointing a gun at him and he ran. When he
realized he still had the gun in his hand, he
tossed it in the trash. He got his van and drove
to a friend's clothing store, changed, and called
his girlfriend. At some point she drove him to
Appellant's girlfriend testified that appellant
was concerned about the divorce settlement; he
thought he'd been "ripped off." She picked him up
at the clothing store and was given a bag of
clothes as they left. She tossed the bag into a
The jury returned not guilty verdicts on murder
and voluntary manslaughter. It found appellant
did personally use the knife and convicted him of
People v Ogunniyi, No A090411, slip op at 1-4 (Cal Ct App. Oct
9, 2001) (Resp't Ex B-2).
A federal writ of habeas corpus 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." 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 `unreasonable 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 that
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 claims that the trial court's refusal to give the jury an
additional instruction on the meaning of the term "mutual combat," as
used in CALJIC No. 5.56, one of the ...