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May 13, 2004.

BILL LOCKYER, Attorney General, Respondent

The opinion of the court was delivered by: VAUGHN WALKER, District Judge


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 part-time cook.
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 worried.
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 over.
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 the police.
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 garbage can.
The jury returned not guilty verdicts on murder and voluntary manslaughter. It found appellant did personally use the knife and convicted him of involuntary manslaughter.
People v Ogunniyi, No A090411, slip op at 1-4 (Cal Ct App. Oct 9, 2001) (Resp't Ex B-2).


 A. Standard of Review

  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.

 B. Claims

  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 ...

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