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United States District Court, N.D. California

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 self-defense instructions, violated his due process rights.

 a. Background

  The trial court instructed the jury pursuant to CALJIC No. 5.56, which provides: The right of self defense is only available to a person who engages in mutual combat if he has done all of the following: (1) He has actually tried, in good faith, to refuse to continue fighting; (2) He has clearly informed his opponent that he wants to stop fighting; (3) He has clearly informed his opponent that he has stopped fighting; and (4) He has given his opponent the opportunity to stop fighting. After he has done all four things, he has the right to self-defense if his opponent continues to fight.

 Clerk's Tr at 73 (Resp't Ex A-1).

  During closing argument, the prosecutor discussed the meaning of the term mutual combat, stating:

What else? Participants in mutual combat. You can't even be in a fight even if you agree to be in this fight and claimed that you were defending yourself That's the law. Two people get in a fight. It happens all the time. They are equally responsible. Why? Because we don't want people fighting. We don't want, you know, people get killed. Anyone of you who reads the newspaper understands that and it happens all the time. And it happens when guys, like Mr. Ogunniyi over there gets into [it] with somebody else and somebody gets killed. And the law holds you responsible. Certainly, if you're the aggressor if you go look for a fight.
But even if it's mutual combat, and I would suggest to you, that no matter who you believe in this case, there is, at the very best with this defendant, mutual combat. He told you, yourself, he was angry. He told you he was mad when he went there. You heard his description of the events. He said, well, I know I was very calm. But during cross-examination, he admitted well, I was pretty upset. And then, you know, I cool down a little bit. At the very very least, giving this defendant every benefit of every doubt of everybody's story, there was mutual combat. And you know what, that ends the inquiry for self defense. No self defense. Unless you actually try in good faith [to] refuse to fight further. You tell your adversary, hey, I had enough, that's enough. You do everything you can to end the combat. Then you regain your rights to self defense.
Rep Tr at 605-06 (Resp't Ex A-3).

  In response, defense counsel argued:

I think we covered honest but unreasonable belief and your necessity to defend yourself. Now Mr. Giannini talked about the rights of self defense is not available. He talked about mutual combat. You know I don't want to get too involved in talking about all the circumstances in life that can occur. But I think it's typically a situation where you're in a bar, you know, let's step out, we'll take that outside, and we will fight. Okay. Fine. I'll meet you in the alley, mutual combat. That's not the case. That's not the proffer you have in front of you, there's no proof of that kind of engagement.
Id at 636.

  During deliberations, the jury sent the court a note, asking it to define the meaning of the term mutual combat. In response, defense counsel proposed the following pinpoint instruction:

Mutual combat means a fight begun or continued by mutual arrangement, agreement or consent such as a duel where neither is the aggressor.
The prosecution must prove beyond a reasonable doubt that the killing did not occur in self-defense and therefore it must also establish that mutual combat existed beyond a reasonable doubt if used to defeat self defense.
Clerk's Tr at 102.

  The trial court declined to give the proposed instruction, and informed the jury that the term mutual combat had no technical meaning and that it was to be understood according to the ordinary usage of the words. Id at 103.

  The California Court of Appeal agreed with the trial court and rejected petitioner's claim:

We are not persuaded by appellant's argument that there are two meanings applicable to the term, requiring an instruction distinguishing between a situation where one has the "disposition and willingness" to fight and a situation where the participants have an "agreement beforehand" to fight and that a pinpoint instruction was necessary because there was no evidence of a prior agreement in this case. We disagree and find no reversible error in the trial court's failure to give such a pinpoint instruction.
People v Ogunniyi, No A090411, slip op at 8-9 (Cal Ct App. Oct 9, 2001) (Resp't Ex B-2). b. Analysis

  To obtain federal habeas relief for error in the jury charge, petitioner must show that the error "so infected the entire trial that the resulting conviction violates due process." Estelle v McGuire, 502 U.S. 62, 72 (1991). The error may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id.

  Where potentially defective instructions are at issue, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the instructions in a way that violates the Constitution. See id at 72 & n4; Boyde v California, 494 U.S. 370, 380 (1990). However, a determination that there is a reasonable likelihood that the jury has applied the instructions in a way that violates the Constitution establishes only that a constitutional error has occurred. Calderon v Coleman, 525 U.S. 141, 146 (1998). If constitutional error is found, the court also must determine that the error had a substantial and injurious effect or influence in determining the jury's verdict before granting habeas relief. Id at 146-47 (citing Brecht v Abrahamson, 507 U.S. 619, 637 (1993)).

  "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v Kibbe, 431 U.S. 145, 155 (1977). Accordingly, "a habeas petitioner whose claim involves a failure to give a particular instruction bears an `especially heavy burden.'" Villafuerte v Stewart, 111 F.3d 616, 624 (9th Cir 1997) (quoting Henderson, 431 US at 155).

  Petitioner is not entitled to federal habeas relief on his instructional error claim because the California Court of Appeal's rejection of the claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or involved an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Under California law, a trial court must give amplifying or clarifying instructions where the terms used in an instruction have a "technical" meaning peculiar to the law. People v Richie, 28 Cal App. 4th 1347, 1360 (1994). But it need not do so where the terms used in the instruction are commonly understood by those familiar with the English language. Id; accord United States v Maude, 481 F.2d 1062, 1075 (DC Cir 1972) (trial judge not required to define words which are in "common use," "readily comprehended be persons of ordinary intelligence," and applied "in their conventional sense"). This court is satisfied that the California Court of Appeal reasonably concluded that the term "mutual combat" is "commonly understood by people familiar with the English language. In common parlance the term describes a fight for which each participant is equally responsible." People v Ogunniyi. slip op at 8.

  Petitioner cites no California or federal authority holding that the term mutual combat carries a technical meaning requiring a pin point instruction. (Nor has this court found any such authority.) Petitioner simply cites three out-of-state cases he claims hold that the term mutual combat has a specific meaning under the law. See People v Jackson. 711 N.E.2d 360, 368 (Ill App. 1999); Gilbert v State, 94 S.E.2d 109, 110 (Ga 1956); Taylor v Commonwealth, 136 S.W.2d 544, 544-45 (Ky 1940). These three cases define mutual combat much in the same way as did the California Court of Appeal — a fight for which each participant is equally responsible — and in no way hold that the term mutual combat carries a technical meaning requiring a pin point instruction. And even if they did, it was at least reasonable for the California Court of Appeal to conclude that the term mutual combat is commonly understood by people familiar with the English language as a fight for which each participant is equally responsible, which means that the state court's determination must stand. See Early v Packer. 123 S Ct 362, 366 (2003). This conclusion is bolstered by the fact that a review of the record makes clear that the trial court's refusal to give a pin point instruction on the meaning of the term mutual combat did not have a substantial and injurious effect or influence in determining the jury's verdict. See Calderon, 525 US at 146-47. The prosecutor defined mutual combat to the jury as two people who "agree" to get in a fight and are "equally responsible." Rep Tr at 605. He added that the evidence showed that, at the very least, there was mutual combat on the part of petitioner and the victim, and that petitioner did not regain his right to self-defense because he made no effort to discontinue the fight. See id at 605-06; accord CALJIC No 5.56. In response, defense counsel suggested there was no mutual combat because there was no agreement to fight, and reiterated her theory that the victim had attacked petitioner suddenly and without provocation. See Rep Tr at 636-37, 649-63. Unfortunately for petitioner, the jury believed the prosecutor's version of the facts and determined that petitioner and the victim were equally responsible for the fight. There is no reasonable likelihood the jury would have found that there was no mutual combat if the trial court had given a pin point instruction on the term mutual combat. California law defines mutual combat as "a fight for which each participant is equally responsible." People v Ogunniyi, slip op at 8.*fn1

  In sum, the jury was instructed adequately under California law and ample evidence supported its verdict. Its implicit finding that petitioner and the victim engaged in mutual combat is also amply supported by the evidence. Petitioner is not entitled to federal habeas relief on his instructional error claim. CONCLUSION

  For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

  The clerk shall enter judgment in favor of respondent and close the file.


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