United States District Court, N.D. California
May 13, 2004.
REX OLISURU OGUNNIYI, Petitioner,
BILL LOCKYER, Attorney General, Respondent
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. 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.
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.
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
The California Court of Appeal agreed with the trial court and rejected
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
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
The clerk shall enter judgment in favor of respondent and close the