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October 4, 2005.

ANTHONY LAMARQUE, Warden, Respondent.

The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge


This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Although the court granted petitioner's motion for an extension of time to file a traverse, he did not file one and the time to do so has expired. The case is ready for decision.


  A jury convicted petitioner of second-degree murder and being a felon in possession of a firearm. The trial court sentenced petitioner to prison for nineteen years to life. As grounds for habeas relief he asserts that: (1) jury misconduct occurred when two jurors discussed their knowledge of guns; (2) use of California Jury Instruction Number (CALJIC) 2.50.02 violated his due process rights because it enabled the jury to convict petitioner solely on the basis of prior offenses, and because no instruction was given as to the standard of proof for the prior offenses; and (3) use of CALJIC 17.14.1 denied the jury its nullification power and violated his due process rights because it interfered with the jury's privacy. Petitioner does not dispute the following facts, which are summarized from the opinion of the California Court of Appeal. See Ex. D (California Court of Appeal Opinion) at 1-5.

  Petitioner and his girlfriend, Tinisha Murphy, have been involved since high school. Tinisha had an infant son, Byron, when the relationship began and later she and petitioner had a daughter, Izhana. Although not his son, Byron called the petitioner "Daddy." Petitioner's cousin, Emisha Lyons, lived at Tinisha's house. The fatal shooting occurred on February 11, 1997 around 3:30 p.m. At about 3:50 p.m., the police received a call about a shooting at Tinisha's house. The police responded and found Tinisha dead on the kitchen floor; she was lying on her back with a kitchen knife in her right hand in a stabbing position. Tinisha was right-handed. Byron, now six years old, told the officers, "Daddy shot [M]ommy."

  Byron testified at trial that the petitioner and Tinisha had been arguing in the kitchen when the shooting occurred. Byron was in the bedroom when he heard the shot and did not see the actual shooting. However, he did see the petitioner with a gun. Byron initially had told the police that he had seen the shooting.

  The petitioner claimed the shooting was an accident. Three of his friends testified at the trial. Shaunise Day testified that a week after the shooting, the petitioner explained the incident in this way: he and his cousin, Emisha Lyons, had been sitting at the kitchen table and Tinisha came in, picked up the gun from the table, and asked how it worked. Tinisha said that if petitioner ever cheated on her, she would shoot him. Petitioner tried to take the gun from her, but she accidentally shot herself in the neck. Arlene and Rajoan Cole, two sisters, testified that they spoke to the petitioner after the shooting. Arlene Cole stated that petitioner insisted the shooting was an accident and that petitioner told her that Tinisha picked up the gun and as petitioner was trying to take it from her, the gun went off. Rajoan Cole similarly testified that petitioner told her he had been trying to get the gun away from Tinisha when the gun accidentally discharged. Emisha Lyons denied being present during the shooting. On the day of the shooting, she said that petitioner and Tinisha were arguing, but no more than usual. She had left the house that day to meet a friend. When she returned, she found Tinisha dead in the kitchen and she then took the children across the street and called the police.

  Benjamin Marshall, a friend of petitioner, testified that petitioner, who was upset and confused, came to his house one afternoon in February. Petitioner told him that he had shot Tinisha in the head. Petitioner also said Tinisha had picked up the gun and he tried to grab it and it went off. Petitioner stated, "I shot her. I don't believe it happened."

  The prosecution introduced testimony concerning prior domestic violence incidents between petitioner and Tinisha Murphy. Ravin Spicer testified that once the petitioner pointed a small automatic pistol at Tinisha and on another occasion pointed a rifle at Tinisha and said, "Bitch, I'll shoot you." Around Christmas of 1996, Spicer saw petitioner hit Tinisha on the arm with a rifle and threaten to kill her. Tinisha had a knife in her hand and tried to stab the petitioner, but another friend stopped her. Tinisha had also tried to throw some boiling water on the petitioner.

  In August of 1996, police responded to a domestic violence call at Tinisha's house. Tinisha claimed that her young son had let petitioner in the house and that petitioner kicked her while she was sleeping. Petitioner pointed a gun at her and threatened to kill her. Petitioner also started to punch her and hit her with a broom.

  On February 4, 1997, Tinisha called the police to claim that petitioner had "flashed" her. Trial testimony indicated that this term may mean "pointed a gun." Tinisha told the police that petitioner had a handgun.

  The gun that killed Tinisha was never recovered, but the bullet found in her body was consistent with a thirty-eight caliber revolver. Although both Cole sisters had made arrangements for petitioner to turn himself in, he fled the area. He was found a month later in Detroit.


  A. Standard of review

  A district court may not grant a habeas petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams ...

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