United States District Court, N.D. California
October 4, 2005.
JEFFREY MARTIN WILLIAMS, Petitioner,
ANTHONY LAMARQUE, Warden, Respondent.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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
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
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 (Terry) v. Taylor,
529 U.S. 362, 407-09 (2001), while the second prong applies to
decisions based on factual determinations, Miller-El v.
Cockrell, 123 S.Ct. 1029, 1041 (2003).
A state court decision is "contrary to" Supreme Court
authority, that is, falls under the first clause of § 2254(d)(1),
only 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 Supreme] Court
has on a set of materially indistinguishable facts." Williams
(Terry), 529 U.S. at 412-13. A state court decision is an
"unreasonable application of" Supreme Court authority, falls
under the second clause of § 2254(d)(1), if it correctly
identifies the governing legal principle from the Supreme Court's
decisions but "unreasonably applies that principle to the facts
of the prisoner's case." Id. at 413. The federal court on
habeas review 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." Id. at 411. Rather, the
application must be "objectively unreasonable" to support
granting the writ. See id. at 409.
"Factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary."
Miller-El, 123 S.Ct. at 1041. This presumption is not altered
by the fact that the finding was made by a state court of
appeals, rather than by a state trial court. Sumner v. Mata,
449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082,
1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A
petitioner must present clear and convincing evidence to overcome
§ 2254(e)(1)'s presumption of correctness; conclusory assertions
will not do. Id.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on
a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence
presented in the state-court proceeding." Miller-El,
123 S.Ct. at 1041; see also Torres v. Prunty, 223 F.3d 1103, 1107
(9th Cir. 2000).
When there is no reasoned opinion from the highest state court
to consider the petitioner's claims, the court looks to the last
reasoned opinion, in this case that of the California Court of
Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991);
Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.
B. Issues Presented
1. Juror Misconduct
Petitioner asserts that two jurors improperly discussed the
strength a person needs to pull the trigger of a revolver.
a. Extrinsic Evidence
The Sixth Amendment guarantee of a trial by jury requires the
jury verdict to be based on the evidence presented at trial.
Turner v. Louisiana, 379 U.S. 466, 472-73 (1965); Jeffries v.
Wood, 114 F.3d 1484, 1490 (9th Cir. 1997) (en banc). Evidence
not presented at trial is deemed "extrinsic." Marino v.
Vasquez, 812 F.2d 499, 504 (9th Cir. 1987). Jury exposure to
extrinsic evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel
embodied in the Sixth Amendment. Lawson v. Borg, 60 F.3d 608,
612 (9th Cir. 1995). That the extrinsic evidence comes from a
juror rather than a court official or other party does not
diminish the scope of a defendant's rights under the Sixth
Amendment. Jeffries, 114 F.3d at 1490. However, the Ninth
Circuit has held that "a juror's past personal experiences may be
an appropriate part of the jury's deliberations." Grotemeyer v.
Hickman, 393 F.3d 871, (Dec. 15, 2004) (quoting United States
v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991).
When requesting a new trial on grounds of juror misconduct,
petitioner filed affidavits from two jurors to support his
argument. Juror Bradshaw declared that the jury discussed at
length the possible ways the shooting could have occurred,
including whether or not the gun went off accidentally. CT
(Clerk's Transcript on Appeal, Vol. 11) at 389. Bradshaw stated
that during the discussions, two jurors said they were familiar
with firearms and shared their expertise about them. Id. These
two jurors said that to pull the trigger on an automatic, you
don't have to pull very hard, but to shoot a revolver you have to
pull the trigger pretty significantly or have the hammer cocked.
Id. This explanation of the trigger pull came up a couple of
times. Id. Juror Stolze also filed an affidavit, which echoed
much of Bradshaw's account. Id. at 391. Stolze said that one
juror, named Tom, said that it takes a certain amount of strength
to pull a revolver's trigger and it was his opinion that the gun
did not go off accidentally. Id. Stolze did not remember any
other juror explaining trigger pull to the jury. Id.
These discussions do not constitute extrinsic evidence. A
juror's past personal experiences may be an appropriate part of
the jury's deliberations and jurors must rely on their past
personal experiences when hearing a trial and deliberating on a
verdict. Grotemeyer, 393 F.3d at 878-80; Navarro-Garcia,
926 F.2d at 821. However, in some instances the introduction of a
juror's personal experiences may violate the Sixth Amendment when, for instance, a juror reports the results of an
experiment or conducts legal research. Grotemeyer,
393 F.3d at 878.
This case does not involve a juror conducting an experiment.
See Marino, 812 F.2d at 504 (juror looking at her
ex-husband's gun to see how hard you have to pull to shoot it
constituted extrinsic evidence). Nor did the jurors do any
independent research about the trigger pull issue. See Gibson
v. Clanon, 633 F.2d 851, 855 (9th Cir. 1980) (jurors
independently obtaining evidence from medical encyclopedia
regarding rarity of defendant's blood type after judge ruled such
evidence inadmissible). Nor did they bring extraneous documents
to the deliberations. See United States v. Littlefield,
752 F.2d 1429, 1432 (9th Cir. 1985) (jurors bringing news
article about tax fraud sentences to deliberations in a tax fraud case
deemed extrinsic evidence); United States v. Vasquez,
597 F.2d 192, 193 (9th Cir. 1979) (jurors reading a court file containing
inadmissible evidence constituted extrinsic evidence).
Rather, this case is closer to Grotemeyer. There a juror told
the other jurors that the defendant committed the crime because
of his mental condition, a statement she based on her experience
as a medical doctor. 393 F.3d at 878. The court held that no
Supreme Court authority holds that "such conduct amounts to a
violation of [a defendant's] right of confrontation, of his right
to an impartial jury, or of any other constitutional right."
Id. The conduct was held not to "rise to the level of . . .
constitutional violations" such as conducting experiments or
research, assuming it was improper. Id.
The jurors here were merely discussing their personal knowledge
and opinions about the strength necessary to pull the trigger on
a revolver which is an example of the personal experiences that
Grotemeyer allows jurors to bring to their deliberations.
The state appellate courts' rejection of this claim was not
contrary to, nor an unreasonable application of, clearly
established United States Supreme Court authority.
b. Prejudice In addition, the jurors' discussion did not prejudice the
petitioner. A petitioner is entitled to habeas relief only if it
can be established that a constitutional violation had a
"substantial and injurious effect or influence in determining the
jury's verdict." Sassounian v. Roe, 230 F.3d 1097, 1108 (9th
Cir. 2000) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623
(1993)); see Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th
Cir. 1993) (same). In other words, the error must result in
"actual prejudice." Brecht, 507 U.S. at 637.
The case against the petitioner was strong. The petitioner had
told Benjamin Marshall, "I shot her. I don't believe it
happened." Petitioner also fled the area. Further, Emisha Lyons
testified that she was not present for the shooting, which
directly contradicted the explanation of the events that
petitioner gave to Shaunise Day. More telling, the physical
evidence undermined petitioner's claim that it was an accident.
Tinisha was found gripping a knife in her right hand; thus it was
unlikely that she, who was right-handed, was handling or trying
to grab the gun when it went off. And as the court of appeals
noted, in finding lack of prejudice under a state standard, the
weight of the trigger pull was not such an issue because
petitioner's defense was not that he shot the victim by accident,
but rather that the gun was in her hand and went off by accident
that is, whether the gun required a strong pull or not, under
petitioner's version of the facts he was not guilty. Ex. D at
Thus even if the juror's information about the trigger pull
constituted extrinsic evidence, that evidence did not have a
"substantial and injurious effect or influence in determining the
jury's verdict." Sassounian v. Roe, 230 F.3d 1097, 1108 (9th
Cir. 2000) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623
(1993)). Because petitioner has shown neither a constitutional
violation nor prejudice, he is not entitled to habeas relief on
2. CALJIC 2.50.02 Petitioner claims that instructing the jury pursuant to CALJIC
2.50.02 violated his right to due process by enabling the jury to
convict petitioner solely on the basis of prior offenses, and
because no instruction was given as to the standard of proof the
jury should apply in determining whether he had committed the
The trial court instructed the jury using the pre-1999 version
of CAJIC 2.50.02. It stated, in relevant part:
If you find that the defendant committed a prior
offense involving domestic violence, you may, but are
not required to, infer that the defendant has a
disposition to commit the same or similar type
offenses. If you find that defendant had this
disposition, you may, but are not required to, infer
that he was likely to commit and did commit the crime
for which he is accused.
Ex. D at 6.
To obtain federal collateral relief for errors in the jury
instruction, a petitioner must show that the ailing instruction
by itself so infected the entire trial that the resulting
conviction violates due process. Estelle v. McGuire,
502 U.S. 62, 72 (1991); Cupp v. Naughten, 414 U.S. 141, 147 (1973). The
instruction may not be judged in artificial isolation, but must
be considered in the context of the instructions as a whole and
the trial record. Estelle, 502 U.S. at 72. In other words, the
court must evaluate jury instructions in the context of the
overall charge to the jury as a component of the entire trial
process. United States v. Frady, 456 U.S. 152, 169 (1982)
(citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
Before considering petitioner's claims, it should be noted that
the claims here are not equivalent to those discussed in Gibson
v. Ortiz, 387 F.3d 812 (9th Cir. 2004). In Gibson the court
held that former CALJIC 2.50.01, coupled with 2.50.1,
unconstitutionally lessened the burden of proof by allowing the
"jury to find the [petitioner] committed the uncharged sexual
offenses by a preponderance of the evidence and thus infer that
he had committed the charged acts based upon facts found not
beyond a reasonable doubt, but by a preponderance of the
evidence." 387 F.3d at 821-23. CALJIC 2.50.01, the instruction involved in Gibson, has to do
with prior sexual offenses, but otherwise is identical to the
instruction here, 2.50.02, which has to do with prior domestic
abuse offenses. As the court of appeal here noted, the
differences between the statutes are of no significance to the
What is significant, however, is that the trial court here did
not give CALJIC 2.50.2, the domestic abuse analogue of 2.50.1. In
Gibson the court said:
Had the jury instructions ended with CALJIC No.
2.50.01, our inquiry would have ended with a denial
of Gibson's petition. We would have assumed that the
jury followed, with respect to the prior sexual
offenses evidence, the only standard regarding burden
of proof they had received: reasonable doubt. The
trial court, however, went on to instruct the jury
with CALJIC No. 2.50.1, which ascribed a lesser
burden of proof for evidence of previous sexual
offenses. The instruction specifically referenced
CALJIC No. 2.50.01 and outlined the applicable burden
of proof for the prior sexual offenses: Within the
meaning of the preceding instructions the prosecution
has the burden of proving by a preponderance of the
evidence that a defendant committed sexual offenses
and/or domestic violence other than those for which
he is on trial.
387 F3d at 822. That is, because the court here did not give an
instruction stating that the previous offenses need be proved
only by a preponderance, the error which gave rise to granting
the writ in Gibson did not occur here. Instead, petitioner
presents two unique claims.
First, he contends that the instruction allowed the jury to
convict him of the present offense based solely on prior
offenses. However, the trial court clearly told the jury that to
return a verdict of guilty it must find, applying the "beyond a
reasonable doubt" standard, that petitioner committed each of the
listed elements of the offense. See CT (Clerk's Transcript on
Appeal, Vol. 11) at 289; RT (Reporter's transcript) at 1191; CT
at 315-338. The court also told the jury that its instructions
were to be considered as a whole and in light of all the other
instructions (CALJIC 1.01). Id. at 255.
Juries are presumed to follow their instructions. See Weeks
v. Angelone, 528 U.S. 225, 234 (2000). Given that presumption,
the jury here could not have convicted petitioner solely on the
prior offenses, because the instructions required it to return a verdict based on whether the elements of the crime had been
proved. The court of appeal's holding that, given the
instructions as a whole, "the jury would not have been misled by
CALJIC No. 2.50.02" is not contrary to, or an unreasonable
application of, clearly established Supreme Court authority.
Secondly, petitioner complains that the trial court did not
give an instruction telling the jury what standard of proof it
should use in determining whether the predicate facts, i.e., the
prior acts of domestic abuse, had been proved. Interestingly, had
the standard instruction, CALJIC 2.50.1, which provides that the
prior offenses must be proved by a preponderance, been given, the
instructions would have violated due process under the analysis
used in Gibson.
The court of appeal held that this claim was waived because
defense counsel asked that the instruction not be given "to avoid
misleading the jury about the standard of proof." Ex. D at 8.
That is, the court held that the claim was procedurally
defaulted. A federal court will not review questions of federal
law decided by a state court if the decision also rests on a
state law ground that is independent of the federal question and
adequate to support the judgment. Coleman v. Thompson,
501 U.S. 722, 729-30 (1991). In cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750.
The Ninth Circuit has recognized that the California
contemporaneous objection rule is an adequate and independent
ground for a state court ruling and therefore affirmed the denial
of a federal petition on procedural default grounds in a case
where, as here, counsel did not object. Vansickel v. White,
166 F.3d 953, 957-58 (9th Cir. 1999). This claim therefore is procedurally defaulted, and
because petitioner has not attempted to show cause and prejudice
or a miscarriage of justice, is barred.
The claim also is without merit. Without a specific instruction
telling them what standard of proof to use in deciding whether
the previous acts of domestic abuse had been proved, it is clear
that the jury would have used the "beyond a reasonable doubt"
standard. The trial court told the jury on multiple occasions
that it needed to use the beyond a reasonable doubt standard. For
example, the court instructed the jury on the general reasonable
doubt standard and that it must be used in determining whether
the petitioner was the person who committed the crime (CALJIC
2.90). The court, pursuant to CALJIC 2.01, instructed the jury
that before an inference may be drawn, the facts which it rests
on must be proven beyond a reasonable doubt. RT (Reporter's
transcript) at 1191. Further, the court told the jury to use the
reasonable doubt standard when evaluating whether the homicide
was excusable or justifiable (CALJIC 5.15), when determining if
petitioner personally used a firearm in commission of the offense
(CALJIC 17.19), and when determining if the crime was
manslaughter or second-degree murder (CALJIC 8.71). CT at
315-338. The court also clearly instructed the jury that its
instructions were to be considered as a whole and in light of all
the other instructions (CALJIC 1.01). Id. at 255.
Thus, when considering the context in which the trial court
issued CALJIC 2.50.02, the jury was told multiple times to use
the beyond a reasonable doubt standard. See Estelle,
502 U.S. at 72 (court must view instructions as a whole and in context
with the trial record). Further, it was explicitly told not to
draw an inference unless the fact on which the inference rests
was proved beyond a reasonable doubt this instruction is
particularly persuasive because CALJIC 2.50.02 allows the jury to
draw an inference from past domestic violence acts and the court
told the jury to consider each instruction in light of all other
instructions. Because of this and the numerous other times the
jury was instructed that it had to use the reasonable doubt standard
to convict the petitioner, it is clear that the omission of a
specific instruction on the standard applicable to the jury's
determination of the predicate acts, did not violate petitioner's
rights. The state appellate courts' rejection of this claim was
not contrary to, nor an unreasonable application of, clearly
established United States Supreme Court authority.
3. CALJIC 17.41.1
Petitioner claims that using CALJIC 17.41.1 violated his due
process rights because it deprived the jury of its nullification
power and "chilled" the jury's discussions and deliberations by
reducing its privacy and creating the fear of punishment for
disobeying jurors. CALJIC 17.41.1 provides:
The integrity of a trial requires that jurors, at all
times during their deliberations, conduct themselves
as required by these instructions. Accordingly,
should it occur that any juror refuses to deliberate
or expresses an intention to disregard the law or to
decide the case based on [penalty or punishment, or]
any [other] improper basis, it is the obligation of
the other jurors to immediately advise the Court of
The Ninth Circuit has held that there is no "clearly
established United States Supreme Court precedent" which
establishes that an anti-nullification instruction such as CALJIC
17.41.1 violates a constitutional right. Brewer v. Hall,
378 F.3d 952
, 955-56 (9th Cir. 2004). The court therefore held that a
California appellate court's rejection of a challenge to 17.41.1
could not be contrary to, or an unreasonable application of,
clearly established Supreme Court authority. Id. at
In light of Brewer, that the trial court gave
CALJIC 17.41.1 cannot be the basis for federal habeas relief. CONCLUSION
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
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