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 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 ...