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Lucky v. Sisto

August 19, 2008


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Presently before the Court is a Petition for a Writ of Habeas Corpus ("Petition") filed by Douglas Lucky ("Petitioner") pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction for one count of the sale or furnishing of a controlled substance (cocaine base) and one count of possession of cocaine base for sale. Petitioner requests habeas relief on two grounds: (1) prejudicial error in the jury instruction and (2) ineffective assistance of counsel.

The matter was referred to United States Magistrate Judge Nita L. Stormes. On April 25, 2008, Magistrate Judge Stormes issued a Report and Recommendation ("Report"), recommending this Court deny Petitioner's claims on the basis of harmless error with respect to the jury instruction and deny the claim of ineffective assistance of counsel. On May 14, 2008, Petitioner filed objections to the Report. The Court has considered the Report and Petitioner's objections. This Court (1) adopts Magistrate Judge Stormes's Report and (2) dismisses Petitioner's § 2254 petition with prejudice.


A. State Procedural Background

The court hereby incorporates by reference the magistrate judge's accurate recitation of the facts. A jury convicted Petitioner of selling cocaine and possessing cocaine base for sale. (Lodgment 1 at 60-61.) At a bifurcated proceeding, Petitioner admitted to having served time in custody for a prior conviction in addition to a prior strike conviction. (Lodgment 1 at 123.)

On January 27, 2005, the trial court sentenced Petitioner to eleven years in prison. He received four years for count one, doubled to eight years under the "strike laws," and three consecutive years for one of the enhancement allegations; the court struck the second allegation from count one. (Lodgment 1 at 125.)

Petitioner filed a direct appeal with the California Court of Appeal, Fourth Appellate District, claiming that the trial court erred by failing to specifically instruct the jury regarding use of circumstantial evidence to prove intent. (Lodgment 6.) While the appellate court found instructional error, it affirmed the judgment because it held that such error was harmless. (Lodgment 8.)

Petitioner then appealed to the California Supreme Court, reasserting his claim for prejudicial instructional error. (Lodgment 9.) He also argued that his conviction should be reversed because at the time of the offenses he was suffering from a mental defect or illness that rendered him incapable of appreciating the wrongfulness of his actions. (Lodgment 9.) The California Supreme Court summarily denied both claims. (Lodgment 10.)

Next, Petitioner filed a petition for a writ of habeas corpus with the California Supreme Court. In it, he claimed his Sixth Amendment right to counsel was violated when his appellate counsel on direct appeal failed to raise a claim for ineffective assistance of counsel at trial based on the trial counsel's failure to challenge the validity of prior convictions to which Petitioner admitted. (Lodgment 11.) The California Supreme Court summarily denied this petition. (Lodgment 12.)

B. Federal Procedural Background

Petitioner initially filed the instant petition in the Central District of California, but it was transferred to this Court on jurisdictional grounds on April 10, 2007. (Doc. No. 1.) Initially, Petitioner alleged three claims: (1) prejudicial instructional error, (2) ineffective assistance of counsel, and (3) a claim that the trial court imposed a sentence that violated the United States Supreme Court's decision in California v. Cunningham, 549 U.S. 270 (2007). Respondent filed a motion to dismiss, asking that the Court dismiss the Petition because it was a "mixed" petition, that is, one that contained both exhausted and unexhausted claims. The Court denied the motion to dismiss as moot because in his opposition, Petitioner requested that the Court dismiss the unexhausted claim, the Cunningham violation. The court ordered Respondent to file an answer to Petitioner's two remaining exhausted claims. (Doc. No. 15.)

Respondent filed an answer on March 14, 2008. (Doc. No. 19.) Petitioner filed a traverse on April 1, 2008. (Doc. No. 20.)

On April 25, 2008, Magistrate Judge Nita L. Stormes issued the Report recommending that the Petition be denied and Petitioner's request for an evidentiary hearing be denied. (Doc. No. 21.) On May 14, 2008, Petitioner filed his objections claiming the Report of the Magistrate Judge was in error and requesting review of the same claims. (Doc. No. 22.) The Court reviews de novo those portions of the report to which Petitioner objects. 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.").


The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this decision. Under AEDPA, a federal court will not grant habeas relief with respect to any claim adjudicated on the merits in state court unless the decision was (1) contrary to or involved an unreasonable application of clearly established federal law, which means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision," or (2) based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. (d); Early v. Packer, 537 U.S. 3, 7-8 (2002).


A. Improper Jury Instruction

Petitioner's Claim

Petitioner claims the trial court erred when it gave California Jury Instruction - Criminal ("CALJIC") No. 2.01 instead of CALJIC No. 2.02.*fn1 Petitioner claims he was prejudiced by the error because "the error prevented the prosecution from having to prove its case beyond a reasonable doubt." (Doc. No. 22.) At trial, counsel for Petitioner argued that giving CALJIC 2.01 eased the government's burden of proof of mental state, because 2.01 provides only a general instruction regarding circumstantial evidence while 2.02 explains circumstantial evidence specifically in terms of proving mental state. Petitioner's trial counsel argued at the hearing on jury instruction, "the important part of my case has to do with mental state . . . it has to do with specific intent, especially in count two, and this jury instruction, 2.02 specifically addresses that." (Lodgment 6 at 6.) Petitioner believes the trial court's failure to give instruction 2.02 was a violation of his right to due process.

Respondent argues the Court of Appeal correctly found that even if the trial court erred in not giving instruction 2.02, the error had no prejudicial effect. (Doc. No. 19-2 at 7-12.)

The Report of the Magistrate Judge

The magistrate judge properly recited the standard for federal habeas corpus relief. Habeas relief is warranted based upon a claim of instructional error "where [the alleged error's] impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)). The magistrate judge found that while the Court of Appeal opined the trial court should have given CALJIC 2.02, the error did not "so infect" the process to warrant reversal. The magistrate judge found the evidence summarized by the Court of Appeal to be convincing enough that the error did not effect the outcome. Accordingly, the magistrate judge concluded Petitioner did not suffer a miscarriage of justice. In addition the magistrate judge found: "Petitioner does not demonstrate in any way that the instruction had a 'substantial and injurious effect or influence in determining the jury's verdict.'" (Doc. No. 21 at 9 citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).)

Petitioner's Objections

Petitioner contends the magistrate judge erred in concluding the error was harmless, arguing the improper jury instruction was "especially egregious" and warrants habeas relief "even absent a substantial influence on the verdict." (Doc. No. 22 at 3 relying on Brecht v. Abrahamson, 507 U.S. at 638 (citing Greer v. Miller, 483 U.S. 756, 769 (1987)).)

Further, Petitioner claims that there is at least "grave doubt" as to whether the error had "substantial and injurious effect or influence in determining the jury's verdict," and as such the error was not harmless. (Doc. No. 22 at ...

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