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Howard v. Cate

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 22, 2009

JELANI KITWANA HOWARD, PETITIONER,
v.
MATTHEW CATE, HEAD OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.

PETITION FOR WRIT OF HABEAS CORPUS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Petitioner Jelani Howard, through his counsel, files this Petition for Writ of Habeas Corpus. By this verified petition petitioner alleges as follows:

I.

Petitioner is unlawfully confined by the California Department of Corrections pursuant to a judgment of the Superior Court for Sacramento in People v. Howard, No. 99F10330.

II.

Petitioner was convicted of murder, attempted murder, two counts of battery of a co-habitant, assault with a deadly weapon and a prior conviction allegation. Allegations that he personally fired a weapon with respect to the murder and attempted murder offenses were found true. In connection with the count one charge, the trial court sentenced petitioner to a 25 year to life term and then doubled it pursuant to California's "two-strikes law" based on the prior conviction which had been found true. The court added a 25 year-to-life term for the firearm enhancement found true in connection with count one and a 25 year-to-life term for the firearm use allegation found true in connection with count two. The court imposed an upper term of nine years on the count two attempted murder, then doubled it under the two strikes law for a total of 18 years. The court added a one-third the middle term of one year (doubled to two years) for each of the charges in counts four and five. The court stayed sentence on the count three charge, and added a five year term for the serious felony prior conviction. The total term imposed was 27 years in determinate sentencing time, plus four consecutive 25 year-to-life terms.

III.

Petitioner pled not guilty. He was tried by jury.

IV.

Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District. The appellate court affirmed the convictions, but found the state had presented insufficient evidence of the prior conviction allegation. People v. Howard, 2003 WL 361247, *11-12 (2003). The case was remanded back to the Superior Court for re-sentencing. Mr. Howard's Petition for Review to the state supreme court was denied on April 30, 2003. People v. Howard, S114565, Order of April 30, 2003, attached as Exhibit A.

V.

The trial court re-sentenced Mr. Howard without resort to the two-strikes law on December 19, 2003. CT II 5. Mr. Howard appealed. The appellate court vacated the sentence and remanded the case for re-sentencing again. People v. Howard, 2005 WL 40034, *2 (2005). Mr. Howard's Petition for Review to the state supreme court was denied on March 23, 2005. People v. Howard, S131464, Order of March 23, 2005, attached as Exhibit B.

VI.

The trial court imposed sentence a third time on August 12, 2005. The court imposed a 25 year-to-life term for the murder. RT III 14. The court added a 25 year-to-life term for the firearm enhancement found true in connection with count one, and a 25 year-to-life term for the firearm use allegation found true in connection with count two. RT III 14-15. The court imposed a consecutive upper term of nine years on the count two attempted murder, added consecutive one-third the middle terms of one year for each of the charges in counts for and five and imposed a concurrent three-year term on the count three charge. RT III 15. The total term imposed was 11 years in determinate sentencing time, plus three consecutive 25 year-to-life terms. RT III 15-16.

VII.

Mr. Howard timely filed a Notice of Appeal. 1 CT III 57. The appellate court affirmed the sentence on October 11, 2006 and the state supreme court denied review on December 20, 2006. People v. Howard, 2006 WL 2912544 (2006); People v. Howard, S147895, Order of December 20, 2006, attached as Exhibit C. The time within which to seek certiorari expired 90 days later, on March 19, 2007.

TIMELINESS ALLEGATIONS

VIII.

This petition is timely pursuant to 28 U.S.C. § 2244(d). The following facts now known to petitioner support this claim:

a. The state appellate court remanded the case twice for resentencing. The case did not become final until (and the one-year statute began to run on) March 19, 2007.

b. Mr. Howard had a "properly filed application for State post-conviction . . . review" pursuant to 28 U.S.C. § 2244(d)(2) pending in the state superior, appellate and supreme courts from April 10, 2007 through February 13, 2008. His one-year statute ran for 22 days (from March 19, 2007 until April 10, 2007) until it was tolled by operation of 28 U.S.C. § 2244(d)(2).

c. The statute began to run again on February 13, 2008 -- when the state supreme court denied the state petition Mr. Howard had pending there. At that point, he had 343 days left in his one-year period (365 - 22 = 343).

d. On February 13, 2008, Mr. Howard had 343 days within which to file his federal habeas petition -- or until January 22, 2009.

EXHAUSTED CLAIMS

IX.

As to the matters raised in paragraph X-XII of this petition, no other petitions for writ of habeas corpus have been filed. Petitioner has no adequate remedy at law.

X.

Petitioner's judgment of conviction has been unlawfully and unconstitutionally imposed in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. The trial court violated Due Process when it allowed the state to introduce prior bad acts evidence and instructed the jury it could use that evidence to determine whether petitioner honestly and reasonably believed in the need for self-defense. The following facts now known to petitioner support this claim:

a. Petitioner Jelani Howard was charged with the murder of Lamonte Hammond and the attempted murder of Chico Stokes arising out of a February 19, 2000 shooting. CT 184-185. Mr. Howard admitted the shooting, but claimed he fired in self-defense.

b. In order to rebut this defense, and over objection, the state introduced evidence of two uncharged acts of violence involving Mr. Howard, both occurring years earlier. Neither of these uncharged offenses involved a claim of self-defense at all.

c. At the time, of the February 19, 2000 shooting, Mr. Howard was living in San Francisco, California and attending San Francisco City College. RT 976. He was dating Aretha Armstrong who lived in Sacramento, California. RT 976.

d. On February 18, 2000, after finishing math class, Mr. Howard took the bus to Sacramento to see Aretha. RT 976. Although Mr. Howard owned a car his grandmother had bought him, he was taking the bus because Aretha had crashed the car several weeks earlier. RT 977. Aretha was going to use her tax return money to pay for the repairs. RT 980. Aretha told Mr. Howard that the tax return check had arrived. RT 982. When he arrived in Sacramento, they went to a bank to cash the check and then watched movies together at Aretha's apartment. RT 984.

e. The next morning, Aretha asked if she could have some of the money back she had given Mr. Howard for the car repairs because it was her son's birthday and she wanted to buy him something. RT 985. Ultimately, they got into an argument, Mr. Howard slapped Aretha and she went to a friend's house. RT 985-987.

f. About 11 p.m. that night, Mr. Howard went to find Aretha at her friend Kelly Clark's apartment. RT 993. He was planning on heading back to San Francisco and wanted to give Aretha the money she had asked for. RT 992-993. Outside the apartment, Mr. Howard heard loud music. RT 1003.

g. Mr. Howard knocked on the door. RT 1003. Kelly opened the door and said Aretha was not there. RT 1003. Mr. Howard asked where she was. RT 1003. Kelly walked away from the open door; Mr. Howard walked inside because he wanted to find Aretha, give her the money and then go. RT 1004, 1006.

h. Kelly's boyfriend Lamonte Hammond was inside the apartment sitting at the dining room table. RT 1004. As Mr. Howard came into the apartment, Mr. Hammond said "What's up? She's not here." RT 1004. Hammond seemed "confrontational" and was wearing the color blue which was a Crip color. RT 1005, 1012. Mr. Howard admitted that in the early 1990's he belonged to the Bloods gang or East Side Piru. RT 1041. At the time of trial, however, he had not been a gang member for several years. RT 1041.

I. Mr. Howard also saw Larry Holliman or C-Crazy sitting in the livingroom. RT 1007. He was looking at Mr. Howard in a menacing way or "mad-dogging" him. RT 1007-1008.

j. Hammond got up from the table and said "what's up motherfucker, she's not here." RT 1011. His tone of voice told Mr. Howard "there was going to be a problem." RT 1011. Another man, Chico Stokes, was standing to Mr. Howard's right. RT 1012.

k. Hammond walked towards Mr. Howard with Kelly standing between them, pushed Kelly aside and lifted his shirt, revealing a gun in his waistband. RT 1016. Believing that Hammond was going to shoot, Mr. Howard grabbed the gun from him. RT 1017. Hammond asked what Mr. Howard was "gonna do" and moved towards him. RT 1017. Mr. Howard pulled the trigger but nothing happened, he pulled it several more times and the gun went off. RT 1018.

l. Hammond fell to the floor. RT 1018. Mr. Howard did not shoot Hammond again after he fell to the ground. RT 1082. Hammond died at the scene. RT 561.

m. Mr. Howard saw Stokes coming towards. RT 1018. Stokes grabbed Mr. Howard's arm and Mr. Howard shot him once. RT 1019.

n. Prosecution witness Orlando Johnson confirmed that Stokes grabbed Mr. Howard's arm before he was shot. RT 636. Sacramento sheriff's deputy Will Bayles also confirmed that Stokes later told him in the hospital that he "tried to fight the guy who had the gun." RT 967.

o. Mr. Howard could not "believe" what just happened. RT 1022. He did not feel like he had an opportunity to escape once he grabbed the gun from Hammond and Hammond continued moving toward him. RT 1144. Because he did not consider himself a "killer," Mr. Howard then put the gun in his own mouth and pulled the trigger. RT 1023. The gun did not go off. RT 1023.

p. Ron Wilson lived across the street from where the shooting occurred. RT 1146. After hearing several gunshots that night, he saw a man outside the complex place gun in his mouth and pull the trigger. RT 1146. The gun did not go off. RT 1146.

q. The state's theory was that the shooting was not in self-defense, but was a premeditated killing.

r. In light of the two theories presented, and Mr. Howard's admission that he did the shooting, the trial court recognized the only issue in the case was petitioner's intent. RT 98-99. "[Did] defendant . . . have the actual belief in the necessity to defend?" RT 98. The prosecution proposed to use other crimes evidence -- drive-by shootings from 1992 and 1995 -- on the issue of intent and to rebut Mr. Howard's claim of self-defense or imperfect self-defense by showing "he's been violent in the past, the aggressor in the past." RT 69; CT 145-146. Defense counsel argued that the 1992 and 1995 drive-by shootings were so dissimilar that the evidence "has absolutely no relevance to his state of mind" in the February 2000 shootings. CT 175.

s. Prior to the state's presentation of the prior bad acts evidence, the court instructed the jury:

"You are about to hear evidence that the defendant may have committed crimes other than that for which he is on trial. This evidence, if believed, . . . may be considered by you . . . if it tends to show the existence of the specific intent which is a necessary element of the crimes charged in Counts One and Two, whether the defendant had an actual belief in the necessity to defend himself, or whether the defendant had an actual and reasonable belief in the necessity to defend himself." RT 1154.

t. With respect to the 1992 gang-related drive-by shooting, the state presented evidence showing that in 1992, Mr. Howard fired three shots at a Crips gang member in another car and later pled guilty to assault with a deadly weapon. RT 1029, 1156-1166.

u. With respect to the 1995 gang-related drive-by shooting, the state presented evidence that in 1995 Mr. Howard fired several shots from a car, wounding Karamel Haynes. RT 1259-1274, 1302, 1309.

v. The trial court permitted the state to introduce this evidence over objection and instructed the jury it could rely on these prior violent acts in assessing whether Mr. Howard was acting in self-defense on the night of February 19, 2000. RT 98-100; 1154.

w. On appeal, petitioner contended the trial court's actions violated his federal constitutional rights to Due Process and a fair trial. Petitioner raised this claim on appeal in state court and presented it to the state supreme court as well.

XI.

Petitioner's judgment of conviction has been unlawfully and unconstitutionally imposed in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. The trial court's joinder of counts violated the federal constitution because it prejudiced petitioner's right to a fair trial . The following facts now known to petitioner support this claim:

a. Petitioner incorporates by reference all factual allegations set forth above.

b. On January 14, 2002, Mr. Howard was charged with two separate sets of crimes. The state alleged that on October 6, 1999, Mr. Howard committed the crimes of assault with a deadly weapon (count four) and battery on a co-habitant (count five). CT 185. The state also alleged that on February 19, 2000, Mr. Howard committed the crimes of murder (count 1), attempted murder (count 2) and battery on a co-habitant (count 3). CT 184.

c. Prior to trial, the defense moved to sever the two distinct sets of crimes. CT 132. The trial court denied the motion. RT 79-81.

d. On appeal, in state court petitioner contended that the trial court's refusal to sever counts violated his federal constitutional rights to Due Process and a fair trial. He raised this claim on appeal in state court and presented it to the state supreme court as well.

UNEXHAUSTED CLAIMS

XII.

Petitioner's judgment of conviction has been unlawfully and unconstitutionally imposed in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Based on information and belief, petitioner alleges:

a. The state failed to properly disclose, and trial counsel independently failed to discover and present, any and all evidence which would have impeached the testimony of numerous prosecution witnesses at trial, including Kelly Clark, Sherry Clark, Orlando Johnson and Larry Holliman, as well as the witnesses who testified to the prior uncharged acts of violence, including information which would show a bias on the part of these witnesses toward the prosecution. This evidence includes pending criminal charges and other impeachment evidence. Such evidence was both favorable and material, and the state's failure to disclose this evidence, and defense counsel's failure to discover and present it, violated petitioner's rights as set forth in Brady v. Maryland, 373 U.S. 83 (1963) and Strickland v. Washington 466 U.S. 668 (1984).

b. New evidence supports petitioner's claim of self-defense and undercuts the state's theory of first degree murder, including the evidence described above, and evidence showing petitioner did not bring a gun to the apartment on the night of the shooting.

WHEREFORE, petitioner prays that this Court:

1. Take judicial notice of the transcripts and court records in People v. Howard, C041099, People v. Howard, C045844, and People v. Howard, C050579;

2. Hold this case in abeyance pursuant to petitioner's contemporaneously filed "Application to Hold Pending Federal Habeas Petition in Abeyance," to permit petitioner to exhaust in state court potentially dispositive claims;

3. Should relief not be provided in state court, permit petitioner to amend his federal petition and order respondent to file and serve a certified copy of the record on appeal and show cause why petitioner is not entitled to the relief sought;

4. After full consideration of the issues raised in the petition, vacate the judgment and sentence imposed upon petitioner or, in the alternative,

5. Permit discovery and an evidentiary hearing at which petitioner may offer proof concerning the allegations in this petition; and

6. Grant such other and further relief as may be appropriate.

DATED: 01/15/2009

Respectfully submitted,

CLIFF GARDNER LAZULI WHITT Attorney for Petitioner

VERIFICATION

I, Cliff Gardner, declare that I am an attorney for petitioner Jelani Howard. I make this verification for petitioner because of his absence from the county where I have my office. I have read the attached petition and, except for those matters alleged in information and belief, I believe the matters stated therein to be true. On that basis, I allege they are true.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 15th day of January, 2009 at Oakland, California.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Mr. Howard's Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The State's Witnesses To The Shooting . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. The Forensic Evidence Undercuts The State's Theory . . . . . . . . . . . . . . . 11

D. Prior Bad Acts Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

I. THE CURRENT PETITION IS TIMELY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. Introduction And Statutory Background . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. The Case Was Final On Appeal On March 19, 2007. . . . . . . . . . . . . . . . . 16

C. Because Mr. Howard Tolled The One-Year Period From April 10, 2007 Through February 13, 2008, His One-Year Period Expires On January 22, 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. THE TRIAL COURT VIOLATED PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL BY ADMITTING IRRELEVANT AND PREJUDICIAL OTHER CRIMES EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. The Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. Admission Of The Other Acts Evidence Violated Due Process And Requires That The Writ Be Granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

C. Section 2254(d) Does Not Bar Relief Because The State Court Refused To Consider Facts Which Were Plainly Relevant To The Constitutional Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

III. THE TRIAL COURT'S REFUSAL TO SEVER COUNTS DENIED MR. HOWARD HIS FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL AND TO A TRIAL BY AN UNBIASED JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

A. The Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

B. The October 1999 Assault And Battery Charges Were Not Properly Joined With The February 2000 Charges . . . . . . . . . . . . . . . . . . . . . . . . . 28

1. Evidence of the separate crimes was not cross-admissible. . . . . . . 30

a. The October 1999 assault with a deadly weapon evidence would not have been admissible at trial on the February 2000 murder, attempted murder and battery of a co-habitant charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

b. The October 1999 battery of a co-habitant evidence would have had limited admissibility at trial on the February 2000 murder, attempted murder and battery of a co-habitant charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2. The trial court never provided a cautionary instruction to the jury telling them not to consider evidence of one set of the offenses as evidence establishing the other set of offenses . . . . . . . . . . . . . . . . 33

C. Section 2254(d) Does Not Bar Relief Because The State Court Refused To Consider Facts Which Were Plainly Relevant To The Constitutional Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

TABLE OF AUTHORITIES

FEDERAL CASES

Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998) . . . . . . . . . . . . . . . 28 Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . 15 Boyd v. United States, 142 U.S. 450 (1892) . . . . . . . . . . . . . . . . . . . . 22 Bradley v. Duncan, 315 F.3d 1091 (9th Cir. 2002) . . . . . . . . . . . . . . 26 Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . . . . . . . . . . . . . . . . . 24 Brinegar v. United States, 338 U.S. 160 (1949) . . . . . . . . . . . . . . . . . 22 Bruton v. United States, 391 U.S. 123 (1968) . . . . . . . . . . . . . . . . . . 22 Drew v. United States, 331 F.2d 85 (D.C.Cir. 1964) . . . . . . . . . . . . . 29 Featherstone v. Estelle, 948 F.2d 1497 (9th Cir. 1991) . . . . . . . . . . . 29 Henry v. Estelle, 993 F.2d 1423 (9th Cir. 1993) . . . . . . . . . . . . . . . . 22 Lancaster v. Adams, 324 F.3d 423 (6th Cir. 2003) . . . . . . . . . . . . . . 27 Lindh v. Murphy, 521 U.S. 320 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 25 Lisenba v. California, 314 U.S. 219 (1991) . . . . . . . . . . . . . . . . . . . . 22 Lockyer v. Andrade, 538 U.S. 63 (2003) . . . . . . . . . . . . . . . . . . . . . . 26 McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993) . . . . . . . . . . . . . . . 22 O'Neil v. McAnnich, 513 U.S. 432 (1995) . . . . . . . . . . . . . . . . . . . . . 24 Park v. California, 202 F.3d 1073 (9th Cir. 2000) . . . . . . . . . . . . . . . 28 Penry v. Johnson, 532 U.S. 782 (2001) . . . . . . . . . . . . . . . . . . . . . . . 26 Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) . . . . . . . . . . . . . . . . 26 United States v. Bronco, 597 F.2d 1300 (9th Cir. 1979) . . . . . . . . . . 33 United States v. Lane, 474 U.S. 438 (1985) . . . . . . . . . . . . . . . . . . . . 28 United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986) . . . . . . . . . . . 28 Williams v. Taylor, 529 U.S. 362 (2000) . . . . . . . . . . . . . . . . . . . . . . 26

STATE CASES

People v. Barrios, 163 Cal. App.4th 270 (2008) . . . . . . . . . . . . . . . . 32 People v. Ewoldt, 7 Cal.4th 380 (1994) . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Haston, 69 Cal.2d 233 (1968) . . . . . . . . . . . . . . . . . . . . . . 31 People v. McDermott, 28 Cal.4th 946 (2002) . . . . . . . . . . . . . . . . . . . 30 People v. Musselwhite, 17 Cal.4th 1216 (1998) . . . . . . . . . . . . . . . . . 28

STATEMENT OF THE CASE

January 14, 2002, the Sacramento County district attorney filed a six count information against defendant Jelani Howard. CT 184.*fn1 The information charged as follows:

1) Count one charged Mr. Howard with a February 19, 2000 murder in violation of section 187. CT 184. This count added an allegation that Mr. Howard personally used a firearm in violation of section 12022.53(d). CT 184.

2) Count two charged Mr. Howard with a February 19, 2000 attempted murder in violation of sections 187 and 664. CT 184. This count also added a firearm use allegation in violation of section 12022.53(d). CT 185.

3) Count three charged Mr. Howard with a February 19, 2000, battery on a co-habitant in violation of section 273.5. CT 185.

4) Count four charged Mr. Howard with an October 6, 1999 assault with a deadly weapon in violation of Penal Code section 245(a)(1). CT 185.

5) Count five charged Mr. Howard with an October 6, 1999 battery on a cohabitant in violation of section 273.5. CT 185.

The information added an allegation that Mr. Howard had suffered a prior strike conviction; specifically, a 1993 assault in violation of section 245(a)(2). CT 186. Mr. Howard pled not guilty. CT 182.

The parties made their opening statements on January 17, 2002. CT 194. The state rested its case on January 24, 2002. CT 204. The jury began deliberations on January 31, 2002. CT 211. Before the jury returned its verdict, Mr. Howard waived his right to a jury trial on the prior conviction allegation, and requested a court trial on that allegation. CT 207. On February 4, 2002, the jury found Mr. Howard guilty as charged.

CT 257.

After advisements, Mr. Howard waived jury trial on the prior conviction. RT 1514. The trial court found the prior true. RT 1517.

The court imposed sentence on March 29, 2002. The court imposed a 25 year-to-life term for the count one murder, and then doubled it pursuant to California's "two-strikes law" based on the prior conviction which had been found true. CT 329. The court added a 25 year-to-life term for the firearm enhancement found true in connection with count one, and a 25 year-to-life term for the firearm use allegation found true in connection with count two. CT 329. The court imposed an upper term of nine years on the count two attempted murder, then doubled it under the two strikes law for a total of 18 years. CT 327. The court added a one-third the middle term of one year (doubled to two years) for each of the charges in counts four and five. CT 327. The court stayed sentence on the count three charge, and added a five year term for the serious felony prior conviction. CT 327. The total term imposed was 27 years in determinate sentencing time, plus four consecutive 25 year-to-life terms. CT 330.

Mr. Howard timely filed a Notice of Appeal. CT 331. On February 20, 2003, the appellate court affirmed the convictions in their entirety, but found the state had presented insufficient evidence of the prior conviction allegation. People v. Howard, 2003 WL 361247, *11-12 (2003). Accordingly, the case was remanded back to the Superior Court for re-sentencing. Mr. Howard filed a Petition for Review to the state supreme court which was denied on April 30, 2003. People v. Howard, S114565, Order of April 30, 2003, attached as Exhibit A.

On remand, the trial court re-sentenced Mr. Howard without resort to the two-strikes law. This occurred on December 19, 2003. CT II 5. But because of serious errors in the court's sentence, the appellate court ultimately vacated the sentence imposed at this hearing in its entirety and remanded the case for re-sentencing yet again. People v. Howard, 2005 WL 40034, *2 (2005). Mr. Howard filed a Petition for review to the state supreme court which was denied on March 23, 2005. People v. Howard, S131464, Order of March 23, 2005, attached as Exhibit B.

The trial court imposed sentence a third time on August 12, 2005. The court imposed a 25 year-to-life term for the murder. RT III 14. The court added a 25 year-to-life term for the firearm enhancement found true in connection with count one, and a 25 year-to-life term for the firearm use allegation found true in connection with count two. RT III 14-15. The court imposed a consecutive upper term of nine years on the count two attempted murder, added consecutive one-third the middle terms of one year for each of the charges in counts four and five and imposed a concurrent three-year term on the count three charge. RT III 15. The total term imposed was 11 years in determinate sentencing time, plus three consecutive 25 year-to-life terms. RT III 15-16.

Mr. Howard timely filed a Notice of Appeal. 1 CT III 57. This time, the appellate court affirmed the sentence in an opinion dated October 11, 2006 and the state supreme court denied review on December 20, 2006. People v. Howard, 2006 WL 2912544 (2006); People v. Howard, S147895, Order of December 20, 2006, attached as Exhibit C. The time within which to seek certiorari expired 90 days later, on March 19, 2007.

Mr. Howard immediately sought state habeas review. He filed a Petition for Writ of Habeas Corpus in the Sacramento superior court on April 10, 2007. In re Howard, 07F03688, Petition for Writ of Habeas Corpus, attached as Exhibit D. This petition was denied on the merits by the Superior Court on May 9, 2007 in a four-page opinion. In re Howard, 07F03688, Order of May 9, 2007, attached as Exhibit E.

Less than a month later, on June 4, 2007, Mr. Howard filed a Petition for Writ of Habeas Corpus in the state court of appeal in case C055852. In re Howard, C055852, California Court of Appeals Docket Sheet, attached as Exhibit F. The court denied this petition on July 5, 2007. In re Howard, C055852, Order of July 5, 2007, attached as Exhibit G.

One month later, on August 6, 2007, Mr. Howard filed a habeas petition in the state supreme court in case S155133. In re Howard, S155133, California Supreme Court Docket Sheet, attached as Exhibit H. The state court denied this petition on February 13, 2008. In re Howard, S155133, Order of February 13, 2008, attached as Exhibit I.

STATEMENT OF FACTS

Petitioner Jelani Howard was charged with the February 19, 2000 murder of Lamonte Hammond and the attempted murder of Chico Stokes. CT 184-185. At no point did Mr. Howard deny the shooting. Instead, as Mr. Howard explained at trial, this was a self-defense case; he fired at Hammond and Stokes only because he feared for his own life.

In order to rebut this defense, and over objection, the state introduced evidence of two uncharged acts of violence involving Mr. Howard, both occurring years earlier. As more fully discussed below, although both of these uncharged acts involved acts of violence -- and so could prejudice a jury trying to assess Mr. Howard's self-defense claim here -- neither of these offenses involved a claim of self-defense at all.

A. Mr. Howard's Testimony

Mr. Howard explained the events leading up to February 19, 2000. At the time, Mr. Howard was living in San Francisco, California and attending San Francisco City College. RT 976. He was dating Aretha Armstrong who lived in Sacramento, California. RT 976.

On February 18, 2000, after finishing math class, Mr. Howard took the bus to Sacramento to see Aretha. RT 976. Although Mr. Howard owned a car his grandmother had bought him, he was taking the bus because Aretha had crashed the car several weeks earlier. RT 977. Aretha was going to use her tax return money to pay for the repairs. RT 980. Aretha told Mr. Howard that the tax return check had arrived. RT 982. When he arrived in Sacramento, they went to a bank to cash the check and then watched movies together at Aretha's apartment. RT 984.

The next morning, Aretha asked if she could have some of the money back she had given Mr. Howard for the car repairs because it was her son's birthday and she wanted to buy him something. RT 985. Mr. Howard explained to Aretha that his grandmother had already paid to have the car fixed and he needed to reimburse her. RT 981. Aretha got upset and walked to the corner market. RT 985. Mr. Howard decided he would give Aretha $200. RT 986.

While Aretha was gone, Mr. Howard spoke with some men standing outside her apartment. RT 985. They told him Aretha had been talking to another man who lived in the same apartment complex. RT 985. Hearing this made Mr. Howard angry. RT 986.

When Aretha returned, Mr. Howard told her he wanted to talk and they walked to Sonny's Market. RT 986. Aretha bought a bottle of Brandy. RT 987. On the walk back, when Mr. Howard asked her about the man she was talking with at the apartment complex, Aretha got angry and started to scream. RT 987. Although Mr. Howard admitted it was not the right thing to do, he slapped Aretha several times. RT 987. Aretha then left and went to a friend's house. RT 988.*fn2

About 11 p.m. that night, Mr. Howard went to find Aretha at her friend Kelly Clark's apartment. RT 993. He was planning on heading back to San Francisco and wanted to give Aretha the money she had asked for. RT 992-993. Outside the apartment, Mr. Howard heard loud music. RT 1003. He knocked on the door. RT 1003. Kelly opened the door and before Mr. Howard could say anything, she told him that Aretha was not there. RT 1003. Believing that Aretha was inside, Mr. Howard asked where she was. RT 1003. Kelly said "whatever" and walked away from the open door. RT 1004. Mr. Howard walked inside because he wanted to find Aretha, give her the money and then go. RT 1006.

Kelly's boyfriend Lamonte Hammond was inside the apartment sitting at the dining room table. RT 1004. As Mr. Howard came into the apartment, Mr. Hammond said "What's up? She's not here." RT 1004. Hammond seemed "confrontational" and was wearing the color blue which was a Crip color. RT 1005, 1012.*fn3 Mr. Howard also saw Larry Holliman or C-Crazy sitting in the livingroom. RT 1007. He was looking at Mr. Howard in a menacing way or "mad-dogging" him. RT 1007-1008.

Hammond got up from the table and said "what's up motherfucker, she's not here." RT 1011. His tone of voice told Mr. Howard "there was going to be a problem." RT 1011. Another man, Chico Stokes, was standing to Mr. Howard's right. RT 1012. Hammond walked towards Mr. Howard with Kelly standing between them, pushed Kelly aside and lifted his shirt, revealing a gun in his waistband. RT 1016. Believing that Hammond was going to shoot, Mr. Howard grabbed the gun from him. RT 1017. Hammond asked what Mr. Howard was "gonna do" and moved towards him. RT 1017. Mr. Howard pulled the trigger but nothing happened, he pulled it several more times and the gun went off. RT 1018.

Hammond fell to the floor. RT 1018. Mr. Howard did not shoot Hammond again after he fell to the ground. RT 1082. Hammond died at the scene. RT 561.

Mr. Howard was going to leave when he saw Stokes coming towards him with a "blank" look on his face. RT 1018. Mr. Howard asked him what he was doing but Stokes kept walking towards him. RT 1019. Stokes grabbed Mr. Howard's arm and Mr. Howard shot him once. RT 1019. Prosecution witness Orlando Johnson confirmed that Stokes grabbed Mr. Howard's arm before he was shot. RT 636. Sacramento sheriff's deputy Will Bayles also confirmed that Stokes later told him in the hospital that he "tried to fight the guy who had the gun." RT 967.*fn4

Mr. Howard and Stokes continued to wrestle for the gun. RT 1019. It went off another time. RT 1019. Because Stokes would not let go of the gun, Mr. Howard dragged Stokes towards the door. RT 1021. Stokes finally let go of the gun when he was half-way in the apartment and half-way outside. RT 1022. Stokes was injured but alive. RT 746.

Mr. Howard could not "believe" what just happened. RT 1022. He did not feel like he had an opportunity to escape once he grabbed the gun from Hammond and Hammond continued moving toward him. RT 1144. Because he did not consider himself a "killer," Mr. Howard then put the gun in his own mouth and pulled the trigger. RT 1023. The gun did not go off. RT 1023.

Ron Wilson confirmed this testimony. Wilson lived across the street from where the shooting occurred. RT 1146. Wilson told police that after hearing several gunshots he saw a man outside the complex place gun in his mouth and pull the trigger. RT 1146. The gun did not go off. RT 1146.

Mr. Howard did not wait at the scene for police because he was afraid police would shoot him. RT 1024. Mr. Howard then called a friend to pick him up. RT 1024. On the on-ramp to Highway 50, Mr. Howard threw the gun out the window. RT 1032. The gun was later found there by police. RT 532-533. The state introduced no evidence suggesting Mr. Howard owned this gun. RT 532-538.*fn5

B. The State's Witnesses To The Shooting

Kelly Clark and Aretha Armstrong were friends and co-workers. RT 172-173. Around 9:30 p.m. on February 19, 2000, Aretha came to Kelly's apartment. RT 178. She had a bloody nose and lip and asked if she could stay because she was afraid of Mr. Howard. RT 180. Aretha went upstairs to lie down and go to sleep. RT 184.

Kelly was dating Lamonte Hammond. RT 171. Hammond lived in San Jose and would come to Sacramento to visit Kelly on the weekends. RT 171. On that night, Hammond arrived at Kelly's apartment around 10 p.m.. RT 171. He came with four other men; Chico Stokes, Stokes's brother Larry Holliman Jr., Stokes's cousin Orlando Johnson and someone who everyone only knew by the name of "Fats." RT 216, 218, 272, 462, 468, 576.*fn6

Hammond and his friends belonged to the Crips gang. RT 216, 463, 468, 574. In addition to Hammond and his friends, Sherry Clark, Kelly's sister was also there. RT 190. They were drinking, playing cards, listening to music, playing video games and smoking marijuana. RT 191. There was also methamphetamine in the back bedroom that Hammond planned to sell that night. RT 215.

Sometime later, Mr. Howard knocked on the door and asked if Aretha was there. RT 192. Mr. Howard was calm and polite. RT 224. Kelly said no. RT 195. Hammond walked up behind Kelly and said "no she's not here." RT 225. Hammond then went back to playing cards at the diningroom table. RT 227. Mr. Howard then asked if he could check. RT 195. Kelly said no again. RT 195. Mr. Howard walked inside. RT 195. Kelly did not notice anything in his hands. RT 192.

Kelly asked what Mr. Howard was doing and put her hand on his chest. RT 195. Kelly was walking backward and Mr. Howard was walking forward. RT 196. Hammond then stood up from the dining room table walked towards Kelly and Mr. Howard. RT 202. He said "what you gonna do shoot her or me?" RT 202. Hammond then pushed Kelly towards the front door. RT 203. Kelly heard a loud "pop" and when she looked back she saw a red mark on Hammond's shirt. RT 203. Hammond grabbed his chest. RT 204. As Kelly ran to another apartment to call 911, she heard 4 more shots. RT 204.

Sherry, Kelly's sister, also saw the shooting. According to Sherry, moments before Hammond pushed Kelly towards the door, Mr. Howard pulled a gun from behind his leg. RT 284, 287. He then shot Hammond once in the chest. RT 287. Hammond fell to the ground and Mr. Howard shot him two more times. RT 289. Between the second and third shots, Hammond said "please don't take my life." RT 289.*fn7

After Mr. Howard shot Hammond for the third time, Chico Stokes stood up from the table and said "you took my homeboy's life." RT 291. Mr. Howard then shot Stokes. RT 291. Stokes moved toward Mr. Howard and grabbed him, holding Mr. Howard's arms at his sides. RT 292, 316. The gun was pointing towards Stokes's legs. RT 316. Sherry ran and hid in the bathroom. RT 292. She heard two more gunshots. RT 293. She also heard Mr. Howard saying "don't ever run your mouth at me." RT 294-295.

Kelly testified that she did not see Hammond or any of his friends with a gun that night. RT 259. Nor had she ever seen Hammond with a gun before. RT 264. Prosecution witness Orlando Johnson testified that Mr. Howard was holding the gun by his side when he entered the apartment. RT 645. Mr. Johnson admitted, however, that he was hoping to receive leniency from the state at an upcoming sentencing hearing on drug possession charges in exchange for his testimony in Mr. Howard's case. RT 573, 635.

C. The Forensic Evidence Undercuts The State's Theory

Forensic pathologist Gregory Reiber testified that Mr. Hammond died of multiple gunshot wounds. RT 731-734. He had two gunshot wounds to his torso and one to his left buttock. RT 725, 731-734. Mr. Stokes had six gunshot wounds; two in the left side of his chest, one in his back, one in his right hand, and one in each thigh. RT 746-748. Dr. Reiber was not sure, however, how many bullets caused those wounds. RT 751. It was possible that one bullet caused more than one wound. RT 751.

As noted above, Sherry Clark and Larry Holliman testified that Mr. Howard shot Hammond while he was on the ground. RT 289, 488. Dr. Reiber, however, testified that if Hammond had been shot on the ground, he would expect to see a bullet underneath or to the side of his body. RT 785-786. No such bullet was found. RT 700.

D. Prior Bad Acts Evidence

Because Mr. Howard did not dispute that he fired the gun, the only issue for the jury to decide was Mr. Howard's mental state at the time of the shooting: did he have a honest and reasonable belief in the need to defend himself when he shot Hammond and Stokes? In making this determination, however, the jury was allowed to consider not only Mr. Howard's testimony and that of the state's witnesses but it was also allowed to consider Mr. Howard's involvement in 1992 and 1995 gang-related drive-by shootings. Thus, prior to the state's presentation of this evidence, the court instructed the jury:

"You are about to hear evidence that the defendant may have committed crimes other than that for which he is on trial. This evidence, if believed, . . . may be considered by you . . . if it tends to show the existence of the specific intent which is a necessary element of the crimes charged in Counts One and Two, whether the defendant had an actual belief in the necessity to defend himself, or whether the defendant had an actual and reasonable belief in the necessity to defend himself." RT 1154.

With respect to the 1992 drive-by shooting, the state called Carnell Thompson to testify. Thompson explained that he has known Mr. Howard for 10 years. RT 1156. On August 18, 1992, Thompson was driving in a car with Mr. Howard, Thompson's cousin Kevin Cottle, and Tyrone Dyson in Sacramento. RT 1158. Cottle was driving, Mr. Howard was in the front passenger seat, and Dyson and himself were in the back seat. RT 1159. They were stopped at a stop light when another car pulled up beside them. RT 1160. A man in the other car flashed Crip gang signs at them. RT 1160. He then heard three gunshots fired from the car he was in. RT 1158, 1165. Thompson denied telling police that Mr. Howard was the only person in his car with a gun. RT 1166, 1180-1181.

Shortly after the shooting, Sacramento sheriff's deputy Cliff Lunetta stopped Mr. Howard's car. Inside he found a .22 caliber gun and a box of .22 rounds. RT 1198. Mr. Howard denied being the shooter. RT 1197.

At trial, Mr. Howard again denied being the shooter. RT 1027. Instead, it was Cottle. RT 1029. Cottle reached over Mr. Howard and shot out Mr. Howard's open window. RT 1029. Cottle then dropped the gun in Mr. Howard's lap. RT 1029. Shortly after, police stopped their car and Mr. Howard was arrested. RT 1029. He was told that if he pled guilty to assault with a deadly weapon he would be allowed to go home. RT 1029. Because his mother was in the hospital and he wanted to go see her, he plead guilty and was allowed to go. RT 1029.

With respect to the 1995 gang-related drive-by shooting, the state called Carter Haynes to testify. RT 1258. Haynes explained that in September 1995 he had an argument with a man named Larry. RT 1259. During this argument, Larry told Haynes that he (Larry) was a member of the Crips gang. RT 1265. About two weeks after this argument, he was outside his home with his sister Karamel Haynes when a suburban drove up. RT 1263. There were two men inside. RT 1268. He believed that Larry was driving. RT 1266. The passenger pulled out a gun and fired several rounds. RT 1273-1274. One bullet hit his sister in the leg. RT 1274. The suburban then drove away. RT 1274.

Haynes called police. RT 1274. Haynes told police the driver's name was "Larry." RT 1299. He also told police that he saw the shooter and spoke with him just before the shooting. RT 1303.

Later that evening, police located a suburban at a nearby house matching the description given by Haynes. RT 1280. Sacramento sheriff's deputy Scott Swain testified that when they searched the residence they found two men inside; Lawrence Lanchaster and petitioner Jelani Howard. RT 1300. Lanchaster and Mr. Howard were placed inside a patrol car and Haynes was brought for an identification. RT 1302. Haynes identified Lanchaster as the driver and Mr. Howard as the shooter. RT 1309.

Both were arrested but the charges were later dropped. RT 1031.

At trial, Haynes was sure that Mr. Howard was not the shooter. RT 1287, 1293. He was sure the shooter was lighter skinned than Mr. Howard. RT 1287. Instead, he only identified Mr. Howard because he was the only other person with Lanchaster when the identification took place. RT 1291.

Mr. Howard also testified that he was not the shooter. RT 1031. According to Mr. Howard, the shooter was a family member and that is why he may have been misidentified by Haynes. RT 1031.*fn8

ARGUMENT

I. THE CURRENT PETITION IS TIMELY

A. Introduction And Statutory Background

28 U.S.C. § 2244(d) provides a one year time period within which a state defendant may seek habeas relief in federal court. Subdivision (d)(1)(A) provides that the one-year period begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . ." When a case is remanded for resentencing, the judgment does not become final -- and the one-year period does not begin to run -- until the new sentence is final. See Burton v. Stewart, 549 U.S. 147, 156-157 (2007). A sentence is final on the date certiorari is denied or, if certiorari is not sought, the last date certiorari could have been sought. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Once a case is final, and the one-year period has begun to run, 28 U.S.C. § 2244(d)(2) provides that the one-year period may be tolled for any period "during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . ."

Here, as discussed below, because the state appellate court remanded the case twice for resentencing, the case did not become final until (and the one-year statute began to run on) March 19, 2007. Because Mr. Howard had a "properly filed application for State post-conviction . . . review" pending from April 10, 2007 through February 13, 2008, his one year statute ran for 22 days (from March 19, 2007 until April 10, 2007) until it was tolled by operation of 28 U.S.C. § 2244(d)(2). The statute began to run again on February 13, 2008 -- when Mr. Howard no longer had a state petition pending in state court. At that point, he had 343 days left in his one-year period (365 - 22 = 343). Accordingly, on February 13, 2008, Mr. Howard had 343 days within which to file his federal habeas petition -- or until January 22, 2009. This petition is therefore timely.

B. The Case Was Final On Appeal On March 19, 2007

On January 14, 2002, the Sacramento County district attorney filed a six count information against defendant Jelani Howard. 1 CT 184.*fn9 In addition to these six substantive charges, the information alleged that Mr. Howard had ben convicted of a serious prior felony. Mr. Howard was found guilty on all charges, as well as the prior felony allegation, and was sentenced on March 29, 2002. 2 CT 327-330.

Mr. Howard timely filed a Notice of Appeal. 2 CT 331. As noted above, on February 20, 2003, the state appellate court affirmed the convictions, but found there was insufficient evidence of the prior conviction allegation. People v. Howard, 2003 WL 361247 at * 11-12. Accordingly, the case was remanded back to the trial court for re-sentencing. Mr. Howard's subsequent Petition for Review to the state supreme court was denied on April 30, 2003. Exhibit A.

On remand, the trial court re-sentenced Mr. Howard without relying on the prior conviction allegation. This occurred on December 19, 2003. 1 CT II 5.*fn10 Mr. Howard timely filed a Notice of Appeal. 1 CT II 9. On January 10, 2005, the state appellate court again affirmed the conviction but found sentencing errors and remanded for resentencing. People v. Howard, 2005 WL 40034 at * 2. The state supreme court denied review on March 23, 2005. Exhibit B.

The trial court sentenced Mr. Howard for a third time on August 12, 2005. 1 CT III 1.*fn11 The total term imposed in this third sentencing was 11 years in determinate sentencing time plus three consecutive 25 year-to-life terms. RT III 14-16.

Mr. Howard again filed a timely Notice of Appeal. CT III 57. The appellate court added one day additional credit for time served, but otherwise affirmed the conviction and sentence in an opinion dated October 11, 2006. People v. Howard, 2006 WL 2912544. The state supreme court denied review on December 20, 2006. Exhibit C. The time within which to seek certiorari expired 90 days later, on March 19, 2007. This was the day the case became final on direct appeal and the one-year statute started to run. See Burton v. Stewart, 549 U.S. at 156-157.

C. Because Mr. Howard Tolled The One-Year Period From April 10, 2007 Through February 13, 2008, His One-Year Period Expires On January 22, 2009

As noted above, once the one-year period has begun to run, 28 U.S.C. § 2244(d)(2) provides that this period may be tolled for any period "during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . ." Here, Mr. Howard's one-year period began to run on March 19, 2007.

Acting in pro per, Mr. Howard properly filed a Petition for Writ of Habeas Corpus in the Sacramento superior court on April 10, 2007. Exhibit D. This petition was denied on the merits by the Superior Court on May 9, 2007 in a four-page opinion. Exhibit E.

Less than a month later, on June 4, 2007, Mr. Howard -- still acting in pro per --filed a Petition for Writ of Habeas Corpus in the state court of appeal in case C055852. Exhibit F. The court denied this petition was on July 5, 2007. Exhibit G.

One month later, on August 6, 2007, Mr. Howard -- again still acting in pro per --filed a habeas petition in the state supreme court in case S155133. Exhibit H. The state court denied this petition on February 13, 2008. Exhibit I.

Accordingly, while petitioner's one-year time period within which to seek federal review began running on March 19, 2007, it ran only for 22 days, until April 10, 2007. This is when petitioner began state habeas proceedings by properly filing an application for state post-conviction review with the state superior court. See 28 U.S.C. § 2244(d)(2). Petitioner had a state habeas petition pending from that date through February 13, 2008.

At that point (February 13, 2008), the one-year statute began running again. But petitioner had 343 days left in his one-year period within which to file in federal court, or until January 22, 2009. This petition is, therefore, timely.

II. THE TRIAL COURT VIOLATED PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL BY ADMITTING IRRELEVANT AND PREJUDICIAL OTHER CRIMES EVIDENCE

A. The Relevant Facts

The state's theory of the case was simple: Mr. Howard brought a gun into Kelly Clark's apartment and shot Lamonte Hammond and Chico Stokes when they tried to stop him from searching for his girlfriend Aretha Armstrong. RT 1337-1338. The defense theory of the case was equally simple: Mr. Howard shot in self-defense. He did not bring a gun into the apartment, but instead grabbed a gun from Hammond's waistband after he was threatened by Hammond, and shot both Hammond and Stokes in self-defense. RT 1389-1393.

In support of its case, the state sought to introduce evidence of two drive-by shootings which Mr. Howard had been involved in years earlier. Thus, the state sought to introduce the facts surrounding a 1992 drive-by shooting.

Gregory Anderson belonged to the North Highland Crips gang. CT 143. On August 18, 1992, he was shot while in his car at a stoplight in Sacramento, California. CT 143. He identified one person in the shooter's car, Kevin Cottle. CT 143. Cottle belonged to a rival gang, the Citrus Height Bloods. CT 143. An anonymous witness revealed the names of Cottle's companions, one of whom was Mr. Howard. CT 143. It was Mr. Howard's mother's car which was involved in the shooting. CT 144. When police searched the car, they found the same caliber gun used in the shooting. CT 144. Carnell Thompson was also in the car with Mr. Howard and Cottle at the time of the shooting. CT 144. He told police that Mr. Howard was the only person in the car with a gun. CT 144. Mr. Howard later pled guilty to assault with a deadly weapon. CT 144.

The state also sought to introduce facts surrounding a 1995 drive-by shooting. On September 10, 1995, Carter Haynes had an argument and exchanged gang signs with two young men at a Sacramento mall. CT 142. Later that day, Haynes and his sister Karamel were outside their home when a gray sport utility vehicle drove by with the two men inside. CT 142. The passenger -- who Haynes later identified as Mr. Howard -- pulled out a gun and fired four or five times. CT 142. Karamel Haynes was shot in the leg. CT 142. Although Mr. Howard was initially charged with assault with a deadly weapon, all charges were later dismissed. CT 143.

The prosecution proposed to use this other crimes evidence on the issue of intent and to rebut Mr. Howard's claim of self-defense or imperfect self-defense by showing "he's been violent in the past, the aggressor in the past." RT 69; CT 145-146. Defense counsel argued that the 1992 and 1995 drive-by shootings were so dissimilar that the evidence "has absolutely no relevance to his state of mind" in the February 2000 shootings. CT 175.

The trial court recognized that the only issue in the case was petitioner's intent. RT 98-99. "[Did] defendant . . . have the actual belief in the necessity to defend?" RT 98. As to this question, the trial court ruled the other acts evidence admissible concluding:

"If the Defendant was the aggressor in similar violent acts, it would perpetrate a fraud upon the jury to withhold this information from them. This is relevant information the jury should be allowed to consider in determining the believability of the Defendant's assertions that he was acting in self-defense in this case." RT 99.

At trial, Mr. Howard testified that he was in fear for his life when he shot Hammond and Stokes. RT 1016-1019. He also testified that he believed that based on what Hammond was wearing that he was a member of the Crip's gang. RT 1012-1014.

Knowing that the state was going to introduce the 1992 and 1995 shootings in rebuttal, Mr. Howard testified to each, including that he pled guilty to assault with a deadly weapon in connection with the 1992 drive-by shooting. RT 1028, 1031. The state cross-examined Mr. Howard on both prior shootings. RT 1041-1048.

Before the state's rebuttal case, the trial court instructed the jury:

"You are about to hear evidence that the defendant may have committed crimes other than that for which he is on trial. This evidence, if believed, . . . may be considered by you . . . if it tends to show the existence of the specific intent which is a necessary element of the crimes charged in Counts One and Two, whether the defendant had an actual belief in the necessity to defend himself, or whether the defendant had an actual and reasonable belief in the necessity to defend himself." RT 1154.

In its rebuttal case, the state introduced the testimony from the investigating officers in both the 1992 and 1995 incidents. RT 1194-1202, 1296-1307. The state also introduced the testimony of one of the victims to the 1995 shooting. RT 1258-1295. And then, during closing arguments, the prosecutor relied on the prior shootings to show petitioner was the type of person who was an aggressor not someone acting in self-defense. RT 1334.

As more fully discussed below, the trial court violated Due Process in admitting the other crimes evidence. The evidence failed to make any fact of consequence more or less probable. Because there were no permissible inferences to be drawn from the evidence, and given the prosecutor's reliance on the evidence and the weakness of the state's case on the question of intent, the trial court's admission of this evidence violated petitioner's federal Due Process right to a fair trial.

B. Admission Of The Other Acts Evidence Violated Due Process And Requires That The Writ Be Granted

The Supreme Court has long held that "[a]n important element of a fair trial is that [the trier of fact] consider only relevant and competent evidence bearing on the issue of guilt or innocence." Bruton v. United States, 391 U.S. 123, 131, n.6 (1968). Evidence is irrelevant if "it fails to make any fact of consequence more or less probable." McKinney v. Rees, 993 F.2d 1378, 1380 (9th Cir. 1993); Henry v. Estelle, 993 F.2d 1423, 1427 (9th Cir. 1993), reversed on other grounds sub nom, Duncan v. Henry, 513 U.S. 364 (1994).

To be sure, not every admission of irrelevant evidence will violate due process. Yet courts have long recognized that irrelevant evidence of uncharged criminal conduct is often relied on not to prove a disputed fact of consequence to an action, but to prove a defendant's propensity for criminal conduct. See Brinegar v. United States, 338 U.S. 160, 174 (1949); Boyd v. United States, 142 U.S. 450, 458 (1892). The ultimate test is whether the improperly introduced evidence is "of such quality as necessarily prevents a fair trial." Lisenba v. California, 314 U.S. 219, 236 (1991); McKinney v. Rees, 993 F.2d at 1383.

McKinney provides a useful example. There, defendant was charged in the 1984 stabbing death of his mother. A pair of the defendant's camouflage pants -- soaked with blood of his mother's type -- was found in defendant's room. Over objection, the state was permitted to introduce other acts evidence that (1) in 1983, defendant had a knife which was confiscated by police prior to the homicide and (2) defendant occasionally strapped a knife to his body while wearing camouflage pants. The state argued that both pieces of evidence were relevant to show (1) that defendant was not "knife free" at the time of the murder and (2) he wore camouflage pants with a knife, just like the murderer apparently did. 993 F.2d at 1383.

The Ninth Circuit rejected these proffered justifications, holding instead that the most plausible inference from the evidence was of criminal propensity. Because the 1983 knife was no longer in defendant's possession, the evidence did not prove a "fact of consequence" and, instead, permitted an inference of propensity "that [defendant] was the type of man who would own a knife." Id. at 1383. Similarly, the camouflage pants evidence simply showed that defendant may have been "wearing [camouflage pants] with a knife the night of the murder." Id. at 1383. This inference "is an impermissible propensity inference based on other acts offered to prove character. . . ." Id. The court found the error prejudicial because (1) the prosecutor raised this evidence in his cross-examination of defendant, (2) the prosecutor relied on it during closing argument, and (3) the case against defendant was a close one. Id. at 1384-1386.

McKinney is similar to this case. Here too the other acts evidence did not prove a fact of consequence. As the trial court itself recognized, the only factual issue of consequence in the case was petitioner's mental state at the time of the shootings; did he honestly and reasonably (or unreasonably) believe that his life was in danger when he shot Hammond and Stokes? RT 98-99. Of course, if the other crimes evidence of the 1992 and 1995 shootings shed light on this query, admission of the evidence would be entirely proper. Cf. McKinney v. Rees, 993 F.2d at 1380; Henry v. Estelle, 993 F.2d at 1427. Yet an examination of the inferences required to support the state's relevancy argument establishes that petitioner's involvement in a 1992 and 1995 shooting of people completely unconnected to the current charges was irrelevant to whether he shot in self-defense more than eight years after the 1992 shooting and five years after the 1995 shooting.

The trial court admitted the prior shootings because they were gang-related shooting offenses like the charged offenses of murder and attempted murder (and where petitioner noted the victim's gang membership). RT 99. The prosecution's theory was that petitioner had already been twice involved in gang-related drive-by shootings as the aggressor. RT 69; CT 145-146. According to the prosecution, evidence showing petitioner was involved in two prior gang related drive-by shootings was admissible to prove that years later, petitioner was not in fear for his life when he shot Hammond (a suspected gang member) and Stokes in an apartment building after a confrontation with them over his girlfriend. RT 69; CT 145-146.

Significantly, the state conceded that unlike the 192 and 1995 incidents, its theory here was not that this was a gang-related shooting. Instead, the state's theory here was that Mr. Howard was angry with Hammond and Stokes because they would not let him see his girlfriend. RT 1350-1361. Given the stark dissimilarities between the prior and current offenses, and like McKinney, the only way a factfinder could infer criminal intent is to find that based on the 1992 and 1995 shootings, defendant was a cold blooded killer and his contrary testimony that he was in fear for his life should not be believed. This is the precise type of propensity evidence McKinney condemns. Constitutional error has occurred.

In this situation, the writ must be granted unless the error did not have a "substantial and injurious effect" upon the verdict. Brecht v. Abrahamson, 507 U.S. 619, 638-639 (1993)(plurality), and 641 (Stevens, J., concurring)(under Brecht "the burden of sustaining a verdict by demonstrating that the error was harmless rests on the prosecution.") Under Brecht, when the evidence is in equipoise as to whether a particular error is harmless, relief must be granted. O'Neil v. McAnnich, 513 U.S. 432 (1995).

For the same reasons identified in McKinney, the writ must be granted here as well. Like McKinney, the uncharged acts evidence permeated this case. It formed the basis for almost the state's entire rebuttal case and was relied upon in the prosecutor's closing argument. RT 1156-1207, 1258-1307, 1334. And given that petitioner admitted the shooting, a mental state defense was his only defense to the charges. The uncharged acts evidence here went directly to this critical issue.

Moreover, like McKinney, this was an extremely close case on the question of whether Mr. Howard was honestly and reasonably (or unreasonably) in fear for his life when he shot Hammond and Stokes. Mr. Howard admitted the shooting but testified that he (1) did not bring a gun into the apartment, (2) took Hammond's gun from him when he (Hammond) threatened Mr. Howard with it, and (3) only shot Hammond and Stokes because he feared for his life. RT 1016-1019. After the shooting occurred, Mr. Howard was so distraught that he tried to kill himself and would have succeeded except that the gun jammed. RT 1022-1023. Moreover, no witnesses testified that he owned a gun of the same caliber used in the shooting, nor did the state present any evidence tying him to the ammunition used in the shooting. The only evidence negating self-defense came from the victims' family and friends. RT 170, 202-203, 286, 296, 462, 487, 595. And the state's own forensic expert contradicted the version of events testified to by several of the state's eyewitnesses. RT 700, 785-786. On this record, the erroneous admission of other crimes evidence requires relief.

C. Section 2254(d) Does Not Bar Relief Because The State Court Refused To Consider Facts Which Were Plainly Relevant To The Constitutional Issue

On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") became law. Because petitioner's habeas petition was filed after that date, AEDPA applies. Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to read as follows:

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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."

In applying this section, the Supreme Court has made clear that relief is required whenever a state decision is "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). When a state court issues a decision which addresses a constitutional issue, the process of determining if that decision is "objectively unreasonable" is relatively easy. Thus, where the state court decision fails to consider facts it should consider in deciding a constitutional claim, that decision is "objectively" unreasonable and section 2254(d) will not bar relief. Williams v. Taylor, 529 U.S. 362, 397-398 (2000). Accord Id. at 416 (O'Connor, J. concurring); Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)(defendant argued that state court's admission of confession violated Due Process, state court rejected the argument; held, the state court decision was "objectively unreasonable" within the meaning of § 2254(d)(1) where the state court "overlooked [and] ignored evidence . . . highly probative . . . to petitioner's claim.") Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002)(defendant argued that state court's failure to give an entrapment instruction violated Due Process, state court rejected the argument; held, the state court decision was unreasonable within the meaning of § 2254(d)(1) where the state court "failed to consider the facts relevant to the due process prejudice prong . . . .").

Similarly, where a state court relies on facts which have no logical relevance to the constitutional claim being litigated, that decision is objectively unreasonable and § 2254(d) will not bar relief. See, e.g., Penry v. Johnson, 532 U.S. 782 (2001)(state court's conclusion that jury's raw power to nullify satisfied Eighth Amendment requirement that jury be permitted to consider mitigating evidence was "illogical" and relief was not barred by AEDPA); Greene v. Lambert, 288 F.3d 1081, 1092 (9th Cir. 2002)(AEDPA no barrier to relief where state court rejected petitioner's constitutional claim by relying on facts which "did not bear" on the claim); Accord Lancaster v. Adams, 324 F.3d 423 (6th Cir. 2003)(in denying defendant's Batson motion, trial court relied on the fact that after the motion had been brought, the prosecutor did not challenge a black juror who was called; held, reliance on this fact was objectively unreasonable because the presence of a black juror does not logically or legally justify the discriminatory striking of others); Schultz v. Page, 313 F.3d 1010 (7th Cir. 2002).

Here, the state court failed to consider critical facts in rejecting petitioner's due process claim. See People v. Howard, 2003 WL 361247. Indeed, in denying petitioner's claim, the state court concluded that "[e]vidence that defendant, not acting in self-defense, committed two earlier gang-related shootings had . . . some tendency . . . to disprove defendant's claim of self-defense in this case." 2003 WL at *6. In reaching this conclusion, however, the state court failed to consider -- or even mention -- that (1) the prior shootings were drive-by shootings and gang-related, (2) the current shootings were neither drive-by shootings or gang-related and (3) the state's own theory was that this was not gang case but rather Mr. Howard was angry at the victims because they would not let him see his girlfriend who was staying at the apartment. RT 1337-1338. As Judge Kozinski has concluded in this precise context "[a] rational fact finder might discount [these facts] or, conceivably, find [them] incredible, but no rational fact-finder would simply ignore [them]." Taylor v. Maddox, 366 F.3d at 1006. Because that is exactly what the state court in this case did, the state decision is objectively unreasonable and section 2254(d) is no bar to relief.

III. THE TRIAL COURT'S REFUSAL TO SEVER COUNTS DENIED MR. HOWARD HIS FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL AND TO A TRIAL BY AN UNBIASED JURY

A. The Relevant Facts

On January 14, 2002, Mr. Howard was charged with two separate sets of crimes. The state alleged that on October 6, 1999, Mr. Howard committed the crimes of assault with a deadly weapon (count four) and battery on a co-habitant (count five). CT 185. The state also alleged that on February 19, 2000, Mr. Howard committed the crimes of murder (count 1), attempted murder (count 2) and battery on a co-habitant (count 3). CT 184.

Prior to trial, the defense moved to sever the two distinct sets of crimes. CT 132. The trial court denied the motion. RT 79-81. As more fully discussed below, the trial court's failure to sever the October 1999 counts from the February 2000 counts denied Mr. Howard his federal rights to due process and a fair trial and to a trial by an unbiased jury. The writ must be granted.

B. The October 1999 Assault And Battery Charges Were Not Properly Joined With The February 2000 Charges

Joinder of counts violates the federal constitution when it prejudices a defendant's right to a fair trial. See , e.g. , United States v. Lane , 474 U.S. 438, 446 n.8 (1985); Park v. California , 202 F.3d 1073, 1084 (9th Cir. 2000); People v. Musselwhite , 17 Cal.4th 1216, 1243-1244 ( 1998). In making this determination, the most important factor is whether joinder of counts allows otherwise inadmissible other-crimes evidence to be introduced. See , e.g. , Bean v. Calderon , 163 F.3d 1073, 1084 (9th Cir. 1998); United States v. Lewis , 787 F.2d 1318, 1322 (9th Cir. 1986).

Where joinder does permit such evidence to be introduced, a reviewing court must look to see (1) if the jurors were given instructions which specifically advised them "not [to] consider evidence of one set of offenses as evidence establishing the other" and (2) when such instructions were given. Bean v. Calderon , 163 F.3d at 1084; United States v. Lewis , 787 F.2d at 1323. Moreover, even if otherwise inadmissible evidence was introduced, there will be no due process violation where the evidence of each crime is "simple and distinct" so that a properly instructed jury could compartmentalize the evidence. Bean v. Calderon , 163 F.3d at 1085; Drew v. United States , 331 F.2d 85, 91 (D.C.Cir. 1964). An acquittal on one of the charged crimes is strong evidence that -- in fact -- the other crimes evidence was "simple and distinct" such that the jury successfully compartmentalized the evidence. Bean v. Calderon , 163 F.3d at 1085; Featherstone v. Estelle , 948 F.2d 1497, 1503-1504 (9th Cir. 1991). Because the inquiry into the constitutional violation itself requires a showing of prejudice, there is no separate prejudice inquiry. See Bean v. Calderon , supra , 163 F.3d at 1084.

Application of these factors here shows the trial court's ruling violated the constitution. As discussed below, evidence of the October 1999 charges would not have been cross-admissible with the February 2000 charges. Moreover, the trial court failed to instruct the jury "not [to] consider evidence of one set of offenses as evidence establishing the other." Finally, evidence of each crime was not "simple and distinct" such that a properly instructed jury could compartmentalize the evidence.

1. Evidence of the Separate Crimes was not Cross-Admissible

a. The October 1999 Assault with a Deadly Weapon Evidence would not have been Admissible at Trial on the February 2000 Murder, Attempted Murder and Battery of a Co-Habitant Charges

With respect to the October 1999 assault with a deadly weapon charge, the starting point for the analysis is whether the evidence was cross-admissible under California Evidence Code section 1101, subdivision (b) ("section 1101(b).") Section 1101(b) allows evidence of other crimes to prove intent, identity or motive. California Evidence Code section 1101(b). Relevant to admissibility under section 1101(b) is whether the separate conduct shared common features, or established a motive for one another, or were part of a common plan or design. People v. McDermott , 28 Cal.4th 946, 999, (2002) citing Evid. Code, § 1101, subd. (b); People v. Ewoldt , 7 Cal.4th 380, 393-394, 402-403 (1994).

As discussed in the statement of facts, Mr. Howard readily acknowledged he shot Lamonti Hammond and Chico Stokes. RT 1018-1021. He testified, however, that after exchanging words with Hammond, he (Hammond) moved towards Mr. Howard in an aggressive way. RT 1016. When he did so, Mr. Howard saw that Hammond had a gun in his waistband. RT 1016. Believing that Hammond was just about to grab it and fearing for his life, Mr. Howard grabbed the gun first and shot Hammond. RT 1016-1017.

Mr. Howard also testified that Chico Stokes then moved toward him and grabbed his hand which was holding the gun. RT 1018-1019. Afraid that Stokes was trying to take the gun away from him, Mr. Howard shot Stokes. RT 1019. They continue wrestling for the gun and the gun went off a second time, shooting Stokes again. RT 1019.

Thus, the only real issue for the jury to decide was Mr. Howard's mental state or intent when he shot Hammond and Stokes: Did Mr. Howard honestly and either reasonably (perfect self-defense) or unreasonably (imperfect self-defense) believe in the need to defend himself?

The problem here, however, is that evidence of the October 1999 assault with a deadly weapon charge -- which involved the completely unrelated assault of Aldolphus Smith -- shed no light on Mr. Howard's mental state at the time of the February 2000 offenses, i.e. whether he honestly and reasonably (or unreasonably) believed in the need to defend himself. Moreover, the separate charges in no way shared common features, or established a motive for one another, or were part of a common plan or design. People v. McDermott , 28 Cal.4th at 999, citing Evid. Code, § 1101, subd. (b); People v. Ewoldt , 7 Cal.4th at 393-394, 402-403. Evidence of one would not have been cross-admissible in a separate trial of the other because there was no connection whatsoever between these crimes from which it could logically be inferred that if appellant committed one, he must have committed the other. See People v. Haston , 69 Cal.2d 233, 246 (1968) . For these reasons, the October 1999 assault would not be admissible in a separate trial of the February 2000 offenses.*fn12

b. The October 1999 Battery of a Co-Habitant Evidence would have had Limited Admissibility at Trial on the February 2000 Murder, Attempted Murder and Battery of a Co-Habitant Charges

A similar conclusion is warranted with respect to the October 1999 battery charges. Under California Evidence Code section 1109 ("section 1109"), evidence of prior acts of domestic violence are admissible in a domestic violence case provided the evidence meets the requirements of Evidence Code section 352. Under state law, battery of a co-habitant is generally considered an act of domestic violence. See People v. Barrios , 163 Cal.App.4th 270, 272 (2008).

To be sure, Mr. Howard recognizes that the October 1999 battery of a co-habitant and the February 2000 battery of a co-habitant may have been cross-admissible under section 1109. Under this circumstance, however, whiles the jurors would have been permitted to consider the October 1999 charges in determining the February 2000 charges ( see CALCRIM 852), they would then have been told "[d]o not consider this evidence for any other purpose . . . ." CALCRIM 852. This, of course, did not occur here.

Moreover, this evidence was not cross-admissible with the February 2000 murder and attempted murder charges. Because murder and attempted murder are not crimes of domestic violence, the October 1999 battery would not have been admissible under section 1109. And with respect to section 1101(b), as noted above, the only issue with respect the murder and attempted murder charges was Mr. Howard's mental state at the time of the shootings. Like the October 1999 assault, evidence of the October 1999 battery of Sandra Smith had nothing to do with the February 2000 charges and shed no light on Mr. Howard's mental state at the time of the February 2000 shootings. Nor did the charges share common features, or established a motive for one another, or were part of a common plan or design. People v. McDermott , 28 Cal.4th at 999; People v. Ewoldt , 7 Cal.4th at 393-394, 402-403. Because there was no connection between these crimes from which it could logically be inferred that if appellant committed one, he must have committed the other, the evidence would not have been cross-admissible in separate trials. See People v. Haston , 69 Cal.2d at 246.*fn13

2. The Trial Court Never Provided a Cautionary Instruction to the Jury Telling Them not to Consider Evidence of One Set of the Offenses as Evidence Establishing the Other Set of Offenses

As noted above, where joinder permits evidence which is otherwise not cross-admissible to be introduced, a reviewing court must look to see (1) if the jurors were given instructions which specifically advised them "not [to] consider evidence of one set of offenses as evidence establishing the other" and (2) when such instructions were given. Bean v. Calderon , 163 F.3d at 1084; United States v. Lewis , 787 F.2d at 1323. Here, the trial court never pre-instructed the jury of the need to consider each count separately without regard to evidence presented on other counts. See RT 110-116. Instead, the lone remotely-related instruction came at the very end of the guilt trial, when the court simply instructed the jury that each count was distinct and "[y]ou must decide each count separately." CT 243.

This brief instruction did nothing to ameliorate the prejudice inherent in joinder. Instructing jurors to ignore other crimes evidence when deciding a particular count "is to ask human beings to act with a measure of dispassion and exactitude well beyond mortal capacities." Bean v. Calderon , 163 F.3d at 1084.

Moreover, "[a]part from the intrinsic shortcomings of such instructions" in general Bean v. Calderon , 163 F.3d at 1084, the specific instruction here merely told the jurors to decide each count separately. CT 243. It did not tell the jurors they should not consider evidence of one offense as evidence establishing the others. And any impact this instruction could possibly have had was diminished by the fact it was given "in the waning moments of the trial." Bean , 163 F.3d at 1084. Any remaining utility of this simple instruction was eliminated by the prosecutor's argument, which specifically encouraged the jury to consider evidence on one count when considering another. ( See , e.g. , RT 1320-1322; Bean , 163 F.3d at p. 1084 [jurors could not reasonably be expected to compartmentalize evidence where the prosecution encouraged them to consider charges in concert].)

As discussed in the statement of facts, Mr. Howard basically admitted the October 1999 offenses as well as the February 2000 battery of a co-habitant. RT 987, 999-1000. Mr. Howard also readily acknowledged he shot Lamonti Hammond and Chico Stokes. RT 1018-1021. He testified, however, that both shootings were in self-defense. Thus, Mr. Howard only shot Hammond after he (Hammond) moved towards him in an aggressive way and showed his gun. RT 1016-1017. And Mr. Howard only shot Stokes after Stokes tried to grab the gun away from him (Mr. Howard). RT 1019.

Based on Mr. Howard's testimony, the only real issue for the jury to decide was his mental state when he shot Hammond and Stokes: did Mr. Howard honestly and either reasonably (perfect self-defense) or unreasonably (imperfect self-defense) believe in the need to defend himself? Joining the charges made it difficult, if not impossible, for the jurors to view these cases separately, especially in light of the lack of adequate instructions and prosecutor's insistence they view the evidence in concert.

Finally, evidence of each crime was not "simple and distinct" such that even a properly instructed jury could compartmentalize the evidence. Indeed, the very fact that the jury convicted of all charges shows this. See Bean v. Calderon , 163 F.3d at 1085; Featherstone v. Estelle , 948 F.2d at 1503-1504.

In sum, joinder of the charges prejudiced Mr. Howard's chances for acquittal, and for convictions on lesser offenses. It permitted evidence to be introduced at the joint trial which was not cross-admissible. And the court did not provide any instructions which minimized the risk that jurors would use this evidence improperly. The trial court's refusal to sever counts violated the Fifth, Sixth and Fourteenth Amendment rights to due process, a fair trial and to be tried by an unbiased jury. The writ must be granted.

C. Section 2254(d) Does Not Bar Relief Because The State Court Refused To Consider Facts Which Were Plainly Relevant To The Constitutional Issue

As noted above in Argument I-C, because this petition has been filed after April 24, 1996, the provisions of AEDPA apply. Lindh v. Murphy, 521 U.S. at 327.

As also noted above, in applying 28 U.S.C. § 2254(d), the United States Supreme Court has made clear that relief is required whenever a state decision is "objectively unreasonable." Lockyer v. Andrade, 538 U.S. at 75.

A state court's decision is unreasonable where the state court decision fails to consider facts it should consider in deciding a constitutional claim, that decision is "objectively" unreasonable and section 2254(d) will not bar relief. Williams v. Taylor, 529 U.S. at 397-398; Taylor v. Maddox, 366 F.3d at 1001; Bradley v. Duncan, 315 F.3d at 1101. That is just what happened here; in denying relief, the state appellate court failed to consider facts which are critical to resolving this claim.

In this regard, the state appellate court found that any error in the trial court's joinder of charges was harmless. People v. Howard, 2003 WL 361247 at * 3-4. The state appellate court found that even if the "evidence of [Mr. Howard's] crimes against Smith and her brother [Aldolphus] was not cross-admissible with evidence of the shootings of Hammond and Stokes[,]. . . we find neither actual nor potential prejudice such as to render the trial grossly unfair and thus deny due process." Id. at * 5. In concluding that there was no "actual nor potential prejudice," the court noted that the 2000 shootings were "not overly inflammatory relative to the alleged use of a baseball bat in the October 1999 [assault] charge," and Mr. Howard was not "prejudiced simply by the joint trial of multiple violent offenses . . . ." Id. at * 2.

As to this holding, however, the state court ignored critical facts. Thus, the court did not discuss that: (1) with respect to the 2000 shootings the only question for the jury to resolve was Mr. Howard's mental state at the time of the shootings, RT 987, 999-1000, 1016-1019 , (2) the trial court failed to instruct the jury that it could not consider one set of charged offenses in establishing the other set of charged offenses, RT110-116, 1437-1497, (3) or that the prosecutor encouraged the jury to view the evidence together, RT 1320-1322. Indeed, not a single one of these facts was even mentioned. Yet again, "[a] rational fact finder might discount [these facts] or, conceivably, find [them] incredible, but no rational fact-finder would simply ignore [them]." Taylor v. Maddox, 366 F.3d at 1006. Because the state court failed to consider important facts in its prejudice calculus, section 2254(d) does not bar relief.

CONCLUSION

For all these reasons, the writ should be granted. But because there are still claims which have not yet been exhausted in state court, and as discussed more fully in the Application for Abeyance filed contemporaneously with the Petition for Writ of Habeas Corpus, the court should grant abeyance in the case.*fn14

DATED: 01/15/2009 Respectfully submitted,

CLIFF GARDNER LAZULI WHITT Attorney for Petitioner

CERTIFICATE OF SERVICE

I, the undersigned, declare as follows:

I am a citizen of the United States, over the age of 18 years and not a party to the within action. My business address is 19 Embarcadero Cove, Oakland, California, 94606. I am not a party to this action.

On January 15, 2009 I served the within

PETITION FOR WRIT OF HABEAS CORPUS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF upon the parties named below by depositing a true copy in a United States mailbox in San Francisco, California, in a sealed envelope, postage prepaid, and addressed as follows:

Attorney General 1300 I Street # 1101 P. O. Box 944255 Sacramento, CA 94244

I declare under penalty of perjury that the foregoing is true.

Executed on January 15, 2009 , in San Francisco, California.

Lazuli Whitt Declarant


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