The opinion of the court was delivered by: Mary M. Schroeder, United States Circuit Judge Sitting by designation
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Prince Keyton Burford, a prisoner in state custody, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Burford is serving an indefinite prison term of twenty-five years to life for the fatal assault of Nicholas Quinteros, the eighteen-month-old child of Burford's live-in girlfriend at the time, Crystal Quinteros. In this federal habeas petition, filed May 17, 2006, Burford alleges that substantial evidence does not support the jury's verdict that he had "care or custody" of Nicholas within the meaning of California Penal Code Section 273ab, that the trial court erred in failing to instruct the jury on the legal definition of "care or custody," and that his motion for a new trial was inappropriately denied. To his petition, Burford attached an untitled document, which is analogous to a memorandum of points and authorities. On March 9, 2007, Respondents filed an answer to the petition, to which they attached a memorandum of points and authorities. Burford filed a traverse on December 19, 2008. In his traverse, Burford raised, for the first time in this federal habeas proceeding, a claim of ineffective assistance of counsel. For the reasons stated below, Burford's petition is DENIED.
Factual and Procedural Background
On February 5, 2004, a jury convicted Burford of second-degree murder and fatal assault of a child. On April 26, 2004, Burford was sentenced to an indefinite term of twenty-five years to life for the fatal assault; the sentence for the second-degree murder conviction was stayed. On October 13, 2005, the California Court of Appeal affirmed the judgment in an unpublished opinion. The California Supreme Court denied review. In the course of affirming the judgment, the California Court of Appeal's opinion set forth the facts of this case, some of which are pertinent to this federal habeas petition and are, accordingly, reproduced below.
Nicholas was born in December 2001 and died eighteen months later as a result of blunt force trauma to his abdomen. Nicholas's mother, Crystal, was 17 years old at the time of trial in January 2004. Crystal testified she met defendant sometime after Nicholas was born, and Nicholas and she began living with defendant at his mother's home in November 2002. By this time, Crystal was pregnant with defendant's child, who was born in February 2003. Crystal and the children slept in defendant's room. Crystal's mother gave her money to buy baby supplies, and defendant's mother paid for food for them. With the exception of a one-month period in May 2003 when Crystal lived with her mother and stayed weekends with defendant, Crystal and Nicholas lived with defendant until the time of Nicholas's death. . . . According to Crystal, defendant . . . physically abused Nicholas by punching him in the stomach or pulling his hair. On one occasion, defendant threw Nicholas across a room. Crystal testified defendant would not let her hold Nicholas after these incidents because "[h]e didn't like to see Nic[holas] around [her]." Crystal stated that she took Nicholas to the hospital twice previously for injuries inflicted by defendant. She lied to hospital staff regarding the cause of Nicholas's previous injuries because she was scared they would take Nicholas away from her and she did not want defendant to get in trouble. Crystal admitted spanking Nicholas and hitting him once with a closed fist on the leg. She also spanked her younger child. . . .
According to Crystal, the day before Nicholas died, he had no bruising or breathing problems. When Crystal changed Nicholas's diaper at around 6:00 a.m. on the morning of his death, he did not appear to be in any distress. Crystal testified she awoke again at approximately 10:00 or 11:00 a.m. and saw defendant holding Nicholas by the neck and shaking him in a manner that "wasn't extremely violent but . . . wasn't gentle." Crystal asked defendant to stop, and defendant put Nicholas down. Crystal "tried to get [defendant] out of the room," but she did not check on Nicholas because she was scared defendant would get angry and start hitting her.
Crystal and defendant went into the living room and watched television. After approximately 10 minutes, defendant got up and went down the hall toward the bedroom. After defendant was gone for two or three minutes, Crystal heard Nicholas cry. Crystal went to the bedroom and saw Nicholas lying on the floor and defendant leaning against the bed "doing something with his feet." Crystal asked defendant what was wrong with Nicholas, and defendant picked him up. Nicholas was limp. Crystal did not see any bruises on Nicholas at that time.
Defendant and his brother tried to get Nicholas to stand up, without success. Defendant took Nicholas to the couch and tried to get him to drink some water, also without success. Crystal noticed several small bruises on Nicholas's stomach at that time. Defendant's brother went across the street and called 911.
A neighbor whose bedroom window was within 15 feet of defendant's bedroom window testified that, on the day of the incident, he heard defendant say, "I'm a bad father and I think I killed him."
(alterations of quotations in original). The Court of Appeal also wrote, "It was defendant who picked Nicholas up and tried to get him to walk, then brought him to the couch and tried to give him some water. And, defendant put a T-shirt on Nicholas before paramedics arrived." The California court noted that "[a]n individual identifying himself as 'Burford' and matching defendant's general description told a paramedic at the scene that he was Nicholas's 'father.'"
The California Court of Appeal upheld Burford's conviction. The court concluded (1) that "the evidence was sufficient to support the jury's finding that Burford had the care or custody of Nicholas for purposes of section 273ab"; (2) that the trial court did not have a sua sponte duty to define the term "care or custody," especially considering that the defendant himself conceded to the trial court that he "d[id]n't think anyone would reasonably argue that someone's stepson is not under their care and custody if they live in the same house" (alteration in original); and (3) that Burford was not entitled to a new trial due to the evidence that Crystal was physically abusive to her younger child, Princess. Burford raised additional claims before the California Court of Appeal, but they are not relevant to these federal proceedings.
In November of 2005, Burford petitioned for review in the California Supreme Court, raising the three principal issues discussed above. In December of 2005, the California Supreme Court summarily denied Burford's petition.
In July of 2004, while Burford's direct appeal was ongoing, Burford filed a petition for writ of habeas corpus in the Superior Court of California, San Joaquin County. In that petition, Burford alleged several ineffective assistance of counsel claims. Of particular importance to the current federal habeas petition is that Burford alleged that his trial counsel was ineffective for failing to have Burford declared incompetent to stand trial due to Burford's low I.Q. In September of 2004, the Superior Court denied Burford's habeas petition. The Superior Court determined that Burford's direct appeal was "still in its early stages," and that the issues that Burford raised in his habeas petition might be disposed of on direct review. The Superior Court accordingly denied the petition without prejudice pending the outcome of Burford's direct appeal. Burford, however, did not renew his state habeas petition. Nor did Burford petition the Superior Court's denial of his original state habeas petition to either the California Court of Appeal or the California Supreme Court.
Instead, in May of 2006, Burford filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California. In his petition and supporting memorandum, Burford makes the same three arguments he made in his petition to the California Supreme Court during the direct review process. First, he contends that substantial evidence does not support the jury's verdict that he had "care or custody" of Nicholas within the meaning of California Penal Code Section 273ab. Second, he alleges that the trial court erred in failing to instruct the jury sua sponte on the meaning of "care or custody." Third, he argues that his motion for a new trial was inappropriately denied. Burford also filed a traverse, which was untimely. He says that he did not receive a copy of the government's answer, and so his neglect is excusable. In his traverse, Burford, for the first time in this federal habeas proceeding, alleges an ineffective assistance of ...