The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Robert Connor Wright, a state prisoner incarcerated at the Pelican Bay State Prison in Crescent City, CA, seeks a writ of habeas corpus under 28 USC section 2254. For the reasons set forth below, a writ is DENIED.
On October 7, 2002, after a jury trial in Tuolumne County superior court, petitioner was found guilty of voluntary manslaughter of one Michael Gilligan. Two co-defendants, Michael John Davies and Edward Mendez, were also convicted in connection with Gilligan's homicide; Davies was convicted of first degree murder and Mendez of voluntary manslaughter. Petitioner was sentenced to eleven years, and because he admitted a prior "strike" conviction, pursuant to Penal Code 667(b)-(I), the sentence was doubled for a total term of twenty-two years; petitioner subsequently appealed unsuccessfully.
On January 18, 2005, in an unpublished opinion, the California Court of Appeal affirmed the judgment.*fn1 Petitioner's petition for review with the California Supreme Court was denied "without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) ___ U.S. ___ 124 S.Ct. 2531, on California law."
Petitioner filed his federal court petition on July 19, 2006. Per order filed on August 8, 2008, the court ordered respondent to file an answer to the petition. Respondent filed an answer addressing the merits of the petition on October 3, 2008 and petitioner filed a traverse on January 21, 2009.
Petitioner raises nine claims in his petition. Five of these assert instructional errors by the trial court. One claim of instructional error relates to omission of the "natural and probable consequences" doctrine that applies to voluntary manslaughter, and three to the requirements for aiding and abetting liability. A fifth claimed instructional error relates to the trial court's failure to instruct on involuntary manslaughter. In addition, petitioner claims that his speedy trial rights were violated, that the trial court made an erroneous evidentiary ruling and that his counsel was ineffective. Finally, petitioner maintains that his upper-term sentence of twenty-two years was imposed in violation of the Sixth Amendment.
Before turning to the rather lengthy recitation of facts pertinent here, the court notes that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified under 28 USC section 2254, provides "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the [p]petitioner is not challenging his underlying state court conviction." White v Lambert, 370 F3d 1002, 1009-1010 (9th Cir 2004). Under AEDPA, this court may entertain a petition for habeas relief on behalf of a California state inmate "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 USC section 2254(a).
The writ may not be granted unless the state court's adjudication of any claim on the merits: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 USC § 2254(d). Under this deferential standard, federal habeas relief will not be granted "simply because [this] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v Taylor, 529 US 362, 411 (2000).
While circuit law may provide persuasive authority in determining whether the state court made an unreasonable application of Supreme Court precedent, the only definitive source of clearly established federal law under 28 USC section 2254(d) rests in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412; Clark v Murphy, 331 F3d 1062, 1069 (9th Cir 2003).
Michael Gilligan, the homicide victim, was a 45-year-old alcoholic. He moved to Sonora in late 2000 following a serious illness that left him in a weakened state. Gilligan's mother * * * took care of his finances. She paid for his apartment rent, paid his bills, and gave him a small sum of cash each week. * * *
On February 26, 2001 (two days before Gilligan's body was discovered), Casty Santos went to Gilligan's apartment to install cable television. She arrived in the afternoon. Gilligan was there, as was Davies.*fn2 They were both drinking beer. Gilligan was expecting a check to arrive in the mail. Davies went to the mailbox and retrieved the check. He handed it to Gilligan. Santos heard Gilligan talking on the telephone. He said, "You and Ziggy [the nickname for Mendez] better get up here and get your stuff off this lady's property because she's going to throw it away." Santos did not see a pizza box nor did she notice any blood on the couch when she moved it. She testified she would have noticed the blood on the couch if it had been there at the time.
That same day, a pizza order was called in at 6:20 p.m. The pizza was delivered to Gilligan's apartment around 7:00 p.m. A man answered the door and paid with money from his wallet. The person who answered the door did not look like defendant, Davies or Mendez, but there was at least one other person inside the apartment. * * *
Anna Healy lived next door to Gilligan's apartment. She knew defendant, Mendez and Davies, having seen them at Gilligan's apartment on previous occasions. She could recognize Gilligan's voice. She frequently went out to her porch to smoke. On February 27, 2001 at approximately 8 p.m. Healy saw Mendez and another man on Gilligan's porch.
At approximately 8:30 p.m. Healy heard Davies say, "Give me another fucking beer." Gilligan said, "Are you fucking with me?" Defendant said "damn" and laughed. It sounded like the group was joking around. * * *
Deborah Davis was a neighbor of Gilligan's. She saw Defendant leaving the area of Gilligan's apartment at approximately 9:45 in the evening.
Neighbor Jennifer Grove heard a loud thump and nothing else. A few hours later she woke up to the sound of glass breaking. Several other neighbors heard glass breaking at approximately 10 p.m. Anna Healy and Dovilio Garello went outside after hearing the glass break; they did not see anything unusual. Larry Coombes heard the sound of glass breaking shortly after 10 p.m. He went outside and saw the end of a leg going through a window at Gilligan's apartment. The person had on tan pants. Coombes sat on his patio for 25 minutes and did not see anyone exit the front door. He decided someone had locked himself out of the apartment and had gained entrance through the window.
Kristina Lowry was at a bar on February 27, 2001. Mendez arrived at the bar at approximately 10:30. He was out of breath, sweating, and nervous. Mendez and several others left and spent the night in the house of a friend. At 5 a.m. Lowry woke up. She saw Mendez sitting up playing with what appeared to be a knife.
James Walsh frequently socialized with Davies, Mendez and defendant. They would drink alcohol. He was with defendant and Mendez when he was arrested on February 27, 2001 at approximately 5 p.m. and placed in jail. Walsh was released at approximately 5 a.m. on February 28. After his release, he bought beer and went to the park to drink. Ed Long was there. Long had previously told Walsh that Gilligan would let the homeless drink at his house and then he would kick them out in the middle of the night when there was no more alcohol. Davies arrived and they drank together. Davies said that Gilligan had been hurt or killed. [footnote 3 omitted].
Walsh and the others continued to drink. At approximately 10 a.m., Walsh called Davies a "punk" and Davies punched him in the face. Walsh began to bleed. Davies helped clean up Walsh. Walsh then went to a medical drop-in center for bandages. Walsh told someone at the center that Gilligan was not a nice guy, but he did not deserve to die. Gilligan's neighbor, Healy, saw Walsh on the afternoon of the 28th. Walsh had blood on him and told her that Gilligan had been killed. * * *
Gilligan's mother attempted to contact Gilligan on the 28th. After she called several times and he failed to answer the telephone, she went to his apartment at approximately 4 p.m. She had a key to the apartment. She opened the door and saw Gilligan on the floor. She called out to her husband and her husband called 911. There was glass on the floor as well as a flowerpot that Gilligan kept on the front porch.
Police officer Harold Prock arrived at Gilligan's apartment. He entered and saw Gilligan on the floor; his head was covered with a towel. Prock removed the towel from Gilligan's head. He was not breathing and did not have a pulse.
Forensic pathologist Dr. Jennifer Rulon conducted an autopsy on Gilligan's body. An external exam of the body revealed numerous injuries, too many for Dr. Rulon to put on one diagram. Gilligan had facial bruising on the right and left side and scrapes to his face. He had bruising on the back of his head as well as along the jawline. His nose was broken. He had lost two teeth and there were blunt force injuries to his mouth, around his eyes, and under the surface of both eyelids. His head injuries were consistent with being struck with a fist or a shoe. He had stab wounds to his left eye.
Gilligan had abrasions on his neck, arm and knee. He had bruises on his back, calf, shoulder, and hand. Gilligan had sharp force injuries to the back of his right hand. In addition, he bore an incision to his neck traveling from ear to ear under the jawline. The wound went through the base of his tongue, his esophagus, all carotid arteries, and all major vessels and nerves of the neck. The spine was not severed, but it was cut. It was likely that the person who cut Gilligan's neck was behind Gilligan when he did the cutting.
An internal examination revealed that the hyoid bone in Gilligan's neck was broken. Additionally, he had fractures to the ribs and spine. His brain displayed bleeding. His liver was torn and he had blood in his abdomen. It was stipulated that Gilligan's blood alcohol level was.22 percent at the time of his death.
Dr. Rulon opined that Gilligan's hand wounds were defensive wounds and his broken back was likely caused by a stomping. Several of his injuries could have been lethal and some injuries could have caused unconsciousness. The liver injury was lethal and the neck wound was clearly lethal. Dr. Rulon concluded that the cause of death was multiple sharp and blunt force injuries and the injury to the neck. From the blood evidence it appeared that the neck wound was inflicted while the victim was on the ground. In all likelihood, he was lifted up, his throat was cut, and he was put back down on the floor.
Fingerprint evidence was obtained from Gilligan's apartment. Mendez's fingerprint was on a pie dish in the apartment. Two fingerprints of defendant were on the inside of the glass bedroom door. Davies's prints were found on a glass cup, a white bowl, a pizza box, and on Gilligan's glasses. There were other prints in the apartment that did not match any of the defendants' [fingerprints].
Several areas of blood were found in the apartment. There was blood from arterial spurting on the coffee table. There was blood spatter on the coffee table, the wall by the victim's head and the kitchen floor. This blood belonged to the victim. There were blood drops on the brass strip at the threshold of the front door. This blood belonged to defendant. There were bloodstains on the left arm of the couch and another bloodstain on the back of the couch. The stain on the back of the couch was darker in color and appeared older. The stain on the arm of the couch was from Davies; the stain on the back of the couch was from defendant. A piece of skin found on the broken glass window came from Davies. The blood on the kitchen floor had shoe impressions; the impressions matched Davies's shoe.
On the evening of February 28, 2001, officers went to the park. They talked to Davies and Mendez. They came to the police station and their clothes were seized. Davies had a laceration on his hand and scratches on his neck and hands. There was a blood smear on the left leg of his jeans. Mendez had an abrasion on his right cheek.
There were two small blood spots on Mendez's jacket. The blood on the jacket came from the victim. There was blood on Davies's boot, sweatshirt, jeans, and socks. The stains on Davies's jeans matched his [own] blood. The human bloodstains on Davies's shoes and socks appeared to have been washed. The stains on the shoes and socks could not be typed for DNA. * * *
A videotape of a nearby store was produced. It showed defendant and Mendez in the store on February 27, 2001 buying alcohol at 4:30 p.m. Davies was in the same store that evening buying alcohol at 5:47, 7:03, 7:28 and 8:33 p.m. Defendant was with Davies on the last two occasions.
Terry Keever was in custody in the jail, housed in a cell between Davies and defendant. Keever agreed to testify truthfully regarding written notes (kites) sent to him by Davies while in custody and to conversations he had with defendant and Davies in jail. * * *
Jacqueline McLaughlin was defendant's girlfriend. She knew Gilligan. On the evening of February 27, 2001 Gilligan called her. He told her there was a party going on and things were getting out of hand. She asked if he needed help. He said no because Mendez was there. Gilligan said they were drinking beer and eating pizza. Defendant was with her when she received the call. She fell asleep and does not know if he left or not. When she awakened, defendant and Mendez were there. Mendez said to defendant that they found Gilligan's body and needed to clean up the mess so Gilligan's parents would not find him that way. On February 28, 2001, Mendez came to McLaughlin's apartment with Davies. Mendez said he had some bad news. McLaughlin said she did not want to hear it. Sometime after February 28, 2001, McLaughlin found a pair of pants in the laundry room. They had brownish stains on them. She cut them up and used them for cleaning rags. When McLaughlin was interviewed by police, she told them that defendant had told her he had cleaned up the mess at Gilligan's apartment so Gilligan's parents would not see it. McLaughlin was hospitalized for mental problems at the time of the interview.
A joint complaint charging petitioner, Davies and Mendez was filed on September 14, 2001. The defendants were arraigned on December 28, 2001 and waived their right to have a trial within 60 days. Counsel for Davies requested a trial date for April 2002 in order to test the DNA evidence and retain experts. Opinion at 18.
In April 2002, Davies asked for a further continuance over the objection of Mendez and petitioner, both of whom informed the court that they no longer wanted to waive time. The trial court found good cause for a continuance and reset the trial date to July 17, 2002. After a hearing on July 2, 2002, where counsel for Davies requested another DNA-related continuance over petitioner's objections, the court set a trial date for August 28, 2002. The court subsequently granted a further one-week continuance based on good cause and set trial for September 4, 2002. The case was called on September 3, 2002 and proceeded to trial. Opinion at 18-20.
Petitioner testified on his own behalf at trial. He testified that while he had gone to Gilligan's apartment on the 27th, he did not go inside and was gone by approximately 9:30 pm. Opinion at 9-10. He also testified that he had nothing to do with Gilligan's death. Opinion at 10.
John Isley also testified as a witness for petitioner. Petitioner's counsel questioned Isley about petitioner's behavior; Isley testified that he had never seen petitioner hit anyone or get in a fight. Based on this questioning, the prosecutor argued that Isley was a character witness for petitioner, and that the government was allowed to introduce evidence about petitioner's prior violent acts. The trial court agreed, and the prosecutor subsequently introduced evidence, over defense counsel's objection, of petitioner's prior convictions and arrest for assault and battery. Opinion at 30-31.
Terry Keever, a jail inmate housed near petitioner, testified for the state. During his testimony, Keever stated, inter alia, that petitioner had told him that he (petitioner) had nothing to do with the killing and that he (petitioner) thought that Davies had killed Gilligan. Keever also stated that petitioner told him that Mendez had put the knife used in the killing down a mineshaft. Upon objection by petitioner's counsel that Keever was testifying as to knowledge gained after he became a government agent, the trial judge struck all of Keever's testimony concerning petitioner. Opinion at 26-28.
A number of petitioner's claims involved alleged instructional error. The jury at petitioner's trial was instructed that it could find petitioner guilty of murder as a natural and probable consequence of an assault on Gilligan. Opinion at 13-14. The jury was not, however, instructed as to the elements necessary to convict of manslaughter under the natural and probable consequences doctrine. Opinion at 10-11.
The trial court did not instruct the jury that if they had a reasonable doubt whether petitioner committed voluntary manslaughter, but believed he committed involuntary manslaughter, they must give him the benefit of the doubt and find him guilty of the lesser offense of involuntary manslaughter. The trial court did instruct the jury with the benefit of the doubt instructions between first degree murder and second degree murder, and between murder and manslaughter. Opinion at 35-37.
The jury was also instructed on aider and abettor liability, and termination of liability of an aider and abettor. The jury was not, however, instructed on the burden of proof it should apply in determining whether petitioner had terminated his liability as an aider and abettor. Opinion at 38.
After petitioner was found guilty of voluntary manslaughter, the trial court sentenced defendant to the aggravated term of eleven years, doubled to twenty-two years under the Three Strikes Law. The trial court chose the aggravated terms, finding inter alia that the crime involved great violence and acts of viciousness. Opinion at 39. The trial court also relied upon and adopted the findings of the probation report, including petitioner's prior convictions and his probationary status. Opinion at 39-40.
In his first claim for relief, petitioner alleges that the trial court violated his constitutional rights by permitting the jurors to convict him of voluntary manslaughter under the natural and probable consequences doctrine without a proper instruction. According to petitioner, the jurors necessarily convicted him based on the natural and probable consequences doctrine, even though instructions on that doctrine as it pertained to voluntary manslaughter were not given to the jury.
The California Court of Appeal addressed this claim in a reasoned opinion on direct appeal and concluded that petitioner had not demonstrated reversible error. The state court found "there were other viable theories available to the jury to find defendant guilty." Opinion at 11. The jury could have found, for example, that petitioner aided and abetted the slitting of the victim's throat but had a less culpable mental state than Davies. In addition, based on the evidence that there were concurrent causes of Gilligan's death (the initial brutal beating and the subsequent throat-slitting), the jury could have found that petitioner participated in the first beating only, but due to intoxication or heat of passion, he was guilty of voluntary manslaughter and not murder. Opinion at 12. Finally, the state court found that any instructional error did not result in prejudice to petitioner. The court found that "accepting defendant's underlying premise, the court failed to give instructions that would have allowed a conviction on an available theory -- natural and probable consequences. The elimination of a theory as a basis to find defendant guilty could only have inured to his benefit. Absent a showing of prejudice, a defendant may not complain of instructional error favorable to him. (People v. Lee (1999) 20 Cal. 4th 47, 57.)" Opinion at 13.
To obtain federal collateral relief for instructional error, a petitioner must show that the ailing instruction or the lack of instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle v McGuire, 502 US at 72); see also Donnelly v DeChristoforo, 416 US 637, 643 (1974) ("'[I]t must be established not merely that the instruction is ...