FINDINGS AND RECOMMENDATIONS
Petitioner Ivan Carter is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his conviction in the Solano County Superior Court, case number VCR165496, for first degree murder.
A. A juror provided extraneous information during deliberations;
B. The jury improperly discussed the fact that petitioner did not testify;
C. There was insufficient evidence to support his conviction; and
D. The prosecutor committed misconduct.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
The victim, Michael White, and his girlfriend, Tiffany Vollmer, lived together in an upstairs apartment unit at 267 Reis Avenue in Vallejo. Defendant and his girlfriend, Diniel Jaramillo, lived in an adjoining upstairs unit at 265 Reis Avenue. In late December 2001 or early January 2002, White and Vollmer slammed the door to their apartment during an argument. The slamming of the door caused Jaramillo's new clock to fall off the wall and break. Jaramillo testified that the clock cost $45, and that White promised her three or four times that he would replace it as soon as he had the money.
In January 2002, Vollmer overheard defendant discussing the broken clock with White at the door of their apartment. Defendant sounded angry. Another time, Vollmer heard defendant in the hallway telling White that there was a $50 debt to be paid. According to Vollmer, defendant sounded very irate.
On February 22, 2002, Jaramillo and defendant moved out of the Reis Avenue apartment. They moved in with Jaramillo's cousin, Christina Maxwell, and her husband, Jason Maxwell, at 218 Carolina Street. Jaramillo returned to the Reis Avenue building with defendant and Christina on February 27, 2002, about 2:30 p.m. Jaramillo saw White in front of the building talking to the mother of his two children, Delores Henderson. She approached White and angrily told him that he owed her $50 for the clock. Henderson heard Jaramillo say that if White did not have the money by the end of the day, he would "see what happens." Jaramillo then got into the car and left with defendant and Christina.
That evening, defendant and Christina were drinking at the Carolina Street apartment after Jaramillo had gone to bed. Jason Maxwell returned home shortly after 2:00 a.m. Christina eventually went to bed, and Maxwell and defendant began discussing debts that were owed to Maxwell.FN Maxwell sold methamphetamine and told defendant that he had been trying to collect from a buyer who owed him money. Defendant said someone owed him money too, and told Maxwell he would show him how to collect money owed to him. Defendant ran upstairs to his room and returned wearing black pants, a black sweater, and black shoes. As Maxwell and defendant left the apartment, defendant said he was going to go get his money.
FN. Originally charged as a co-defendant in the murder of Michael White, Maxwell pleaded no contest to voluntary manslaughter and received a stipulated, 14-year prison term in exchange for his testimony in the prosecution of defendant.
Maxwell was carrying a loaded .357 revolver on him. Defendant drove past his old apartment on Reis Avenue, turned left at the next corner, and parked his car on the next street over from Reis. As they were getting out of the car, defendant told Maxwell he was going to "[l]ay the dude down," which meant to Maxwell that he was going to kill him. Maxwell gave defendant the gun before they got out of the car. On the way to the apartment, defendant put a ski mask over his face, and gave Maxwell a sweater to put around his face.
Defendant went up the stairs to White's apartment while Maxwell stayed downstairs and acted as the lookout. Maxwell heard defendant "hit" White's front door. After a pause, Maxwell heard defendant whispering for him to come up the stairs. When Maxwell came up, defendant asked him to kick the door in. Maxwell was able to kick the door partially open, causing the door to splinter. Defendant rushed into the dark apartment. Maxwell heard two gunshots in close succession immediately after defendant entered the apartment. Between the shots, he heard a moaning sound from inside the apartment. After the second shot, Maxwell ran down the stairs. When he reached the bottom of the stairs, Maxwell heard a third and possibly a fourth shot.
A short time later, defendant came down the stairs and he and Maxwell ran to the car. On the drive back to Carolina Street, defendant while "gloating" said, "Yeah, nigga, that's how you do it." Defendant said that he had put "three in his head." Defendant asked Maxwell to give him the shells. Maxwell emptied the gun and dumped the shells into defendant's hand.
The autopsy of White revealed that he had been shot four times in the head. Three of the shots were fired from an intermediate range (a few inches to one or two feet away), while the fourth shot was a contact wound. A blood test revealed that White had methamphetamine in his system at the time of death.
When Maxwell and defendant got home, Maxwell hid the gun in the fireplace. Both men changed their clothes. They then drove back to Reis Avenue and parked the car around the corner. They were walking toward the crime scene when they were contacted by a Vallejo police officer. Defendant appeared to be intoxicated and became argumentative and hostile during questioning. Both men were arrested. Both of their hands tested positive for gun shot residue.
Beginning about 8:00 a.m. on February 28, 2002, officers conducted a search of the Carolina Street apartment. They found a .357 revolver in the fireplace, dark clothing on the floor of the living room, dark clothing on the floor of defendant's bedroom, and six .357 shell casings on the windowsill in defendant's bedroom. Defense Case The defense argued that there was nothing to connect defendant to the murder other than the testimony of Maxwell. Defense counsel attacked Maxwell's credibility and maintained that he testified against defendant in order to obtain a better plea deal for himself. Counsel pointed out that Maxwell was a drug dealer who owned the gun used to kill White, and that he lied repeatedly to police after his arrest. Citing the autopsy evidence that White had methamphetamine in his system when he died, the defense argued that White was killed by Maxwell over a drug debt, not by defendant over the cost of a broken clock.
On September 3, 2003, the jury found petitioner guilty of first degree murder. Id. at 4. The trial court sentenced petitioner to 25 years to life in state prison. Id.
B. Post Trial Proceedings 1) State Appellate Review
Petitioner filed a timely appeal with the California Court of Appeal, First Appellate District, on April 21, 2004. Answer, Exhibit F at 2. On March 30, 2006, the California Court of Appeal affirmed petitioner's conviction in an unpublished decision. Answer, Ex. G. Petitioner then petitioned the California Supreme Court for review and that request was denied on June 14, 2006. Answer, Ex. H.
Petitioner filed a petition for a writ of habeas corpus in the Solano County Superior Court on June 27, 2007. Answer at 12. That petition was denied on August 21, 2007. Id. Petitioner then filed a petition for a writ of habeas corpus in the California ...