FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on August 11, 2003 in the Solano County Superior Court on charges of second degree murder with a sentencing enhancement for use of a rifle in the commission of the offense.
He seeks relief on the grounds that juror misconduct deprived him of the right to a fair trial, and the trial judge violated his right to due process by failing to properly respond to two questions from the jury. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
Appellant was convicted of murdering Leroy McCain.
McCain lived in an apartment in Fairfield with his girlfriend Shirley Perry. During the early morning hours of August 26, 2002, appellant knocked on McCain's door. McCain answered and went outside to speak with appellant. Perry heard "scuffling" and she went out to investigate. She saw appellant and McCain fighting. Perry tried to separate the men. She told them to take their dispute downstairs.
Appellant went downstairs. Monica Owens, who was staying with McCain and Perry, threw a bottle at appellant from the balcony. Appellant became enraged.
Appellant went to the parking lot of the apartment complex and got into the passenger seat of a parked car. Perry followed appellant while McCain watched from the complex's entrance tunnel. When appellant saw McCain, he told the driver of the car to open the hood.
After a few minutes, appellant went to the hood and removed a rifle from the car's engine compartment. Perry tried to restrain appellant. Appellant pushed past her and ran toward the apartment complex. Perry told McCain to run. McCain ran in the opposite direction. Appellant fired at McCain. As McCain tried to run up the stairs, appellant said, "I got you now, you, mother-fucker." Appellant fired again. McCain collapsed. Appellant left the apartment complex. As he passed Perry, he "shook his head and smiled like he had to do it."
McCain was killed by a single shot that entered his back, damaged his lung, and then exited through his chest.
Later that day, appellant called his mother and told her "he was going to prison for a very long time[.]"
Based on these facts, an information was filed charging appellant with murder. (§§ 187, 189.) As is relevant here, the information also alleged appellant had personally used a firearm and caused McCain's death within the meaning of section 12022.53, subdivision (d).
The case went to a jury trial where the prosecutor presented the evidence set forth above. Appellant testified on his own behalf. He admitted he went to McCain's apartment on the night in question and that he and McCain had gotten into a fight. According to appellant, as he was leaving, someone hit him on the head with a bottle. Appellant was "terrified" and fled to his car. Instead of leaving, however, appellant retrieved a rifle. He walked toward McCain who was standing in the apartment's tunnel. McCain retreated around the corner of a building. Appellant followed in an effort to "defend" himself. When appellant looked around the corner, he saw McCain standing nearby. Thinking McCain was about to attack, appellant started firing and continued to fire as McCain ran away. As soon as McCain was out of sight, appellant stopped firing and left.
The jurors considering this evidence convicted appellant of second degree murder and found the use allegation to be true. Subsequently, the trial court sentenced appellant to 40 years to life in prison.
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Tile 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision.
Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner claims that his constitutional rights were violated "as a result of multiple instances of jury misconduct." (Pet. at pg. 7 of 20.) In support of this claim, petitioner has included declarations from two of the jurors at his trial. (Id. at pgs. 15-20 of 20.) The California Court of Appeal explained the background to petitioner's claim of juror misconduct, and its decision thereon, as follows:
Appellant filed a motion for new trial based on juror misconduct. He supported his motion with declarations from two jurors. The first, Juror H., said her experience as a juror had been "extremely stressful." According to Juror H. the "foreperson stated several times that my opinion could not be correct because it was 'eleven to one.'" Juror H. also described what appellant characterized as four instances of misconduct. First she said that on the "second day of deliberations, juror number 2 brought a legal dictionary into the jury room, and began reading definitions of various terms to the jurors. Among the definitions that I can recall, were the definitions of reasonable force and of a reasonable man. The definition of a reasonable man was discussed in the context of whether the defendant acted as a reasonable man in accordance with the judge's instructions regarding voluntary manslaughter. The definition of reasonable force was discussed in the context of whether the defendant used reasonable force if in fact he was defending himself."
Second, Juror H. said the "jury foreperson purported to be knowledgeable about other legal cases regarding spousal abuse and heat of passion. On at least two occasions the foreperson cited other legal cases and stated that these cases were not her opinion but 'fact and law' and had to be considered in the ...