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 his 2005 conviction in the Sacramento County Superior Court on charges of second degree murder and attempted murder with enhancements for use of a firearm in connection with those offenses. Petitioner is serving a sentence of seventy-five years to life in prison pursuant to that judgment of conviction. Petitioner seeks federal habeas relief on the following grounds: (1) his right to due process was violated by juror misconduct at his trial; (2) his appellate counsel rendered ineffective assistance in failing to raise the juror misconduct issues on appeal; and (3) his right to due process was violated by the giving of erroneous jury instructions at his trial. 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
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
A jury found defendants Demarkas S. King, Ralph E. King, and Kenneth McClish not guilty of first degree murder, but guilty of second degree murder in the killing of Allen Qualls (count 1; Pen.Code, § 187, subd. (a); undesignated statutory references are to the Penal Code), and of the attempted murder of Michael Washington (count 2; §§ 664/187, subd. (a)).*fn2 The jury also found that Ralph and McClish were felons in possession of a firearm (counts 3 & 4; § 12021, subd. (a)(1)).*fn3 The jury further found as to counts 1 and 2 that Demarkas personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), that McClish personally used a firearm (§ 12022.53, subd. (b)), and that all defendants were armed in the commission of the offenses (§ 12022, subd. (a)(1)). The trial court found thereafter that McClish had two prior convictions for serious felonies (§§ 667, subds.(a), (b)-(i)) and had served three prior prison terms (§ 667.5, subd. (b)). All defendants received life terms in state prison.
Ralph and McClish contend there is insufficient evidence to support their convictions on counts 1 and 2. Demarkas contends the trial court misinstructed the jury as to second degree felony murder, the intent required for second degree murder, imminent danger, imperfect self-defense, and aider and abettor liability; McClish raises a separate objection to the instruction on the last point. All defendants join in each others' contentions so far as applicable to themselves.
Rejecting all of defendants' contentions, we shall affirm. However, we have detected errors in the abstract of judgment as to McClish and shall remand the matter to the trial court with directions to correct the errors.
In August 2003, Demarkas, his wife Tamica, and their small daughter lived on Sky Parkway in Sacramento County. Ralph and McClish lived in separate apartments at 5218 Martin Luther King Boulevard in the City of Sacramento, a bit north of Fruitridge Road; McClish lived with his girlfriend Lisa Knestrict and her aunt Betty Patterson, among others. Ralph's and McClish's building was about 600 feet from a Taco Bell at the corner of Martin Luther King Boulevard and Fruitridge Road; an open field separated the two buildings.
On August 17, 2003, sheriff's deputies came to Demarka's apartment in response to a call. Tamica said that Demarkas, who was not there, had been in a fight. Demarkas did not contact the authorities. He later told the police, however, that after he heard banging on his front door and opened it, Michael Washington and others burst in and beat him up, then left.
According to Thomas Ogle, Jr., the 17-year-old stepbrother of Tamica, while visiting the King family in the summer of 2003 he saw Ralph buy a black semiautomatic handgun, then later show it to Demarkas. In a police interview Ogle said the purchase took place the weekend before the charged crimes, but he testified that it might have been around July 4 because he remembered the Kings had had a barbecue.
According to Betty Patterson, on August 19, 2003, she overheard Demarkas and Ralph talking outside Ralph's building. Demarkas said the police had learned of the assault on him but did nothing. Ralph said he did not want his family treated like that.
On the morning of August 20, 2003, Patterson overheard Demarkas and Ralph talk about getting a gun. Ralph told Demarkas: "We have one gat, and we need another one." Demarkas said he knew where to get another one. Ralph said he would not let his family be disrespected, and Demarkas's attackers "didn't know who they were dealing with."
Before August 20, 2003, Patterson heard McClish tell boys in the building that he had a gun; the boys later told Patterson they had seen it. McClish's girlfriend Lisa Knestrict testified that in July 2003 she discovered a black gun under the mattress on McClish's side of the bed and told him to get rid of it; he said he would.*fn4
Patterson told the police that she saw McClish's brothers remove a gun from under his mattress on August 25. At trial, however, she testified she heard this had happened but did not see it.
At 10:21 p.m. on August 20, 2003, Demarkas called the sheriff's department from work to report that someone was kicking his apartment door while his wife was at home. The department responded to the call at 10:56 p.m., but found no evidence of a crime and left without filing a report.
According to Patterson, McClish told her on the night of August 20 that Demarkas had called and would come over. Demarkas arrived around 11:00 p.m. and asked Patterson if McClish was home. As Patterson sat on a bench outside, she overheard Demarkas tell Ralph that "the guys were at Taco Bell" and "[w]e need to get over there now." Demarkas went upstairs and came back down with McClish, who carried a gray sweatshirt rolled up under his arm.*fn5 Patterson and Jermal Lee, a teenage resident of the building, saw Demarkas or Ralph walking with McClish at the rear of the building.
At around 11:30 p.m., Michael Washington and Allen Qualls were sitting in a primer-gray 1972 Chevrolet Nova in the Taco Bell drive-through at Martin Luther King Boulevard and Fruitridge Road. Qualls was the driver, Washington the passenger.
Taco Bell employees and customers saw a man walk up to the Nova's passenger side, appear to speak, then pull out a black long-barreled gun and fire into the car. A second man was standing in the drive-through lane two cars behind the Nova. After pausing and looking back at him, the shooter fired more shots into the Nova. The two men then hopped over a concrete wall behind the restaurant.
Eyewitnesses subsequently identified the shooter in photo line-ups and in court as Demarkas. They could not identify the second man, but described him as a heavy-set Black man around 5 feet 8 or 9 inches tall; two witnesses said he was wearing light or khaki shorts.*fn6 The Nova pulled into a nearby gas station, where Qualls collapsed. Taken to University of California at Davis Medical Center, he was declared dead from a gunshot wound to the abdomen. Washington was operated on for lung damage from a gunshot that struck him in the back and shoulder.
Investigating officers found six spent shells near the drive-through window and a projectile and bullet fragments inside the Nova. Another projectile was removed from Washington during surgery. A ballistics expert opined that the shells and projectiles were fired from the same nine-millimeter gun, at least some while the Nova was moving forward. No weapons or ammunition were found in the Nova.*fn7 Betty Patterson and Jermal Lee, in separate positions outside their building, heard four or five shots from the direction of the Taco Bell. Patterson then saw three people climbing over a fence, heading toward the building from the nearby field. She recognized Ralph and Demarkas; the third, whose face she could not see, was wearing a gray sweatshirt like the one McClish had on when Patterson saw him in his bedroom soon after.
According to Patterson, Ralph took a handgun out of his waistband and unloaded some shells, while saying, "We do this gangsta style." Ralph then said he was going to have a drink to calm his nerves and headed to his apartment. In subsequent days he repeated that he would not let anyone disrespect his family.
Lee testified, as he had told an investigator for the district attorney's office, that after hearing shots he saw Ralph and McClish walking from the field toward the building, then saw Ralph unload the gun as he said, "They should not mess with my family." However, Lee also testified, as he had told McClish's former attorney, that McClish was with him outside the building when the shots were fired, and it was Ralph and Demarkas whom Lee saw coming toward the building.
After the shooting, Demarkas drove to Oakland, then to San Diego. He crossed the border into Mexico, but was arrested on a murder warrant as he tried to re-enter the United States.
In custody, Demarkas was interviewed on videotape on August 28, 2003, by Sheriff's Detective Charles Husted. Portions of the interview were played for the jury.
During the interview, after claiming ignorance of the crimes, Demarkas admitted he shot Washington (whom he called "Nova Mike") because he was "fed up" with Washington for threatening him and for assaulting him in his home. He had aimed only at Washington and did not know who else was in the Nova. He had gotten the nine-millimeter handgun from his father's home after spotting Washington driving past.
After Demarkas testified, the prosecution played other portions of his interview, which implicated the co-defendants. Demarkas told Detective Husted that Ralph was standing at the concrete wall separating the Taco Bell from a day care center when Demarkas shot Washington, and McClish (whom Demarkas called "Uncle Ken") was in the drive-through area at the time. Ralph and McClish were present as Demarkas ran through the field to their building after the shootings; he gave the gun to Ralph en route. Demarkas knew McClish had a sawed-off .22-caliber rifle, but did not know if he had taken it to the Taco Bell.
The prosecution also played portions of a taped interview of Ralph made on August 23, 2003, the date of his arrest. Ralph claimed he was walking across the field trying to catch up to Demarkas when the shots were fired. But later Ralph admitted he had followed Demarkas to the wall behind the Taco Bell, pulled himself up to look over it, and seen Demarkas standing by the Nova. Ralph saw Demarkas extend his arm toward the Nova, then heard three or four shots.
After the interview, Ralph and Detective Husted went to the field and Ralph pointed out where he had climbed the fence. He also pointed out a water pipe he had stood on at the base of the seven-foot-high concrete wall, allowing him to peer over its top. Demarkas's defense Relying mainly on his own and his wife's testimony, Demarkas tried to prove that he acted alone out of provocation or in defense of himself and others.
Tamica testified that on August 17, 2003, she heard fighting downstairs, then saw Demarkas getting up off the floor as Washington and another man ran out. Demarkas had a black eye and bruises the next day.
On August 20, according to Tamica, she heard banging at her front door and at the back of the apartment. She called Demarkas at his job. He told her to get a gun out from under a couch cushion downstairs; she put it under her pillow in the bedroom. Demarkas returned around 10:30 p.m. with Ralph. The family decided to spend the night at Ralph's building, where Tamica's mother also lived.
Tamica testified that as she went up to her mother's apartment, Demarkas and Ralph stayed downstairs. She heard shots. Demarkas later came into her mother's apartment and told Tamica: "I just killed them [both]." Demarkas went to Ralph's apartment, then drove off in Ralph's Ford. She saw and spoke to him the next day in the Oakland area.*fn8 In Oakland he told her McClish had accompanied him to the Taco Bell. Ralph had joined them en route; though he could not climb over the wall, he got in position to see over it. Ralph had instigated Demarkas's actions, saying, "You got to do what you got to do." Both Demarkas and McClish had had guns that night. Demarkas testified that he and Washington had been friends, but in the summer of 2003 Washington inexplicably turned against him. After repeatedly threatening in public to beat him up, Washington came to Demarkas's home and attacked him when he opened the door. Washington was accompanied by at least two people who forced their way in and joined in the attack. Washington also kicked Demarkas's six-year-old daughter to the floor. Afterward, Demarkas walked to Ralph's place and told him he had been attacked by "Nova Mike and his partner." His eye was swollen and discolored, and his pain forced him to miss a day of work. That day, he retrieved a loaded gun from his father's place.
On the evening of August 20, hearing at work from Tamica that "those guys came back" and were pounding on the door, Demarkas advised her to get the gun, take it upstairs, and lock the door. He called the police, describing Washington and the Nova; then he called Ralph to get a ride home from work. He reported his prior beating to the officers when he got home and showed them footprints and dents on the door, but they said they could do nothing because the culprits had fled.
After they left, according to Demarkas, he got the gun Tamica had taken upstairs and put it in his pants pocket. He told his family to ride with Ralph to Ralph's building while he drove there separately. Spotting the Nova in the Taco Bell parking lot, then seeing Washington and others standing near it, Demarkas decided to walk over there armed without telling Ralph.
According to Demarkas, he crossed the field alone, jumped a fence, and climbed a concrete wall at the back of the Taco Bell site. Walking up to the Nova, he called Washington's name; Washington smirked and turned away. It looked as though he was reaching for something. Stepping back and feeling scared, Demarkas heard a "loud pop," then "just jumped back and pulled my gun and started firing." He returned to Ralph's building the way he had come, dropping his gun as he ran through the field. He saw Ralph walking along Martin Luther King Boulevard. According to Demarkas, as he returned to the building, Tamica and McClish approached him. He told Tamica and her mother what he had done, then went to Ralph's apartment and told him. Ralph gave him some clothes and loaned him a car to drive to Oakland. After Tamica visited him there, he drove to Mexico, then was arrested while trying to re-enter the United States.*fn9 Ralph's defense Ralph did not testify, but tried to prove he did not participate in the crimes and could not have done so.
A chiropractor who treated Ralph for a back injury incurred on July 23, 2003, testified that Ralph had "moderate to severe problems" with movement. (The parties stipulated that Ralph had also undergone back surgery following a workplace injury 20 years before.) The chiropractor conceded, however, that thanks to his treatments Ralph "most likely" could have climbed a five-foot-high fence by August 20, 2003.
Ralph's girlfriend testified she spent the evening of August 20, 2003, with him, celebrating her birthday and helping him unpack in the new apartment he had just moved into from another one in the building. According to her, he got a phone call and left his apartment around 10:30 p.m., then returned 30 to 45 minutes later; however, she never saw him with a gun that night.
McClish's defense McClish also did not testify but tried to refute evidence of his involvement. Othello Chase testified that he had given McClish a .22-caliber sawed-off rifle as collateral for a loan, but reclaimed it three or four weeks before the shootings.*fn10 McClish's brother Rodney testified that, contrary to Betty Patterson's account, he did not remove a gun from under McClish's bed on August 25, 2003, and could not have done so because he was in Green Bay, Wisconsin, visiting his children that week; the children's mother corroborated that testimony.*fn11 To rebut Patterson's claim she saw McClish carrying a wrapped-up sweatshirt on the night of the crimes, he played a portion of a taped interview in which she seemed to say she had merely heard others alleging this.
Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On October 19, 2006, the judgment of conviction was affirmed. (Resp't's Lod. Doc. 5.)
On November 20, petitioner filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 6.) On February 7, 2007, the California Supreme Court summarily denied the petition for review. (Resp't's Lod. Doc. 7.)
On September 13, 2007, petitioner filed a petition for writ of habeas corpus in the Sacramento Court of Appeal, raising claims of juror misconduct and ineffective assistance of appellate counsel. (Resp't's Lod. Doc. 8.) On September 20, 2007, the California Court of Appeal summarily denied that petition. (Resp't's Lod. Doc. 9.)
On October 15, 2007, petitioner filed a habeas petition in the California Supreme Court, raising the same claims that he raised in his habeas petition filed in the California Court of Appeal. (Resp't's Lod. Doc. 9.) On August 23, 2007, the Supreme Court denied that petition with a citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). (Resp't's Lod. Doc. 11.)
On July 2, 2008, petitioner filed his federal habeas petition. (Dkt. No. 1.) Respondent filed an answer on February 18, 2009. (Dkt. No. 18.) On June 5, 2009, petitioner filed a motion for leave to file a first amended petition and a late "reply" to respondent's answer, along with his amended petition and reply. (Dkt. Nos. 19, 20, 21.) On March 19, 2010, this court granted petitioner's motion, deemed the amended petition to be the operative pleading in this matter, and granted respondent leave to file either an amended answer or a surreply brief within forty-five days. (Dkt. No. 24.) Respondent filed an amended answer on May 3, 2010. (Dkt. No. 25.)
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). Section 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 § 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 juror misconduct violated his right to a fair trial. He describes his claim as follows:
Juror misconduct: juror number 7 concealed during voir dire that he was the victim of the crime of child molestation and brought into deliberations extraneous outside information from his own experience at a different "Taco Bell"; juror number 4 concealed information that she had a working relationship with and communication from a [member] of one of the victims (Qualls) family [members] until after the trial." (Am. Pet. filed June 5, 2009 (hereinafter Am. Pet.) at 6(a).)
Petitioner's claims regarding Juror #4 and his claim that Juror #7 brought extraneous information into the jury room were raised for the first time in petitions for a writ of habeas corpus filed by petitioner in the California Court of Appeal and the California Supreme Court. (Resp't's Lod. Docs. 8, 10.) In support of his allegations, petitioner attached a declaration by Juror #4, in which she made various allegations about the conduct of petitioner's trial. (Id., Ex. A.) The California Court of Appeal rejected these claims brought by petitioner on the merits. (Resp't's Lod. Doc. 9.) The California Supreme Court denied petitioner's application for habeas relief in which these claims were raised with a citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). (Resp't's Lod. Doc. 11.)*fn12
Respondent argues that these claims have not been exhausted in state court because they were rejected by the California Supreme Court on a procedural ground with a citation to the decision in Duvall reflecting that petitioner may not have stated his claims with sufficient particularity. (Answer at 10-13.) In addition to raising an exhaustion defense, respondent urges that relief with respect to these claims be denied on the merits. (Answer at 13-28.)
The court may deny a federal habeas corpus claim on the merits notwithstanding a petitioner's failure to exhaust state court remedies. See 28 U.S.C. § 2254(b)(2). Assuming arguendo that petitioner's claims of juror misconduct have not been exhausted, for the reasons explained below this court will recommend that relief be denied on the merits. Because the California Supreme Court rejected petitioner's arguments on ...