FINDINGS AND RECOMMENDATIONS
Petitioner, Antoine N. Watie, is a state prisoner proceeding through counsel witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of twenty-five years to life and a concurrent sentence of seven years following his convictions by jury trial in the Sacramento County Superior Court, Case No. 99F03710, for voluntary manslaughter, discharging a firearm into an inhabited dwelling, discharge of a firearm resulting in death or great bodily injury, and commission of an offense while released on bail. With this petition, Petitioner challenges the constitutionality of those convictions. Specifically, Petitioner claims that:
(1) Imposition of a life sentence based upon a firearm enhancement constitutes cruel and unusual punishment, in violation of his Eighth Amendment rights.
(2) The statutory scheme under which he was convicted and sentenced violates the Equal Protection Clause of the Fourteenth Amendment because it allows him to be sentenced as though he had been found guilty of murder, a crime for which he was acquitted by the jury.
(3) Insufficient evidence supports his conviction for maliciously and willfully discharging a firearm at an inhabited dwelling because the jury acquitted him of murder, thereby negating a finding of malice.
(4) The trial court erroneously issued a jury instruction on the victim's right to defend his property, and failed to issue jury instructions on a mistake of fact defense and on self-defense in the context of sections 246 and 12022.53(d) of the California Penal Code.
(5) The California Legislature did not intend for section 12022.53(d) of the California Penal Code to apply to cases where a jury finds a defendant acted in imperfect self-defense.
(6) His appellate counsel rendered prejudicially ineffective assistance for failing to exhaust his claims that (a) his conviction under section 246 of the California Penal Code was supported by insufficient evidence; (b) the trial court violated his due process rights by instructing the jury on the victim's right to defend his property; and (c) the trial court violated his due process and Sixth Amendment rights by failing to instruct the jury regarding a mistake of fact defense.
(7) Antiterrorism and Effective Death Penalty Act of 1996 violates the Separation of Powers doctrine.
Upon careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.
The basic facts of Petitioner's crimes were summarized in the partially published opinion*fn1 of the California Court of Appeals, Third Appellate District, as follows:
Anita Devonn Thompson-Lee (Thompson) lived with her husband, James Lee, and their five-year-old son and four-year-old daughter. Thompson had known Lee for 20 years and had been married to him since 1994. Defendant is Thompson's, but not Lee's, son.
Lee had seven prior convictions for armed robberies and kept two rifles in the home.
While Lee was in prison, defendant lived at home with Thompson.
Lee returned when defendant was 13, and defendant moved out of the home in favor of Thompson's mother's home. Defendant testified Lee mistreated him and defendant's younger brother, Darron Brown, while they lived with Lee and that, once during a dispute, Lee pulled out a sawed-off shotgun and pointed it at defendant. Defendant testified that he was afraid of Lee and that he often saw bruises and scratches on his mother after she visited defendant.
Thompson did not want her other son, Darron Brown, to live with her, because Lee physically and mentally abused Brown, too. Brown testified Lee beat him with a leather belt in 1998 and punched him in the nose in 1999. Because Lee beat and threatened Brown, Brown left his mother and Lee's home and moved in with his grandmother. On the night of Lee's death, Thompson told the investigating detective that she did not believe Lee was abusive.
Defendant's aunt, Felicia Rule, testified Lee had become progressively more negative toward Thompson in the year prior to Lee's death and that he treated Thompson in a derogatory and demeaning manner. Two witnesses testified to incidents in which Lee had beaten Thompson. Thompson and Lee's problems worsened after Lee's own son died in a car accident in July 1998.
On the afternoon of May 5, 1999, Thompson and Lee got into an argument in their living room. During the argument, Lee knocked a plate out of Thompson's hand and it hit their five-year-old son. Lee punched and slapped Thompson in the face and tried to hold her down on the couch. When Thompson tried to hit Lee with a wooden statue, Lee took it away and began hitting Thompson on the head with it.
After the fight, Thompson called her sister, Lolita Thompson, (we shall use Lolita Thompson's first name for the sake of clarity) and asked Lolita to come get her. Lee was screaming and cursing at Thompson as Thompson left for her mother's house.
Lee's neighbor, David Medlin, saw Lee as he tried to prevent Thompson from leaving. Medlin spoke with Lee for about 15 or 20 minutes; Lee had calmed down by the end of the conversation.
At her mother's home, Thompson saw defendant and two of his friends -- David Towner and Jermain Williams. Thompson's face was bloody and she told defendant what had happened and told him Lee would not let her take her children. Defendant told Thompson to call the police and asked Thompson if she wanted her children. Thompson said she did.
Defendant and his friends left to go shopping. At one point, Williams told defendant and Towner that they should go beat up Lee and give him a taste of his own medicine. Defendant testified that no one discussed this comment, or took it seriously. Thereafter, defendant dropped off Williams at his house, and defendant and Towner went to defendant's girlfriend's house to watch television.
About an hour after her fight with Lee, Thompson called the police. During the 911 telephone call, Thompson told the 911 operator Lee had no weapons in the house.
Sacramento City Police Officer Charles Gomez responded to the 911 call at 8:11 p.m. Thompson told Gomez she had been the victim of domestic violence, but Gomez testified he did not see any injuries on Thompson, nor did she tell him of any. Thompson told Gomez defendant might get upset, although Gomez did not follow up on her warning.
Thompson asked Gomez to retrieve her children from Lee, but Gomez told her he could not, because Thompson and Lee were married and the children were his, too. Gomez told Thompson she needed to resolve any custody issues in court.
Thompson called Lee that night. At trial she testified Lee was not calm and was acting "kind of paranoid." On the night of the murder, however, Thompson told the investigating detective Lee was "kind of normal."
After Gomez left, Thompson and defendant spoke by telephone. Thompson told defendant the police would not pick up her children, and defendant again asked Thompson if she wanted them. Thompson testified she told defendant not to get the children although defendant testified he told Thompson that he would come and pick her up and take her to Lee's house to get them. Before he left his apartment, defendant put a gun in his back pocket.
Defendant and Towner picked up Williams, went to a store for cigarettes, and returned to Thompson's mother's house. According to defendant, Thompson decided not to go with defendant, but defendant told her that he would go get her children anyway. Defendant, Towner and Williams went to Lee's home, parked in front of the house, and went to the front door. Williams tried to open the security door but found it was locked. The interior door, however, was open and they could see inside.
Lee jumped up from the couch and came to the door. Williams and Lee started arguing and Williams challenged Lee to come outside. Lee told the men they should leave if they did not want any problems. Defendant told Lee he was there to pick up his stepbrother and stepsister; Lee said he would not let defendant take the children. Their conversation was heated and, at one point, Lee went back into the room and reached under the couch. Williams thought Lee was going to get a pistol and he and Towner backed away from the door. Defendant saw that Lee had merely grabbed his shoes from behind the couch and defendant stayed where he was.
Defendant continued to argue with Lee. Williams testified Lee told defendant that Lee was going to "whip his ass," and defendant told Lee to come outside, but defendant denied challenging Lee to fight. Defendant did threaten to have Lee sent back to prison.
Williams and defendant then watched Lee go to the back of the house and defendant thought Lee was going to get the children. Williams could see only Lee's shadow when Lee returned; he thought Lee had a rifle, or a shotgun, in his hands. Williams shouted, "he's got a gun, he's got a gun" and retreated to the car.
Defendant testified he saw a rifle, or a shotgun, in Lee's hands and saw him raise it toward him. He thought Lee was going to kill him. Defendant reached into his back pocket, pulled out his gun, closed his eyes, and fired at Lee. Defendant ran from the door halfway to the car, walked the rest of the way, and then drove off.
In the car after the shooting, Williams thought defendant told him Lee had a gun. Defendant also said something to the effect of "Damn, I shot the fool." Defendant claimed he did not turn himself in to the police because he was scared.
Thompson's mother received a telephone call from Thompson's five-year-old-son, who asked her to come pick him up. Thompson went home and found the police there and her children at a neighbor's house. The five-year-old boy told his mother that defendant and Lee were arguing, he heard a "boom boom," and then saw Lee lying on the floor.
After his daughter told him she heard gunshots, Medlin, the neighbor, went to Lee's house to investigate. He saw the two young children in the dining room. They told him their dad was on the floor and there was blood everywhere. The little boy unlocked the door and let Medlin in; Medlin saw Lee face down on the floor. Medlin was positive he observed the butt of a Winchester rifle under Lee's body. He made sure that no one touched anything in the room until the police arrived.
Another neighbor, Annie Bravo, heard the gunshots. She, too, went to Lee's house to investigate and saw the metal of a gun barrel sticking out from underneath Lee's body. A third neighbor, John Yardell, also testified he saw something that looked like the barrel of a gun under Lee's body.
Sacramento Police Officer Gary Wohlgemuth heard the gunshots and arrived on scene in less than 10 minutes (approximately 9:31 p.m.). Wohlgemuth saw Lee's body on the floor. He did not see any guns but did see a small statue protruding from beneath Lee's body. When paramedic Jesse Beltran arrived at 9:34 p.m., Lee was dead. Beltran remembered a wooden object underneath Lee but did not observe any guns around his body.
Sacramento Police Detective William Harrison arrived at the scene of the shooting at 10:23 p.m. He saw two bullet holes in Lee's chest and four bullet holes in the security door. The officer identified a small wooden African-style statue that was located near Lee's body, but the police did not collect that item as evidence. The two rifles that Lee owned were not found in the home. (Lodged Doc. 5 at 2-9).
Defendant was charged with second degree murder (CAL. PENAL § 187(a)) with a penalty enhancement for the use of a firearm (CAL. PENAL § 12022.5(a)(1)), and discharging a firearm at an inhabited dwelling (CAL. PENAL § 246). As to both charges, the state also sought a penalty enhancement for intentional and personal discharge of a firearm causing great bodily injury (CAL. PENAL § 12022.53(d)). Finally, the state sought a penalty enhancement for committing a felony while released on bail for a prior felony (CAL. PENAL § 12022.1(b)).
Following a jury trial, Petitioner was acquitted of first and second degree murder. He was, however, convicted of the lesser included offense of voluntary manslaughter (CAL. PENAL § 192), and the jury found true the penalty enhancement for use of a firearm (CAL. PENAL § 12022.5(a)(1)). The trial court stayed Petitioner's sentence as to the manslaughter conviction and enhancement pursuant to section 654(a) of the California Penal Code, which provides that an act "punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act...be punished under more than one provision."
The jury also convicted Petitioner for discharging a firearm at an inhabited dwelling (CAL. PENAL. § 246), and found true the penalty enhancement for intentionally and personally discharging a firearm causing great bodily injury (CAL. PENAL § 12022.53(d)). Accordingly, the trial court sentenced Petitioner to five years imprisonment plus twenty-five years to life imprisonment with the possibility of parole. In addition, Petitioner received a penalty enhancement of two years imprisonment for commission of a felony while released on ...