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Mikhael Vlasov v. D. Uribe

January 19, 2011

MIKHAEL VLASOV, PETITIONER,
v.
D. URIBE, JR., WARDEN, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner, Mikhael Vlasov, a state petitioner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Vlasov is currently in the custody of the California Department of Corrections, incarcerated at the California State Prison, Centinela in Imperial, California. Respondent has filed an answer. Vlasov has not filed a traverse.

STATEMENT OF THE FACTS*fn1

Factual and Procedural Summary [Vlasov] was tried twice for the murder of Chung during a failed carjacking- with the first trial ending in a mistrial after the jury deadlocked, and the second trial resulting in a conviction on all counts.

At the first trial, he was tried jointly with co-defendant Daniil Zhuk, who testified and tried to cast blame for the murder on [Vlasov]. In so doing, Zhuk challenged [Vlasov] to testify and tell the truth, and also accused [Vlasov] of an uncharged attempted carjacking of Amado Lopez's car at an Albertson's store.

The defense was [Vlasov] did not have the specific intent to commit the charged crimes, in that his limited intelligence caused him to be easily influenced by Zhuk, the true mastermind. Regarding the uncharged Lopez incident, [Vlasov] testified Zhuk told him what to do, and [Vlasov] blindly followed instructions because he felt coerced. He admitted the uncharged Lopez offense in an effort to show that he was testifying truthfully, and to demonstrate that Zhuk was the one in charge. The tactic was somewhat successful because the jury convicted Zhuk of all charges, but was unable to reach a verdict regarding [Vlasov 's] guilt on all but one charge involving Chung's father. The prosecution then charged [Vlasov] in case No. 04F11052 with the attempted kidnapping of Lopez to commit a robbery and with assaulting Lopez with a semiautomatic weapon. The Lopez charges were consolidated with case no. 00F02479, which charged [Vlasov] with the murder of Chung in the commission of an attempted robbery and carjacking, and with attempted carjacking and attempted robbery. A summary of the evidence presented at the second trial follows:

The Murder of Chung

On January 20, 2000, Zhuk, 14-year-old Peter P., and [Vlasov] were cruising in Zhuk's car. Zhuk told them that he knew someone who would pay them $4,000 for a BMW or Mercedes. While driving along Interstate 5, Zhuk saw a white BMW that he decided to steal and followed the car.

Cindy Chung was driving the BMW to her father's business to do some work for him. Chung was a bookkeeper for a construction company but occasionally helped her father with bookkeeping for his business, an automobile body shop on Croydon Way in Rancho Cordova.

Zhuk, Peter P., and [Vlasov] followed the BMW to a commercial building on Croydon Way, where they lost sight of the car. Zhuk parked nearby, gave [Vlasov] a handgun, and told him to go look for the car. Zhuk also tried to involve Peter P. in the crime, but Peter P. declined; he even told Zhuk they should not steal the BMW, to which Zhuk responded, "shut up you little guy.

[Vlasov] got out of the car and headed in the direction of the BMW. He went past a dumpster but did not see the car. After urinating in the waste container, he returned to Zhuk's car and explained that he could not find the BMW. Zhuk began to drive away with Peter P. and [Vlasov], but returned and parked in the same spot. Zhuk told [Vlasov] to "go take the car." When [Vlasov] refused, Zhuk began "cussing [him]" and said he would kick [Vlasov] in the head and tell his friends he was "not good." Zhuk called him a "pederaste"-which is "real bad" in Russian- and a condom.

[Vlasov's] testimony from the first trial was introduced at the second trial. [Vlasov] admitted taking the handgun and deciding to steal the BMW because Zhuk told him he would knock him in the head. He did not want Zhuk to tell his friends he was a pederaste or a condom. He gave no other reason for his failure to refuse to participate in the carjacking.

[Vlasov], who was armed, headed off in the same direction as before. This time, he saw an Asian man, Chung's father, near the dumpster. Observing the white BMW backing up in the parking lot, [Vlasov] went toward the car, stopping about three feet away. As the car continued to move, [Vlasov] fired a shot through the driver's window, killing Chung. He then ran toward Zhuk's car and fired three shots in Mr. Chung's direction. [Vlasov] jumped in the car and told Zhuk and Peter P., "I didn't get the car because she wouldn't give it up. She stepped on the gas and I shot her."

Two months after Chung's death, Zhuk left a recorded message with the Sacramento County Sheriff's Department saying that he had information about the homicide. After speaking with Zhuk, detectives contacted [Vlasov]. At first, [Vlasov] denied any knowledge of the murder but then said that Zhuk had killed Chung. [Vlasov] eventually admitted he shot Chung, saying the devil made him do it.

The Attempted Kidnapping of Lopez

On the night of January 29, 2000, Amado Lopez was sitting in his car while on a break from his job at a grocery store. Two men, later identified as Nickolay Zaychenko and [Vlasov], came up to the car. Zaychenko knocked on the window and asked for a cigarette. When Lopez refused, Zaychenko displayed a handgun and Lopez complied with an order to get out of the car. Zaychenko took Lopez's cell phone and wallet while [Vlasov] pointed a knife at Lopez.

Zaychenko obtained Lopez's car keys and told him to get in the car with Zaychenko and [Vlasov]. When Zaychenko was unable to start the car, Lopez managed to escape. He ran into the grocery store and yelled for help. Lopez and a co-worker ran back out and chased the culprits, whereupon one of the carjackers fired a gun in the air. Lopez and his co-worker ran back into the store.

Zhuk's testimony from the first trial was read to the jury. He claimed he, Zaychenko, and [Vlasov] were cruising around and stopped at the grocery store to buy vodka and cigarettes. Zhuk, who stayed in the vehicle, saw [Vlasov] and Zaychenko talking to someone in the parking lot. The person ran into the store and, when the person ran back out with other people, [Vlasov] shot a gun in the air.

[Vlasov's] testimony from the first trial also was read to the jury. According to [Vlasov], Zhuk instructed him and Zaychenko to rob Lopez and steal the car. Zaychenko gave [Vlasov] a gun and told him to point it at Lopez. [Vlasov] fired the handgun as they ran from the scene, but he did not know if the discharge was accidental. The handgun was the same one he had used to kill Chung.

Defense [Vlasov] was born in Uzbekistan and moved to the United States when he was around 16 years old. He had an IQ between 60 and 64, with deficits in multiple areas of adaptive functioning. According to a defense expert, persons who suffer from mental retardation, like [Vlasov], tend to agree to everything and lack the ability to predict the outcome of their actions.

[Vlasov], who was 18 years old when he murdered Chung, testified he associated with 17-year-old Zhuk because he wanted a friend. [Vlasov] first met Zhuk in 1999, about five months prior to his arrest in this case. [Vlasov], who had never stolen before, helped Zhuk break into cars and steal stereos. He went along with Zhuk because Zhuk was [Vlasov's] only friend. [Vlasov's] family tried unsuccessfully to keep him away from Zhuk.

[Vlasov] claimed Zhuk was "mean" when [Vlasov] told him he could not find Chung's BMW. Zhuk threatened to bash [Vlasov's] head or smash his face if he did not steal the car, and he forced [Vlasov] to take the handgun. Denying he intended to fire the gun, [Vlasov] claimed he did not know how the gun discharged. He admitted initially lying to detectives about the Chung murder because he did not want to get into trouble.

Regarding the Lopez offenses, [Vlasov] stated it was Zhuk's idea to steal the vehicle. [Vlasov] denied that he was armed with a knife or that he intended to kidnap Lopez. He admitted shooting the handgun in the air as they ran back to Zhuk's car.

During closing argument, defense counsel argued [Vlasov's] mental retardation affected his ability to form the requisite specific intent to commit the felonies underlying Chung's felony-murder because [Vlasov's] impaired thinking caused him to attach himself to Zhuk, who had a dominant personality. [Vlasov] could not say no to Zhuk, who pressured him into committing the crime, and Zhuk was able to do so because of [Vlasov's] limited mental abilities, which prevented him from making appropriate choices.

PROCEDURAL HISTORY

A jury convicted Vlasov of: first-degree, felony murder of Cindy Chung during the commission of an attempted carjacking; attempted kidnapping of Amado Lopez to commit robbery; attempted robbery; attempted carjacking, and; assault with a firearm. The jury found true various firearm enhancements, including the charge that Vlasov personally and intentionally discharged a firearm in the commission of Chung's murder and the attempted kidnaping of Lopez. Vlasov was sentenced to state prison for life without parole for the murder of Chung, plus 25 years to life for the intentional use of a firearm in committing that offense, and an indeterminate term of 27 years to life for the remaining charges.

Vlasov timely appealed his conviction to the California Court of Appeals for the Third Appellate District. On November 20, 2007, the Appellate Court affirmed the judgment in its entirety in a reasoned, unpublished decision.*fn2 Vlasov then filed a petition for review in the California Supreme Court, which denied review February 13, 2008.*fn3

Vlasov timely filed a petition for habeas corpus in this Court on May 13, 2009. In his petition, Vlasov raises three claims for relief: the trial court erred by excluding expert testimony regarding "traumatic bonding"; the trial court erred by not instructing the jury on the defense of duress, and; the evidence was insufficient to support the finding that Vlasov intentionally discharged a firearm. Respondent does not assert any affirmative defenses and concedes that Vlasov's claims are properly exhausted.

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. ยง 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an ...


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