The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, Tressa J. Morrison, is a state prisoner proceeding with a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of seventy-five years to life imprisonment plus eleven years and eight months following a jury trial for which she was convicted of several crimes including murder, attempted murder and assault with a firearm. The jury also found true several specific allegations including that the murder and attempted murder were committed willfully, deliberately and with premeditation, intentional and personal discharge of a firearm and that Petitioner personally used a firearm during the commission of her crimes. Petitioner presents three claims in her amended federal habeas petition; specifically: (1) Petitioner's trial counsel was ineffective when he failed to thoroughly investigate and evaluate available evidence of Petitioner's psychosis and failed to make the proper objections to preserve Petitioner's rights ("Claim I"); (2) prosecutorial misconduct when he questioned mental health experts about Petitioner's state of mind at the time of the shooting ("Claim II"); and (3) trial court error by the use of a jury instruction that wrongly increased the burden of proof on Petitioner to prove to a certainty that the circumstantial evidence would support only a finding of insanity ("Claim III"). For the following reasons, Petitioner's habeas petition should be denied.
II. FACTUAL BACKGROUND*fn1
The events underlying this tragedy occurred at the Loma Vista Apartment complex in Redding, California. On November 3, 2003, Rochelle Coccellato, who was living in apartment 27, went to her neighbor's apartment to borrow a vacuum cleaner. When the neighbor, Dana DePonte, opened the door, Coccellato gave her a "really awkward strange look." When DePonte asked what was wrong, Coccellato rolled her eyes to the right. DePonte looked out of the doorway and saw defendant, who lived in apartment 28, sitting so that she was facing them and drinking from a coffee cup. Coccellato went into DePonte's apartment for about two minutes, then left. Immediately after DePonte locked the door she heard a gunshot, Coccellato's scream, and more gunshots.
Daniel Hawley was visiting his friend Anthony Hackler. Hackler lived in apartment 27 with his mother, his two younger brothers, and his girlfriend, Coccellato. They were in the living room of apartment 27 when they heard two pops that sounded like fireworks. Hackler ran to the door, opened it, and yelled that his girlfriend had been shot. He ran outside, there were two more shots, and Hawley saw Hackler fall. When Hackler was hit, he was running away from apartment 28, defendant's apartment. Hawley crawled out to Hackler. Hackler said, "[t]he neighbor shot me." Hackler also told Hawley his girlfriend had been shot. He asked Hawley to go to her.
Hawley could see Coccellato lying partially on the sidewalk and partially in the parking lot. He went to her, and could see that she had been shot in the head. As he was trying to help her, he heard a screen door open, and looked up to see if someone was coming to help. Instead, he saw defendant holding a gun. He heard three or four more shots, and saw defendant pointing the gun in his direction. Hawley felt a bullet zip past his hair. He ducked behind a car in the parking lot. After the shooting stopped, he heard the screen door open and shut again. He peeked out and did not see defendant.
Another man, Anthony Duran, came and helped Hawley drag Coccellato out of the line of fire. While that man stayed with Coccellato, Hawley went back to Hackler and dragged him between two vehicles in the parking lot. He stayed with Hackler until Hackler died, and was still with him when the police arrived. Duran testified that while he was with Coccellato and Hawley, he saw the shooter walk up. She said something like, "You killed my son or grandson . . . ." She pointed the gun at them, and they moved out of the way. He heard the gun fire, and felt he would have been shot if he had not taken cover. When defendant went back into her apartment, he went back over to help Coccellato, then he heard the sirens.
Gina Gilmer lived in apartment 30. She went outside on her upstairs balcony when she heard gunshots. Below her she saw a young man stumbling saying, "I've been shot," and "she shot my girlfriend." Afterward, she went back out and saw a girl lying at the bottom of the stairs with her face blown off. A man was with her, so Gilmer went back to the boy. As she was holding his hand, she looked up and saw defendant pointing a gun at her and screaming something about her son. Gilmer moved backwards between two cars. She would have been shot if she had not moved. Paul Stearns lived close to the Loma Vista Apartments. He heard gunshots and went to investigate. He saw a man lying on the ground and a girl pulling on his arm. Then he saw defendant come out of the apartment with a gun in her hand and say, "Kill my son, will you." She then fired three more shots.
Ray Butts was the apartment manager at Loma Vista Apartments. He ran to his window when he heard the first gunshot and saw Coccellato lying on her right side, her arm going back and forth. He then saw Hackler come running out the door of apartment 27. He saw Hackler get shot in the back as he was running towards Coccellato. Hackler fell to the ground and said something like, "I think I've been hit." Butts saw the hand and arm of the person doing the shooting coming out of apartment 28, defendant's apartment. Butts saw Duran run over to Coccellato, then heard another gunshot. The person with the gun went back into apartment 28. As defendant was being led to the police car after the shooting she said to Butts, "I told you if you didn't take care of this, I was going to shoot the little motherfuckers."
Hackler was pronounced dead at the scene of the shooting. He had been shot in the middle of his back. Coccellato was taken to the hospital. She had multiple gunshot wounds to the head, chest, and right arm. Initially, the doctors treating her did not believe she would survive due to the extent of her injuries. She was in a coma for several days. She is permanently disabled, suffering from weakness to her left side, decreased vision in her right eye, loss of hearing, and cognitive difficulties.
About two months before the shootings, defendant's 16-year-old grandson, Chance, died of an accidental overdose of Methadone. Kevin Kimple from the Redding Police Department investigated Chance's death. Chance was found in apartment 10 at the Loma Vista complex, which belonged to Elray Pond. Chance had taken the drugs at a different location and had been carried to apartment 10 and left on the couch. When the ambulance arrived, he was blue.
Defendant told investigator Kimple that Anthony Purdom was a possible suspect in her grandson's death. Defendant called Kimple regarding the investigation into her grandson's death about half a dozen times prior to the shooting. She was anxious for some resolution and was distraught over some events that had been occurring at the apartment complex. She appeared to become more impatient and frustrated as the calls progressed.
Kimple finally located Purdom about two and a half weeks after the shooting incident. Purdom, who was 15 years old, was arrested, charged, and found responsible in juvenile court for providing narcotics to Chance. Purdom was not charged with murder because there was no indication that Chance took the drugs involuntarily.
Defendant blamed the people in apartment 27 for Chance's death. The kids in apartment 27 had come over after Chance's death, pointed to a bottle of aspirin, and said, "This looks like the same stuff we gave Chance."
Defendant was afraid of the people from apartment 27, and told friends they were harassing her. She was afraid to go outside her apartment. Once, someone from apartment 27 came out and cocked a gun at defendant. When she would leave her apartment, Heckler would say things to her like, "You better get back in your house, bitch," or "Why are you coming out here, bitch?" Witnesses recounted numerous instances of the young people in apartment 27 threatening and harassing defendant. They threatened defendant's daughter when she would visit her mother, and told her they did not want her there, either. Once after Chance died, defendant was singing along with one of Chance's tapes. One of the neighbors yelled out, "Chance, tell your mom to shut the fuck up." Another time someone from apartment 27 called out, "Mom, it's me, Chance. It's dark here . . . ." They also threw food on defendant's truck.
Butts testified that Coccellato had verbally harassed defendant, calling her a bitch. Hackler, too, had harassed defendant. Butts testified defendant was verbally harassed any time she came within speaking distance of the people in apartment 27. She told him she was scared for her life just to go to the laundromat. Defendant had gone to Butts numerous times and asked to be released from her apartment lease. He went to his management and explained to them that defendant was being harassed by other people in the apartment complex, but he never got permission to let her out of her lease.
After the shooting, the police searched defendant's apartment pursuant to a search warrant. There were two firearms in the apartment -- a handgun and a .22 rifle. There were three expended casings in the cylinder of the handgun, indicating it had been fired three times with the bullets that were in the cylinder. There were another six expended casings on the stove in the kitchen, indicating defendant had fired six shots, then reloaded the gun in the kitchen.
Also in the apartment was a typewritten letter dated approximately two weeks before the shootings. The letter stated in part, "I would like to request that my grave not be marked for at least a period of two years allowing time for friends of those I killed to pass and therefore lessening the chances of any grave desecration." Another letter, said, "I want to kill." Yet another said, "I would rather be dead than to let them live."
Police discovered a portable video camera in defendant's apartment that contained a videotape entitled, "My Neighbor's Fate." The video is date stamped November 2, 2003, the day before the shootings. The camera was still running when the officers entered the apartment. The tape was admitted into evidence and played for the jury.
On the videotape, defendant mourns her grandson, complains about the neighbors, and protests that no one went to jail for killing Chance. She says, "Believe me if I had time I'd go kill all the fucking parents for raising off-the-wall people. They need to be dead. Their off-spring need to be dead. They all need to be dead, dead, dead, dead. You know how they party on. They just party on next door." She tells the camera, "I want to shoot her with the bottle of aspirin in her fucking mouth, so her Daddy will see . . . ." The videotape shows a telephone conversation in which defendant tells the caller that "they" had hours to call 911, but did not because they "wanted to save their little druggie asses . . . ." Toward the end of defendant's appearance on the tape, apparently right before the shootings, she says to the camera while showing a handgun, "See what I have . . . . They got a 9 millimeter, I've tried to tell you that. Thought I'd get me something. Wait'll they get a load of this. Or get a few loads of it. I'm waiting on 'em to come home." Then, "Any time now. They're not gone long when they make drug deals . . . ."
Just before a break in the tape, defendant holds an aspirin bottle up to the camera and says, "This is aspirin, this [showing her gun] is Methadone, this is Ecstasy, this is drinking somebody's piss." [FN 1] At this point there is a break in the tape during which time defendant apparently committed the shootings. Afterward she tells the camera, "Fool me once, shame on you. Fool me twice, shame on me. All the managers here knew there were drugs, nobody does anything about it. They killed my son, oh my God. All I asked for was justice!" [FN 1] Earlier in the tape defendant tells someone on the phone, "You know fucking well they made him drink their fucking piss . . . . Oh-h, make my son drink their piss."
At this point in the tape defendant begins to get several telephone calls. She tells one caller she needs to call someone very important to her before she will give herself up. She tells another caller named Steve that she "just killed some people."
A. State Court Proceedings
Petitioner pleaded not guilty and not guilty by reason of insanity. Petitioner was found guilty of first degree murder of Heckler, attempted murder of Coccellato and three counts of assault with a firearm against Duran, Gilmer and Hawley. The jury also found as true all of the special circumstances allegations which included causing death or great bodily injury and using a firearm. After this verdict, a separate sanity trial was conducted. The first sanity trial resulted in a deadlocked jury and the court declared a mistrial as to the sanity phase only. A second sanity trial resulted in the jury finding Petitioner legally sane during the commission of the crimes.
Petitioner appealed her convictions to the California Court of Appeal, Third Appellate District. Among the claims that Petitioner raised in her direct appeal were Claims II and III of Petitioner's amended federal habeas petition. That court affirmed the judgment on February 8, 2008. Petitioner then filed a petition for review in the California Supreme Court. Again she raised several claims, including her arguments as set out in Claims II and III of the instant federal habeas petition. The California Supreme Court summarily denied the petition for review on May 21, 2008.
On April 15, 2008, Petitioner filed a state habeas petition with the California Supreme Court. Petitioner raised one claim in that state habeas petition; specifically Petitioner argued that trial counsel was ineffective by failing to obtain an expert to assist with the guilty and sanity trials. On September 17, 2008, the California Supreme Court denied that state habeas petition.
B. Federal Court Proceedings
In December 2008, Petitioner filed a pro se federal habeas petition in this court. Petitioner raised the following claims in that original federal habeas petition: (1) ineffective assistance of counsel for failing to obtain an expert to assist with the guilt and sanity trials; (2) Petitioner was "denied a fair trial and the assistance of counsel because confidential fee requests were made available to the DA's office by the county computer system" (Dkt. No. 1 at p. 4.); and (3) Petitioner was "denied a fair trial by jury because one juror contacted the court after [her] appeal and [her] attorney was not informed of what occurred." (Id. at p. 5.)
On January 8, 2009, Magistrate Judge Hollows appointed the Federal Defender to represent Petitioner. On January 20, 2009, Marylou Hillberg was substituted as counsel in place of the Federal Defender. On February 24, 2009, Petitioner was given 180 days to file an amended federal habeas petition. On August 21, 2009, Petitioner sought an extension of time to file an amended habeas petition which was granted. Subsequently, Petitioner sought a second extension of time to file an amended habeas petition which was granted by Magistrate Judge Hollows on September 17, 2009.
On October 9, 2009, Petitioner filed a motion to file late amended habeas petition as Petitioner had only been granted an extension of time to file an amended habeas petition until September 30, 2009 by Magistrate Judge Hollows. Petitioner's habeas counsel declared that, "[t]here was a habeas seminar put on by the Office of the Federal Defender a week ago on October 2, 2009. Due to some recent losses in this court, I decided that I should first attend that seminar before I finalized this petition and settle some questions that I pondered. I have since rewritten portions of this petition." (Dkt. No. 20 at p. 2.) Petitioner also filed an amended federal habeas petition on October 9, 2009. Magistrate Judge Hollows granted this request to file the late amended habeas petition on October 21, 2009.
Petitioner raised the following claims in that first amended habeas petition: (1) Petitioner was deprived of her Sixth Amendment right to effective assistance of counsel at trial who failed to thoroughly investigate and evaluate available evidence of Ms. Morrison's psychosis, failed to research or consult with any outside expert on the evidence that was uncovered, failed to investigate or retain another expert on the results of the blood test of Ms. Morrison which reported less than 10 nanograms per milliliter of methamphetamine in her blood, and failed to make the proper objections to preserve petitioner's rights; (2) denial of due process and a fair trial in violation of the Fourteenth Amendment by numerous instances of misconduct by the prosecutor which so infected the trial with unfairness as to make the resulting conviction a denial of due process, including (a) improper questioning by the prosecution as to the ultimate question as to Petitioner's state of mind at the time of the shooting; and (b) interference with attorney client confidentiality because the prosecution had access to confidential billing records of trial counsel and his investigator over Shasta County's computer system that allowed them to track what work was being performed to prepare for trial; and (3) denial of due process and a fair trial when the trial court used a jury instruction that wrongly increased the burden of proof on Petitioner to prove to a certainty that the circumstantial evidence would support only a finding of insanity.
Respondent answered the amended federal habeas petition on December 8, 2009. In her answer, Respondent argued that Claim III and portions of Claims I and II were barred by AEDPA's one-year statute of limitations because they did not relate back to the original federal habeas petition that Petitioner filed pro se in December 2008. Notwithstanding this argument, Respondent also argued that Petitioner was not entitled to federal habeas relief on the claims raised in the amended federal habeas petition on the merits.
Petitioner filed her traverse on June 28, 2010. In that traverse, Petitioner withdrew her argument in Claim II that the prosecution had committed misconduct through unauthorized access to confidential defense billing information. Additionally, Petitioner admitted that "much of claim one remains unexhausted in the state courts." (Pet'r's Traverse at p. 2.) Petitioner stated that once she had finished her investigation into these claims, she intended to exhaust them in state court and file a motion for stay and abeyance in this Court. (See id. at p. 3.) Petitioner also admitted that Claim III and the remaining portion of Claim II did not relate back to the initially filed federal habeas petition in December 2008. Petitioner argued that these Claims should be considered timely based on an equitable tolling theory.
On November 20, 2010, Petitioner filed a "status report" where she
stated that, "[t]he factual investigation generously permitted by this
Court on the new claims has been completed. There are no additional
facts to present to this Court. No further factual development is
requested at this time. Petitioner . . . request[s] that the petition
be deemed submitted pending further order of this Court."*fn2
(Dkt. No. 39 at p. 1.)
On January 4, 2011, Petitioner was ordered to either file a motion to stay and abey the proceedings or inform the court that she was declining to file a motion to stay and abey the proceedings, in which case the unexhausted claims in the amended federal habeas petition would be deemed stricken. This order was filed in light of Petitioner's admission in her traverse that several of her arguments in the amended federal habeas petition were unexhausted.
On January 19, 2011, Petitioner filed another "status report." In that status report, Petitioner stated that "that there will be no Rhines Motion filed to stay and abey as there are no claims to be brought that have not already been fully exhausted in the state courts." (Dkt. No. 42 at p. 1.) This January 19, 2011 status report was unclear as to whether Petitioner had now exhausted her previously unexhausted arguments in the amended federal habeas petition. Therefore, another order was issued on February 2, 2011 which ordered Petitioner to either: (1) produce proof that the previously unexhausted claims were now exhausted through state court filings and opinions/orders; (2) file a motion to stay and abey these federal habeas proceedings to allow Petitioner to exhaust her unexhausted claims; (3) inform this Court that Petitioner only wanted to proceed on her exhausted claims; or (4) proceed on the instant amended federal habeas petition as is. (See Dkt. No. at p. 3-4.)
On February 22, 2011, Petitioner filed a statement narrowing her federal habeas claims. Petitioner narrowed Claim I so that the only ineffective assistance of counsel claim that she is now bringing is that trial counsel was ineffective for failing to thoroughly investigate and evaluate available evidence of Petitioner's psychosis and failing to make proper objections to preserve Petitioner's rights. Claim II was narrowed such that Petitioner now only argues that the prosecutor committed misconduct through improper questioning of Petitioner's state of mind at the time of the shooting. Petitioner had previously narrowed this Claim in her traverse. Claim III remained as pled in the amended federal habeas petition.
It now appears that Petitioner's amended federal habeas petition is now ripe for adjudication.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's 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 state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision with respect to Claims II and III came from the California Court of Appeal on direct appeal. With respect to a portion of Claim I, Petitioner raised a portion of this Claim in her state habeas petition to the California Supreme Court. That court denied the state habeas petition.
V. ANALYSIS OF PETITIONER'S CLAIMS
In light of Petitioner's statement dated February 22, 2011, it appears as if Petitioner still relies on the following facts to support her ineffective assistance of counsel arguments that trial counsel failed to thoroughly investigate and evaluate available evidence of Petitioner's psychosis:
(A) Trial counsel failed to thoroughly review approximately 27 home made video tapes, recorded by petitioner in the weeks after Chances death, in which she purportedly captured the harassment from her next door neighbors prior to the shooting. Alternatively, if he did review these videotapes, he failed to investigate what these tapes should have told him, research PTSD (post-traumatic stress disorder) to learn of the psychotic manifestations of that disorder, or consult an appropriate expert;
(B) [P]petitioner had been treated at the Shasta County Mental Health Clinic in the years 1996-97. Trial counsel failed to discover or investigate this prior mental health treatment for many of the ...