FINDINGS AND 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 2002 judgment of conviction entered in the Sacramento County Superior Court on one count of second degree murder in violation of California Penal Code § 187 (a)*fn1 , enhanced by findings that petitioner personally used a deadly and dangerous weapon in violation of § 12022 (b)(1) and inflicted corporal injury on a co-habitant in violation of § 273.5. Pursuant to that judgment, petitioner is serving a sentence of sixty-three years to life in state prison. He seeks federal habeas relief on the grounds that: (1) the prosecutor's exclusion of two African-American prospective jurors violated his due process rights under the decision in Batson v. Kentucky, 476 U.S. 79 (1986); (2) testimony concerning petitioner's prior acts of domestic violence was erroneously and prejudicially admitted into evidence; (3) the improper admission of this domestic violence testimony violated petitioner's right to the effective assistance of counsel; and (4) jury instruction error concerning petitioner's prior acts of domestic violence violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In an unpublished memorandum and opinion dated December 14, 2006, the California Court of Appeal for the Third Appellate District set forth the operative facts with respect to petitioner's offense of conviction and trial:
A jury convicted Tracy Anthony Johnson of second degree murder and corporal injury on a cohabitant, and found that he personally used a dangerous weapon in committing the murder. Finding that defendant had a prior conviction for domestic violence, had served two prior prison terms, and had four prior serious or violent felony strike convictions within the meaning of the "three strikes law," the trial court sentenced him to an aggregate prison term of 63 years to life.
Late on the night of August 17, 1999, or early the next morning, defendant stabbed his girlfriend, Sharon Yates, 11 times. One of the stabbings severed her carotid artery and killed her.
At 5:30 a.m., defendant flagged down a police officer in downtown Sacramento and asked him to "[c]all somebody from homicide" because defendant "wanted to turn himself in." When the homicide investigator arrived, defendant told him to send officers to his apartment, where they would find a dead body. There, the officers discovered Yates's body on a blood-soaked bed with a pillow over her face. In addition to multiple stab wounds to her neck, Yates had defensive wounds on her elbow and right hand. A knife blade was by her foot, and a knife handle was on the floor by the bed. Defendant's fingerprints were on both the knife blade and the handle.
Yates's sister, Shawnetta, who had been living with Yates and defendant, testified that a week or two prior to the killing, defendant threatened to do something crazy. FN1 The last time that Shawnetta saw Yates alive was around 10:30 p.m. on August 17, 1999. Before Shawnetta went to sleep, she heard Yates say to defendant that he was "trippin." Shawnetta did not hear any yelling, screaming, or loud noises of any sort that night. She awakened the next morning to the sound of the police knocking on her door around 6:00 a.m.
FN1. Yates had four sisters, Sheila, Shirley, Shawn, and Shawnetta. For simplicity and to avoid confusion, we will refer to them by their first names.
Shawnetta's boyfriend, Donald Lipscomb, went to the apartment around 11:15 or 11:30 p.m. on the night of August 17. Defendant answered the door, wearing only a pair of pants and sweating profusely. Lipscomb asked, "What's up?" Replying "I am just taking care of my business," defendant walked to the bedroom and shut the door. Lipscomb, who did not hear any noises coming from the bedroom, changed his clothes and left the apartment. According to Lipscomb, defendant had told him earlier in the day that the next person with whom defendant had a confrontation, "he was going to do something real bad to them" and "it wasn't going to be nice."
Three law enforcement officers testified concerning statements they had taken from Yates about defendant's prior physical abuse. On March 6, 1996, Yates reported to police that after she had told defendant she wanted to end their relationship, he punched her, kicked her, and threatened to kill her. Defendant was arrested about a week later, but was then released when Yates recanted her prior statement.
On December 28, 1996, defendant reported a residential burglary, claiming he came home and found that his girlfriend's clothing, some furniture, and a mattress had been cut. According to defendant, his girlfriend, Yates, was missing, along with items of clothing and a typewriter. Later that day, Yates telephoned the police, said she was not a missing person, and stated she had left the apartment in fear after having a "huge fight" with defendant, during which he threatened to kill her and also slashed the furniture because he was angry with her.
On June 16, 1998, Yates reported to the police that defendant had assaulted her the night before, and that she was afraid he was going to kill her. Defendant had accused her of cheating on him and had made a threatening gesture with a necktie, indicating he was going to strangle her. Later that night, he dragged her to the bedroom, pinned her down on the bed by her neck, and said he would "fuck her up." He wrapped a belt around her neck, but she managed to insert a finger inside the belt, which allowed her to breathe until the belt eventually broke.
Yates's sisters, Sheila and Shawn, testified that in 1998, they saw Yates with bruises on her neck that were consistent with being choked with a belt. During that same year, they witnessed an incident in which defendant physically assaulted Yates. When the three sisters returned later than expected from an excursion in a car that defendant had rented, defendant argued with Yates. He broke the driver's side window of the car and punched Yates in the mouth, causing her tooth to pierce her lip.
Sheila and Shawn testified that defendant often threatened to kill Yates. Sheila urged Yates to leave him because there was too much violence in the relationship. Two weeks prior to the murder, Yates told Shawn that she was going to break up with defendant. On August 16, shortly before Yates was murdered, Yates and defendant attended a family birthday party. There, the sisters reminisced about their mother and mentioned that she had been stabbed in the jugular vein and killed by Shawnetta's father.
On August 17, defendant was in a rage and looking for Yates. Sheila heard him say, in reference to Yates, that he was "sick of this B[itch]."
Defense Defendant did not dispute killing Yates; he simply attempted to establish that he did so in a heat of passion, or in self-defense, or while he was in a dissociative state. FN2 He conceded that his relationship with Yates had been marred by domestic violence, but intimated that the degree of violence had been exaggerated by the prosecution. Defendant claimed the car rental incident referred to by Sheila and Shawn had occurred in 1996, not 1998, and since that time his relationship with Yates had been good up until the incident in June 1998.
FN2. At the sentencing hearing, however, defendant made the following statement to one of Yates's sisters: "Sheila, personally, I wouldn't give a fuck what you feel. You want to participate in lies and deception and manipulations, that if anybody would have been
- I wish your bitch ass would have been there - because you would have got what she got."
With respect to the incident in June 1998, defendant denied choking Yates with a belt or threatening to kill her. He claimed that he just slapped her in the face because she took his car and left him with her children without asking him for use of the car. According to defendant, the only reason that he entered a plea of guilty to a misdemeanor for this incident was because he had been arrested for felony spousal abuse, he had multiple prior convictions for robbery, and he wanted to avoid a possible "three strikes" life sentence.
A victim advocate for the district attorney's office testified Yates told her that defendant had not used the belt to choke her, only to get her attention. In addition, a neighbor who socialized with defendant and Yates testified they appeared to be a reasonably happy couple and she was not aware of any verbal or physical violence between them.
Defendant testified as follows. He denied telling Lipscomb that defendant was going to hurt anyone on August 17, 1999; he just said he would not tolerate the kind of condescending and patronizing treatment he had been receiving from someone at work. When defendant had arrived home around 11:30 p.m., he sat and talked with Yates for a while. He was not sweating profusely when Lipscomb arrived, and he did not mean anything by his comment about "handling [his] business." After he let Lipscomb in, defendant returned to the bedroom, and his conversation with Yates turned to their relationship. When the discussion became heated, she slapped his face. Because of anger management training he received in connection with his domestic violence conviction, defendant remained calm, but Yates's words became more mean-spirited and venomous. She called him a "bastard," which she knew was especially galling to defendant because his mother conceived him from a rape. She leaned forward and grabbed him, and he grabbed her back and attempted to push her onto the bed. When Yates then picked up a knife, defendant spontaneously grabbed the blade and a struggle ensued. Although defendant had no memory of stabbing Yates and placing a pillow over her face, he believed that he had stabbed and killed her. According to defendant, "I didn't mean to kill her." The next thing defendant remembered was driving around. He believed that he went to a friend's house. Defendant was in a daze and drove back to his apartment. When defendant saw Yates lying on the bed, he tried to go to the sheriff's department and a police station but both were locked. He waived down a police officer because he knew that law enforcement would want to talk to him, even though he did not know he had killed Yates.
Dr. Rob Woodman, a psychologist, testified that dissociative disorder is a partial or full inability to remember overwhelming or traumatic events. Presented with a hypothetical based on the facts of the case, Woodman opined the hypothetical was consistent with a dissociative state. However, because Woodman had not examined defendant, he did not know if defendant actually had experienced a dissociative state or whether he was lying.
The detective who interviewed defendant for four hours on August 18, testified defendant never acknowledged that he used a knife during the assault. Neither the detective nor another officer observed any injuries or cuts to the palm of defendant's hands, which one would have expected if defendant had grabbed the knife blade.
Summation and Verdict During closing argument, defense counsel conceded there was no question that defendant killed Yates; the issue was whether the killing was murder or manslaughter.
By returning a verdict of second degree murder, the jury rejected the prosecution's theory of premeditated first degree murder and implicitly rejected defendant's theory of voluntary manslaughter.
(Notice of Lodging Documents on January 29, 2010, Resp't's Lod. Doc. 4 (hereinafter, "Opinion I") at 1-8.)
On direct appeal petitioner raised various claims of error including a challenge, pursuant to the decision in Batson v. Kentucky, 476 U.S. 79, 96-98 (1986), to the prosecutor's use of peremptory challenges to exclude two African-American men, E.T. and J.W., from the jury panel. (Notice of Lodging Documents on January 29, 2010, Resp't's Lod. Doc. 1.) On December 14, 2006, the California Court of Appeal for the Third Appellate District, ruled against petitioner on each of the issues raised on appeal except one: his Batson challenge to the exclusion of juror J.W. (Opinion I.) On this issue the California Court of Appeal held that the trial court erred when, having found a prima facie case of discrimination as to both excluded black male prospective jurors, it only asked the prosecutor to give his reasons for challenging prospective juror E.T. The state appellate court noted that rather than inquiring as to the prosecutor's reasons for excluding J.W., the trial court "impermissibly substituted its own reasons why it thought the challenge to J.W. was justified, without deciding whether those reasons actually and genuinely motivated the prosecutor's peremptory challenge." (Opinion I at 13-17.) Accordingly, the state appellate court reversed the judgment and remanded the matter to the trial court for the limited purpose of (1) requiring the prosecutor to explain his challenge to prospective juror J.W., and (2) then ruling on defendant's Batson/Wheeler objection to that peremptory challenge. If the trial court finds the challenge to J.W. was for a race-neutral reason, it shall re-instate the judgment. If it finds otherwise, the court shall grant defendant a new trial.
On January 22, 2007, petitioner filed a petition for review in the California Supreme Court in which he took issue with the remedy ordered by the California Court of Appeal, i.e., a remand for the limited purpose of determining prosecutorial intent as to prospective juror J.W. (Notice of Lodging Documents on January 29, 2010, Resp't's Lod. Doc. 5.) In that petition, he also challenged the state appellate court's rejection of the evidentiary and jury instruction issues he had raised on appeal. (Id.) The California Supreme Court summarily denied the petition for review on February 28, 2007. (Notice of Lodging Documents on January 29, 2010, Resp't's Lod. Doc. 6.)
On May 9, 2007, the Sacramento County Superior Court held a hearing pursuant to the California Court of Appeal's remand of the Baston issue with respect to prospective juror J.W. (Reporter's Transcript of Proceedings, April 27, 2007 and May 9, 2007 (hereinafter "RT Remand").) At the conclusion of that hearing the trial court concluded that the prosecutor's use of a peremptory challenge against J.W. was genuinely motivated by a race-neutral reason and, accordingly, reinstated the judgment of conviction against petitioner. (Id. at 18-19.)
Petitioner appealed a second time, arguing that he was entitled to a new trial due to Batson error as to prospective juror J.W. (Supplemental Notice of Lodging Documents on November 17, 2010, Unpublished Opinion dated May 19, 2008, Third Appellate District Court of Appeal (hereinafter "Opinion II").) The state appellate court affirmed the judgment in a reasoned opinion. (Id.) The parties aver that petitioner subsequently filed a second petition for review in the California Supreme Court, which was denied on August 13, 2008.*fn2 (Petition (hereinafter, "Pet.") at 3; Mem. of P. & A., in Supp. of Answer at 2.)
The instant petition was filed on May 20, 2009. (Doc. No. 1.) In response to an October 27, 2009 court order (Doc. No. 10), respondent filed an answer to the petition on January 20, 2010 (Doc. No. 14). Petitioner filed a traverse on March 30, 2010. (Doc. No. 19.)
Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme / Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn3
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.
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, 533 F.3d 724, 735 (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. Stanley, 633 F.3d at 859; 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). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 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). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner claims that Batson error occurred when the prosecutor exercised peremptory challenges to exclude two African-African males, , E.T. and J.W. , during jury voir dire (Pet. at 7-8.) As described above, the California Court of Appeal resolved petitioner's Batson challenges to the prosecutor's use of peremptory challenges in two separate opinions, each subject to AEDPA review. Below, the court addresses petitioner's Batson claims as to each of the prospective jurors in turn.
1. State Court Opinion - E.T.
The last reasoned decision to address petitioner's Batson challenge to the prosecutor's exclusion of prospective juror E.T. from the jury panel was the California Court of Appeal's opinion dated December 14, 2006 (Opinion I). Therein, the state appellate court held that the trial court did not err in finding the prosecutor's stated reasons for excluding E.T. to be "genuine and legally sufficient." (Opinion I at 13.) Those reasons included the fact that E.T. was the only juror who indicated in the juror questionnaire that he did not want to be there and that his body language made the prosecutor "feel uncomfortable" with having him on the jury. (Id. at 11-13.) With respect to the exclusion of prospective juror E.T., the state appellate court reasoned:
Here, defense counsel made a Wheeler/Batson motion after the prosecutor exercised peremptory challenges against prospective jurors J.W. and E.T., two African-American men on the panel. When defense counsel began to explain why he believed there was a likelihood those prospective jurors were excluded because of their "group status," the trial court interrupted, stating: "I will save you some time. [¶] On the face, you have made a prima facie challenge, and my understanding is the burden is now on the prosecutor to offer some articulatable [sic] reason, if he can, as to why you have excused those two jurors, other than for their racial or ethnic characteristic."
The prosecutor disputed that defendant had shown a prima facie case of discrimination, pointing out there were two African-American women in the jury box. Nonetheless, the court reiterated its finding that a prima facie case had been made and asked the prosecutor: "Why did you excuse [E.T.]?" The court did not, either at this time or later, ask the prosecutor to comment on his challenge to J.W.
Noting that, in the juror questionnaire, E.T. stated he did not want to be a juror and that E.T. was the only prospective juror in the jury box who had answered in this manner, the prosecutor pointed out that during voir dire, E.T. indicated he was willing to go into his savings to meet his financial obligations in order to serve on the jury. These "conflicting" responses and E.T.'s "body language" made the prosecutor "feel uncomfortable with having him as [a] juror in this case."
Without asking the prosecutor why he excused J.W., the court denied the Wheeler/Batson motion, finding that there was no "pattern" of discrimination and that race-neutral reasons existed to exclude J.W. and E.T. The court explained: "I will find that as to [J.W.], that his responses . . . about his litigation with his employer, . . . his brother's prior criminal history and the like, and his description of the . . . negative encounter with law enforcement related to a traffic stop, appear on the face to be adequate reasons to dismiss him from jury service." "With respect to [E.T.], I had not noticed that . . . he's the only one that indicated on his questionnaire he did not wish to be here." Although E.T. "did offer some information on the record conflicting to that," "in light of [his] written response that he did not wish to be here, that is, he apparently being the only juror to so note in his jury survey, I think that that in itself causes a litigant, the People or otherwise, to be suspect of [his] commitment to serve on a jury."
Defendant contends that although the trial court found the prosecutor's stated reason for excluding E.T. was objectively valid, the court neglected to make the requisite assessment of the prosecutor's subjective good faith, i.e., that the reason stated by the prosecutor actually motivated the peremptory challenge and was not simply a sham excuse contrived to avoid admitting an act of discrimination. (People v. Reynoso, supra, 31 Cal.4th at p. 924 ["The proper focus of a Batson/Wheeler inquiry, of course, is on the ...