FINDINGS AND RECOMMENDATIONS
Petitioner Brown, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of attempted willful, deliberate, and premeditated murder and assault with a deadly weapon in the Solano County Superior Court, case number VCR174764, for which he is currently serving an indeterminate prison term of 23 years to life.
The victim, Sandeep Sharma, worked at the Bonfare Market in Vallejo. On August 14, 2004, just after 6:00 a.m., petitioner entered the Bonfare Market along with a man in a wheelchair. Sharma was alone in the store. He recognized petitioner and the other man as prior customers.
Sharma was at the cash register in the front of the store. Petitioner and the other man went to the refrigerated coolers in the back of the store. The man in the wheelchair asked Sharma about "the Arizona grape drink." Sharma told him he didn't carry it, but did carry "the Mystic grape drink," which was kept in the cooler at the left corner of the back of the store. The man in the wheelchair said he couldn't find the Mystic grape drink and asked Sharma to help him. Sharma walked towards the left rear corner of the store, passing petitioner who was standing at the center of the rear wall of coolers. Petitioner "was just standing there looking towards the refrigeration area, towards the coolers." Petitioner had not said anything to Sharma.
After Sharma passed petitioner, he opened the refrigerator door to retrieve the Mystic grape drink. Then petitioner grabbed him from behind and stabbed him on the right flank, above his right hip and towards his back. Sharma felt a sharp pain. Sharma fell to the ground and petitioner fell on top of him. Petitioner grabbed Sharma and the two men wrestled. Sharma was trying to push petitioner away because he was afraid petitioner would stab him again. While they wrestled, petitioner demanded the store's surveillance tape in a loud aggressive voice.
Petitioner got up and moved to the right rear of the store. Sharma got up. Petitioner ran toward him. Sharma ran to the front of the store and fell on the Pepsi display. Petitioner came to within two feet of Sharma with a knife in his hand. A customer who had just entered the store told petitioner to stop. Petitioner did not try to stab Sharma again.
Petitioner walked out of the store. So did Sharma. The man in the wheelchair told Sharma he would call 911.*fn2 Sharma stood outside with petitioner for one to two minutes, during which petitioner did not say anything to Sharma or try to threaten, stab or otherwise attack him. Petitioner stood quietly. Sharma went back inside the store. Petitioner walked away.
At trial, the store surveillance tape was played for the jury, and accurately depicted the events described by Sharma.
On cross-examination, Sharma testified he had seen petitioner in the store before, but had never had any problems with him. He also testified that petitioner did not punch him or strike him, and never threatened to kill him.
Sharma's knife wound was about three inches deep, and required surgery and stitches. It was just two inches from the aorta and the vena cava. As a result of the wound, Sharma cannot stand for a long time, and feels "numbness and pain and pressure in [the] area."
A Vallejo police detective arrested petitioner, without incident, in Fairfield on August 17, 2004. After being told his Miranda rights, petitioner agreed to make a statement. Petitioner said he entered the Bonfare Market in the early morning of August 14, 2004, "tripped out," and stabbed the victim. He used a fixed-blade knife about four-to-six inches long.
Petitioner told the detective that he had a dispute with Sharma over change from a purchase about a week before the stabbing. He initially said the dispute was the reason for the stabbing, but "[u]ltimately he explained that he had no reason for the stabbing; that he just tripped out, or blanked out." Petitioner did not tell the detective that he wanted or intended to kill Sharma.
Petitioner also told the detective he had driven to the store and parked about a quarter-mile away. He did not say why he parked so far from the store. He said he threw his knife in a swamp after he left the market, while walking to his car.
Petitioner did not testify or call any witnesses. In closing argument to the jury, defense counsel conceded that defendant assaulted Sharma with a knife, but argued that defendant did not intend to kill him and should not be convicted of attempted murder.
A jury convicted petitioner of attempted willful, deliberate, and premeditated murder and assault with a deadly weapon or by any means likely to produce great bodily injury. On appeal, petitioner claimed instructional error and ineffective assistance of counsel. The latter claim was pursued in a habeas corpus petition, presenting facts outside the record. The California Court of Appeal, First District, affirmed the judgment and sentence. A petition for review to the California Supreme Court was denied. Petitioner sought habeas corpus relief in state court which was likewise denied.
The petition presents two grounds for relief: Ground One: Trial Counsel rendered ineffective assistance of counsel by failing to present evidence that petitioner had a mental disorder rendering him incapable of forming the intent to kill;
Ground Two: The trial court erred in violation of due process when it rejected the defense's proposed modified version of pattern jury instruction CALJIC No. ...