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Daniil V. Zhuk v. Mike Mcdonald

September 6, 2011

DANIIL V. ZHUK, PETITIONER,
v.
MIKE MCDONALD, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Zhuk, a state prisoner, proceeds through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Zhuk stands convicted of first degree murder and other offenses in the Sacramento County Superior Court, case number 00F02479, for which he is currently serving a sentence of life in prison without the possibility of parole.

II. BACKGROUND

Zhuk and a co-defendant were charged with various crimes stemming from three separate incidents involving unsuccessful attempts to steal automobiles and/or assaults upon victims in vehicles. One of the incidents resulted in the death of a young victim, Cindy Chung.

A. Murder of Cindy Chung

On the afternoon of January 20, 2000, seventeen-year-old Zhuk drove with co- defendant Mikhael Vlasov and another passenger in his car. They spotted Cindy Chung driving a BMW on the freeway and followed her car until she parked at her father's auto body shop. Cindy entered the office of the auto body shop for about 10 minutes and then returned to her car as her father, Han Chung, locked the office door. Armed with a .22 caliber handgun, Vlasov exited the vehicle and walked past Han around the corner toward where Cindy was parked. Almost immediately Han heard two gunshots and saw Vlasov run past him. Han saw Cindy's car smash into a fence and called 911. Vlasof returned to Zhuk's car and they drove away. Cindy was dead when officers arrived at the scene.

Vlasof and the third passenger testified that Zhuk had said he knew people who would pay $3,000 to $4,000 for a BMW or a Mercedes and suggested stealing a car and splitting the money. According to those two, Zhuk gave the gun to Vlasof and instructed Vlasov to run up to the driver of the car, stick the gun in her face, and take away the car. Vlasov testified he discharged the gun accidentally. Zhuk, however, denied knowledge of the gun and denied being part of any plan to steal the car.

The owner of a nearby shop had noticed a suspicious car in front of his shop on the day of the shooting. After learning of Cindy's murder, the neighboring shop owner called the police and provided information to create a sketch of the driver, which was published in newspapers, including a Russian language newspaper.

On March 20, 2000, Zhuk's father saw a sketch of the suspect in the Russian newspaper coverage of Cindy's murder. The picture looked like Zhuk. The following day Zhuk's father accompanied him to juvenile hall to speak with law enforcement.

Around the time of the shooting, Zhuk showed a gun to a friend from school and told her that he stole cars. The day after Cindy's murder, Zhuk told the friend that he had gone to steal a car, but there was a woman who did not want to get out of the vehicle and she ended up dead.

B. Attempted Carjacking of In-grid Wolbart

The night before Chung's murder, on January 19, 2000, In-grid Wolbart was the victim of an attempted carjacking by a lone assailant displaying a firearm. Wolbart did not cooperate with the assailant's demands, and the assailant fled.

After learning of Cindy Chung's murder, Wolbart notified police of the incident. She described her assailant as a white man with a small build, approximately five feet six inches tall.*fn1 In separate photo lineups, she identified both Zhuk and Vlasov as the possible perpetrators but was more certain about the selection of Zhuk's photo. At trial she identified Zhuk as the assailant.

C. Attempted Carjacking of Karen Wood

Zhuk admitted that, on February 23, 2000, he attempted to steal Karen Wood's Mercedes. As she put her key in the ignition, Zhuk approached her, said he had a gun, and ordered her out of the vehicle. She got out of the car and Zhuk got into the driver's seat. Wood still had the key, however, and ran away. As she was running away, she saw Zhuk running off in a different direction. Wood never saw a gun.

Wood identified Zhuk as the attempted carjacker in a photo lineup and at trial. A fingerprint from the driver's side door of Wood's car matched Zhuk's print.

D. The Trial and Appeal

Zhuk and Vlasov were tried together with separate juries. As set forth, Zhuk claimed Vlasov was solely responsible for Cindy Chung's death; Vlasov admitted to the shooting but testified it was an accident instigated by Zhuk. Vlasov also testified that he attempted another carjacking at Zhuk's request nine days after Cindy Chung's murder.

Both Zhuk and Vlasof denied any involvement in the attempted carjacking of Wolbart's car. Zhuk testified Vlasov told him about an incident similar to Wolbart's version of events. Zhuk provided an alibi for the evening in question and the parties stipulated that Zhuk had placed a missing person call to police at a gas station located a considerable distance from the location where Wolbart was accosted.

Zhuk admitted that he attempted to steal Wood's car.

Zhuk's jury acquitted him of the attempted offense against Wolcott but found him guilty of attempted carjacking against Wood and of attempted robbery and special circumstance murder under a theory of felony murder as to Cindy Chung. The court sentenced him to life without the possibility of parole plus a consecutive term of three years and six months.*fn2

After conviction, Zhuk filed a motion for new trial based on alleged juror misconduct. Supported by the declarations of two jurors, the motion alleged that the jurors had engaged in misconduct by bartering their votes to reach a compromise verdict and improperly considering extraneous information. The trial court held a hearing and denied the motion.

Zhuk appealed his convictions to the California Court of Appeal, Third District, where the judgment was affirmed in an unpublished decision. The California Supreme Court denied a petition for review.

III. GROUNDS FOR RELIEF

Zhuk claims that the jurors committed prejudicial misconduct during deliberations (grounds one and two) and that the trial court made an instructional error with respect to the murder charge (ground three).

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 be granted only for violations of the Constitution or laws of the United States.

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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded for any claim decided on the merits in 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 the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

This court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

V. DISCUSSION

A. Juror Misconduct (Grounds One and Two)

1. Additional Background

Following his conviction, Zhuk obtained declarations from two jurors in support of a motion for a new trial premised on alleged ...


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