The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, Salvatore Carmelo Maggio, is a state prisoner and is proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was found guilty of second degree murder by a jury and is currently serving a sentence of fifteen years to life imprisonment. Petitioner raises two claims in this federal habeas petition; specifically: (1) Petitioner's due process rights were violated when the trial court erred in instructing the jury on imperfect self-defense ("Claim I"); and (2) Petitioner was denied the right to testify on his own behalf ("Claim II"). For the following reasons, the petition should be denied.
II. FACTUAL BACKGROUND*fn1
Nick Murray, age 15, met his friend Aaron Brooks at Canyon Creek Park in Galt on the afternoon of October 26, 2005. Brooks had his skateboard that day. Murray was there with another friend, 15-year-old Chris Duro, and the three went to Emerald Vista Park. As Murray, Duro and Brooks walked through the park, they encountered defendant sitting on a bench, who walked up to them and asked if they had any marijuana for sale. Brooks said they did not, but he could find some, and after making a few calls, arranged a sale. Murray then left, as it was starting to rain.
Brooks, Duro and defendant walked to Galt Community Park. About five minutes later, a man showed up and Duro and defendant purchased some marijuana from him. Duro then left to go to a friend's house while Brooks and defendant continued walking.
Jason Brooks last saw his 15-year-old brother Aaron at around 5:30 p.m. on October 26, 2005, leaving their house near Emerald Vista Park. He reported Brooks missing the following day.
On November 5, 2005, a search party found Brooks's body in a creek at Emerald Vista Park. An autopsy of Brooks's mildly decomposed body found no offensive wounds to the hands. Discoloration on his larynx was a sign of strangulation, and the cause of death was drowning.
On October 25, 2006, between 3:00 and 5:00 p.m., Brandon Smith was walking one of his dogs through Emerald Vista Park when he noticed a skateboard, beanie, and marijuana pipe which had not been there 30 minutes ago. Continuing his walk, Smith eventually found defendant sitting in the creek behind a shrub. Asked by Smith what happened, defendant told Smith he was jumped by three people and thrown into the creek. Defendant, who was covered in algae and moss, got out of the creek with no trouble and picked up the beanie and pipe.
After defendant told Smith he thought he broke his arm, Smith called 911. Officer Steve Morgan of the Galt Police Department responded to the 911 call at around 5:30 p.m. Defendant was sitting on a park bench, wet and covered with algae, and vomited when Officer Morgan asked how he was.
Defendant told the officer he had been in a scuffle with two men after an argument over buying marijuana. He fell into the creek after the two men left, but had not been in a fight.
A paramedic asked defendant if all the items on the pathway, including the skateboard, were his. Defendant said yes, and took them. The paramedic observed no injury other than an abrasion on defendant's right wrist.
Defendant was interviewed by law enforcement officers on November 5, 2005. He had driven to Galt and brought a smoothie at a coffee shop. Defendant then ran into someone at Raley's, and asked the person if he could buy marijuana. The person did not smoke, so defendant asked the person's friend, Brooks.
Brooks made a call and they walked to pick up the marijuana from another person. Defendant thought he was being set up, so he took the marijuana, pushed Brooks, and took his skateboard. They then "tussled," with both ending up in the water.
Defendant said they got exhausted and began to choke each other while still in the water. He claimed to have swallowed a lot of water, causing him to see a white light before regaining his strength and throwing Brooks off of him.
He was now able to push Brooks underwater. Defendant thought Brooks might die as a result, and "Probably at that moment" hoped Brooks would die. When Brooks was lying face down in the water, defendant let him go, realizing he was dead.
Defendant first claimed he did not know what happened to Brooks, but later admitted thinking Brooks was faking death, and then finally admitting he knew Brooks was dead.
Defendant's home was searched and police found a shirt, pants, beanie, tennis shoes, a bag of marijuana, and Brooks's skateboard in a dumpster behind the house.
Defendant presented a mental state defense.
His mother testified she put him in therapy during his senior year in high school. In the year before defendant killed Brooks, defendant displayed no animation and had a detached look in his eyes. The treating psychologist diagnosed defendant with depressive disorder, not otherwise specified, and recommended antidepressants and continued counseling.
Defendant's grandparents testified to his passive and nonconfrontational personality. A year before the incident, defendant's grandmother saw him pointing at unseen things and acting as if he was being watched.
Dr. Katherine Warburton was appointed by the court to determine if he was competent to stand trial. Dr. Warburton found defendant competent to stand trial but suffering from paranoid schizophrenia. Paranoid schizophrenia can influence one's cognitive abilities by creating paranoid delusions. For example, upon being handed a bottle of water the paranoid schizophrenic may believe it contains something inappropriate.
In a jail interview, defendant told Dr. Warburton that his father was starting to control his mind. Defendant would watch the Regis and Kelly show on television, and Kelly would talk with him. He also heard voices commenting on his thoughts and interactions with others. Dr. Warburton concluded defendant was under the influence of his mental disease before the incident.
Dr. Jules Burnstein testified as an expert in clinical and forensic psychology and interviewed defendant five times after his arrest. Defendant, who was timid, shy and introverted, suffered from paranoid schizophrenia. Defendant's jail psychiatric records indicate he had images of his cutting off body parts, as well as audio hallucinations and paranoid thoughts. There was no evidence of malingering or falsifying his mental illness.
In an interview with Dr. Burnstein, defendant admitted he did not think Brooks was trying to drown him during the fight. Defendant thought he was swallowing water and dying. After purchasing the marijuana, defendant asked Brooks to smoke some to ensure the marijuana was not adulterated. When Brooks refused, defendant thought he was being set up, so he chased Brooks, grabbed his skateboard, and an altercation ensued. Asked why he held Brooks's head under water, defendant said he was baptizing him.
Petitioner appealed his judgment and conviction to the California Court of Appeal, Third Appellate District raising the same two issues that he raises in this federal habeas petition. That court denied Petitioner's claims and affirmed judgment on February 11, 2009. Petitioner raised the same two issues to the California Supreme Court in his petition for ...