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Anthony Dean Dixon, Iii v. Mike Mcdonald

September 20, 2011

ANTHONY DEAN DIXON, III, PETITIONER,
v.
MIKE MCDONALD, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction on charges of first degree murder with true findings that petitioner personally used a firearm causing great bodily injury. Petitioner was sentenced to 50 years to life in prison. Petitioner raises three claims related to alleged juror misconduct, and one claim of ineffective assistance of trial counsel based on counsel's failure to move for disclosure of juror identifying information. After careful review of the record, this court recommends that the petition be denied.

II. Procedural History

Petitioner filed a timely appeal to the California Court of Appeal, Third Appellate District. The judgment was affirmed by the Court of Appeal on May 14, 2010. (Lodged Document ("LD") C.) Petitioner filed a petition for review in the California Supreme Court. (LD D.) The California Supreme Court denied review on September 1, 2010. (LD E.)

Petitioner filed the instant petition on November 10, 2010. (Dkt. No. 1.)

III. Facts*fn1

The opinion of the California Court of Appeal contains a factual summary of petitioner's offenses.

On September 6, 2006, at around 7:13 a.m., two school-aged children discovered the body of John Dills. Dills was dead, having sustained three gunshot wounds to the upper torso and chest, two wounds to the left ear area, a wound on the left temple, and a wound on the outer part of the left hand.

Freeman Kellison knew [petitioner] since they were children. In September 2006, [petitioner], Kellison, and Dills worked on three-wheelers and took drugs together. [Petitioner] often stayed at Kellison's home during this time.

[Petitioner] and Dills stayed with Kellison at his grandmother's house on the evening of September 4, 2006. Kellison was afraid that night and borrowed a .22-caliber handgun from his grandmother. Kellison was uncomfortable with handguns, so he gave the weapon to [petitioner], a hunter familiar with guns. Dills was afraid for his safety, constantly expressing his desire to get out of California. Kellison offered to help by buying him a bus ticket.

The following day, the trio picked up some of Dills's clothing from the home where his father was staying. They eventually returned to Kellison's grandmother's house, where Kellison and [petitioner] obtained her permission to let Dills sleep there that night. However, Dills had fallen asleep in the car, where he was left for the night.

Kellison got his grandmother's handgun again and gave it to [petitioner]. [Petitioner] told Kellison he suspected Dills of being a child molester, and the two discussed whether this was why Dills wanted to leave California. [Petitioner] suggested killing Dills as a way to take care of this situation. Kellison said this was none of their business, but [petitioner] retorted, "what if [Dills] raped your grandmother?"

Kellison decided to go to the hospital to treat a spider bite on his knee. He and [petitioner] got into the car, which still contained the sleeping Dills. However, Kellison drove in the opposite direction as [petitioner] directed him to a place where they could buy marijuana. The person with the marijuana was not home, so Kellison drove back towards the hospital.

After Dills woke up in the backseat, [petitioner] asked him to reach down and pick up a bag of [petitioner's] belongings off the floor. [Petitioner] then turned around and shot Dills twice, causing him to slump down. Kellison slowed the car down, but [petitioner] shot Dills again before the car stopped.

Once the car stopped, [petitioner] and Kellison got out. Kellison pulled Dills's body out of the car, laid his own shirt over the torso, and dumped Dills on the side of the road before driving back to his grandmother's house with [petitioner]. He also took the gun from [petitioner] and put it away.

Kellison was serving a prison term after pleading guilty to a manslaughter charge, and was scheduled to be released about a year after the date of his testimony. He had previously been arrested for stealing the ingredients for methamphetamine from a K-Mart; he also had a recipe for methamphetamine in his possession when he was arrested.

Kellison's grandmother testified she owned the .22-caliber Ruger semiautomatic pistol used to kill Dills. The pistol was found in a search of her house, which also discovered a bloody wig folded over a citation issued to Dills and an empty box for .22-caliber rounds.

[Petitioner] was interviewed by a Butte County Sheriff's deputy. He admitted shooting Dills, but claimed it was an accident. [Petitioner] said the first shot went off accidentally while he was playing with the gun and the car hit a bump. Dills was shot in the neck and was suffering, so [petitioner] shot Dills many times, like a hunter putting a wounded animal out of its misery. He admitted shooting Dills four or five times, including once in the head.

[Petitioner] did not like Dills; he thought Dills was a thief and a child molester. When [petitioner] got into the car, he thought Dills might die. [Petitioner] admitted using methamphetamine at the time of the shooting.

Peter Barnett testified as an expert criminalist for the defense.

He thought that the position of the bloodstain in Kellison's car and the direction of the gunshots on the body indicated that Dills was shot from the driver's side rather than from the passenger side of the front seat. However, he admitted it was possible that Dills was shot from the passenger side and slumped over before being shot again.

(People v. Dixon, LD C at 1-4.)

IV. Standards for a Writ of Habeas Corpus

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 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Federal habeas corpus relief is not available 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).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of section 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. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (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.'") (internal citations omitted). "A state court's ...


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