The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner, is proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of attempted voluntary manslaughter and the jury found true allegations that he personally used a firearm and personally inflicted great bodily injury. Petitioner was sentenced to ten years imprisonment. Petitioner presents several claims in his federal habeas petition; specifically: (1) jury instructional error on the attempted voluntary manslaughter instruction ("Claim I"); (2) ineffective assistance of trial counsel ("Claim II"); (3) cumulative error ("Claim III"); (4) ineffective assistance of appellate counsel ("Claim IV"); and (5) insufficiency of the evidence to support the attempted voluntary manslaughter conviction ("Claim V"). For the following reasons, the habeas petition should be denied.
II. FACTUAL BACKGROUND*fn1
Joseph Nicholas Scoma (Nicholas), defendant's son, lived with defendant at defendant's mobile home. On August 4, 2003, Nicholas came home and told his father he had quit his job at Carl's Jr. Defendant became angry and started yelling at Nicholas. The argument escalated and the two began pushing each other, leading Nicholas to push defendant to the ground at one point. Defendant was overweight and had recently undergone heart surgery. He would argue with Nicholas until he ran out of breath, and then commence arguing again once he caught his breath. The series of arguments lasted about 30 minutes.
Defendant twice swung a metal baseball bat at Nicholas, but missed both times. One time defendant told Nicholas, "I'll hit you in your fucking head" as he swung the bat. He also tried to hit Nicholas with a metal strip used to separate carpeting from the wall.
Defendant eventually told Nicholas to leave. Nicholas gathered his belongings and started to load them into his car, going in and out of the house several times. He never barred Nicholas from entering or leaving, but there was more pushing and fighting by the front door.
Defendant eventually stopped yelling at Nicholas, turned, and reached into a bag of dog biscuits on a counter just inside the front door. He pulled out a plastic bag containing a .38 caliber revolver with a two-inch barrel. Defendant took the gun out of the bag and pointed it at Nicholas's foot. Defendant pulled the hammer back and told his son "I'll shoot you in your fucking foot."
Defendant "[j]ust pointed [the pistol] at me and threatened me and then kind of took a couple of steps back. And then he leaned up against the doorway, just kind of sat there, like he was happy with himself." Nicholas then told defendant to put the gun down, saying "[w]e need to figure something out and we should probably do that without the gun."
Defendant fidgeted with the gun, taking it in and out of the plastic bag. Nicholas was yelling and swearing at defendant by this point. He yelled "[p]ut the gun down and let's finish this" to defendant. As he yelled at defendant, Nicholas accidently spit on defendant's arm. Defendant looked at Nicholas and said, "[y]ou spit on me."
He wiped the spit on Nicholas and then shot him.
Defendant's eyebrows raised and his eyes were wide when he fired the revolver. The bullet entered Nicholas's right chest just below the clavicle, hit one lung, and stopped next to the spine. Defendant called 911 and asked for an ambulance. He told the emergency operator that the gun accidently went off when he and Nicholas were reaching for it. Nicholas was in intensive care for five days. It took about three pounds of pressure to pull the trigger before the revolver would fire, and the revolver could not fire unless the trigger was pulled. According to the prosecution's expert criminalist, defendant could have shot Nicholas from about two to three feet away.
A licensed private investigator and firearms expert testifying for the defense tested the plastic bag. He found the holes and burn marks on the bag to be consistent with it having been wrapped around the revolver when it was fired. The markets and burns were also consistent with the bag being held against the revolver with one hand as the revolver was being held with both hands when it was fired.
After Petitioner was convicted and sentenced, he appealed to the California Court of Appeal, Third Appellate District. Petitioner raised one issue in that appeal, specifically that there was insufficient evidence to support the attempted voluntary manslaughter conviction. The California Court of Appeal affirmed the judgment in October 2006. Petitioner then raised his insufficiency of the evidence claim to the California Supreme Court in a petition for review. The California Supreme Court denied the petition for review in December 2006.
Petitioner then filed a state habeas petition in the Superior Court of California, County of Shasta which raised the issues Petitioner raises in his federal habeas petition. The Superior Court denied the state habeas petition in a written decision in August 2008. Petitioner then filed a state habeas petition in the California Court of Appeal which was summarily denied. Petitioner's state habeas petition to the California Supreme Court was summarily denied in June 2009.
Petitioner filed his federal habeas petition in July 2009 in the Northern District of California. He filed an amended federal habeas petition in March 2010. The matter was transferred from the Northern District of California to this district in July 2010. Respondent answered the petition on December 1, 2010. Petitioner then filed a traverse in January 2011. The matter was reassigned to the undersigned by Chief Judge Ishii in July 2011.
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 only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
V. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner asserts that the jury was improperly instructed on the intent required to support a conviction for attempted voluntary manslaughter. Petitioner raised this Claim in his state habeas petitions. Specifically, Petitioner asserts that the instructions given to the jury forced the jury to convict Petitioner on a general intent theory as opposed to a specific intent to kill. (See Pet'r's Am. Pet. Mem. of Points & Auth. at p. 32.) Petitioner argues that the instructions were in error because the "jury is being directly told that the crime [of attempted voluntary manslaughter] occurs when there is no intent to kill." (Id.)
The last reasoned decision on this Claim was from the Superior Court, County of Shasta which held that, "[t]he opinion of the Third District Court of Appeal found the record established that there was sufficient evidence for the jury to find petitioner had the intent to kill his son. Therefore, the ruling of the appellate court has effectively rendered this issue moot." (Respt's Lodged Doc. No. 7 at p. 1.)
A challenge to a jury instruction solely as an error of state law does not state a claim cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See id. at 72. Additionally, the instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See id. The court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. See United States v. Frady, 456 U.S 152, 169 (1982). Furthermore, even if it is determined that the instruction violated the petitioner's right to due process, a petitioner can only obtain relief if the unconstitutional instruction had a substantial influence on the conviction and thereby resulted in actual prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), which is whether the error had substantial and injurious effect or influence in determining the jury's verdict. See, e.g., Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam).
The jury was instructed as follows on attempted voluntary manslaughter:
A lesser included crime to attempted murder is the crime of attempted voluntary manslaughter, in violation of sections 664 and 192, subdivision (a) of the Penal Code. Every person who unlawfully attempts without malice aforethought to kill another human being is guilty of the crime of attempted voluntary manslaughter in violation of sections 664 and 192, subdivision (a) of the Penal Code, a crime.
Voluntary manslaughter is the unlawful killing of a human being without malice aforethought. There is no malice aforethought if the killing or attempted killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril or great bodily injury.
In order to prove this crime, each of the following elements must be proved:
1. A direct but ineffectual act was done by one person towards killing another human being; and
2. That person had the specific intent to kill the other person;
3. The actions taken to kill were unlawful.
In deciding whether a direct but ineffectual act was committed, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the killing or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design. (Clerk's Tr. at p. 197-98 (emphasis added).)
The jury was then also specifically instructed as to how to properly distinguish between murder and manslaughter:
The distinction between murder and manslaughter is that murder requires malice while manslaughter does not.
When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent.
To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury. (Id. at p. 198.)
When read and considered as a whole as a federal habeas court is required to do, Petitioner fails to show that the jury instructions violated his due process rights. The jury was specifically instructed that one of the elements to find Petitioner guilty of attempted voluntary manslaughter was that he had "the specific intent to kill the other person." Furthermore, as illustrated above, when distinguishing the definitions of manslaughter and murder, the jury was instructed that the difference is that attempted murder requires malice whereas attempted manslaughter did not. The trial court did not instruct the jury that manslaughter did not require a specific intent to kill. Instead, it specifically laid out the requirements for attempted voluntary manslaughter, one of which was a specific intent to kill. The jury is deemed to have followed this instruction. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). The jury instructions cannot be read in isolation, but must be read as a whole in determining whether Petitioner's due process rights were violated. See Estelle, 502 U.S. at 72. Based on the foregoing, Petitioner fails to show that his due process rights were violated for the reasons described above. Therefore, Claim I should be denied.*fn2
In Claim II, Petitioner makes three separate and distinct ineffective assistance of trial counsel arguments. Specifically, Petitioner asserts that counsel was ineffective by: (1) failing to impeach Nicholas with evidence of marijuana found in his system; (2) misadvising Petitioner as to the maximum prison time exposure he could face if convicted; and (3) allowing the trial court to take into account the statements taken from the victim impact statement and the presentence report. The last reasoned decision on this Claim was from the Superior Court, County of Shasta on Petitioner's state habeas petition. That court stated the following in resolving these issues:
Petitioner argues that trial counsel was ineffective for several reasons: a) failing to impeach the victim with evidence that he was under the influence of marijuana at the time of the incident; b) advising petitioner that the maximum sentence he was facing was felony probation; and c) failing to object to items in the Victim Impact Statement.
The California Supreme Court set forth the standard that must be met for a writ of habeas corpus to issue based upon ...