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Eric Kenneth Dungan v. Ron Barnes

November 21, 2011

ERIC KENNETH DUNGAN, PETITIONER,
v.
RON BARNES, WARDEN,
RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein petitioner challenges the judgment of conviction entered against him in the Placer County Superior Court in 2007 for second-degree murder in violation of Cal. Penal Code § 187(a), upon which he was sentenced to a term of fifteen years to life in state prison. Petitioner seeks federal habeas relief on the grounds that: (1) there was insufficient evidence introduced at trial to support his murder conviction; and (2) the trial court's jury instruction on the mental state required for murder was erroneous, violating his right to due process.*fn1 Petitioner also seeks an evidentiary hearing in this court on his insufficiency of the evidence claim on the grounds that the DVDs of his police interrogation were not provided to his appellate counsel. Both parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 8, 11.)

Upon careful consideration of the record and the applicable law, the undersigned concludes that petitioner is not entitled to federal habeas relief and that his request for an evidentiary hearing must be denied.

PROCEDURAL BACKGROUND

On March 13, 2007, a Placer County Superior Court jury found petitioner guilty of murder in the second degree, in violation of California Penal Code § 187(a), and gross vehicular manslaughter while intoxicated, in violation of California Penal Code § 191.5(a), enhanced by an allegation that he fled the scene after committing that offense, in violation of California Vehicle Code § 20001(c). (Lod. Doc. 1, Clerk's Transcript on Appeal (hereinafter "CT") at 514-517.) On April 26, 2007, petitioner was sentenced to fifteen years to life in state prison for murder, with a concurrent term of eleven years in state prison for manslaughter. (Id. at 675-678.)

Petitioner appealed his murder conviction to the California Court of Appeal for the Third Appellate District. (Lod. Doc. 4.) On April 1, 2009, the state appellate court affirmed the judgment in a reasoned opinion. (Lod. Doc. 8*fn2 .) Petitioner then filed a petition for review with the California Supreme Court and on June 10, 2009, the court summarily denied that petition. (Lod. Docs. 7 & 9.)

On May 17, 2010, petitioner filed his federal habeas petition in the instant case. (Doc. No. 1.) On August 2, 2010, pursuant to court order dated June 2, 2010 (Doc. No. 5), respondent filed an answer. (Doc. No. 13.) On August 26, 2010, petitioner filed a traverse, in which he requested an evidentiary hearing on his insufficiency of the evidence claim. (Doc. No. 15.)

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Rocklin Police Officer Matthew John Redding was on duty, diverting traffic away from high-risk felony stops being performed by a number of patrol vehicles. Defendant, who had been drinking all night, had been told minutes before that he was too drunk to drive, and who was looking at his mobile phone to send a text-message, ran Officer Redding down with his pickup truck, killing Officer Redding.

BACKGROUND

People's Case While defendant had been an airman at Beale Air Force Base, he had been present at briefings that emphasized the dangers of drinking and driving (DUI), among other topics. His former group commander testified there were monthly "commander's calls" at which the subject of drunk driving was always brought up, and there were also weekly DUI briefings for airmen under 26, where participants would sign a "Weekly Safety Briefing/[DUI] Sign-In Log ." The commander identified defendant's signature on one such log sheet, but did not know exactly what was said at that particular briefing.

Defendant drank at three different places on the night of October 8-9, 2005.

First, at TGI Friday's, around 9 to 10 p.m., defendant joined a party celebrating the birthday of a friend/co-worker of defendant's. Second, defendant stayed with the party as it moved about 10:30 to 11:30 p.m. to the West House. A witness who arrived around midnight testified defendant was staggering drunk, and had been dancing suggestively with the witness's girlfriend.

Third, defendant stayed with the group as it moved around closing time to a private home in Granite Bay. A woman took a bottle of tequila away from him because he had had too much to drink; he was staggering drunk. Eventually, because he was pestering another women and groped her breast, she called a taxi cab company so that defendant would go home.

The cab driver received the call about 3:30 a.m., and it took only about 10 to 15 minutes to get to the house. Defendant first asked him to drive to the West House, but on the way defendant changed the destination to TGI Friday's. From the way defendant acted, the cab driver thought he might not be well. They arrived at TGI Friday's but defendant's truck was not there, so defendant told the cab driver to go to the West House. The cab driver kept talking to defendant because he was afraid defendant would fall asleep. After they found defendant's truck at the West House, the cab driver warned defendant that he was too drunk to drive and he should sleep in his truck. Defendant asked the driver whether the driver had defendant's keys. About 4:00 a.m., after paying the cab fare with a credit card, defendant drove off. Based on his cab driving experience, he rated defendant "right around eight" on a scale of 1 to 10 for drunkenness.

While defendant was partying, Rocklin Police Officer Matthew Redding was on duty. He was assisting other officers who were performing a highly dangerous job. At the time, the Sacramento County sheriff provided contract police services to the City of Citrus Heights. As two Citrus Heights officers were following a car in response to a complaint of an armed man making threats, they became concerned when they realized other cars were following them. Eventually, there were three or possibly four suspect cars that had to be stopped and searched, and between 8 to 12 patrol cars, all with overhead light bars flashing, managed to coordinate multiple felony stops on Highway 65, just north of the Galleria Boulevard overcrossing, a "very well lit area." Because of the danger, Highway 65 was blocked off.

Officer Redding parked his patrol car, with overhead light bar flashing, just before the Galleria/Stanford Ranch exit ramp, and set up a series of reflective hazard cones, to divert traffic off Highway

65. He stood facing traffic and motioning with a bright flashlight. Defendant was driving about 55 to 60 miles per hour north on Highway 65. He did not slow down at the sight of the 8 to 12 police cars with flashing lights or for the flashing lights of Officer Redding's car, although lights were visible for "about 1500 feet" south of where the car was parked. Another officer estimated the lights of the cars at the felony stop could be seen about 2000 feet away. One witness testified the "glow of the lights" was visible from the exit ramp from Interstate 80, and she saw a patrol car "in the middle of the road" and Officer Redding standing in front of it with a flashlight, motioning traffic off the highway at the Stanford Ranch exit. Two officers testified there was "a Christmas tree of police lights" visible to a motorist. Defendant did not slow down for the line of hazard cones leading traffic to the exit ramp. They were apparently so brightly reflective that one witness thought they had been flares. Defendant did not slow for Officer Redding -- who stood 6'2", nor did he stop for his flashlight signals. Instead, defendant drove around another car that had slowed down "real briefly" and drove directly into Officer Redding. Immediately, a witness estimated defendant was still driving at "probably fifty" miles per hour.

Officers at the multiple felony stop, which had been winding down, heard a noise and then horrible screaming coming from the south. Officers saw defendant's truck, with one headlight out and obvious damage, leave the freeway (after drifting onto the dirt or gravel shoulder) and they realized what may have happened, although they did not know the severity of the incident. Defendant was staring "straight ahead," as he passed the officers, which can be a sign of intoxication.

Patrol cars began following defendant and signaled him to pull over. Although defendant had three opportunities to pull into a shopping center parking lot, and appeared to slow down for each of those chances, he kept driving until he reached Roseville Parkway, where he turned right and finally pulled over about 4:11 to 4:12 a.m. It was about half a mile between where officers caught up to defendant and where defendant finally pulled over.

Defendant's eyes were bloodshot and glassy, he smelled of alcohol, and he continued to stare straight ahead. As defendant fumbled for identification, the officers learned that Officer Redding "was down" and they handcuffed defendant and put him in a patrol car. An ambulance on its way to the hospital passed the scene of the stop.

Defendant was taken to the Roseville jail. By the time he reached the jail the arresting officers had learned Officer Redding was dead. Defendant failed various field sobriety tests at the jail. When initially questioned about half an hour at the jail by CHP Officers Andrew Mayo and Barry Larson, defendant repeatedly claimed he thought he had hit a dog or a bird and once said he hit a traffic cone. He claimed he stopped drinking about 10:30 that night. He said he was sending a text message on his phone when he looked up, saw flashing lights and heard a bang.

Beginning about 7:45 that morning, CHP Officer Charles Swift interviewed defendant for two hours and 45 minutes. This interview, played for the jury on two DVDs, exhibit Nos. 454 and 455, revealed significant information about defendant's mental state. However, no transcript of the interrogation was introduced into evidence, nor was any informal transcript included in the record on appeal, although some kind of transcript was passed out to the jurors. It appears that neither appointed appellate counsel nor the Deputy Attorney General assigned to this case viewed these DVDs, therefore neither brief accurately portrays the evidence that was before the jury.

From references to these DVDs in the reporter's transcript, the parties could glean the following: Defendant claimed he thought he had hit a dog or cone, and held to that story for about two and a half hours, but then admitted that he had seen Officer Redding, and that he knew he had hit a police officer facing his truck. Defendant had been looking down at his mobile phone, preparing to send a text message; "I look up. There is the officer right there." He claimed he had only four drinks that night, two at TGI Friday's and two at the West House. He also said that he had been wearing earplugs from an iPod and had been listening to music at the time. But the DVD recordings of Officer Swift's interview with defendant reveal much more. Defendant told Officer Swift that he had a drinking problem, that he drank once a month, inferentially to excess, and he had driven home much drunker than he was on the night in question. He had been in a multi-car collision caused by a driver who was either drunk or on drugs, and a friend of a friend had been killed while driving drunk. He had attended "hundreds" of the Air Force briefings, and the Air Force taught him that a DUI would wreck his career in the military, it was a "big deal." The air base had a board near the exit listing the number of DUIs in the squadron, as a caution to airmen leaving the base, and defendant had to sign a weekly statement that he understood the risks of drunk driving. Every weekend he had to attend briefings about the dangers of DUIs, and the Air Force taught him to have a "plan" in case of drinking; in fact, he knew one of the women in the party group was the "designated driver," and although she testified at trial that she drank a beer, defendant's statement shows his awareness of the purpose and need for a sober driver. He knew driving drunk impaired one's abilities and knew it could cause death if there was an accident. He knew that he was supposed to stop at the scene of an accident, but he left the highway to avoid the patrol cars. He thought that if stopped he would "blow over," that is, register at above the legal alcohol limit, but he still thought he was "fine" to drive because he had driven "worse than that" before, "way more drunk," and it was a "straight freeway shot" home on Highway 65, it was not a "big deal." He later said he thought he was in the "range" of the legal limit, but "You never know what you're gonna blow" so he was not sure he would get a DUI. He settled into his usual routine of texting with his right hand while steering with his left, and had his iPod turned up loud, with earphones in both ears. He drove by using his peripheral vision, as he looked down to text. At one point he said he was "juggling" the phone and the iPod as he manually shifted gears, and he would "casually" look at the road while texting. He had been up nearly 24 hours and "hope[ed]" he would remember if he nodded off while driving, which has happened to him only on long trips and had not happened recently.

Defendant was released after posting bail and later made a statement to a television news reporter claiming he thought he hit a sign or a cone, in contrast to his admission to Officer Swift that he knew he had hit Officer Redding.

Defendant's blood sample taken at 5:45 a.m., showed a blood alcohol content of .15 percent. In response to a hypothetical based on defendant's weight and supposed drinking pattern, an expert calculated that his blood alcohol level would have been at between .17 and .19 percent at 4:07 a.m. (just over twice the legal "limit" of .08 percent), and he would have had to drink about 15 drinks that night.

A woman testified defendant called her on her mobile phone about 4:05 a.m. that morning, sounding drunk. Officer Redding suffered massive injuries, consistent with being hit by defendant's truck at 50 to 55 miles per hour, and died within half an hour.

There were no mechanical problems with defendant's truck and the weather was clear. The felony stop was about 200 feet north of the overcrossing and Officer Redding's patrol car was about 1400 feet south. A CHP accident reconstruction expert testified that, assuming he were traveling 50 miles per hour, defendant would have had 21 seconds to react to the patrol car lights, 15 seconds to react to the reflective cones, 14 seconds to react to Officer Redding's flashlight and 6 seconds to react to Officer Redding standing in the roadway, based on an accepted reaction time of one and a half seconds.

Defendant testified in his own defense. We do not rely on his testimony in affirming the conviction. Briefly, he claimed he saw the lights of the patrol cars and mistook them for construction lights. While listening to his iPod and sending a text message to a woman, he changed lanes and felt a bump but did not know what he had hit because he had been looking down at his phone. Verdicts In addition to finding defendant guilty of second degree murder and gross vehicular manslaughter, the jury also returned a guilty verdict on a lesser included count of ordinary vehicular manslaughter, but the trial court treated it as a nullity. The jury also returned special findings that defendant had been "advised" by the cab driver "that he was too intoxicated to drive," and that he did not tell anyone that Officer Redding was in need of assistance, despite a reasonable chance to do so; however, the jury found not true an allegation that defendant was not remorseful.

(Lod. Doc. 8 at 1-10.)

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims 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 Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 ...


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