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Michael E. Mackey v. M. D. Biter

January 11, 2012


The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge



Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of murder, attempted murder and two counts of robbery along with corresponding enhancements. He was sentenced to seven years plus seventy-five years to life on the attempted murder and murder charges and enhancements. The court imposed but stayed two three-year sentences on the robbery convictions. Petitioner was also ordered to pay restitution. Petitioner raises three claims in his amended federal habeas petition; specifically: (1) violation of Batson v. Kentucky, 476 U.S. 79 (1986) for the prosecutor's strike against a potential juror because of her race ("Claim I"); (2) insufficiency of the evidence to sustain one of the robbery convictions ("Claim II"); and (3) due process violation on an unsubstantiated direct victim award of restitution ("Claim III"). For the following reasons, Petitioner's amended habeas petition should be denied.


On October 17, 2006, Rob Thomas, Richard Miller, and defendant had plans to meet Daniel Reyes and Tomas Gonzalez. Reyes and Gonzales believed that Thomas, Miller and defendant intended to purchase from them approximately 12 ounces of marijuana for $3,000, but the three intended to take the marijuana by force. Before the meeting, Miller gave defendant a gun. When the two groups met in a parking lot, the drugs were wrapped in foil in a plastic bag, inside a duffle bag in the back of Reyes' car. Miller and defendant got into the back seat of the car that Reyes was driving with Gonzalez in the passenger seat. [FN 1] At defendant's direction, Reyes drove to Wilson Park, where the four occupants first viewed the marijuana in the trunk of the car and then returned inside the vehicle leaving the marijuana in the rear of the car. When Reyes asked for the money, defendant gave Gonzalez approximately $10 in one dollar bills. Gonzalez threw the money back at defendant, an argument ensued, Miller grabbed the marijuana and left the car, and defendant shot Gonzalez and Reyes. Defendant and Miller fled with the marijuana. Reyes died; Gonzalez underwent multiple surgeries and remained in a coma for five days.

[FN 1] Thomas also got into the back seat but left the car before the drugs were examined at the park and the shooting occurred.

Defendant was charged in the information with one count of murder; one count of second degree robbery of Reyes; one count of attempted murder; and a second count of second degree robbery from Gonzales [sic]. All four counts included allegations under section 12022.53, subdivisions (b) and (d) that defendant used a firearm causing great bodily injury and death, and that he personally used a firearm within the meaning of sections 12022.53, subdivision (c). The first and third counts also alleged use of a firearm under section 12022.5, subdivision (a)(1).

(Slip Op. at p. 1-2 (internal citations omitted).)

Petitioner raised the three Claims he raises in his amended federal habeas petition to the state courts on direct appeal. The Court of Appeal affirmed the judgment on January 21, 2010 in a written decision. Petitioner then filed a petition for review in the California Supreme Court which raised the three issues he had raised in the Court of Appeal. The California Supreme Court summarily denied the petition for review on March 30, 2010.

In July 2010, Petitioner filed a federal habeas petition which raised the three claims that he raised on direct appeal to the California Court of Appeal and the California Supreme Court. On November 22, 2010, Petitioner filed an amended federal habeas petition which also included these three Claims. Respondent answered the petition in December 2010.


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, a 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."). In this case, the last reasoned decision was from the Court of Appeal on direct appeal.


A. Claim I

In Claim I, Petitioner argues that Batson was violated when the prosecutor improperly struck a potential juror because of her race. The California Court of Appeal provided the factual background of this Claim and analyzed it as follows:

Defendant, who is African-American, unsuccessfully challenged the composition of the jury under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). He now contends that the trial court erred in denying his Batson/Wheeler motion.

During jury selection, the prosecutor exercised his fourth peremptory challenge against Ms. P., an African-American woman. In objecting under Batson and Wheeler, defendant stated that he believed Ms. P. "was excused based on her race." The prosecutor responded that a prima facie showing had not been made. He stated that at that point he had exercised four peremptory challenges, one to "Juror number 6, who appeared . . . to be about an 18-year old male, probably Asian descent," one to "a White or Hispanic female, . . . about 18, 19 years old," one to "another White or Hispanic female, about the same age," and one to Ms. P., "who is a Black female, about 19 years old. Her juror information shows she graduated high school and has a job about a year and a half. I think that would make her about 19, without any life experience, or any family or children. [ΒΆ] . . ...

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