The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER SUBSTITUTING WARDEN CONNIE GIPSON AS RESPONDENT
FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S REQUEST FOR
AN EVIDENTIARY HEARING, DENY THE PETITION FOR WRIT OF HABEAS
CORPUS (DOC. 1), ENTER JUDGMENT
FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding with counsel pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on January 26, 2010. Respondent filed an answer to the petition and the state court record on October 18, 2010. Petitioner filed a traverse with attached points and authorities on January 20, 2011.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).
Here, Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Sixth and Fourteenth Amendment rights. Thus, violations of the Constitution are alleged.
Further, the conviction challenged arises out of the Kern County Superior Court (KCSC), which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).
On August 17, 2010, Respondent's counsel filed a notice of appearance for Respondent Derral G. Adams, who was then the warden at the California State Prison at Corcoran (CSP-COR). Petitioner thus named as a respondent a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
In summary, it is concluded that this Court has subject matter jurisdiction over this action and in personam jurisdiction over the Respondent.
II. Substitution of Respondent Gipson
Fed. R. Civ. P. 25(d) provides that an action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending; rather, the officer's successor is automatically substituted as a party. The rule further provides that a court may at any time order substitution, but the absence of such an order does not affect the substitution.
The official website of the California Department of Corrections and Rehabilitation (CDCR)*fn1 reflects that Connie Gipson is presently acting as the warden of CSP-COR.
Accordingly, pursuant to Rule 25(d), it is ORDERED that Warden Connie Gipson is SUBSTITUTED as Respondent.
By an information filed on May 8, 2006, Petitioner was charged with having murdered Kenneth Dewayne Moses on February 18, 2006, in violation of Cal. Pen. Code § 187; having used a deadly or dangerous weapon in the commission of the offense in violation of Cal. Pen. Code § 12022(b); and having suffered a prior felony conviction followed by a prison term without having remained free of custody for five years within the meaning of Cal. Pen. Code § 667.5(b). (I CT 142-43.)
Petitioner's jury trial commenced on August 14, 2006, and concluded on August 23, 2006. (I CT 174, 203, 227-29, 245-47, 251-59, 263-65, II CT 431-32, 435-36.) The jury found Petitioner guilty of first degree murder and having personally used a deadly or dangerous weapon, namely, a knife, in the commission of the offense. (II CT 431, 434.) Petitioner waived his right to a trial by jury on the allegation concerning the prior conviction and admitted the allegation. (I CT 265.)
On September 21, 2006, Petitioner was sentenced to a term of twenty-five years to life for the murder and an additional two years for the enhancements for the weapon use and prior prison term. (II CT 447-51.)
Petitioner filed a timely appeal, and the judgment was affirmed in its entirety by the California Court of Appeal, Fifth Appellate District (CCA), in case number F051308 on February 15, 2008. (II CT 454, LD 4.)*fn2
Petitioner filed a petition for review in the California Supreme Court (CSC) on April 3, 2008. (LD 5.) On May 21, 2008, the CSC denied Petitioner's petition for review in case number S162306. (LD 6.)
Petitioner filed a petition for writ of habeas corpus in the CSC on July 31, 2009. (LD 7.) The CSC denied the petition in case number S175096 on January 21, 2010, without a statement of reasoning or authority. (LD 8.)
Petitioner filed the petition in this proceeding on January 26, 2010. (Doc. 1.)
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). The following factual summary is taken from the opinion of the California Court of Appeal, Fifth Appellate District, in People v. Robinson, case number F051308. See, Galvan v. Alaska Dep't. Of Corrections, 397 F.3d 1198, 1199 n.1 (9th Cir. 2005) (setting forth a factual summary from the state appellate court's decision).
Responding to a bystander's 911 call, police and emergency medical personnel came to Valley Plaza, a mall in Bakersfield, on the afternoon of February 18, 2006. They found Kenneth Dewayne Moses lying on his back in the parking lot. His clothes were bloody and he had several stab wounds. When a police officer asked what happened, Moses said, "'Jimmy did it.'"
Moses was taken to a hospital. An emergency room physician observed the stab wounds, including one in the left side of Moses's chest over the location of his heart. The doctor performed emergency surgery to try to treat Moses's internal injuries and in the process saw that this wound pierced the heart. Moses died 20 minutes after emergency treatment began. An autopsy found that, in addition to the chest wound that pierced the heart, Moses had stab wounds in five other locations. First, a wound to the left side of the neck was two and a half centimeters long and penetrated four and a quarter inches into the neck. Second, a wound on the front of the right shoulder consisted of two separate V-shaped cuts. One cut was one centimeter long, the other was one and a half centimeters long, and both were two and a half inches deep. The third wound was on the top of the right shoulder, 1.3 centimeters long and three quarters of an inch deep. The fourth wound was in the center of Moses's back and consisted of two separate V-shaped cuts. One was 1.6 centimeters long, the other was 2.4 centimeters long, and both were one and three quarters inches deep. The fifth wound was also in Moses's back and also consisted of two separate V-shaped cuts. One was one and a half centimeters long, the other was 2.1 centimeters long, and both were one and three quarters inches deep. The chest wound that pierced the heart was three and a quarter inches deep. Counting the two-part wounds as two cuts, Moses was cut a total of nine times. The stab wounds were the cause of death.
The district attorney filed an information charging defendant with willful, deliberate, and premeditated murder. (Pen.Code, § 187.) FN1 The information also alleged that defendant used a knife to commit the offense (§ 12022, subd. (b)) and had served a prior prison term (§ 667.5, subd. (b)). Defendant's wife, Jennifer Robinson, was named as a co-defendant and charged with harboring or concealing a felon. (§ 32.)
FN1. Subsequent statutory references are to the Penal Code.
At trial, the parties presented background facts about the relationship between Jennifer Robinson and Moses. They were involved in a romantic relationship from 1998 to 2000, living together part of the time. Jennifer testified that the relationship "was off and on" and that "there was a lot of cheating ... on his part." She described him as demanding, possessive, and intimidating. She believed he had physically abused a former girlfriend. She ended the relationship and demanded that he move out of their apartment after an incident in which he shoved her against an air conditioner and broke it.
After this, according to Jennifer, Moses made unwelcome contacts with her on many occasions. He frequently appeared at her home. Sometimes he banged on the doors and windows, attempting to convince Jennifer to let him in. On one of these occasions, she opened the door and he forcibly tried to kiss her. Other times he simply drove by. He also appeared, uninvited, at her workplace and left unwanted telephone messages for her at that location. Jennifer married defendant in 2001, but Moses's attempts to contact her continued after this time. They intensified during a period in 2004 and 2005 when Jennifer and defendant were separated.
As Jennifer described it, an attempt to confront Moses about these unwanted contacts resulted in the meeting that ended in Moses's death. Defendant asked Jennifer to get Moses's cell phone number so he could "talk to him just to clear things up." A mutual friend gave it to her, but she never used it. Later, on the day of the stabbing, the friend called Jennifer with a message from Moses: "[H]e's not mad at you and he's at Que Pasa Restaurant" at Valley Plaza. Jennifer decided to go to the restaurant to tell Moses to leave her alone. Defendant wanted her not to go. In the end, they both went, driving separate cars.
Jennifer arrived at the mall and saw Moses leave the restaurant, walk into the parking lot, and open the passenger door of a car. She approached and yelled at him to stay away from her and not contact her. Moses asked why she had asked their mutual friend for his phone number. About this time, defendant arrived, got out of his car, and approached. According to Jennifer, Moses then reached in his coat and defendant stepped between them. Jennifer recalled that when she lived with Moses, he possessed a handgun. She had told defendant about this fact.
Several witnesses saw the ensuing fight. Jennifer testified that she saw Moses pull defendant's sweatshirt off over his head and saw defendant on the ground at one point. She said that, as defendant was getting in the car to leave after the fight, Moses was running after him.
Arlene Freeborn, driving in the parking lot, saw defendant appearing very angry and advancing on Moses "[w]ithout breaking stride, without missing a beat" until he "jumped" Moses. Then she saw them wrestling on the ground. She was certain it was defendant who attacked Moses, not the other way around. Freeborn described them as the "slim" man and the "husky" one and could not otherwise identify them, but there does not appear to be any dispute that the man she said she saw advancing was defendant and the other man was Moses. Moses was six feet two and a half inches tall and weighed 213 pounds; defendant was 5 feet 10 inches tall and weighed 205 pounds.
Mark Washington, though claiming total ignorance of the incident at trial, gave two detectives an extensive account of what he saw. As he was driving through the parking lot, he saw Moses leave the mall and walk to a car. He saw Jennifer walk up and argue with Moses. Then he saw defendant and Moses fighting; defendant was holding Moses in a headlock and forced Moses to the ground. Defendant released Moses and stood up. Moses also got up, with blood coming from his neck. He staggered toward defendant. Defendant staggered backward and took a fighting stance. Jennifer, who was in a car now, said "Let's go." Defendant got in and they drove away. Moses staggered toward the car and fell to the ground.
J., a minor, was at the mall with his family. He was entering the parking lot when he saw the conflict between defendant and Moses. J. testified that he saw defendant approach Moses using bad language. Moses kept walking. Then J. saw defendant slam Moses onto the ground and saw the two of them wrestling. He also saw Jennifer grab defendant and say, "Come on baby, let's go," before the two of them fled the parking lot. J. did not see them get in a car. As they fled, Moses got up and slowly attempted to chase them. By that time, Moses was bloody.
R., also a minor, came to the mall on a bus and saw defendant and Moses fighting as he crossed the parking lot toward the mall entrance. One of the two fighting men said, "'Get this man off me before I kill him.'"
R. did not know which man said it. He saw Moses grab defendant's shirt and hold it. He also saw defendant strike Moses on the left side of the neck and he saw Moses bleeding. Defendant got in a car that was waiting nearby and was driven away. Moses collapsed on the ground.
Karen Berry testified that, while driving in the parking lot of the mall, she saw Jennifer reaching for her shoes underneath a car, while defendant and Moses were wrestling on the ground. The two men got up and defendant walked toward the car; Moses followed behind defendant, chasing him. Jennifer raised one of her shoes as if to hit Moses with it. Moses walked away from the car, swaying; he fell face down on the ground and then rolled over on his back. His shirt was bloody. Danielle Garcia also saw defendant and Moses wrestling on the ground. She was the only witness who said she saw the larger man, Moses, hold the smaller, defendant, in a headlock and punch him.
Lisa Alameda testified that she saw defendant and Jennifer leaving the mall parking lot in their car. The car "was kind of jerking along like they were having trouble getting it to go," but "once they got it going, they went rather quickly." Jennifer was driving and "was very upset, she was crying, kind of hollering, shaking." She and Alameda approached a stop sign from opposite directions; Jennifer was about to drive through the intersection without stopping but was forced to stop when Alameda turned left. Alameda saw defendant, the passenger, throw something out the window. She could not see the item. None of the witnesses saw the knife, and it was never recovered.
Several witnesses testified about defendant and Jennifer's two-day flight after the stabbing. They went first to the home of Dee Pradt, a former girlfriend of defendant. Pradt testified that defendant said he had been in a fight; a man had come at him or Jennifer, so he "stepped in." Defendant had a small injury on his hand. He changed clothes and left the clothes he had been wearing, which had blood on them, at Pradt's apartment. She threw them in a dumpster.
Next, Jennifer went to see Cheryl Worthy, who was defendant's cousin. Jennifer told Worthy she and defendant were in trouble, and Worthy agreed to rent a motel room for them in her name. Defendant came to Worthy's apartment later and asked for money, but she said she had none.
The next day, defendant went back to Pradt's apartment and asked her to rent another motel room for him and Jennifer in her name. Pradt agreed.
Defendant's daughter Sarah and Jennifer's daughter Sabrina were living with defendant and Jennifer on the day of the stabbing, as was Jennifer and defendant's two-year-old son Koby. In the evening of the day of the stabbing, neighbors picked up the three children at their house and brought them to the motel where defendant and Jennifer were staying. Sarah testified that defendant said "there was an accident at the mall because [Moses] was trying to come at Jennifer. And he tried to stop her with a knife, and my dad just took it from him." He also told Sarah, "'I killed [Moses] because he was messing with Mom.'" Sarah admitted that when she spoke to the police, she did not mention that defendant said Moses was attacking Jennifer with a knife. Sabrina testified that defendant told her Moses had gotten hurt and died at the hospital and that they would have "to take it day by day to see what happens." On cross-examination by defense counsel, Sabrina added that defendant said Moses pulled a knife and defendant took it from him.
In his closing argument, the prosecutor contended that the crime was first degree murder because defendant "premeditated, deliberated this murder on the 10-minute drive towards Valley Plaza." Defense counsel argued that defendant should be acquitted because he was defending himself and Jennifer or should be convicted of a lesser offense because he was reacting to provocation or a sudden quarrel. (LD 4, 2-7.)
V. Standard of Decision and Scope of Review Title 28 U.S.C. § 2254 provides in pertinent part:
(d) 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 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.
Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.
A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407.
An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.
A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id. In order to obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state-court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S. ...