The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Johnnie Lee Fields, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Fields is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Sierra Conservation Center. Respondent has answered, and Fields has replied. Fields also requests an evidentiary hearing be held.
I. BACKGROUND/PRIOR PROCEEDINGS
In January 2008, following his conviction by a jury in the Yolo County Superior Court of second-degree murder (Cal. Penal Code § 187(a)) and assault on a child under eight with force (Cal. Penal Code § 273ab), Fields was sentenced to an indeterminate prison term of twenty-five years to life. The California Court of Appeal, Third Appellate District, affirmed Fields' conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on December 2, 2009. On May 13, 2010, Fields filed a petition for habeas relief in the Yolo County Superior Court, which was summarily denied for failing to make a prima facie showing of entitlement to relief. The California Court of Appeal, Third Appellate District, summarily denied his subsequent habeas petition without opinion or citation to authority. Fields then filed a petition for habeas relief in the California Supreme Court that was also summarily denied without opinion or citation to authority on January 21, 2011. Fields timely filed his Petition for relief in this Court on August 15, 2011.
The facts underlying the conviction were summarized by the Appellate Division:
Kimberly Linares, the mother of victim Kaysha F., testified her daughter was born on September 6, 2003. Defendant was Kaysha's father. Once when they lived in Kennewick, Washington, she and defendant were engaging in horseplay, but when she accidentally hurt him, he kneed her in the nose three times by grabbing her hair and putting her head to his knee. While defendant was serving a jail sentence for that incident, she learned she was pregnant with Kaysha. Kaysha was healthy at birth. Shortly after leaving the hospital, Kimberly was breastfeeding Kaysha and turned on the television, but defendant smacked her on the back of the head and called her "an inconsiderate bitch because I turned on the TV and woke him up."
Kimberly took Kaysha for regular medical check-ups, including one a couple of days before she moved to California, and apart from a respiratory issue treated with steroids, Kaysha was healthy. A couple of weeks before Christmas 2003, the family, including defendant and Kimberly's son Andreas moved to live with Kimberly's mother in Woodland. It was stipulated that just before then, defendant had been in jail in Washington, from December 3-13, 2003.
Defendant became aggravated with Kaysha when she cried, and he would scream in the baby's face. He withdrew from the family and kept to himself, and Kimberly did not have him watch the baby as much. On January 9, 2004, Kimberly bought a mobile phone, and as she walked back home with Andreas and Kaysha, defendant walked up to her quickly and called her a bitch. Because of this, her mother threw defendant out of the house, but then allowed him to return; after that, he became "very quiet and withdrawn." Once when Kimberly and her mother went shopping, they returned home to find Kaysha had a "big bruise" and "huge knot" on her forehead. Defendant said Kaysha hit her head on a swing, an event Kimberly had witnessed earlier that day, but she had not seen this cause a bruise.
Kimberly testified that January 11, 2004, a Sunday, was "a good day" and the family played at a park. At dinner, Kaysha ate mashed potatoes and gravy for the first time and was not fussy. After dinner Kimberly and defendant walked to a store to buy diapers, and [Fields'] mood "was fine." At about 11:00 p.m., Kimberly changed Kaysha's diaper and put her in her crib. After watching Jay Leno, or a similar late night program, Kimberly went to sleep. She woke up when she heard Kaysha make "a really short cry" and she realized Kaysha had been taken to the living room. She then heard "a weird noise" that "sounded like a big long, long burp, lots of air coming out of her, and I could hear [[Fields]] patting her back ." She got up and asked him what the noise was and he told her "it's nothing, go back to bed." She went back to bed, but then heard a "snuffling" noise and asked [Fields] what the noise was, but she then fell asleep.
[Fields] later woke Kimberly up, saying something was wrong with Kaysha. Kimberly found Kaysha on the couch, not breathing. She picked the baby up and screamed at [Fields] to call 911, but "he just stood there and stared at me," so she woke her mother, again screamed at [Fields] to call 911, then called 911 herself.
Kimberly testified she had a misdemeanor petty theft conviction from Washington.
Kimberly's mother testified that she had seen [Fields] rocking the baby improperly and warned Kimberly not to let him baby-sit. When she awoke to Kimberly's screaming on the night in question, she saw [Fields] was "very calm, very nonchalant, very laid back."
Kimberly's stepfather testified he told [Fields] to stop rocking the baby by pulling her towards his chest. Between the cell phone incident and Kaysha's death, [Fields] became ruder and did not speak to the family. When Kaysha was put in the ambulance, [Fields] did not seem upset and was "just standing there" on the sidewalk. The stepfather admitted a voluntary manslaughter conviction.
Woodland Police Officer John Perez testified that at about 3:15 a .m. on January 12, 2004, he responded to a call of a baby not breathing. Kimberly and her mother were hysterical, but [Fields] "appeared not concerned really what was going on" and did not follow anyone to the ambulance. [Fields] told Officer Perez he had been "up and down with the baby all night" and "[a]bout twenty minutes before we arrived he said he had woke up with the baby, had given the baby a pacifier and wrapped her in the blanket and put her back to sleep on the couch in the living room and he went to bed back in the bedroom. [¶] Approximately ten minutes later he woke up because he said something didn't seem right or feel right, so he went and checked on the baby, and when he did he told me that the baby didn't appear to be breathing. So he went and woke up Kimberly and told her that." [Fields] also said he shook the baby to try to wake her up and called 911. While giving Officer Perez this information, [Fields] "showed little emotion, didn't ask about the welfare of his daughter at that time." When [Fields] asked about her 10 to 20 minutes later, and was told she was at the hospital, he "didn't show a whole lot of emotion."
[Fields] did not go to the Woodland hospital, nor, after the baby was taken to the UC Davis Medical Center, did he go there. Kaysha was then taken off life support and died.
The next morning, [Fields] called Kimberly, and "said he didn't know where he was, but he was never coming back." When Kimberly told [Fields] he was wanted for murder, "he screamed and hung up the phone."
Former Woodland Police Detective Jack Scoggins testified that he watched [Fields] being interviewed while Kaysha was in the hospital, and [Fields] did not react when an officer gave him news about Kaysha's condition. Later, during an approximate two-hour period he spent with [Fields] by the apartment while it was being searched, [Fields] made small talk and did not express concerns about Kaysha.
On the night of January 12, [Fields] left Detective Scoggins a message stating he was going to San Jose to stay with his brother, and he had nowhere else to stay. Kimberly called Detective Scoggins the next morning to say [Fields] had called her, and Detective Scoggins traced the call to a bus station in San Jose. [Fields] was arrested at a Los Angeles bus station.
A Los Angeles police sergeant testified that [Fields] gave him a false name at the bus station.
Several treating and expert witnesses described Kaysha's injuries. Dr. Jordan Kramer, an emergency room doctor at Woodland Memorial Hospital, testified that when Kaysha was brought in at 3:30 that morning, although she eventually regained a pulse, she had no signs of brain activity. She was sent to UC Davis Medical Center because it has a pediatric intensive care unit. There, Kaysha was treated by Dr. Negar Sheibani, who confirmed that Kaysha had no brain activity. The family consented to withdraw life support, and Kaysha died within minutes.
Dr. Sandra Gorges, a pediatric radiologist with training in child abuse, testified Kaysha had separate fractures on both sides of the skull, and a swollen brain. The injuries were caused both by shaking and blunt force or "major" trauma. A short fall would not cause such injuries, but possibly a fall down a flight of stairs could. An X-ray revealed 17 rib fractures on both sides, of two separate ages; 15 were healing and had been inflicted at least a couple of weeks before death, the others were fresh, less than a week old. These rib fractures were not caused by CPR, but by squeezing. The left arm had a healing fracture, at least two weeks old. The right calf bone (tibia) had a "corner fracture" which "is highly suspicious for nonaccidental trauma and results from the twisting mechanism, and there was an adjacent fracture of the smaller bone in the calf, the fibula, adjacent to the tibia fracture on the right." Kaysha's abdomen was swollen, which could have been from a soft-tissue injury.
Dr. Kevin Coulter, an expert in child abuse, also had the opinion that Kaysha had been battered.
Forensic pathologist Dr. Stephany Fiore conducted the autopsy. Kaysha's skull had "extensive" fractures. Her healing rib fractures had been caused "about a week to a month" before.*fn2
II. GROUNDS RAISED/DEFENSES
In his Petition, Fields raises six grounds: (1) the trial court imposed an unnecessary eleven-day interruption in the midst of jury deliberations; (2) inconsistent evidentiary rulings; (3) failure to instruct the jury on the lesser-included offense of involuntary manslaughter; (4) ineffective assistance of trial counsel (failure to put the prosecution's case to a meaningful adversarial testing); (5) ineffective assistance of trial counsel (utter failure to defend against charges); and (6) prosecutorial misconduct (withholding of exculpatory evidence). Respondent does not raise any affirmative defense.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn3 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn4 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn5 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn6 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn7
The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn8 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn9 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn10 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn11 The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn12
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn13 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn14 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn15
Under California's unique habeas procedure, a prisoner who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn16 This is considered as the functional equivalent of the appeal process.*fn17 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn18 This presumption applies to state-trial courts and appellate courts alike.*fn19
A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits."*fn20 When there is no reasoned state-court decision denying an issue presented to the state, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."*fn21 "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely."*fn22 Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state-court decision was "objectively unreasonable."*fn23 In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds,*fn24 giving that presumed decision the same deference as a reasoned decision.*fn25 The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams . . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. ...