The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Jayshawn V. Pierce, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Pierce is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Sacramento. Respondent has answered. Pierce has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
A jury convicted Pierce of first degree murder (Cal. Penal Code § 187(a)) during the commission of an attempted robbery (Cal. Penal Code § 190.2(a)(17)), with the personal discharge of a firearm resulting in death (Cal. Penal Code § 12022.53(d)), and two counts of attempted robbery (Cal. Penal Code §§ 664, 211). The Sacramento County Superior Court sentenced Pierce to life in prison without the possibility of parole, plus two years and eight months for the attempted robberies. The California Court of Appeal, Third Appellate District, directed the trial court to stay the sentence on the attempted robbery of the victim and reduce the sentence on the other attempted robbery conviction to eight months, but otherwise affirmed the conviction and sentence in an unpublished decision,*fn2 and the California Supreme Court denied review on September 1, 2010. Pierce timely filed his Petition for relief in this Court on August 25, 2011, and his Amended Petition with leave of Court on May 21, 2012.
The facts underlying Pierce's conviction as recited by the California Court of Appeal:
The motivation for the robbery that resulted in Wilson's murder was the acquisition of bail money for C.J. Finley. Finley was a pimp who was in jail in San Bernardino County on a gun charge. Finley and [Pierce] were close friends. Germannell "Keisha" Jones was Finley's girlfriend, and Marquita Bevans was Finley's cousin.
On the afternoon of May 21, 2006, [Pierce] called Freddie Rimpson and asked him if he wanted to "hit a lick," meaning rob someone. [Pierce] told Rimpson he wanted to hit a lick because he had to "get my Nigga out of jail." Rimpson refused. [Pierce] had "hit some licks" with Finley before.
Also on the afternoon of May 21, 2006, Jones and Bevans were getting dressed up to go have some "casual dates" which meant they were going to prostitute themselves in order to get money to bail Finley out of jail. After they got dressed for their "dates," but before going out, [Pierce] called Jones and told her to come over and see his daughter.
Jones and Bevans picked up [Pierce] from a house in Oak Park. [Pierce] came out of the house with a shotgun that was wrapped up. [Pierce] told Jones he wanted to drop the shotgun off at his home. They went to [Pierce's] house, and he took the shotgun into the house. After leaving [Pierce's] house, they went to Finley's mother's house, where they spent some time drinking. They stayed there until around 9:00 p.m.
Around 9:00 p.m., they picked up Rimpson, and went back to [Pierce's] house. They stayed there about 20 minutes, then went to a bar called Bobby T's. Sometime after midnight, Jones and Bevans were walking around the parking lot talking to guys. They did not get any "dates," but did manage to get a phone number for a future "date." [Pierce] suggested they call the number and take the "date" to a room up the street where [Pierce] would come in and rob the person. Jones refused because she was not "into" robbing people.
They went to another club called the Idle Hour. It was after 1:00 a.m. They parked across the street and were waiting for people to come out of the club. A couple, Wilson and Vasquez, came out who appeared intoxicated. They were kissing. They got into their vehicle and continued kissing. When the couple drove off, [Pierce], Jones, Bevans, and Rimpson followed them.
[Pierce] was driving. At some point he sped up and cut in front of the other car, but Wilson swerved around him. [Pierce] stopped the car, and Rimpson went to the trunk to retrieve the shotgun. [Pierce] continued following Wilson and Vasquez for another three blocks or so to an apartment complex. [Pierce] told Rimpson that they were going to "get a lick" referring to Wilson's black car. [Pierce] asked one of the girls if it was good, and she replied that it was. When they reached the apartment complex, Wilson came up to the car [Pierce] was driving, yelling and asking why they were following him.
Rimpson then stood up through the sun roof with the shotgun. [Pierce] yelled at Rimpson to get out of the car, but Rimpson did not get out. At some point Rimpson sat back down in the car, [Pierce] told Rimpson to give him the shotgun, and [Pierce] got out of the car with the shotgun. [Pierce] pointed the shotgun at Wilson and Vasquez. [Pierce] said, "Give me your shit[,]" or something to that effect. Wilson and Vasquez had their hands up. Vasquez had a purse. They both said, "Take it." Wilson responded that they did not want any trouble.
[Pierce] then shot Wilson between the eyes, killing him instantly. One eye was completely obliterated. The medical examiner estimated [Pierce] was standing four to five feet from Wilson when he fired the shotgun. Vasquez sustained injuries to her hands from the shotgun blast.
Bevans and Jones were hysterical and scared, and yelled "[L]et's go, let's go!" [Pierce] jumped back in the car and said, "I domed him." They went back to Jones's house. [Pierce] asked Jones if he could put the shotgun under her mattress, and she agreed. Later that day Rimpson got the shotgun and disposed of it in a dumpster. He then called Crime Alert.
[Pierce] spoke to Finley, who was in jail, the afternoon of the shooting. Their conversation was recorded, and the relevant part was as follows:
"Finley: What happened, my nigger?
Pierce: You talking about last night?
Finley: Hey, what happened? My nigger kill game, talk baseball, my nigger. What happened?
Pierce: Okay. Well, . . . we was on some . . . an [LIQ, i.e., lick], you feel me? . . . Trying to look, get some chalupa to get my . . . so I can get some bail . . .. So I'm trying to think who I can bring with me, who I know you wouldn't really trip over having around your wifey . . .. So I go get my cousin, you know who . . .. I take him with me . . .. We spot somebody, like, oh, and it is all good. Yeah and she says like that's the one-that's the one. I'm like, okay, . . .. [a]nd then we follow, woo . . .. I follow him in and, nigger, I-my finger slipped, nigger.
Pierce: The finger slipped . . .. Man. It was bad.
Finley: It was ugly for 'em?
Pierce: Man, nigger, I mean, like Men in Black. Oh, that really hurts. Finley: Man. Well, did-did you get any chalupa?
Pierce: No 'cause come on, come on, come on. Let's go-go, let's go.['] Finley: That's my girl.
Pierce: But, I mean, I was like . . . suppose to grab a-the, um,-what the call it, the, uh, thing female bag bad I say . . ..
Finley: Now, what'd you say, you was supposed to grab the what?
Pierce: The pouch . . .. But this nigger, Cutty, . . . didn't want to get out the car. He's standing out the sunroof like-just like . . . And I'm like, get the fuck out the car so I can do what I need to do. . .. He didn't want to leave out the car. So it's like I couldn't do two things at once . . . So I-I hop out of the car, nigger and get it moving . . .. So nigger we was gonna go do another one, but we-um, she was like we need a (Unintelligible) to go . . .. So I'm not worried about her, but my Cutty . . . Nigger, this nigger came over here crying this morning, nigger. Telling me the nigger DEAD . . ..
Finley: [T]hat boy bitched up like that?
Pierce: Nigger, came over here crying, nigger.
Finley: Hell, no, my nigger, that ain't solid, bro.
Pierce: I'm like, my nigger, what-everybody at that house where he live know about it . . ..
Finley: Oh, my God, my nigger . . ..
Pierce: I know what I gotta do."
Defense counsel argued to the jury that: (a) Rimpson was the shooter, (b) there was no intent to rob anyone, and (c) the shooting was accidental.*fn3
II. GROUNDS RAISED/DEFENSES
In his Amended Petition Pierce raises eight grounds: (1) insufficiency
of the evidence to
support the "special circumstances" finding; (2) the trial court
erroneously allowed the admission
into evidence of a "cartoonish" killing in a science fiction movie;
(3) error in admitting Pierce's
admission of other robberies; (4) the trial court erred in failing to
properly instruct the jury on the
"special circumstance" charge; (5) the trial court erred in failing to
instruct on involuntary
manslaughter; (6) the felony-murder "special circumstance" rule was
(7) the trial court failed to hold a Marsden hearing;*fn4
and (8) cumulative error. In relation to his
second, third, fifth, and eighth grounds, Pierce also alleges that, to
the extent that his claims were
not properly preserved or federalized, he received ineffective
assistance of counsel.
Respondent, contending that to the extent Pierce did not present the same factual and legal arguments in his Petition to this Court as he did in his petition for review before the California Supreme Court, he has not properly exhausted his state-court remedies. This Court agrees. This Court may not consider claims that have not been fairly presented to the state courts.*fn5 Exhaustion of state remedies requires the petitioner to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.*fn6 To have properly exhausted his state court remedies, Pierce must have presented both the legal arguments and the factual basis to the highest state court.*fn7
Pierce has not traversed the answer. 28 U.S.C. § 2248 provides:
The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.
Under § 2248, where there is no denial of the Respondent's allegations in the answer, or the denial is merely formal and unsupported by an evidentiary basis, the court must accept Respondent's allegations.*fn8 Where a petitioner has not disputed a contention in the response and it does not appear from the record before the court that the contention is erroneous, the court may accept that contention.*fn9 Consequently, this Court will not consider any arguments presented in the Petition before ...