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Kevin Dunigan v. Robert Hickman

January 23, 2013



Petitioner is a state prisoner proceeding without counsel on an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2009 judgment of conviction entered against him in the Sacramento County Superior Court on a charge of first degree murder. He raises nine cognizable grounds for federal habeas relief. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual Background*fn1

Defendant Kevin Wayne Dunigan killed Gary Veirs after Veirs punched him for swearing at Veirs's girlfriend when she rejected Dunigan's advances. Dunigan killed Veirs by "gutt[ing]" him, i.e., "insert[ing a knife] in [Veirs's] side [and] ripp[ing] him open from one side to another." Based on this evidence, a jury found defendant guilty of first degree murder while personally using a dangerous and deadly weapon.

Sentenced to prison for 26 years to life following a trial in which he represented himself, defendant appeals and raises the following two contentions: (1) the court erred in failing to order a competency hearing; and (2) the People presented insufficient evidence the murder was premeditated and deliberate. Disagreeing, we affirm.


One August evening in 1995, Marie Morrissette was leaving her house on Stockton Boulevard in Sacramento when a man (later identified as defendant) approached her and said, "'Hey baby, what's up?'" Morrissette "put [her] hand up . . . to let him know not to talk to [her]" and then "kept on walking." Defendant responded in a loud voice, "'Well, fuck you then, bitch.'"

Just then, Morrissette's boyfriend, Veirs, came out of the house and told defendant, "'Don't talk like that to my old lady.'" There was an "instant [fist] fight." Veirs swung at defendant, defendant swung back, and within "seconds" the two were on the ground with Veirs on top. Defendant reached for a knife that was on his left side by his pants. The knife was about a foot long and "seemed . . . really sharp." Defendant pulled it out of its sheath. Morrissette yelled to Veirs, "'Babe, he's got a knife.'" She tried unsuccessfully to kick the knife out of defendant's hand. Veirs tried to "get up off him," but defendant was already stabbing him. Defendant "gutted him" by inserting the knife in his side and "ripp[ing] him open from one side to another."

Morrissette ran inside the house and called 911. Veirs followed her inside and was "bleeding everywhere." An ambulance took Veirs to the hospital. Veirs died from stab wounds to his chest. Defendant was implicated in Veirs's murder in December 2008 after foreign DNA taken from Veirs's fingernails matched defendant's DNA.

Resp.'s Lodg. Doc. 4 at 1-2.

After the California Court of Appeal issued its decision on petitioner's direct appeal, petitioner filed two petitions for review and six collateral challenges to his conviction, in which he appears to have exhausted all of the claims contained in the instant petition. Resp.'s Lodg.

Docs. 5, 7, 9, 11, 14, 16, 18, 20. Both petitions for review and all of the collateral challenges were either summarily denied or denied on procedural grounds. Lodg. Docs. 6, 8, 10, 12, 13, 15, 17, 19, 21.

II. Analysis

A. Standards for a Writ of Habeas Corpus

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 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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn2

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as '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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s 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." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, 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." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn3

B. Petitioner's Claims

1. Unlawful Search and Arrest Warrants

In his first claim for relief, petitioner argues that "false averment[s] and omissions of facts" were used to support the issuance of his search and arrest warrants. Second Amended Petition, Dckt. No. 46 (Pet.) at 6.*fn4 Specifically, he contends that the warrants were improperly based on an unreliable, falsified, and contaminated DNA sample, in violation of his rights under the Fourth and Fourteenth Amendments. Id. at 7-15. Petitioner argues that this court "has no alternative under settled constitutional principles but to quash the warrant and exclude the products of the search." Id. at 13.

In his second ground for relief, petitioner claims that the state court judge who authorized his arrest warrant violated his rights under the Fourth and Fourteenth Amendments because the warrant was not based on probable cause. Id. at 16. He argues that the judge knew the arrest warrant was based on unreliable DNA results. Id. Petitioner also claims that the "seizure of [his] person lacked probable cause in violation of the Fourth Amendment of the U.S. Const." Id. He argues that his arrest warrant for first degree murder was invalid because the supporting affidavit did not support a finding that he harbored malice aforethought. Id. at 17. With these two claims, petitioner is essentially arguing that the search and arrest warrants in this case were issued without probable cause, in violation of the Fourth Amendment.*fn5

The United States Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). There is no evidence before the court that petitioner did not have a full and fair opportunity to litigate his Fourth Amendment claims in state court. On the contrary, petitioner filed a motion to exclude the evidence obtained from his arrest and search warrants, and argued that the indictment should be dismissed because the prosecutor had destroyed evidence indicating that petitioner's arrest and search warrants were supported by false and unreliable DNA evidence. Clerk's Transcript on Appeal (CT) at 434-50. Because petitioner had a fair opportunity to and did, in fact, litigate his Fourth Amendment claims in state court, his first two grounds for relief are barred in this federal habeas proceeding. Stone, 428 U.S. at 494.

2. Admission of Petitioner's Compelled Statements to Police

In his next ground for relief, petitioner claims that the introduction into evidence of his "compelled" statements to the police violated his rights as set forth in Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda rights), and his Fifth Amendment right to remain silent. Pet. at 18-23. Petitioner also argues that the prosecutor introduced knowingly false testimony about these statements at the preliminary hearing. Id. at 21. After setting forth the background and the applicable law, the court will address these claims below.

a. Background

The state court record reflects that on January 14, 2008, Detective Keller obtained a search warrant for the collection of a DNA sample from petitioner. CT at 771. On January 16, 2009, Detectives Keller and Jason visited petitioner, who was then housed at Pelican Bay State Prison. Id. After being advised of his Miranda rights, petitioner "denied any knowledge of a murder in 1995 and invoked his right to remain silent." Id. Detective Keller then served the search warrant and "collected a DNA sample." Id. Petitioner agrees that, "wary of Keller's line of questions petitioner invoked the right to remain silent." Pet. at 19.

Subsequently, on April 8, 2009, petitioner was questioned on two separate occasions at the Sacramento County Jail by prosecution investigator Ron Garvrick. CT at 1481-1518, 1519-30.*fn6 At the beginning of the first interview, Garvrick told petitioner that he was investigating whether an individual named Oveida Burley committed the 1995 murder. Specifically, Garvrick stated, "it's less about you as it is about . . . Burly O-Vieda." Id. at 1481. Garvrick asked petitioner whether he knew "Burly O'Vieda." Id. Petitioner stated that he did. Id. Garvrick explained to petitioner that Burley was arrested in 1995 for murder, that he was then released "because of some witness stuff," but that "the Sacramento Police Department is looking at this guy again" and that the police were "looking at running this guy's DNA again." Id. at 1482, 1483. Petitioner interpreted these statements by Garvrick to mean that "Oveda Burley was the suspect and not petitioner," and that petitioner would not be prosecuted for the murder. Pet. at

19. Petitioner claims that this deception by Garvrick was "a compellment to induce a statement," and constituted "overreaching." Id. at 19-20.

Mr. Garvrick then reminded petitioner that the police had previously obtained a DNA sample from him but that he had not waived his right to remain silent and refused to be interrogated. CT at 1483. Petitioner agreed with these statements. Id. Yet, petitioner spoke with Garvick on this occasion. Garvrick showed petitioner a picture of the victim and asked whether he "knew him at all." Id. Petitioner denied that he knew the victim and stated that he had never seen him. Id. at 1484, 1487, 1488. Garvrick told petitioner that he "had to advise [him] of [his] rights," but stated that he would be questioning petitioner about the matters he had just discussed. Id. at 1485. Petitioner said, "The only thing I know that the -- the officer came and told me that my DNA was found on the scene and he had it since 1995. But DNA's been in the FBI database since '94." Id. Garvrick then gave petitioner the Miranda warnings. Id. at 1486. Petitioner stated that he understood his rights.

Petitioner told Garvrick that he "grew up" very close to where the stabbing took place, on Tamoshanter Way, but that he had moved away by the time of the murder. Id. at 1487, 1491, 1494. Petitioner also stated, however, that his mother continued to own the house on Tamoshanter Way after petitioner moved out, and that he lived there "in '90." Id. at 1492. Petitioner explained that at ...

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