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Ruperto Cortez Gonzalez v. Barnes B. Gower

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


February 20, 2013

RUPERTO CORTEZ GONZALEZ,
PETITIONER,
v.
BARNES B. GOWER,
RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Josephine Staton Tucker, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner, represented by counsel, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 5, 2012, accompanied by a supporting Memorandum ("Pet. Mem."). The Petition contains two grounds for relief: a claim of instructional error and a claim of ineffective assistance of trial counsel. Also on November 5, 2012, Petitioner filed "Petitioner's Notice of Unexhausted Claims and Request to Hold Proceedings in Abeyance." In this document, Petitioner conceded that Ground Two of the Petition was unexhausted and sought a stay of the Petition. Petitioner attached a copy of Petitioner's then-pending California Supreme Court petition and exhibits thereto ("Pet. Ex.").*fn1

Respondent filed an "Opposition to Request to Hold Proceedings in Abeyance and Notice of Motion and Motion to Dismiss the Petition, etc." on December 17, 2012. Petitioner filed "Petitioner's Reply to Respondent's Opposition, etc." on December 28, 2012.

On January 4, 2013, the Magistrate Judge issued a Minute Order observing that the docket of the California Supreme Court disclosed that Petitioner's Supreme Court habeas petition had been denied on January 3, 2013. The Magistrate Judge deemed Petitioner's "Request to Hold Proceedings in Abeyance" denied as moot and ordered Respondent to file an Answer.

Respondent filed an Answer on January 31, 2013. Petitioner filed a Reply on February 6, 2013.

BACKGROUND

A jury found Petitioner guilty of the attempted murder of Shannon Piatt, and an assault with a firearm on Piatt (Reporter's Transcript ["R.T."] 639-41; Clerk's Transcript ["C.T."] 186-92; see People v. Gonzalez, 2011 WL 2120206, at *1 (Cal. App. May 31, 2011)). The jury found true the allegations that, with respect to the attempted murder, Petitioner personally discharged a firearm causing great bodily injury (R.T. 639-40; C.T. 187). The jury also found true the allegations that, with respect to the assault, Petitioner personally used a firearm and personally inflicted great bodily injury (R.T. 640-41; C.T. 192). The jury found Petitioner not guilty of attempted kidnapping (R.T. 640; C.T. 190). Petitioner received a sentence of life plus twenty-five years to life (R.T. 669-70; C.T. 236-37, 254-57).

The Court of Appeal affirmed the judgment (see People v. Gonzalez, 2011 WL 2120206, at *1 (Cal. App. May 31, 2011)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments 6-7).

As previously mentioned, Petitioner filed a habeas petition in the California Supreme Court, which that court denied on January 3, 2013 (Respondent's Lodgments 8, 9).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Gonzalez, 2011 WL 2120206 (Cal. App. May 31, 2011). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), pet. for cert. filed, 81 USLW 3429 (Nov. 15, 2012) (presuming correct a statement of facts drawn from the state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

FACTS

In March 2008, Shannon Piatt (Piatt) rented a house from defendant in Mira Loma, and lived there through November 17, 2008. Piatt testified at trial that, around August 2008, Piatt stopped paying the rent because there was no electricity. She called defendant multiple times, requesting defendant fix the electricity and plumbing problems, but did not hear from him. A plumber fixed the plumbing problems and said he would send the landlord his bill. By not paying the rent, Piatt was hoping defendant would contact her regarding the electrical problems.

A little after noon on November 17, 2008, Piatt came out of the bathroom to find defendant standing in the dining room. Defendant asked Piatt why she had not paid the rent and told her to leave the house immediately. Defendant put a gun to Piatt's head, while pulling her by the arm outside.

When Piatt got to the door, she broke free and started screaming, "He's trying to kill me." Piatt ran to a car parked in the driveway and took cover behind the car. Defendant chased her around the car several times. Piatt ran toward the street. Defendant chased after her.

When Piatt got to the street, she turned left and ran toward her neighbor's house, where she saw a lot of people, including Piatt's next-door neighbor, Veronica,*fn2 and Veronica's boyfriend, Victor Vasquez (Vasquez). As Piatt ran toward a large tree in Veronica's front yard, she heard behind her three gunshots. Piatt was shot in the back of her leg, causing her to fall. Piatt also felt something in her right elbow. Then everything was quiet. Vasquez and Veronica approached Piatt on the ground, and someone called 911. Piatt thought she was going to die. Piatt did not do anything to provoke defendant to shoot her.

Vasquez testified that, when he heard Piatt scream "Veronica," he went outside and saw Piatt and defendant leaving Piatt's house. They were walking. Vasquez approached Piatt and defendant. Piatt "loudly" said, "Help me. He's going to hurt me. Help me." Vasquez approached the side fence, which separated Veronica's property and the rental property, and said, "What's going on?" Neither Piatt nor defendant responded. Piatt looked scared. Then Piatt said, "Victor, help me." Vasquez walked towards defendant and Piatt as they headed toward the street. As Vasquez was about to pull himself over the fence, Piatt said, "Get him. He's going to hurt me."

Vasquez stopped at the top of the fence and got back down, because he heard Veronica say, "He has a gun." Vasquez said, "[C]alm down." There was no response. Piatt continued walking backwards with defendant. Piatt started running when she got to the street and screamed, "He's going to kill me." Vasquez saw defendant reach into his pants pocket.

Vasquez turned around and ran for cover because he did not know what defendant was going to take out of his pocket. He saw defendant pull out a gun and make a hand motion on top of it. Vasquez heard three shots and heard Piatt scream between the shots. Defendant walked away, jumped into a car, and drove off.

Alejandro Gajon (Gajon) testified he observed the shooting while collecting green waste in the area. Gajon noticed two or three people working in their yard nearby. They did not have shovels or anything else in their hands. One of them tried to jump over the fence.

As Gajon was driving his trash truck down the street, collecting trash, he saw Piatt leave her house yelling and waving her arms. Gajon saw defendant chase Piatt out to the street. A neighbor came to the fence to help her. It looked like the neighbor was trying to jump the fence but then went back to his house. As defendant was running after Piatt, defendant pointed a gun at Piatt, and shot her. He fired his gun at her three or four times. Defendant did not fire his gun up into the air. Piatt fell in the street about 50 feet from Gajon's trash truck.

Deputy Arguello testified he responded to the scene. Piatt told Deputy Arguello that defendant shot her when she and defendant, her landlord, got into an argument over Piatt not paying her rent because defendant had failed to make electrical repairs. Defendant entered Piatt's home, pulled out a gun and told her, "let's go to Jack in the Box."[*fn3 ]

Defendant escorted her outside and then Piatt started yelling for help and ran away from defendant. As she was running, defendant shot her in the leg.

Investigator Johnson arrived on the scene. He and Deputy Arguello found shell casings from defendant's gun at the scene. Four months after the shooting, defendant turned himself in, and his defense team provided the sheriff's department with defendant's gun.

Defendant's wife, Esther Gonzalez, testified that, when defendant left his home in Reno, Nevada, early on November 17, 2008, he took his gun because he was planning to stay at the house and clean up the house.

Defendant's testimony

Defendant testified that, when he rented the house to Piatt in March 2008, Piatt was with her sister, who warned defendant to be careful around Piatt. Piatt had thrown boiling water in another person's face.

Piatt never complained about the plumbing or electricity. She never contacted him regarding electrical problems.

In November 2009,[*fn4 ] defendant realized Piatt had stopped paying the rent. Rather than call Piatt, defendant decided to go to the rental house on November 2, 2009. He did not take a gun with him. When defendant knocked on the door, someone inside knocked back even harder.

Defendant returned to the rental house on November 17, 2009. This time he took his gun and loaded it when he got out of his car. He did not know if anyone was in the house.

He had his gun because often at night, transients slept in vacant homes, and defendant intended to stay at his rental property for a week. Whenever a renter moved out of defendant's rental house, defendant stayed there a few days to make repairs. A few times, when his rental house was vacant, homeless people had stayed there without his permission and left their clothing there. On one occasion he encountered a homeless person in his house who told defendant he was armed.

Upon arriving at his rental property, defendant went to the side door and noticed the electricity was on. His gun was in his waistband, concealed by his shirt. Defendant knocked and Piatt opened the door. Defendant denied that he and Piatt argued about the rent. Defendant told Piatt that, if she could not pay the rent, she would have to live elsewhere. Defendant asked Piatt when she would vacate the house. Because Piatt seemed confused, Piatt and defendant agreed to go speak to her neighbor, Veronica. Defendant denied pulling out his gun and pointing it at Piatt's head.

When defendant and Piatt went outside, Piatt told Vasquez to attack defendant even though defendant had not done anything wrong. Vasquez was on Veronica's property, on the other side of the fence. Defendant's gun was still in his waistband. Defendant decided to leave because Piatt was not being reasonable. As defendant approached his car, he heard Piatt tell Vasquez, "If you're not going to attack him, I'm going to attack him." Defendant claimed Piatt then came after defendant. Defendant testified that, when defendant fired his gun, Piatt was not running away, down the street. She was between three and five feet, face to face with defendant. Vasquez had just jumped the fence. There were about five people working in Veronica's yard next door, including Vasquez and two workers in front and two workers in back. Piatt and the two workers in Veronica's backyard were approaching defendant.

Defendant did not intend to use his gun. Defendant feared the people approaching him were going to hold him down and attack him with "the objects they were holding." The men did not say anything. Defendant pulled out his loaded gun because Piatt told the men to attack defendant, and one worker was holding a shovel and another worker was holding a pipe. The men were on Veronica's property, along the fence.

When defendant accidentally fired the first shot, Piatt was three to five feet away and unarmed. Defendant did not know he was pointing his gun at Piatt. After the first shot, defendant decided to fire his gun again. No one was approaching him with a weapon. The people with the shovel and pipe approached him, but they were on the other side of the fence. Defendant did not know if they were angry or what their intention was. Vasquez was close to defendant.

Defendant conceded that, when he first fired his gun, no one was attacking him, but he believed Piatt was going to. Defendant also denied pointing his gun toward Piatt when he accidentally fired it the first time. He fired his gun three times. He initially took his gun out to protect himself and accidentally fired it. He then fired his gun two more times to scare off his attackers, including Vasquez and the two workers who ran back to Veronica's house after defendant fired his gun.

After defendant fired his gun, he did not see Piatt fall. He only saw her turning around and put her hands on her knees. Defendant got in his car and left. He was unaware he had shot anyone. He never intended to shoot anyone. Four months later he turned himself in to the sheriff's department.

(People v. Gonzalez, 2011 WL 2120206, at *1-4) (footnotes added).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The trial court allegedly violated due process by failing to instruct the jury on attempted voluntary manslaughter based on the theory of sudden quarrel/heat of passion (Ground One); and ///

2. Petitioner's trial counsel allegedly rendered ineffective assistance, by assertedly failing to introduce at trial: (1) alleged voicemail messages assertedly left by a woman on Petitioner's phone after the incident; (2) alleged evidence that Piatt had a history of not paying rent and being evicted; and (3) alleged evidence that Piatt continued living at the house after the incident (Ground Two).

STANDARD OF REVIEW

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("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.").

In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION

I. Petitioner's Claim of Instructional Error Does Not Merit Habeas Relief.

A. Background

In California, "manslaughter, a lesser included offense of murder, is an unlawful killing without malice." People v. Cruz, 44 Cal. 4th 636, 664, 80 Cal. Rptr. 3d 126, 187 P.3d 970 (2008), cert. denied, 555 U.S. 1215 (2009) (citation omitted). "Malice is presumptively absent when a defendant kills 'upon a sudden quarrel or heat of passion' (citation), provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. (citation)." Id.

The heat-of-passion requirement for manslaughter has both an objective and a subjective component. People v. Steele, 27 Cal. 4th 1230, 1252, 120 Cal. Rptr. 2d 432, 47 P.3d 225 (2002), cert. denied, 537 U.S. 1115 (2003). Objectively, the heat of passion must be "such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.'" Id. at 1252-53 (quoting People v. Logan, 175 Cal. 45, 49, 164 P. 1121 (1917)). Additionally, "[t]he defendant must actually, subjectively, kill under the heat of passion." People v. Steele, 27 Cal. 4th at 1252 (citation omitted).

Petitioner's counsel requested that the court instruct the jury on heat-of-passion attempted voluntary manslaughter (R.T. 505). Counsel argued that Petitioner "was very upset and, at that point, attempted to end [Piatt's] life" (R.T. 505). The court declined to give the instruction (R.T. 505-06). Later, Petitioner sought a new trial, arguing that the court had erred in failing to give the requested instruction (R.T. 660-54). The court rejected the argument, ruling that the evidence did not support the instruction (R.T. 666-67).

The Court of Appeal agreed (People v. Gonzalez, 2011 WL 2120206, at *5-6). The Court of Appeal observed that Petitioner did not contend he fired the gun because he had been provoked to do so, and that his own testimony revealed he did not act rashly and his reason was not obscured by passion (id.).

B. Discussion

Petitioner's claim fails for several reasons. First, the United States Supreme Court expressly has declined to rule whether federal habeas relief is available for a court's failure to instruct on a lesser included offense in a non-capital case. See Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980); see Powell v. Hatcher, 407 Fed. App'x 226, 227 (9th Cir.), cert. denied, 131 S. Ct. 2467 (2011) (denying habeas relief, noting that in Beck the Supreme Court expressly declined to rule on the issue); Huynh v. Hernandez, 2007 WL 186307, at *1 (9th Cir. Jan. 22, 2007) (failure to instruct on lesser offense of involuntary manslaughter did not merit habeas relief; "there is no 'clearly established' Supreme Court law that requires giving a lesser-included offense instruction in a non-capital case") (citations omitted); see also Dansby v. Trombley, 369 Fed. App'x 657, 660 (6th Cir. 2010) ("the Supreme Court has never held that due process requires the giving of jury instructions on lesser-included offenses in non-capital cases"). Therefore, under the standard of review set forth in 28 U.S.C. section 2254(d)(1), habeas relief is unavailable on this claim. See Moses v. Payne, 555 F.3d 742, 758--59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an 'open question,'" habeas relief unavailable).

Second, and in any event, a claim challenging a state court's failure to give a lesser included offense instruction "'fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.'" Powell v. Hatcher, 407 Fed. App'x at 227 (quoting James v. Reese, 546 F.2d 325, 327 (9th Cir. 1986)).

Third, the evidence did not support an attempted voluntary manslaughter/heat of passion instruction. Petitioner contends that he had reason to fear Piatt because he purportedly believed she had "thrown boiling water on a prior landlord" (Reply, p. 4). There was no trial evidence Piatt had thrown boiling water on a "prior landlord."*fn5 Petitioner testified that, in March of 2008, he heard Piatt and her sister talking about an incident in which Piatt purportedly threw boiling water on someone in South Carolina at some unspecified time in the past (R.T. 410-13). Petitioner did not claim in his testimony that knowledge of this March conversation enraged Petitioner at the time of the November shooting. The evidence that, more than eight months before the shooting, Petitioner supposedly had learned of the alleged incident in South Carolina was far too remote to support a heat-of-passion instruction. See People v. Daniels, 52 Cal. 3d 815, 868, 277 Cal. Rptr. 122, 802 P.2d 906 (1991), cert. denied, 502 U.S. 846 (1991) ("if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter") (citation and internal quotations omitted).

Petitioner also contends he purportedly had reason to be angry because Piatt had not paid the rent (Reply, p. 4). A tenant's nonpayment of rent simply is not the sort of event which could arouse passion in a reasonable person sufficiently to justify an attempted homicide. Additionally, at trial Petitioner denied arguing with Piatt concerning the rent, although he admitted telling Piatt that if she could not afford the rent she should look for a cheaper place (R.T. 458). Petitioner said that, when Piatt purportedly became unreasonable, Petitioner decided to leave (R.T. 432). Petitioner's own testimony negated any suggestion that Petitioner shot Piatt in the heat of passion.

Petitioner argues that evidence that Piatt ran out of the house screaming and encouraged Vasquez to "get" Petitioner showed that Petitioner shot Piatt "rashly under extreme emotion" (Reply, p. 4). Again, however, Petitioner's own testimony belies this argument. Petitioner acknowledged that he fired the gun three times, but testified repeatedly that the first shot was an "accident" (R.T. 437, 439, 446, 468, 472-73). Petitioner denied squeezing the trigger, and claimed the gun "just went off by itself," to Petitioner's supposed surprise (R.T. 468, 487-88, 493). Petitioner testified that he did not aim the gun at Piatt, that he felt as if the gun went off "unconsciously," and that he was surprised when he fired the first shot (R.T. 439, 446, 468). Petitioner said he "never found out" if the first shot hit Piatt, but also that he was "sure" that it did (R.T. 439). According to Petitioner, he fired the second and third shots deliberately but only to prevent Vasquez and the men whom Petitioner said were armed with a pipe and a shovel from harming Petitioner and to compel them to move back (R.T. 439, 464, 493). Petitioner did not testify that he was angry at these people, though he did claim he was scared (R.T. 435-36, 438, 464, 471, 474). Petitioner said he never intended to shoot and hit anyone (R.T. 439-40).

Given all of the evidence, in particular Petitioner's own testimony, the Court of Appeal's ruling that the evidence did not support a heat-of-passion attempted voluntary manslaughter instruction was manifestly reasonable. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

Also without merit is Petitioner's related contention that the trial court's failure to give a heat-of-passion attempted voluntary manslaughter instruction assertedly denied Petitioner the right to present a defense (see Reply, p. 3). The Ninth Circuit has suggested that "the defendant's right to adequate jury instructions on his or her theory of the case might, in some cases," raise a cognizable ground for federal habeas relief. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000), cert. denied, 534 U.S. 839 (2001); see also Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006) (state court's jury instructions violate due process if they deny the criminal defendant "a meaningful opportunity to present a complete defense") (citation and internal quotations omitted). However, a court does not violate a defendant's right to present a defense by declining to instruct on a theory unsupported by the evidence. Solis v. Garcia, 219 F.3d at 929. Because, as discussed above, the evidence did not warrant a heat-of-passion attempted voluntary manslaughter instruction, Petitioner has not demonstrated that the court's failure to give such an instruction denied Petitioner a meaningful opportunity to present a defense. Moreover, given the direct and circumstantial trial evidence regarding Petitioner's state of mind at the time of the shooting, any error in failing to give the desired instruction was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (trial-type error warrants habeas relief only if the error had a "substantial and injurious effect or influence" in determining the jury's verdict).

For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground One of the Petition.

II. Petitioner's Claims of Ineffective Assistance of Trial Counsel Do Not Merit Habeas Relief.

A. Background

Petitioner contends his trial counsel allegedly rendered ineffective assistance, by assertedly failing to introduce at trial:

(1) alleged voicemail messages supposedly left on Petitioner's phone after the incident; (2) alleged evidence that Piatt had a history of not paying rent and being evicted; and (3) alleged evidence that Piatt continued living at the house after the incident. Petitioner contends this evidence would have impeached Piatt and shown "that she was not the innocent victim that she portrayed herself to be at trial" (Pet. Mem., p. 15). The California Supreme Court denied this claim summarily (Respondent's Lodgments 8, 9). Therefore, this Court "must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).

B. Governing Legal Standards

To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 130 S. Ct. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S. Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).

A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S. Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.

"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "'reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.

C. Alleged Additional Evidence Not Presented By Counsel

1. Alleged Voicemail Messages

Petitioner contends that, after the incident, Piatt or someone associated with Piatt made threatening phone calls to Petitioner:

1. An alleged voicemail message received on Petitioner's cell phone on November 28, 2008, from a woman stating: "Hey motherfucker why don't you come shoot at someone that will take your ass out. Fucking pussy"; and

2. An alleged voicemail message received on Petitioner's cell phone on December 25, 2008, from an allegedly similarly-sounding woman, stating: "Ho ho ho wetback. We're watching you. I hope you can see us. It's your turn now." (Pet. Mem., p. 16; Pet. Ex. E).

Petitioner contends that the first voicemail message was received from a phone number given on Piatt's March 2008 "Rental/Credit Application" as the number of Piatt's sister (Pet. Mem., p. 16; Pet. Ex. F). Petitioner also contends that an Investigation Report dated February 13, 2009, recorded that, while the investigator purportedly was speaking with someone at Piatt's residence, that person called Petitioner's sister at that same phone number (id.). Petitioner also relies on a declaration of Petitioner's wife in which she states that, prior to trial, she taped the messages and played the tape for Petitioner's counsel (Pet., Ex. O.). According to Petitioner's wife, Petitioner's counsel said he would not use the tape at trial (Pet., Ex. O).

2. Alleged Eviction History

Petitioner contends that, in August of 1995, the Colombia Housing Authority in South Carolina initiated eviction proceedings against Piatt (Pet. Mem., pp. 17-18). Petitioner relies on a purported Investigation Report dated December 3, 2008, which also states that the investigator found several eviction notices in Florida concerning Piatt (Pet. Mem, p. 18). The Investigation Report also states that the investigator spoke to a former landlord of Piatt in Florida who allegedly related that, in 2004, Piatt paid only two months rent, threatened the landlord, and was difficult to evict (id.; see Pet. Ex. H, second page). The former landlord also allegedly said there was criminal activity going on at the house and that Piatt was known as a "professional" at being evicted (id.).

3. Alleged Evidence That Piatt Continued to Live in the House

Petitioner contends that Piatt continued to live in the house after the shooting. Petitioner relies on an Investigation Report, dated February 13, 2009, in which the investigator reportedly learned from a couple then living at the house that Piatt allegedly continued to live there periodically after the shooting (Pet. Mem., p. 19; Pet. Ex. G). Petitioner also relies on an unlawful detainer complaint Petitioner's wife reportedly filed against Piatt on April 22, 2009, and an eviction notice allegedly showing that an eviction at the house occurred on June 3, 2009 (Pet. Mem., p. 19; Pet. Ex. M).

D. Discussion

Petitioner has not shown counsel's ineffectiveness in failing to present the above-described evidence, or any prejudice resulting therefrom. Under California law, a "trial court has broad discretion to exclude impeachment evidence under [California] Evidence Code section 352." People v. Hamilton, 45 Cal. 4th 863, 89 Cal. Rptr. 3d 286, 200 P.3d 898 (2009), cert. denied, 130 S. Ct. 74 (2009) (citation omitted). "[T]he statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." Id. (citation and internal quotations omitted).

Here, trial counsel reasonably could have determined that, particularly in the absence of voice-identification evidence or even evidence that Piatt had access to her sister's phone,*fn6 the trial court would have excluded the alleged phone messages as speculative, collateral and lacking adequate foundation. Trial counsel also reasonably could have determined that evidence that someone using the phone of Piatt's sister made purportedly threatening calls to Petitioner after the shooting was not inconsistent with Piatt's account of the shooting.

Additionally, counsel reasonably could have determined that evidence concerning Piatt's alleged previous evictions years before, or her purported difficulties with a Florida landlord, would not have appreciably advanced Petitioner's defenses of accident, perfect self-defense or imperfect self-defense. Both perfect and imperfect self-defense require a showing that the actor responded to a perceived threat of imminent harm. See People v. Humphrey, 13 Cal. 4th 1073, 1082, 56 Cal. Rptr. 2d 142, 921 P.2d 1 (1996); People v. Lopez, 199 Cal. App. 4th 1297, 1304-05, 132 Cal. Rptr. 3d 248 (2011). Petitioner does not argue, and the evidence does not show, that Petitioner knew of Piatt's purported eviction history. Petitioner contends the evidence would have undercut Piatt's testimony that she withheld rent when Petitioner allegedly failed to respond to her complaints concerning the electricity (Pet. Mem., p. 18). Although Petitioner denied at trial that Piatt had made such complaints (R.T. 452), it was undisputed that Piatt had withheld rent. The reason why Piatt withheld rent was essentially immaterial to the issue of Petitioner's guilt. Petitioner also has not shown that counsel could have obtained the attendance at trial of any witness or witnesses with percipient knowledge of Piatt's alleged eviction history.

The purported evidence that two people told an investigator Piatt still lived in the house after the shooting could have impugned Piatt's testimony that she had not lived at the house since the day she was shot (see R.T. 106, 125). However, counsel reasonably could have determined that impeachment on such a collateral issue would not have appreciably lessened the force of Piatt's testimony, corroborated by other witnesses, that Petitioner shot Piatt as she ran away from him down the street.

Petitioner also has failed to show that counsel's alleged errors prejudiced Petitioner. As indicated above, two other witnesses (Vasquez and Gajon) corroborated Piatt's testimony that Petitioner shot her as she was running away. Petitioner did not deny he was the shooter, and the evidence Petitioner claims counsel should have introduced would have added little or nothing to Petitioner's defenses of accident and self-defense. Some of the evidence, if admitted,*fn7 might have impeached Piatt's testimony on collateral matters. However, the jury found Petitioner guilty despite hearing much more damaging impeachment evidence against Piatt, namely that she had suffered a conviction for "assault and battery of a high and aggravated nature" (R.T. 127). In such circumstances, Petitioner has not shown a reasonable probability of a different result had counsel acted in the manner urged by Petitioner.

For the foregoing reasons, the state court's rejection of Petitioner's claims of ineffective assistance of counsel was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Therefore, Petitioner is not entitled to habeas relief on Ground Two of the Petition.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.


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