The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of thirty-nine years, eight months-to-life pursuant to a judgment of the Superior Court of California, County of Kern (the "Superior Court") as a result of a February 6, 2008 conviction on one count of second degree murder (Cal. Pen. Code § 187(a)), five counts of attempted second degree murder (§§ 664, 187(a)), and one count of hit and run (Cal. Veh. Code § 20001(a)). (Lodged Document ("LD") 1).
Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which, in an unpublished decision, affirmed Petitioner's conviction. (LD 1, 2). Subsequently, the California Supreme Court denied Petitioner's petition for review. (LD 5).
On April 22, 2010, Petitioner filed the instant petition. (Doc. 1). On October 7, 2010,
Respondent filed an Answer. (Doc. 15). On November 8, 2010, Petitioner filed a Traverse. (Doc. 3 17). Respondent's Answer contends that Petitioner's claim of ineffective assistance of counsel at 4 sentencing is not exhausted. (Doc. 15, p. 5). Respondent does not address whether the remaining 5 ineffective assistance of counsel claim is exhausted or not. 6
The Court adopts the Statement of Facts in the 5th DCA's published/unpublished decision:
On May 9, 2005, appellant was driving his car in the neighborhood where his cousin, Ronnie Hill, lived. Hill was on the street in front of his house with five boys-seventh and eighth graders-who played on the basketball team Hill coached. Appellant got into a verbal argument with Hill, which lasted a few minutes, and appellant then drove off.
Several minutes later, appellant returned with his mother, Ruth Lee, in the passenger seat. Lee got out of the car and argued with Hill. According to Lee, Hill called appellant a "wuss" and "puss," and the other boys were repeating the same. When Lee got back into the car, appellant drove half way down the block, made a U-turn, and then drove his car toward Hill.
Hill and the boys were standing in the curb area of the street. Appellant's car struck Hill as he tried to jump onto the curb. The impact cracked Hill's rib. Appellant also struck the five boys. Kezdren Blakely was hit in his lower body, which bruised a bone. Jeremy Dixon was struck in the hip, causing pain in his neck, back, and leg. Derrick Fench was bumped off his bicycle. Maurice Smallwood was hit and became trapped underneath the car. He was dragged down the street by appellant's car until Hill's brother, DeVon Johnson, stepped in front of the car and stopped appellant. Smallwood suffered a cut to his lip and his feet were scarred, requiring skin grafts. The parties stipulated that Smallwood suffered great bodily injury. Reginald Johnson was struck and his body was also caught underneath the car. A back tire ran over Reginald Johnson's head, crushing his skull and killing him within a matter of seconds.
Appellant's mother told an investigating officer that she believed appellant had been trying to hit Hill but not the other boys. Two witnesses observed appellant drive consciously and deliberately at Hill and the group of boys. There was a history of enmity between appellant and Hill.
Officer Donald Cegielski, an accident reconstructionist, testified that tire marks in the gutter, close to the curb, were "acceleration skids" caused by applying the accelerator rather than by hitting the brakes as appellant approached Hill and the boys.
Appellant called witnesses who attacked Hill's character, suggesting he was aggressive and violent. Appellant's mother testified that Hill, who had pending charges for resisting the police in the performance of their duties and spousal abuse, would "torment" appellant by constantly challenging him to fight.
Numerous witnesses testified that violent behavior and aggression were uncharacteristic of appellant. His mother said he never started a fight in school. His former girlfriend, Priscilla
Garcia, testified that appellant never fought with her and he was not aggressive. On one occasion, when they were in his car together, Hill taunted appellant, but appellant just drove away. Garcia's mother testified that appellant was always respectful of Priscilla, as well as of herself and her husband. She had never known appellant to be confrontational or aggressive.
Appellant's former football coach testified that he never saw aggressive or confrontational behavior on appellant's part.
Neuropsychiatrist Jeff Victoroff testified as an expert on attention deficit hyperactivity disorder (ADHD), a genetic brain disease that affects 3 to 7 percent of children, primarily boys.
Victoroff explained three types of ADHD: a combination of inattention and hyperactivity type, a predominately inattentive type, and a predominately hyperactive-impulsive type. Dr. Victoroff explained that the hyperactivity tends to disappear in the teen years, but at least half of the children with the disorder have impairing symptoms in adulthood.
Dr. Victoroff testified that appellant was diagnosed with ADHD at the age of 12. The neurologist who diagnosed appellant described him as "more attention deficit disorder rather than hyperactivity." The neurologist started appellant on a medication, Cylert, at the dosage of 37.5 milligrams a day. There was no record of when appellant stopped taking the medication; appellant could not remember, and medical records were more than a decade old.
According to Dr. Victoroff, the prefrontal cortex of a person with ADHD is abnormal. The prefrontal lobe of the brain is needed "for reasoning, planning, making a judgment about what you ought to do and realizing the consequences." In a person with ADHD, the prefrontal lobe is smaller than a "normal" brain, making the part of the brain that governs drive and impulse predominant. As summarized by Victoroff:
"[P]eople with attention deficit disorder have abnormal brains. They are abnormal from infancy, and about half of them continue to be abnormal into adulthood. The brain areas are small and shrunken compared with normal. The electrical activity is abnormal, function is very abnormal, and the worst problem is with the prefrontal cortex. [¶] When faced with a conflict, a threat, a provision, patients with ADHD may be slow to react at first because of their delayed brain processing. But when they do react their brains can't use the sophisticated frontal lobes that evolves late in human development to think through and make a good decision or stop a bad decision. And the act only uses the part of the brain that animals use, the primitive parts." Dr. Victoroff examined appellant for five and a half hours, during which time he interviewed him and performed psychiatric, cognitive, and neurological exams. Victoroff testified that appellant's brain CT scan showed signs of his having been knocked unconscious in the past, but he could not state how serious the injuries were as no MRI was done. Also, this had no relationship to appellant's ADHD.
Dr. Victoroff was asked a hypothetical question: What impact would it have on someone with ADHD if he went to a location where he knew another person consistently challenged him to fight, he took his mother to this place to show her how the individual tormented him, the individual confronted the mother and called her names, and others around called him a coward? Dr. Victoroff answered first by describing how a normal person might react and then comparing a person with ADHD:
"Well, you and I, and I suspect everyone in this room, would probably respond to a provocation with an immediate gut reaction. You know, they might swear. We might pound our ... dashboard. But we would think through what the consequences would be if we did
anything beyond that. We would think, okay, if I put my foot on the pedal of the car with this amount of pressure, if I hold the steering wheel and angle it like that, and if I'm aiming toward humans there could be horrible consequences. I can't do that. I'm not going to do that. But that's a sort of a conscious thinking through of the consequences of your behaviors. [¶] ... [¶] ...
The person with the ADHD-I mean I shouldn't make it seem like it's black and white. It's not as if it's all or none. But a person with ADHD has a very small ability, an abnormal neurologic ability to stop themselves from acting on their primitive instincts in extreme circumstances."
On cross-examination, Dr. Victoroff acknowledged that the last medical opinion, prior to his own, stating appellant suffered from ADHD, was dated January of 1998. A medical exam in 2001, when appellant was 16, made no reference to ADHD at all. Dr. Victoroff opined that, at age 20, when the event occurred, appellant's ADHD was in partial remission, and he suffered more from inattentiveness than he did from hyperactivity. According to Dr. Victoroff, half of the people who have been diagnosed with ADHD continue to have symptoms as adults that "disrupt[ ] their life."
When Dr. Victoroff asked appellant about the incident on May 9, 2005, appellant said, "So I wanted a scare tactic. If he is going to mess with me I am going to scare him. Swerved toward him. I didn't intend to kill him or nobody." When asked if an individual intentionally driving a car toward another individual was acting in disregard for that person's life, Dr. Victoroff responded:
"If someone is deliberately aiming a car at me, whether they intend to-now what they intend at that minute may vary dramatically from one person to the next. One person may think in his mind I am going to scare the living daylights out of that person, and another person may think in his mind I am going to run over that person. Different brains will allow the person to consider the possibility that I might get killed to different degrees. [¶] So the whole point that we are talking about here is that if your brain doesn't consider the consequences, potential consequences of an idiotic, extremely dangerous action, then you may not realize that you are putting people's lives in danger at that moment. You should. You damn well ought to realize that you are putting people's lives in danger. But you may not."
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to 4 the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the 5 United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 6 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States 7 Constitution. The challenged conviction arises out of the Kern County Superior Court, which is 8 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 9
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
II. Legal Standard of Review
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state ...