The opinion of the court was delivered by: Jon S. Tigar United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK
United States District Court For the Northern District of California
Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Chris Wayne Emory, challenging the validity of a judgment obtained 17 against him in state court.*fn1 Respondent filed an answer to the petition. The case was then 18 reassigned to the undersigned. Petitioner has not filed a traverse although given an opportunity to 19 do so. 20
In 2008, an Alameda County jury found petitioner guilty of first degree murder. (CT 331- 32.) He was sentenced to state prison for twenty-five years to life for the murder, plus an 23 additional twenty-five years for personal use of a firearm in committing the murder. (Id.) 24
On December 9, 2009, in a reasoned opinion, the California Court of Appeal affirmed the 2 judgment. People v. Emory, No. A122557, 2009 WL 4680009 (Cal. Ct. App. Dec. 9, 2009). On 3 February 18, 2010, the California Supreme Court summarily denied the petition for review.*fn2 The 4 instant petition was filed on June 3, 2011. 5
The California Court of Appeal found the facts underlying petitioner‟s conviction to be as 7 follows*fn3
An eyewitness testified that [petitioner] fatally shot 15-year old Anthony Dailey during an altercation arising from Dailey‟s theft of clothing from [petitioner]‟s best friend. The shooting occurred in the home of the eyewitness, Rachel Allen. Dailey was a friend of Allen‟s sister, and also well known to Allen from the neighborhood. In June 2007, Allen‟s sister invited Dailey to sleep overnight on Allen‟s living room sofa. Allen had "an open-door policy" and friends from the neighborhood freely visited Allen‟s apartment and sometimes slept overnight. Allen awoke on June 3, 2007, to find Dailey sleeping on her sofa. Dailey was still at Allen‟s apartment when her ex-boyfriend, Marcus Williams, dropped by early that morning with [petitioner]. Williams was 22 years old and [petitioner] 20 years old. Williams was partially disabled as the victim of an earlier shooting.
There were bad feelings between Dailey and Williams. A few weeks earlier, Dailey had stolen Williams‟s car and started stripping it. It is unclear on this record, but it appears that Williams recovered the car. But Williams did not recover clothes he had left in the car. Dailey kept those clothes and wore them around the neighborhood. Williams felt that Dailey‟s behavior was "a form of disrespect."
When Dailey and Williams met at Allen‟s apartment, Dailey was wearing Williams‟s jacket. Williams stood at the entrance to Allen‟s living room and spoke to Dailey who was sitting on the sofa. Williams said something like, " "[y]ou got my clothes.‟ " Dailey stood up and said: " "Quit talking to me.‟ " The young men stood within two feet of each other arguing loudly and swearing at each other. [Petitioner] entered the apartment and approached Dailey and Williams. Williams told [petitioner]: " "it‟s cool.‟ "
[Petitioner] stood close to Dailey, raised his arm, and shot Dailey in the head. Allen testified that [petitioner] "[n]ever said one word" before shooting Dailey. Allen estimated that the gun was less than a foot from Dailey‟s head when [petitioner] fired, which is consistent with the autopsy that revealed gun powder burns on Dailey‟s skin near his ear.
Allen‟s sister testified that respect is important on the streets of West Oakland, and men in the neighborhood commonly settle their disagreements with guns, not fists. Allen‟s sister also testified that she saw [petitioner] with a 9-millimeter handgun days before the shooting. A bullet of that caliber was recovered from the scene of the crime.
Immediately after the shooting, [petitioner] ran from the apartment. Williams walked from the apartment and stayed nearby as Allen waited for the police to arrive. Williams was gone by the time the police arrived. [Petitioner] boarded a long-distance bus. The police apprehended [petitioner] the next day, on June 4, 2007, in Salt Lake City, Utah, when the bus made a scheduled stop. [Petitioner] was traveling with three large suitcases filled with clothes, photographs, and miscellaneous papers. [Petitioner] made a telephone call to Oakland from the Salt Lake City jail in which [petitioner] said he was " "snatched‟ " off the bus and complained that " "[s]omebody was snitching or something,‟ " and that there were " "motherfuckers snitching on‟ " him.
[Petitioner] confessed the killing to the police, but the confession was suppressed at trial because much of the police interview was conducted after [petitioner] invoked his right against self-incrimination. (U.S. Const., 5th amend.) In his statement to the police, [petitioner] began by denying all knowledge of the shooting and then admitted participation in the shooting in several stages. [Petitioner] first denied knowing anything about the shooting, then said he was on the street when he heard a gunshot, then said he was at the door of Allen‟s home when he heard an argument over clothes and a gunshot, and then said he was inside the apartment during the argument between Williams and Dailey when Dailey pulled a gun and [petitioner] tackled Dailey and the gun went off accidentally. Finally, [petitioner] admitted bringing the gun into the apartment and using it to shoot Dailey. [Petitioner] said he pointed his gun at Dailey to stop the argument and then shot Dailey when he thought Dailey was reaching for a gun. [Petitioner] moved to suppress the confession and the court ruled that the confession could not be introduced in the prosecution‟s case in chief. The jury did not hear [petitioner]‟s confession.
At trial, a police officer testified that Williams was arrested in connection with the police investigation of the shooting but released without being charged after making a statement.
Williams was subpoenaed as a witness for [petitioner]‟s preliminary hearing but did not appear and could not be located for trial.
The defense presented no witnesses at trial. In closing argument to the jury, defense counsel argued that Williams, not [petitioner], was the shooter, and that Allen was covering up for Williams, who was her ex-boyfriend.
The jury rejected the defense and convicted [petitioner] of first degree murder with personal use of a firearm in the commission of the murder. (Pen.Code, §§ 187, subd. (a), 189, 12022.53, subd. (d).)*fn4 The court sentenced [petitioner] to an indeterminate sentence of 25 years to life for Dailey‟s murder, plus an additional 25 years for personal use of a firearm in committing the murder. (Pen.Code, §§ 190, subd. (a), 12022.53, subd. (d).)
People v. Emory, No. A122557, 2009 WL 4680009 at *1-2 (Cal. Ct. App. Dec. 9, 2009). 2
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in 5 custody pursuant to the judgment of a State court only on the ground that he is in custody in 6 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. 7 Hodges, 423 U.S. 19, 21 (1975). 8
A district court may not grant a petition challenging a state conviction or sentence on the 9 basis of a claim that was reviewed on the merits in state court unless the state court‟s adjudication 10 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 13 light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. 14 Taylor, 529 U.S. 362, 412-13 (2000). Additionally, habeas relief is warranted only if the 15 constitutional error at issue had a "substantial and injurious effect or influence in determining the 16 jury‟s verdict." Penry v. Johnson, 532 U.S. 782, 795 (2001) (internal citation omitted). 17
A state court decision is "contrary to" clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court‟s] cases," or if it 19 "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] 20 Court and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 21 405-06. "Under the "unreasonable application‟ clause, a federal habeas court may grant the writ if 22 the state court identifies the correct governing legal principle from [the Supreme] Court‟s decisions 23 but unreasonably applies that principle to the facts of the prisoner‟s case." Id. at 413. "[A] federal 24 habeas court may not issue the writ simply because that court concludes in its independent 25 judgment that the relevant state-court decision applied clearly established federal law erroneously 26 or incorrectly. Rather, that application must also be unreasonable." Id. at 411. 27
Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court‟s 28 jurisprudence. "[C]learly established Federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court‟s decisions 2 as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. "A federal court 3 may not overrule a state court for simply holding a view different from its own, when the precedent 4 from [the Supreme Court] is, at best, ambiguous." Mitchell v. Esparza, 540 U.S. 12, 17 (2003). 5
Here, the only state court to address the merits of petitioner‟s claims was the California Court of Appeal on direct review. The Court of Appeal thus was the highest court to have 7 reviewed the claims in a reasoned decision, and it is the Court of Appeal‟s decision that this Court 8 reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 9 F.3d 1085, 1091-92 (9th Cir. 2005). 10
B. Petitioner‟s Claims 11
Petitioner claims his conviction and sentence are invalid because: (1) the trial court erroneously denied petitioner‟s Batson/Wheeler*fn5 motion; (2) the trial court failed to hold a hearing 13 on petitioner‟s motion for appointment of substitute counsel under Marsden*fn6 ; and (3) the trial court 14 denied petitioner‟s motion to represent himself under Faretta*fn7 . The Court addresses each claim in 15 turn. 16
During jury selection, the prosecutor exercised peremptory challenges against four 18 prospective African-American jurors. Emory, 2009 WL 4680009 at *3. Petitioner, who is 19 African-American, made a Batson/Wheeler motion. (Id.) After finding petitioner had made out a 20 prima facie case of purposeful discrimination, the trial court denied the motion, further finding 21 there were race-neutral justifications for the peremptory challenges. (RT 522-39.) Petitioner 22 claims the denial of the motion was erroneous. (Petition at 6.) 23
The California Court of Appeal denied the claim as follows:
The prosecutor and defense counsel each had 20 peremptory challenges. (Code Civ. Proc., § 231, subd. (a).) About midway through the jury selection process, defense counsel objected that the prosecutor was exercising her peremptory challenges on the basis of race.
At that point, the prosecutor had exercised ten peremptory challenges and four of those challenges concerned African-American prospective jurors.
1. Prospective Juror J.P.
J.P. was a single, 22-year-old African-American male living in San Leandro and working as a driver for an automobile repossession company. The prosecutor stated several reasons for striking J.P. from the jury panel: (1) J.P. showed a disrespectful attitude toward the trial proceedings by "saunter[ing] into the courtroom" late, "about an hour and 15 minutes into the jury selection process," and by later responding to the judge, when asked how he was doing, by saying "[w]ha‟s up?"; (2) J.P. said during voir dire that he "hates the police"; and (3) he did not have "a very extensive work history" and was almost 23 years old, "close in age to the [petitioner]." The prosecutor said she "should have moved to challenge him for cause" but neglected to do so. Substantial evidence supports the prosecutor‟s stated reasons for striking J.P., and the trial court reasonably concluded the reasons were race-neutral. J.P. repeatedly showed a disrespectful attitude toward the court proceedings and the judge. He was late to court and substantially delayed the court proceedings to the point where the trial court felt compelled to administer what it called a "public scolding." J.P.‟s late arrival required the court to read introductory jury ...