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Jeffrey Deane Ward v. M.D. Bitter

March 20, 2013


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION and ORDER [Re: Motion at Docket No. 34]


Presently before this court is Jeffrey Deane Ward's Amended Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed pro se in June 2012. Ward and co-defendant Raymond Walker were charged with the murder of Serge Zubenko. It was further alleged that Ward intentionally and personally used a firearm, thereby causing great bodily injury or death to Zubenko, and that Walker was the principal and was armed with a firearm during the commission of that offense. The defendants were also charged with the special circumstance enhancement that the murder was intentional and perpetrated by the discharge of a firearm from a motor vehicle. Both were also charged with second degree drive-by murder.

Both defendants originally pled not guilty. Walker later changed his plea and pled guilty to manslaughter and being armed during the commission of the crime. Walker was sentenced to 12 years in prison.

A jury convicted Ward of first-degree murder, and found the special circumstance enhancement to be true. The jury was hung as to the allegation that Ward used a firearm, and the court declared a mistrial as to that allegation. Ward was sentenced to a prison term of life without the possibility of parole. Ward is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Kern Valley State Prison.


In his Petition to this Court, Ward claims as follows: (1) there was insufficient evidence that the shooter discharged a firearm intentionally at the victim with the intent to kill, rather than merely shoot at the car, thereby denying Ward due process of law under the Fourteenth Amendment; (2) the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter and provocation/imperfect self-defense, in violation of Ward's Sixth Amendment right to a fair trial and his Fourteenth Amendment right to due process; (3) the trial court erred in responding to the jury's questions about Ward's liability under the theory of aiding and abetting;

(4) the trial court erred in admitting inflammatory character evidence, thereby violating Ward's Fourteenth Amendment right to due process; (5) the trial court erred in instructing the jury on out-of-court statements, thereby violating Ward's Fourteenth Amendment right to due process;

(6) ineffective assistance of trial counsel and improper finding of facts by the judge in the sentencing hearing; (7) he was denied the opportunity to call Walker to the stand, amounting to ineffective assistance of counsel and judicial misconduct; (8) trial counsel was ineffective for failing to investigate or call Chantel Eidel as a witness and for meeting infrequently with Ward;

(9) the special circumstance which made Ward eligible for life without the possibility of parole was also used to elevate the murder charge to first degree in violation of the Double Jeopardy Clause of the Fifth Amendment, and his sentence amounted to cruel and unusual punishment in violation of the Eighth Amendment; and (10) the trial court failed to require the prosecution to prove every element of the offense charged by not allowing Ward to call Walker to the stand.

Respondent has answered, and Ward has replied. Respondent does not raise any affirmative defenses. Ward has also requested an evidentiary hearing.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling, Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted). In applying these standards in habeas review, this Court reviews this "last reasoned decision" by the state court.

Robinson v. Ignacio, 360 F.3 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits." Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). When there is no reasoned state-court decision denying an issue presented to the state, "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." Id. (citing Harris v. Reed, 489 U.S. 255, 265 (1989)). However, "[t]he presumption may be overcome when 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 presumption applies, this Court must perform an independent review of the record to ascertain whether the state-court decision was "objectively unreasonable." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citation omitted). In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds. See Coleman v. Thompson, 501 U.S. 722, 740 (1991). Moreover, this Court gives that presumed decision the same deference as a reasoned decision. Richter, 131 S. Ct. at 784-85. The scope of this review is for clear error of the state-court ruling on the petition. Delgado v. Lewis (Delgado II), 223 F.3d 976, 982 (9th Cir. 2000). "[A]lthough we independently review the record, we still defer to the state court's ultimate decision." Pirtlev. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).


A. Evidentiary Hearing

Although state prisoners may sometimes submit new evidence in federal court, "AEDPA's statutory scheme is designed to strongly discourage them from doing so." Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011). Provisions like §§ 2254(d)(1) and (e)(2) ensure that "[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id. (citing Williams, 529 U.S. 437).

Accordingly, a federal habeas proceeding is decided on the complete state-court record and a federal evidentiary hearing is required only if the trier of fact in the state-court proceeding has not developed the relevant facts after a full hearing. Pinholster, 131 S. Ct. at 1398-99. Ward did not request an evidentiary hearing in his petition for habeas corpus relief in the superior court. However, in his petition for habeas relief in the California Supreme Court, Ward included just immediately below the space for the case number "Evidentiary Hearing Requested." Ward similarly requested an evidentiary hearing in the caption of his First Amended Petition. In this Court, as was the case in the state court, Ward does not identify what evidence or testimony is to be proffered at an evidentiary hearing. Nor did Ward identify any contested factual issue that would have required the California courts to hold an evidentiary hearing to resolve. Thus, it cannot be said on the record that the state court precluded him from developing the factual basis for his claim. Because Ward has not identified any factual conflict that would require this Court to hold an evidentiary hearing to resolve, his request for an evidentiary hearing is denied.

B. Motion at Docket No. 34

At Docket No. 34, Ward filed a Motion to Amend his Petition. Ward seeks to amend his petition to clarify that he is alleging "judicial misconduct." Construing his petition broadly, Erikson v. Pardus, 551 U.S. 89, 94 (2007), Ward adequately preserved the argument in his First Amended Petition. Although he did not use the words "judicial misconduct," Ward did allege that the court improperly prevented Walker from taking the stand. Accordingly, amending the petition is unnecessary and Ward's Motion at Docket No. 34 is denied.

C. Merits

1. Claim One: Insufficient Evidence that the Shooter Discharged a Firearm Intentionally and with the Intent to Kill Ward contends that there was insufficient evidence that the shooter discharged a firearm intentionally at the victim with the intent to kill, rather than merely to shoot at the car, and as a result he cannot be held liable for first-degree murder or the special circumstances sentence enhancement. Ward argues that a conviction not supported by substantial evidence violates the Due Process Clause of the Fourteenth Amendment.

On direct appeal, the California Court of Appeal noted that the scope of appellate review of a claim of insufficiency of the evidence is "extraordinarily narrow," and that the court must review the record "in the light most favorable to the verdict to determine whether there is evidence of reasonable, credible, and solid value upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v. Ward, No. C060610, 2010 WL 3038090, at *4 (Cal. Ct. App. Aug. 5, 2010) (citations omitted). The court rejected Ward's sufficiency of the evidence claim as follows:

The Attorney General accepts defendant's legal premise that to be found guilty, the shooter must have intended to shoot at the victim and not merely at the car. But defendant's argument is defeated not by the law, but by the facts. The jury might have accepted defendant's theory that the shooter did not intend to kill the victim when shooting at him at close range through the car door. The jury, however, rejected that inference based on the equally reasonable inference that the shooter was either a poor aim or knew the bullet would penetrate the door and his victim as well. Given defendant's remarks following the shooting, the jury could reasonably infer that defendant intended to shoot the victim, who was little more than a sitting duck. On this evidence, we are not at liberty to upset the jury verdict. Id., at *3-4. The California Supreme Court denied Ward's Petition for Review.

As articulated by the Supreme Court in Jackson v. Virginia, the constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. 307, 319 (1979); see McDaniel v. Brown, 130 S. Ct. 665, 673 (2010) (reaffirming this standard); see also Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012) (emphasizing the twice-deferential effect involved when this standard is coupled with the "objectively unreasonable" standard). This Court must, therefore, determine whether the state court unreasonably applied Jackson. In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved conflicts in testimony, weighed the evidence, or made inferences. Jackson, 443 U.S. at 319. Rather, when "faced with a record of historical facts that supports conflicting inferences," this Court "must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and defer to that resolution." Id. at 326.

In this case, the court of appeal did not unreasonably apply Jackson. Rather, the court resolved any conflict in the evidence in favor of the prosecution and found that there was evidence to support a finding by a rational trier of fact that Ward did shoot and intend to kill the victim--namely, Ward's statements after the shooting that he did shoot the victim and that the victim "got what he deserved." Ward bears the burden of establishing that these factual findings were erroneous, 28 U.S.C. § 2254(e)(1), a burden he has failed to carry. The record does not compel the conclusion that no rational trier of fact could have found proof of guilt, especially considering the double deference owed under Jackson and AEDPA. Accordingly, Ward is not eligible for relief on this claim.

2. Claim Two: Failure to Instruct on Manslaughter and Provocation/Imperfect Self-Defense Ward does not contend in this claim that defense counsel did or should have requested a jury instruction on manslaughter but instead argues that the court should have sua sponte instructed the jury on voluntary manslaughter and that provocation or imperfect self-defense negate the malice necessary for murder. Ward also claims that the instructions given by the trial court were incomplete because they failed to identify the "absence of provocation and absence of imperfect self defence [sic]," and that accordingly the state was not required to prove every element of murder.

On direct appeal, the court of appeal rejected Ward's claim that the trial court should have sua sponte instructed the jury on voluntary manslaughter or that provocation or imperfect self-defense negate the malice necessary for murder. The court held that under California case law a court in a murder trial must sua sponte instruct a jury on every theory of a lesser included offense, such as voluntary manslaughter, that is supported by the evidence. Ward, 2010 WL 3038090, at *6. "By the same token, a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect ...

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