United States District Court, C.D. California
April 15, 2014
Beau Alan Cornish, Petitioner,
P.D. Brazleton (Warden), Respondent.
CIVIL MINUTES - GENERAL
VALERIE BAKER FAIRBANK, Senior District Judge.
PROCEEDINGS (IN CHAMBERS): ORDER Adopting the Report and Recommendation; Denying the Habeas Corpus Petition; Dismissing the Action With Prejudice; Declining to Issue a Certificate of Appealability; Directing the Entry of Separate Final Judgment
Cornish was convicted of murder for killing a motorist while driving at high speeds - over one hundred miles per hour - against traffic on the freeway in an attempt to elude police. The state trial court instructed the jury regarding a lesser included offense of involuntary murder, but not on a theory of voluntary manslaughter. Proceeding pro se, Cornish brings this action for habeas corpus relief pursuant to 28 U.S.C. § 2254. He claims only that the state appellate court committed AEDPA error in rejecting his claim that the trial court erred in failing to sua sponte instruct the jury on a theory of voluntary manslaughter as another lesser-included-offense alternative to murder. The Magistrate Judge has issued a well-reasoned Report and Recommendation ("R&R") recommending that the petition be denied for lack of merit. The deadline for petitioner to file objections was March 10, 2014, see Document ("Doc") 16, and he neither filed objections nor sought an extension of time. For the reasons that follow, the Court will adopt the R&R, deny the habeas petition, dismiss the action with prejudice, and deny a certificate of appealability.
The Court agrees with the Magistrate that petitioner's desired voluntary-manslaughter instruction would contradict California state law as clarified by People v. Bryant, 56 Cal.4th 959, 157 Cal.Rptr.3d 522, 301 P.3d 1136 (2013). Bryant held that voluntary manslaughter is limited to situations "when a homicide that is committed either with intent to kill or with conscious disregard for life - and therefore would normally constitute murder" - is mitigated because the killer acted either in unreasonable self-defense or in the heat of passion. See R&R at 6. The California Supreme Court conclusively rejected the California Court of Appeal's holdings in the decisions petitioner cited which purported to extend voluntary manslaughter to additional types of unintentional killings, such as killing without malice in the commission of an inherently dangerous assaultive felony see R&R at 6 (citing Bryant, 56 Cal.4th at 970, 301 P.3d at 529 ("To the extent that People v. Garcia ... 162 Cal.App.4th 18, 74 Cal.Rptr.23d 912 [(Cal.App. 2008)] suggested otherwise, it is now disapproved.").
Petitioner lacks even a colorable argument that he was entitled to a voluntary-manslaughter instruction under Bryant, because he identifies no evidence introduced at his trial which even arguably could tend to show that he was acting in unreasonable self-defense or in the heat of passion, as defined by California law, when his vehicle struck the other vehicle. Cf. Phouttachak v. Uribe, 2012 WL 4021780, *7 (C.D. Cal. Mar. 27, 2012) (Wistrich, M.J.) (denying section 2254 petition) (after noting that the California Court of Appeal had rejected petitioner's claim that state trial court should have instructed the jury on voluntary manslaughter, the court stated, "The court concluded that the evidence in this case fell far short of showing that the victim acted in a way that would provoke an ordinary person.' * * * Because the instruction was not warranted under state law, the failure to give it did not deprive petitioner of any federal right.") (internal citations omitted), R&R adopted, 2012 WL 3542526 (C.D. Cal. Aug. 16, 2012) (King, C.J.).
Therefore, the Magistrate is right to conclude that this instructional-error claim is not cognizable on federal habeas review and is specifically foreclosed by applicable state appellate precedent, which this Court is obligated to follow in its interpretation of state law. See, e.g., denying California prisoners' section 2254 instructional-error claims regarding voluntary manslaughter: Jones v. Paramo, 2014 WL 808763, *5 (C.D. Cal. Feb. 24, 2014) (Philips, J.) ("None of petitioner's jury instruction claims is viable on federal habeas review. * * * Petitioner's after-the-fact arguments regarding the lesser included offense instructions conflict with state law as enunciated by the state supreme court in Bryant ...."); White v. Biter, 2013 WL 5651547, *5 (C.D. Cal. Oct. 15, 2013) (Feess, J.) ("Regardless, Petitioner's claim fails on its merits. The California Supreme Court has expressly disapproved Garcia 's theory of involuntary manslaughter....").
PETITIONER IS NOT ENTITLED TO A CERTIFICATE OF APPEALABILITY
Absent a COA, "an appeal may not be taken from a final decision of a district judge in a habeas corpus proceeding or a proceeding under 28 U.S.C. § 2255", Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, ___ (2013) (Ginsburg, J., joined by Scalia & Breyer, JJ., concurring), ,  and the district court must issue or deny a COA when it enters a final order adverse to the applicant, see Rule 11(a) of Rules Governing § 2254 Cases. In practice, "[i]t is a rare step' for a district court to issue a COA, " McDaniels v. McGrew, 2013 WL 4040058, *3 (C.D. Cal. Aug. 8, 2013) (Fairbank, J.) (quoting Murden v. Artuz, 497 F.3d 178, 199 (2d Cir. 2007) (Hall, J., concurring in judgment)). A COA may issue only if "the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "The Court is mindful that it must resolve doubts about the propriety of a COA in the petitioner's favor'", Adams v. Hedgpeth, No. LA CV 14-01464-VBF Doc. ___ at 8 (C.D. Cal. Apr. 10, 2014) (quoting Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (en banc)), but no such doubt exists here. Reasonable jurists would not find it debateable that this petition is entirely unexhausted and is therefore subject to dismissal for lack of subject-matter jurisdiction. The petition, then, is not "adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3385 n.4 (1983).
The Report and Recommendation [Doc # 17] is ADOPTED.
The habeas corpus petition [Doc # 1] is DENIED.
This action is DISMISSED with prejudice.
A Certificate of Appealability is DENIED. This is a final order, but it will not be appealable if petitioner does not obtain a certificate of appealability from the U.S. Court of Appeals., 
As required by FED. R. CIV. P. 58(a)(1), the final judgment will be issued separately.
IT IS SO ORDERED.