United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge
Petitioner, a state prisoner proceeding with counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as successive and for failure to state a claim. ECF No. 34. For the reasons set forth below, the court finds the petition successive and recommends that the motion be granted.
Petitioner filed this action pro se on March 14, 2012 challenging his 1996 conviction for second degree murder. ECF No. 1. He relies on a 2009 change in California law. Petitioner argues that his murder conviction was obtained in violation of due process because the jury was instructed on felony murder, a theory upon which he could not be convicted under California law as clarified by the California Supreme Court in 2009, and because the trial court failed to provide an instruction on imperfect self-defense, a theory which negates the malice element of (non-felony-murder) second-degree murder. Id. at 7-11.
The underlying facts in this case are not in dispute. See ECF No. 1-1 at 7. The California Court of Appeals recited them as follows in petitioner's direct appeal:
Defendant George Tabios, Jr. (hereinafter referred to as defendant Tabios or George), [wa]s a teenager and, at the time of this incident, lived with his family in Stockton. Family members had previously been harassed, threatened, and physically attacked by a local gang known as Li'l Unity. In November 1994, the family's house was riddled with more than 20 shots from a drive-by shooting. The house was shot at on a subsequent occasion as well.
Sometime after midnight on March 26, 1995, several teenagers in the Tabios family gathered outside the house to socialize with friends. George remained inside with his friend, defendant Felix Lucero. A car drove slowly down the street, passed the house, and then turned around. Several of the teenagers were sure the car was occupied by members of Li'l Unity intent on shooting at the Tabios house. One of George's cousins ran inside, yelling to George and Lucero that Li'l Unity was "rolling up." George and Lucero ran out of the house, armed with rifles pulled from under George's bed.
The car started toward the Tabios house but then backed up when one of the occupants shouted a warning upon seeing the guns. Three shots were fired at the car, two by Tabios and one by Lucero. One of the bullets fired by Tabios killed one of the car's passengers, David Ware.
Defendants hid their guns in a truck parked in the Tabios backyard.
The occupants of the car were not in fact members of Li'l Unity. They were on the Tabios's block to visit a friend and were having trouble finding the correct address.
Defendants were arrested and charged with Ware's murder and two counts of the attempted murder of the other occupants of the car. Tabios was prosecuted as the person who actually shot Ware, and Lucero was prosecuted as an aider and abettor.
The prosecutor offered alternative theories of liability, including premeditated first degree murder, second degree murder based on an inherently dangerous act, and second degree felony murder. Under the latter theory, the prosecutor contended the underlying offense, shooting into an occupied car ([California Penal Code] § 246), could properly be characterized as an inherently dangerous felony.
Defendants asserted they fired their guns because they feared a drive-by shooting, and meant only to scare the car away. Their arguments centered on a claim of imperfect self-defense, and they urged a verdict of manslaughter. Alternatively, Lucero also argued that he should be acquitted because he had not aided or abetted Tabios.
The jury convicted both defendants of one count of second degree murder and two counts of attempted murder, and found defendants personally used a rifle in the commission of the murder.
The court sentenced both defendants to prison terms of fifteen years to life for the murder, and added an additional three-year sentence for defendant Lucero and an additional four-year sentence for defendant Tabios for the firearm enhancements.
People v. Tabios, 67 Cal.App.4th 1, 5-6 (1998).
A. Direct Appeal and State Habeas Petitions
In his direct appeal, Lucero argued, among other things, that he was improperly deprived of an opportunity to assert a claim of imperfect self-defense to felony murder and that the underlying felony and the murder "merge, " precluding conviction for second degree felony murder. Id. at 6. The court of appeal rejected these arguments. First, it concluded that imperfect self-defense is inapplicable in a felony murder case, because it negates malice, an element which need not be proven to obtain a conviction for felony murder. Id. at 6-9. The court explained that under California law:
The felony-murder rule generally acts as a substitute for the mental state ordinarily required for the offense of murder.... Ordinarily, when a defendant commits an unintentional killing, a murder conviction requires a showing that he acted with implied malice. [Citation.] With the felony-murder rule, however, such malice need not be shown." ( People v. Patterson (1989) 49 Cal.3d 615, 626 [emphasis and parallel cite omitted.]) The Patterson court reasoned that the second degree felony-murder doctrine acts as a substitute for implied malice, and eliminates the need for the prosecution to establish the mental component required for the offense of murder. ( Ibid. )
67 Cal.App.4th at 8. The court additionally noted that, by convicting petitioner of attempted murder, the jury had necessarily found that he acted with express malice, and therefore would have resolved a claim of imperfect self-defense against him. Id. at 9 n.2. Second, the court found that California Supreme Court precedent (namely People v. Hansen, 9 Cal.4th 300 (1994)) precluded petitioner's claim that violation of § 246 merges with any resulting murder and thus cannot be the basis of a felony-murder conviction. Id. at 11. The California Supreme Court denied petitioner's request for review. ECF No. 33 at 6.
Petitioner's state habeas petitions (one in the Superior Court, one in the Court of Appeal, one in the Supreme Court) were similarly ...