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Martinez v. Soto

United States District Court, C.D. California

November 19, 2014

J. SOTO, Warden, Respondent

Edward J. Martinez, Petitioner, Pro se, Lancaster, CA.

For J. Soto, Warden, Respondent: Seth Patrick McCutcheon, CAAG - Office of Attorney General, Los Angeles, CA.



The Court submits this Report and Recommendation to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. Section 636 and General Order 05-07 of the United States District Court for the Central District of California.


On May 29, 2014, Edward J. Martinez (" Petitioner"), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 (" Petition"). On August 1, 2014, Respondent filed an Answer to the Petition. Petitioner filed a Reply on August 29, 2014.

The matter is ready for decision. For the reasons set forth below, the Court recommends that the Petition be denied.


In Los Angeles County Superior Court case number YA077857, a jury found Petitioner guilty of one count of second degree murder (Cal. Penal Code § 187(a)). It was also determined that four prior strike conviction allegations under California's Three Strikes Law (Cal. Penal Code § § 1170(a)-(d), 667(b)-(i)), and four serious felony conviction allegations (Cal. Penal Code § 667(a)(1)), were true. The trial court sentenced Petitioner to a total term of fifteen years plus forty-five years to life in state prison. (Respondent's Lodged Document (" LD") 1, Clerk's Transcript (" CT") at 306; LD 5 at 2.)

Petitioner appealed (LD 8), and on January 15, 2014, the California Court of Appeal modified Petitioner's custody credits but otherwise affirmed the judgment. (LD 5.) Petitioner filed a petition for review in the California Supreme Court (LD 6), which was denied on March 26, 2014. (LD 7.)

The Petition was filed on May 29, 2014.


Prosecution Evidence

Daniel Vigil lived at the Torrance Motel in the City of Torrance. He was good friends with Timothy Hillis, who also lived at the Torrance Motel. Vigil knew defendant only slightly. Vigil knew that Hillis had been married to defendant's sister at one time. Hillis walked with a limp and used a walking stick. It looked like a branch of a tree--smaller at the bottom and larger at the top.
On April 20, 2010, during a conversation at Hillis's doorway, Hillis mentioned to Vigil that he had had a fight with defendant earlier. As Hillis spoke, Vigil noticed defendant approaching. Defendant said to Vigil, " You better get out of the way." Defendant told Hillis, who was not wearing a shirt, to get dressed and meet him in the alley. Hillis approached defendant, and the two men began yelling at each other. They got each other into semi-headlocks and began punching each other. After a few minutes of this tussling, Hillis went back into his room and came back out carrying his walking stick like a bat. He hit defendant with it several times in the shoulder, neck, and head area. Hillis was very angry. Defendant backed up a bit and then came back towards Hillis and began throwing jabs at his mid-section. At that point, Vigil noticed a knife in defendant's hand. He saw defendant land at least 10 blows with the knife. When Vigil saw that defendant had dropped the knife, he kicked it over to another resident, Joseph De La Cruz. After dropping the knife, defendant walked away. Hillis walked back to his room and lay down on his bed. Vigil tried to render aid to Hillis.
The testimony of De La Cruz, who was unavailable, was read into the record. On April 20, 2010, De La Cruz resided at the Torrance Motel on the same hallway as Hillis. De La Cruz knew that defendant visited Hillis sometimes and that they were related by marriage. On that day, at approximately 1:00 p.m., De La Cruz heard an argument in the hallway between defendant and Hillis. Later on, at approximately 3:30 p.m., he heard a commotion outside his door. He looked out and saw two people " rumbling" on the floor. Vigil, who was looking at the two fighters, kicked a knife over to De La Cruz. De La Cruz saw blood on the men tumbling around. De La Cruz kicked the knife inside his room and called 911. De La Cruz did not leave his room again until the police arrived. He then saw that there was blood all over the walls in the hallway.
The parties stipulated that Hillis's autopsy showed that he died as a result of multiple sharp instrument wounds.
Officer Josh Burden of the City of Torrance Police Department received the report of a stabbing and responded to the Torrance Motel. His investigation led him to look for defendant at the Brighton Motel, which was across the street. Officer Burden first spotted defendant standing in the doorway of a fire escape balcony wearing dark lenses and a blue robe. Seeing that defendant matched the description he had been given of a suspect, he motioned to defendant to come down and also told him to do so. Defendant waved his hands and shook his head, indicating " no" and went back inside. Defendant reappeared, and this time he obeyed the officer's orders to come out. Defendant had fresh blood behind and on his left ear. Defendant, who was not clean-shaven, said he had cut himself shaving. Officer Burden noticed more blood on defendant's left ankle and on his feet. Defendant did not indicate he had been attacked, nor did he ask for help. Defendant was taken into custody and booked.
The parties stipulated that a passing motorist, Launica Samadi, was driving past the Torrance Motel when she saw an older Hispanic male covered in blood run in front of her car. He ran across the street and entered the Brighton Motel. They also stipulated that Marcus Droubay was carrying his bicycle up the stairs at the Torrance Motel when he saw defendant pass by him with blood on his feet. Defendant did not ask for assistance.
Donald Stevanus lived at the Brighton Motel and saw defendant standing near the fire escape on the day of Hillis's death. Defendant was agitated and had blood on the front of him. Defendant asked Stevanus to call his sister for him. He gave Stevanus a card with a number. He said something bad had happened and to tell his sister he had trouble. Stevanus believed defendant was mild tempered and knew he had suffered a stroke that limited movement in one arm.
Video surveillance recordings were played for the jury. Detective Douglas Hath testified that one of the videos showed defendant wearing the same clothing that was found in his closet, covered in blood.

Defense Evidence

The parties stipulated that, according to the medical examiner, Hillis's blood contained .09 micrograms per milliliter of amphetamine and 1.3 micrograms per milliliter of methamphetamine.
Dr. John Treuting, a toxicologist, testified regarding the uses of methamphetamine, the methods of ingestion, and its effects on the body. The levels detected in Hillis at the autopsy indicate very high levels for use as a central nervous system stimulant. The drug has a very high addiction potential. Over time, negative effects increase. These include motor restlessness, agitation, poor focus and confusion, paranoia, and irrational behavior. Continued use can lead to aggression and violent acts. Dr. Treuting believed Hillis had taken methamphetamine multiple times.
Michael Heredia testified that in 2007 Hillis chased him with two machetes. Hillis was his neighbor at the time. Heredia thought Hillis chased him because he was going crazy.
Duane McClain was a friend of defendant. He knew him as a mellow person and not a violent one.

(LD 5 at 2-5.)


Petitioner raises the following claim in his Petition:

1. The trial court erred under state law and violated Petitioner's federal constitutional rights by failing to sua sponte instruct the jury on the lesser included offense of voluntary manslaughter based on sudden quarrel or heat of passion. (Petition at 5, 19-26, 57-59, 75-82.)


The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") governs the Court's consideration of Petitioner's cognizable federal claims. 28 U.S.C. § 2254(d), as amended by AEDPA, states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication 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 light of the evidence presented in the State court proceeding.

">In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the United States Supreme Court held that a state court's decision can be contrary to federal law if it either (1) fails to apply the correct controlling authority, or (2) applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at 405-06. A state court's decision can involve an unreasonable application of federal law if it either (1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Id. at 407-08. The Supreme Court has admonished courts against equating the term " unreasonable application" with " clear error." " These two standards . . . are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Lockyer v. Andrade (Andrade), 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Instead, in this context, habeas relief may issue only if the state court's application of federal law was " objectively unreasonable." Id. " A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

Under AEDPA, the " clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions " as of the time of the relevant state-court decision." Williams, 529 U.S. at 412 (" § 2254(d)(i) restricts the source of clearly established law to this Court's jurisprudence"); see also Andrade, 538 U.S. at 71. If there is no Supreme Court precedent that controls a legal issue raised by a habeas petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law. Wright v. Van Patten, 552 U.S. 120, 125-26, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (per curiam); see also Carey v. Musladin (Musladin), 549 U.S. 70, 76-77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). A state court need not cite or even be aware of the controlling Supreme Court cases, " so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); see also Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (per curiam).

Here, Petitioner raised the claim in the instant Petition in his petition for review in the California Supreme Court. The California Supreme Court's discretionary decision to deny Petitioner's petition for review without comment or citation to authority was not a decision on the merits. See Greene v. Fisher, 132 S.Ct. 38, 45, 181 L.Ed.2d 336 (2011) (state supreme court's decision not to hear an appeal is not an adjudication on the merits under § 2254(d)(1)); Camper v. Workers' Comp. Appeals Bd., 3 Cal.4th 679, 689 n. 8, 12 Cal.Rptr.2d 101, 836 P.2d 888 (1992) (" [W]e reiterate the well-established rule in this state that a denial of a petition for review is not an expression of opinion of the Supreme Court on the merits of the case."). " Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc), cert. denied, 552 U.S. 1316, 128 S.Ct. 1878, 170 L.Ed.2d 754 (2008). Thus, in addressing Petitioner's claim, the Court will consider the reasoned opinion of the California Court of Appeal, which denied the claim on the merits. See Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010); Vasquez v. Kirkland, 572 F.3d 1029, 1035 (9th Cir. 2009), cert. denied, 558 U.S. 1126, 130 S.Ct. 1086, 175 L.Ed.2d 908 (2010).



In his sole claim for relief, Petitioner contends that the trial court erred under state law and violated Petitioner's federal constitutional rights by failing to sua sponte instruct the jury on the lesser included offense of voluntary manslaughter based on sudden quarrel or heat of passion. (Petition at 5, 19-26, 57-59, 75-82.)

A. California Court of Appeal Decision

The California Court of Appeal rejected Petitioner's claim as follows:

I. Lack of Heat of Passion Instruction

A. Defendant's Argument

Defendant contends that " the overall evidence in this case was sufficient to have triggered the trial court's obligation to instruct on the heat of passion theory of voluntary manslaughter, and the court erred in failing to do so." According to defendant, this error was prejudicial and should be reversed unless it can be shown that the error was harmless beyond a reasonable doubt.

B. Proceedings Below

The trial court instructed the jury on voluntary manslaughter based on imperfect self-defense over the objections of defense counsel, who did not want a manslaughter instruction. The defense theory was that defendant was justified in stabbing Hillis. The trial court also gave an instruction on lawful self-defense.

C. Relevant Authority

Murder is the unlawful killing of a human being with malice aforethought. Manslaughter is " the unlawful killing of a human being without malice." (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter " in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' [citation], or when the defendant kills in 'unreasonable self-defense'--the unreasonable but good faith [actual] belief in having to act in self-defense [citations]." ( People v. Barton (1995) 12 Cal.4th 186, 199, 47 Cal.Rptr.2d 569, 906 P.2d 531.) Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice, voluntary manslaughter is considered a lesser necessarily included offense of intentional murder. ( Ibid .)
" '" Although section 192, subdivision (a), refers to 'sudden quarrel or heat of passion, ' the factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation." '" ( People v. Souza (2012) 54 Cal.4th 90, 116, 141 Cal.Rptr.3d 419, 277 P.3d 118; People v. Lee (1999) 20 Cal.4th 47, 59, 82 Cal.Rptr.2d 625, 971 P.2d 1001.) " The provocation which incites the defendant to homicidal conduct . . . must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim." ( People v. Lee, at p. 59; People v. Manriquez (2005) 37 Cal.4th 547, 583, 36 Cal.Rptr.3d 340, 123 P.3d 614.) " 'The victim must taunt the defendant or otherwise initiate the provocation.'" ( People v. Avila (2009) 46 Cal.4th 680, 705, 94 Cal.Rptr.3d 699, 208 P.3d 634.) The victim's conduct may have been physical or verbal, but it must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. ( People v. Manriquez, at pp. 583--584.) Thus, the heat of passion requirement has both an objective and a subjective component: " 'The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.'" (Id. at p. 584.) Adequate provocation and heat of passion must be affirmatively demonstrated. ( People v. Lee, at p. 60; People v. Johnston (2003) 113 Cal.App.4th 1299, 1312, 7 Cal.Rptr.3d 161.)
A trial court normally must instruct the jury sua sponte on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case. ( People v. Carter (2003) 30 Cal.4th 1166, 1219, 135 Cal.Rptr.2d 553, 70 P.3d 981.) Thus, a trial court has a sua sponte duty to instruct the jury on lesser included offenses when there is substantial evidence that the offense committed may have been less than the offense charged. ( People v. Cunningham (2001) 25 Cal.4th 926, 1008, 108 Cal.Rptr.2d 291, 25 P.3d 519.)

D. No Error

We conclude defendant was not entitled to an instruction on sudden quarrel or heat of passion.[FN2] Here, the quarrel was not sudden, but was sought out by defendant. Defendant was the initial aggressor in that he went over to the victim's residence and challenged him to a fight. His challenge was met with shouts, and after he and the victim yelled at each other, they began fighting, as defendant had planned. When Hillis went back into his room for his walking stick, defendant did not retreat, but remained to re-engage in the fight, wherein he responded with deadly force to Hillis's blows from his cane. Significantly, the jury rejected the notion that Hillis's use of the walking stick justified defendant's use of lethal force. Under the circumstances of this case, a " heat of passion" theory was inapplicable.
[FN2] The instruction defendant claims was lacking was CALCRIM No. 570, which states: " A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶ ] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶ ] 1. The defendant was provoked; [¶ ] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶ ] AND [¶ ] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶ ] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶ ] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶ ] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment. [¶ ] [If enough time passed between the provocation and the killing for a person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.] [¶ ] The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
As the Court of Appeal explained in People v. Oropeza (2007) 151 Cal.App.4th 73, 59 Cal.Rptr.3d 653, " [a] defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible." (Id. at p. 83.) " 'If the defendant causes the victim to commit an act which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked. In such case, he is deemed to have acted with malice and would be guilty of murder. Thus, a defendant is guilty of murder when he arms himself and plans to insult the victim and then kill him if the victim strikes him in resentment over the insult.'" ( People v. Johnston, supra, 113 Cal.App.4th at p. 1312, quoting 2 Wharton's Criminal Law (15th ed. 1994) § 157, p. 352.) Given that defendant, armed with a knife, went to challenge Hillis to fight and then began fighting with him in the hallway, he was " 'culpably responsible'" for the altercation and cannot be heard to assert that he was provoked by the victim. (See People v. Johnston, at p. 1313.) Accordingly, the trial court did not err by failing to read sua sponte the instruction on " heat of passion" voluntary manslaughter.

(LD 5 at 5-8.)

B. Analysis

To the extent Petitioner's claim of jury instructional error is based solely on issues of state law, the claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (" In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.") (citations omitted); Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (" Insofar as respondents simply challenge the correctness of the [jury] instructions under [state] law, they allege no deprivation of federal rights and may not obtain habeas relief."); see also Wilson v. Corcoran, 562 U.S. 1, 131 S.Ct. 13, 16, 178 L.Ed.2d 276 (2010) (per curiam) (" [I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.") (emphasis in original).

Under California law, voluntary manslaughter is a lesser included offense of murder. See People v. Breverman, 19 Cal.4th 142, 153-54, 77 Cal.Rptr.2d 870, 960 P.2d 1094 (1998). In a capital murder case, the failure of a state court to instruct on a lesser-included offense is constitutional error if there was evidence to support the instruction. See Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). However, the Supreme Court has specifically reserved judgment on " whether the Due Process Clause would require the giving of such instructions in a noncapital case[.]" Id. at 638 n. 14; see also Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (The Supreme Court has " never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense[.]"). In addition, the Ninth Circuit Court of Appeals has held that " the failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question." Windham v Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (per curiam), cert. denied, 534 U.S. 839, 122 S.Ct. 94, 151 L.Ed.2d 55 (2001). Therefore, to the extent Petitioner challenges the trial court's failure to provide the jury with a lesser included voluntary manslaughter based on heat of passion instruction, Petitioner's claim fails.[2] See Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007), cert. denied, 555 U.S. 908, 129 S.Ct. 247, 172 L.Ed.2d 188 (2008) (" Where the Supreme Court has not addressed an issue in its holding, a state court adjudication of the issue not addressed by the Supreme Court cannot be contrary to, or an unreasonable application of, clearly established federal law.").

Although the failure to instruct the jury on a lesser included offense in a non-capital case does not present a federal constitutional question, a criminal defendant is entitled to have the trial court instruct the jury on his theory of defense, provided the theory is supported by law and has some foundation in the evidence. See Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984) (" 'Failure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.' This general statement may not apply to every habeas corpus review, because the criminal defendant is also entitled to adequate instructions on his or her theory of defense.") (citations omitted); Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (" As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.") (citation omitted); Bradley v. Duncan, 315 F.3d 1091, 1098 (9th Cir. 2002), cert. denied, 540 U.S. 963, 124 S.Ct. 412, 157 L.Ed.2d 305 (2003) (same) (quoting Mathews, 485 U.S. at 63); see also California v. Trombetta (Trombetta), 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (" Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense."). The Supreme Court has clearly established the " right to present a complete and meaningful defense to the jury, " which includes the right to have the jury instructed on the defense theory of the case, " under the principles set out in Mathews and Trombetta ." [3] Bradley, 315 F.3d at 1098-1101 (citation omitted) (italics in original). However, a " 'mere scintilla' of evidence supporting the defendant's theory is not sufficient to warrant a defense instruction." United States v. Johnson, 459 F.3d 990, 993 (9th Cir. 2006), cert. denied, 549 U.S. 1266, 127 S.Ct. 1486, 167 L.Ed.2d 232 (2007); United States v. Thomas, 612 F.3d 1107, 1121 (9th Cir. 2010), cert. denied, 131 S.Ct. 1836, 179 L.Ed.2d 774 (2011). Rather, " a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews, 485 U.S. at 63; Bradley, 315 F.3d at 1098.

Here, Petitioner's defense theory was justifiable homicide based on perfect self-defense, not voluntary manslaughter. (See, e.g., RT at 1277-99 (during closing argument, Petitioner's counsel repeatedly emphasized that Petitioner's actions were justified and that " you have the right to defend yourself with a weapon if some other guy pulls out a weapon . . . first")). Indeed, defense counsel objected to the trial court's jury instruction on voluntary manslaughter. (See RT at 1205-06 (defense counsel confirming that he " did not want a manslaughter instruction in this case").) Accordingly, the trial court's failure to instruct the jury on voluntary manslaughter based on sudden quarrel or heat of passion did not deprive Petitioner of his theory of defense. See Bashor, 730 F.2d at 1240 (" There was no fundamental unfairness in the trial court's failure to instruct the jury on lesser included offenses" when petitioner did not base his theory of defense on those lesser included offenses); Castillo v. Hedgpeth, 2010 WL 2179762, *9 & *12 (C.D. Cal. 2010) (failing to give the jury a lesser-included offense instruction did not deprive petitioner of an instruction on his theory of defense where such an instruction " would have been inconsistent with the actual defense mounted by Petitioner's counsel at trial, which evidently was an 'all or nothing' strategy aimed at persuading the jury to exonerate Petitioner completely."); Centeno v. Kramer, 2009 WL 2525499, at *10 n. 11 (C.D. Cal. 2009) (where counsel " made a strategic decision not to request [a lesser included offense] instruction, employing an all or nothing theory of the defense, " petitioner's right to adequate jury instructions on his theory of the defense was not violated).

Accordingly, the California Supreme Court's rejection of Ground One was neither contrary to, nor an unreasonable application of, clearly established federal law.


In his Reply, Petitioner states that an " evidentiary hearing is necessary to resolve petitioner[']s claims." (Reply at 3.) However, the Supreme Court has held that federal habeas review under 28 U.S.C. § 2254(d)(1) " is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Moreover, an evidentiary hearing is not warranted where, as here, " the record refutes the applicant's factual allegations or otherwise precludes habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Accordingly, Petitioner's request for an evidentiary hearing is denied.


THE COURT, THEREFORE, RECOMMENDS that the District Court issue an Order: (1) accepting this Report and Recommendation; (2) denying the Petition; and (3) directing that Judgment be entered dismissing this action with prejudice.

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