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Thompson v. Biter

United States District Court, C.D. California

January 13, 2015

STEVEN DAVID THOMPSON, Petitioner,
v.
M.D. BITER, Warden, Respondent

Steven David Thompson, Sr, Petitioner, Pro se, Corcoran, CA.

For M D Biter, Warden, KVSP, Respondent: Angela M Borzachillo, LEAD ATTORNEY, Deputy Attorney General, CAAG - Office of Attorney General, San Diego, CA; William M Wood, CAAG Office of Attorney General of California, San Diego, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MARGARET A. NAGLE, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable Andrew J. Guildford, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

On October 23, 2012, Petitioner, a prisoner in state custody, filed a habeas petition pursuant to 28 U.S.C. § 2254 (" Petition"). The Petition contained two claims. On February 22, 2013, Petitioner filed a First Amended Petition, adding an additional claim. Respondent thereafter filed an Answer to the First Amended Petition. Petitioner subsequently filed a Traverse. The matter is submitted and ready for decision.

PRIOR PROCEEDINGS

On February 4, 2010, a Riverside County Superior Court jury found Petitioner guilty of first degree murder, in violation of California Penal Code § 187(a), and possession of a firearm by a felon, in violation of California Penal Code § 12021. (2 Clerk's Transcript (" CT") 351, 353.) The jury found that Petitioner had personally discharged a firearm causing death, within the meaning of California Penal Code § 12022.53(d) and § 1192.7(c)(8). (2 CT 352.) Petitioner admitted that he had sustained a prior " strike" conviction under California's Three Strikes law, California Penal Code § 667(b)-(i) and § 1170.12(a)-(d). (2 CT 349.) On March 19, 2010, the trial court sentenced Petitioner to 75 years to life in state prison, consisting of 50 years to life for first degree murder and 25 years to life for the firearm enhancement. The trial court stayed the sentence on the possession of a firearm by a felon count. (2 CT 487-20.)

Petitioner filed an appeal in the California Court of Appeal. (Lodgement (" Lodg.") No. 3.) On April 14, 2011, the Court of Appeal affirmed the judgment in an unpublished decision. (Lodg. No. 6.) Petitioner filed a petition for review in the California Supreme Court. (Lodg. No. 7.) On June 29, 2011, the California Supreme Court summarily denied review. (Lodg. No. 8.)

Petitioner then filed a petition for a writ of habeas corpus in the Riverside County Superior Court. (Lodg. No. 9.) On August 31, 2011, the Superior Court denied the petition for failure to state a prima facie factual case. (Lodg. No. 10.) Petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. (Lodg. No. 11.) On November 3, 2011, the Court of Appeal denied the petition for failure to provide adequate documentation. (Lodg. No. 12.) Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Lodg. No. 13.) On May 9, 2012, the California Supreme Court denied the petition with a citation to In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953).

SUMMARY OF EVIDENCE AT TRIAL

The Court has reviewed the record in this case, as well as the California Court of Appeal's summary of the evidence in its opinion on direct appeal. The state court's summary is consistent with the Court's own review of the record. Accordingly, the Court has quoted it below to provide an initial factual overview. The relevant portions of the trial record will be discussed further in connection with the Court's analysis of Petitioner's claims.

At about 5:00 a.m. on May 27, 2007, [Petitioner] walked up to a car on El Rio Avenue, confronted one of its occupants (Lisa Ward), and fatally shot Ward. At trial, several witnesses described their observations at the time of the shooting. These witnesses included two other occupants of the car (Bryant Byrd and Tashiana Kuyateh) and two individuals who were outside (Harvey Lenoir and Toni Graham).
Just before the shooting, Graham and [Petitioner] were on a porch outside a house on El Rio Avenue. Lenoir, who worked on the street as a middleman for drug dealers, was outside on the street. Byrd, victim Ward, and Willie Meadows arrived in a car to purchase cocaine. Kuyateh, who knew Ward and Meadows, joined them in the car because she needed a ride. Byrd was in the driver's seat of the car; Ward was in the front passenger seat; and Kuyateh and Meadows were in the back seat. Lenoir approached the passenger's side of the car to see what they wanted. Another man (later identified as [Petitioner]) also came up to the car. [Petitioner] first looked in the driver's side window, and then walked over to the passenger side and pushed Lenoir out of the way.
[Petitioner] confronted Ward about having set him up to be stabbed. Graham heard [Petitioner] state, " [B]itch, remember me? I told you where ever I saw you at I was going to blast you." Kuyateh heard him say, " [Y]ou're the bitch that got me beat up and . . . stabbed up and almost killed. Bitch, get the fuck out of the car before I kill you in the car." Ward responded, " You got me mixed up with somebody else. I'm the wrong person"; " I didn't do it. I didn't do it." [1]
As [Petitioner] confronted Ward, Ward reached back with her hand to Meadows to signal him to help her, and Meadows interjected, " Hey, man, she said you got her mixed up, man." [Petitioner] pulled out a gun and pointed it at Meadows, telling him to " stay out of it." [Petitioner] opened the passenger car door and again told Ward, " Get out before I shoot you in the car." [Petitioner] and Ward continued arguing, " yelling back and forth" at each other. [Petitioner] was pointing the gun at Ward and repeatedly accusing her of setting him up, and Ward was backing up in her seat and saying, " You got the wrong person. It wasn't me. It wasn't me." As they were arguing, Ward was trying to squeeze between the two front seats to climb to the back seat, and [Petitioner] was trying to grab her.
Byrd opened his car door and asked what was going on. [Petitioner] pointed the gun at Byrd. Byrd ducked down, got back in the car, and tried to start the car. [Petitioner] reached into the car from the passenger's side to the driver's side, put a gun to Byrd's head, and told Byrd not to start the car. Byrd lifted his hands up and said, " All right."
As [Petitioner] and Ward continued arguing, Byrd tried to start the car again, but [Petitioner] turned the gun back on him. Byrd jumped out of the car, stood up, and tried to talk to [Petitioner], stating " 'Hey, man, this is a female. If anything, you know, you ain't got to shoot her, man. Nobody deserve to get shot up, no matter what happened. . . . If this really happened, beat her tail instead of shootin' her, you know. Ain't nobody got to die.'" Byrd's plea had no impact on [Petitioner]; [Petitioner] merely pointed the gun at Byrd across the top of the car. Byrd started running away down the street. Because Ward was not able to get into the back seat, she was trying to crawl over to the driver's seat to get away from the gun pointed at her. Byrd then changed his mind about leaving; he returned to the car with the intention of starting the car and " tak[ing] off."
When Byrd returned to the car, [Petitioner] was bending into the car with the gun. As Byrd was reaching to put the keys in the ignition, [Petitioner] shot Ward. Kuyateh testified that after firing the gun, [Petitioner] was staring at Ward " like it felt good to him." Byrd jumped out of the car and ran a few steps away. [Petitioner] told Byrd, " Get that F . . . in' car out of here." Byrd drove away and took Ward to the hospital.
Graham (who had stayed on the porch of a nearby residence) heard gunshots but did not see who fired the gun. After the shooting, [Petitioner] asked Graham for a ride. When they arrived at a home and [Petitioner] took his coat off, Graham saw a gun tucked into his pants. [Petitioner] told Graham that " he had got stabbed a long time ago . . . and that [Ward] was the reason . . . [¶ ] . . . [¶ ] . . . [and] he almost died from getting stabbed . . . ." When Graham asked [Petitioner] if he had shot her, [Petitioner] responded, " fuck the bitch."
Ward sustained one gunshot wound from a bullet that entered the outer portion of her left arm, went through her arm, and reentered at her chest. The bullet hit her lungs, heart, and liver. The heart injury likely caused death within seconds.
To support its case against [Petitioner], the prosecution introduced evidence showing that [Petitioner] had previously been stabbed at the instigation of a female. Officer Erich Feimer testified that on December 12, 2006, he responded to a report of a stabbing during a robbery. [Petitioner] told Officer Feimer that he was in a verbal argument with a female; the woman called three men to come over; and he was stabbed and robbed by the men. [Petitioner] did not want to cooperate with the investigation; did not provide any further information to the police; and at one point told the officer he would " handle the problem himself."

(Lodg. No. 6 at 2-5.)

PETITIONER'S HABEAS CLAIMS

1. The evidence was insufficient to support a conviction for first degree murder.

2. The trial court's " acquittal first" instruction violated Petitioner's constitutional rights.

3. The prosecution failed to disclose material impeachment evidence to the defense, in violation of Petitioner's due process rights.

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), a state prisoner whose claim has been " adjudicated on the merits" cannot obtain federal habeas relief unless that adjudication: " (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." See also Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011) (" By its terms § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in § § 2254(d)(1) and (d)(2).").

Clearly established federal law, for purposes of Section 2254(d)(1) review, means Supreme Court holdings in existence at the time of the relevant state court decision. Greene v. Fisher, 132 S.Ct. 38, 44-45, 181 L.Ed.2d 336 (2011); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011); Richter, 131 S.Ct. at 785. Deference to a state court decision is required absent a Supreme Court decision that either squarely addresses the issue in the case before the state court or establishes a legal principle that clearly extends to a new context. Varghese v. Uribe, 736 F.3d 817, 824 (9th Cir. 2013), cert. denied, 134 S.Ct. 1547, 188 L.Ed.2d 565 (2014); see also Richter, 131 S.Ct. at 786 (it " is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by" the Supreme Court) (citation omitted).

Under Section 2254(d)(1)'s first prong, a state court decision is " contrary to" clearly established federal law if the state court applies a rule that contradicts the relevant Supreme Court holdings or reaches a different conclusion than that reached by the high court on materially indistinguishable facts. Price v. Vincent, 538 U.S. 634');"> 538 U.S. 634, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003). " Thus, the 'contrary to' prong requires a direct and irreconcilable conflict with Supreme Court precedent." Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014).

Section 2254(d)(1)'s second, " unreasonable application" prong constitutes an objective standard that is not satisfied merely by finding that a state court erred in applying clearly established federal law. Richter, 131 S.Ct. at 785; Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1174, 155 L.Ed.2d 144 (2003). " The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable -- a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007); see also Xiong v. Felker, 681 F.3d 1067, 1074 (9th Cir. 2012) (a finding that the state court was incorrect or erroneous is insufficient, because the Section 2254(d)(1) " inquiry is strictly limited to whether the state court's application of clearly established Supreme Court precedent" was objectively unreasonable), cert. denied, 133 S.Ct. 989, 184 L.Ed.2d 768 (2013).

" [S]o long as 'fairminded jurists could disagree' on the correctness of the state court's decision, " habeas relief is precluded by Section 2254(d). Richter, 131 S.Ct. at 786 (citation omitted); see also id. at 786-87 (a petitioner is required to prove that the state decision " was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement"). " Under § 2254(d), a habeas court must determine what arguments supported or, [in the case of a silent denial of relief], could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of this Court." Id. at 786. A federal court has the authority to issue habeas relief only " where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id.; see also Murray, 745 F.3d at 998 (" The deferential standard imposed under AEDPA cloaks a state court's determination with reasonableness, so long as 'fairminded jurists could disagree' as to whether a claim lacks merit.") (citation omitted).

" AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings, ' . . . and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations omitted). " [T]he purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction." Greene, 132 S.Ct. at 43 (citation and quotation marks omitted); see also Richter, 131 S.Ct. at 786 (the AEDPA standard was " meant to be" " difficult to meet"). " The petitioner carries the burden of proof." Pinholster, 131 S.Ct. at 1398.

In the absence of any indication or state law procedural principles to the contrary, a state court's decision is presumed to be on the merits. Richter, 131 S.Ct. at 784-85. The 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. Under the " look through" doctrine, federal habeas courts look through a state court's silent decision to the last reasoned decision of a state court. See Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991) (" Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding the judgment or rejecting the same claim rest upon the same ground."). When the state courts have denied a federal claim on the merits but no court has issued a reasoned decision, a petitioner has the burden of " showing there was no reasonable basis for the state court to deny relief, " Richter, 131 S.Ct. at 784, and the federal habeas court must independently review the record to determine whether the petitioner has met this burden, Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011).

Here, Petitioner presented Grounds One and Two to the state courts on direct appeal. (Lodg. Nos. 3, 7.) The California Court of Appeal denied Petitioner's claims on their merits in a reasoned decision and the California Supreme Court summarily denied review. (Lodg. Nos. 6, 8.) Accordingly, with respect to Grounds One and Two, the Court looks through the California Supreme Court's summary denial to the Court of Appeal's reasoned decision, and applies the AEDPA standard to that decision. See Ylst, 111 S.Ct. at 2594-96; Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011).

Petitioner presented Ground Three to the state courts on habeas review. (Lodg Nos. 9, 11, 13.) The Superior Court denied Ground Three summarily on the merits, the California Court of Appeal denied it for failure to provide adequate documentation, and the California Supreme Court denied it with a citation indicating that Petitioner should have raised the claim on direct appeal.[2] (Lodg. Nos. 10, 12, 14.) Thus, the California Supreme Court denied the claim for procedural reasons and did not reach its merits. When it is clear that the California Supreme Court rejected a constitutional claim on procedural grounds and did not reach its merits, the deferential standard of Section 2254(d) does not apply, and a federal habeas court must review the claim de novo . Pirtle v. Morgan, 313 F.3d 1160, 1167--68 (9th Cir. 2002); see Richter, 131 S.Ct. at 785. The Court, therefore, will review Ground Three de novo.

DISCUSSION

I. GROUND ONE DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground One, Petitioner contends that the evidence was constitutionally insufficient to support a finding of first degree murder. Specifically, he argues that there was insufficient evidence that the murder was deliberate and premeditated.[3] (First Amended Petition at 5.)

A. The Applicable Clearly Established Federal Law

The Fourteenth Amendment's Due Process Clause guarantees that a criminal defendant may be convicted only " upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The Supreme Court announced the federal standard for determining the sufficiency of the evidence to support a conviction in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, " [a] petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). " [T]he relevant question 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." Jackson, 99 S.Ct. at 2789 (emphasis in original); see also Cavazos v. Smith, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011) (per curiam) (a habeas court " may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury"). " Put another way, the dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982-83 (9th Cir. 2004) ( en banc ) (quoting Jackson).

A habeas court reviewing a sufficiency of the evidence claim must consider all evidence admitted at trial, notwithstanding a contention by a petitioner that some of the admitted evidence should have been excluded. McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 672, 175 L.Ed.2d 582 (2010) ( per curiam ). " 'Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). The reviewing court need not decide whether it would have found the trial evidence sufficient or scrutinize " the reasoning process actually used by the fact-finder." Jackson, 99 S.Ct. at 2788--89 & n.13. Jackson also does not require that the prosecutor affirmatively " 'rule out every hypothesis except that of guilt.'" Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992)(citation omitted). When the factual record supports conflicting inferences, the federal court must presume -- even if it does not affirmatively appear on the record -- that the trier of fact resolved any such conflicts in favor of the prosecution and defer to that resolution. Jackson, 99 S.Ct. at 2793; see also Brown, 130 S.Ct. at 674. The habeas court must " preserve 'the factfinder's role as weigher of the evidence, '" Brown, 130 S.Ct. at 674 (citation omitted), and, therefore, must accord " near-total deference" to a jury's credibility determinations, Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). See also Smith, 132 S.Ct. at 4 (it " is the responsibility of the jury -- not the court -- to decide what conclusions should be drawn from the evidence admitted at trial"); Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995) (" under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review.").

The federal court must refer to the substantive elements of the criminal offense as defined by state law and look to state law to determine what evidence is necessary to convict on the crime charged. See Jackson, 99 S.Ct. at 2792 n.16; Juan H., 408 F.3d at 1275. Further, the federal court must defer to the state court's interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005); Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1428 & n.3, 99 L.Ed.2d 721 (1988).

As the Ninth Circuit has explained, " [t]he relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict." United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). " Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, " and it requires only that they draw " 'reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, 132 S.Ct. 2060, 2064, 182 L.Ed.2d 978 (2012) ( per curiam ) (citation omitted). Under Jackson, the Court need not find that the conclusion of guilt was compelled, only that it rationally could have been reached. Drayden v. White, 232 F.3d 704, 709-10 (9th Cir. 2000).

Finally, Section 2254(d)(1) requires federal habeas courts to " apply the standards of Jackson with an additional layer of deference." Juan H., 408 F.3d at 1274; see also Parker v. Matthews, 132 S.Ct. 2148, 2152, 183 L.Ed.2d 32 (2012) ( per curiam ) (describing habeas review of a sufficiency of the evidence claim as based on a " twice-deferential standard"); Johnson, 132 S.Ct. at 2062 (" We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference."). This doubly deferential standard sets a " high bar" for a petitioner, Johnson, 132 S.Ct. at 2062, and limits the federal habeas court's inquiry to whether the state court's rejection of a sufficiency of the evidence challenge to a conviction was an objectively unreasonable application of Jackson. Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011); Juan H., 408 F.3d at 1275 & n.13; see also Johnson, 132 S.Ct. at 2062 (under Supreme Court precedent, a federal court may not grant relief simply because it disagrees with the state court's decision rejecting a sufficiency of the evidence claim; rather, relief is permitted only if the state court's decision was objectively unreasonable).

B. The State Court Reasonably Denied Petitioner's Claim.

Under California law, a wilful, deliberate, and premeditated killing constitutes first degree murder. Cal. Penal Code § 189; People v. Romero, 44 Cal.4th 386, 402, 79 Cal.Rptr.3d 334, 187 P.3d 56 (2008). " 'Deliberation' refers to careful weighing of considerations in forming a course of action; " premeditation' means thought over in advance." People v. Koontz, 27 Cal.4th 1041, 1080, 119 Cal.Rptr.2d 859, 46 P.3d 335 (2002). " An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." People v. Stitely, 35 Cal.4th 514, 543, 26 Cal.Rptr.3d 1, 108 P.3d 182 (2005). " Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection." People v. Cook, 39 Cal.4th 566, 603, 47 Cal.Rptr.3d 22, 139 P.3d 492 (2006).

The California Court of Appeal applied these principles to the evidence at trial and found it sufficient to support the jury's finding that the murder was deliberate and premeditated. It stated:

Here, the circumstances show that [Petitioner] had the opportunity to reflect between the time he recognized Ward and made the decision to pull the trigger. [Petitioner] did not just see Ward and instantaneously shoot her. Rather, he verbally confronted her; heard her repeated responses that he had the wrong person; opened the passenger door and ordered her out of the car; heard separate pleas from Meadows and Byrd to believe her and not to shoot her; turned the gun on Meadows; twice turned the gun on Byrd, including bending into the car far enough to reach Byrd's head; and tried to grab Ward as she backed away from the gun. From these facts, the jury could reasonably infer that [Petitioner] had time to weigh his options (including considering whether to be persuaded by the pleas not to shoot her) and that he affirmatively decided to shoot in retaliation for Ward's perceived role in his prior stabbing.

(Lodg. No. 6 at 6-7.)

Petitioner argued on direct appeal, as he does here, that there was no evidence that he planned to kill Ward; rather, the evidence showed that he came upon her by happenstance. The California Court of Appeal declared that " [f]actors such as planning and manner of killing are matters that can assist in the assessment of premeditation and deliberation, but they are not required." (Lodg. No. 6 at 7 (citing People v. Halvorsen, 42 Cal.4th 379, 419-20, 64 Cal.Rptr.3d 721, 165 P.3d 512 (2007).) It stated:

It was not necessary for [Petitioner] to plan the killing prior to encountering Ward; it was sufficient if he reflected upon the decision whether to kill her once he encountered her and before killing her. Because the circumstances before his act of pulling the trigger showed that he had the opportunity to reflect, weigh his choices, and decide whether to shoot the gun, the record supports an inference that he premeditated and deliberated prior to killing Ward.

(Lodg. No. 6 at 7.)

The Court concurs. Petitioner had a motive to kill Ward -- he believed, rightly or wrongly, that she was responsible for his stabbing. (1 Reporter's Transcript (" RT") 117; 2 RT 268-69.) It is true there was no evidence that Petitioner planned to kill Ward before he encountered her sitting in a car. (2 RT 268.) Nevertheless, although Petitioner pointed a gun at Ward and threatened to kill her, he did not shoot her right away. (1 RT 233; 2 RT 269-70.) He had ample time to reflect while Ward insisted that he had mistaken her for someone else and begged him not to shoot. (1 RT 233-34; 2 RT 269-71.) In addition to Ward's pleas, Meadows and Byrd urged Petitioner not to shoot her, and Petitioner responded by pointing his gun at Meadows and twice at Byrd before turning it back towards Ward. (1 RT 236-38; 2 RT 271-72.) He then fatally shot Ward in the torso and, according to a witness, then looked at her " like it felt good." (2 RT 279-80; 3 RT 554-55.)

Petitioner's actions upon encountering Ward, coupled with his motive to kill her, constituted sufficient evidence to enable a rational jury to find that he acted with deliberation and premeditation. See People v. Nelson, 51 Cal.4th 198, 213, 120 Cal.Rptr.3d 406, 246 P.3d 301 (2011) (defendant had " ample time to premeditate and deliberate" when he " took up a firearm, climbed out of a moving car, sat on the window frame, reached across the roof, braced himself, and aimed"); People v. Memro, 11 Cal.4th 786, 863, 47 Cal.Rptr.2d 219, 905 P.2d 1305 (1995) (defendant had to run from first victim's position to second victim's position and cut second victim's throat from behind; a rational jury could have concluded that he " intended death and no other result" and considered his options as he ran toward the second victim). Viewed in the light most favorable to the prosecution, the evidence was sufficient to support a verdict of first degree murder. See Jackson, 99 S.Ct. at 2789. At the very least, the Court of Appeal's conclusion that the evidence was sufficient was not an objectively unreasonable application of Jackson. Emery, 643 F.3d at 1214.

Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. Ground One, therefore, does not warrant federal habeas relief.

II. GROUND TWO DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Two, Petitioner contends that his due process rights were violated when the trial court instructed the jury that it had to unanimously acquit him of the greater offense before it could find him guilty of a lesser included crime. (First Amended Petition at 5.)

A claim of instructional error does not raise a cognizable federal claim unless the error " so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 400--01, 38 L.Ed.2d 368 (1973)); see also Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977). The claimed instructional error must be viewed in the light of the instructions as a whole, as well as the trial record. See Estelle, 112 S.Ct. at 482; Cupp, 94 S.Ct. at 400--01.

Petitioner's jury was instructed regarding first degree murder and the lesser included offenses of second degree murder and voluntary manslaughter. (2 CT 403-10.) As part of the lesser included offense instructions, the jury was instructed with a modified version of CALCRIM No. 3518 as follows:

If you are not satisfied beyond a reasonable doubt that the defendant is guilty of either first or second degree murder, you may nevertheless convict him of any lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. You may not, however, convict the defendant of both a greater crime and a lesser crime for the same conduct. And I can accept a verdict of guilty of a lesser crime only if you have unanimously found the defendant is not guilty of the charged or greater crime.

(2 CT 409.)

The instruction continued:

You are to determine whether the defendant is guilty of first-degree murder, second-degree murder, or voluntary manslaughter. In doing so, you have the discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may not find the defendant guilty of second degree murder unless you have unanimously agreed that he is not guilty of first degree murder. You may not find the defendant guilty of voluntary manslaughter unless you have unanimously agreed that he is not guilty of both first and second degree murder.

(2 CT 409.)

On direct appeal, Petitioner argued, as he does here, that the instruction violates due process because it could encourage jurors favoring the lesser offense to vote for the greater offense to avoid a mistrial. The California Court of Appeal rejected these arguments, declaring that it was bound by California Supreme Court precedent rejecting constitutional challenges to " acquittal first" instructions. (Lodg. No. 6 at 8-11.)

California follows a modified " acquittal first" rule. The trial court may not restrict jurors from considering lesser offenses during their deliberations on the greater offense, but it may restrict jurors from returning a verdict on a lesser offense before they have unanimously acquitted defendant of the greater offense. See People v. Kurtzman, 46 Cal.3d 322, 324--25, 329, 250 Cal.Rptr. 244, 758 P.2d 572 (1988); see also People v. Anderson, 47 Cal.4th 92, 114, 97 Cal.Rptr.3d 77, 211 P.3d 584 (2009). The California Supreme Court has repeatedly rejected federal constitutional challenges to this " acquittal first" procedure. See People v. Jurado, 38 Cal.4th 72, 125, 41 Cal.Rptr.3d 319, 131 P.3d 400 (2006); People v. Nakahara, 30 Cal.4th 705, 715, 134 Cal.Rptr.2d 223, 68 P.3d 1190 (2003); People v. Riel, 22 Cal.4th 1153, 1200-01, 96 Cal.Rptr.2d 1, 998 P.2d 969 (2000).

In a case arising on direct review of a federal conviction, the Ninth Circuit has held that where a defendant expresses no preference between a strict " acquittal first" instruction, which requires a jury to acquit on the greater charge before considering the lesser included charge, and a " disagreement instruction, " which directs the jury to consider the lesser included charge if unable to reach a verdict on the greater offense, a district court may give either instruction, but it should give a " disagreement instruction" if requested, because such an instruction avoids the risk that a jury will resolve doubts in favor of conviction. United States v. Jackson, 726 F.2d 1466, 1469-70 (1984). Unlike the instruction in Jackson, the instruction given here did not preclude consideration of the lesser charges until the jurors unanimously decided to acquit Petitioner of first degree murder. Rather, the jury was instructed that that it could consider the evidence pertaining to the greater and lesser offenses in any order, but could not find Petitioner guilty of a lesser offense without first acquitting him of the greater offenses. (2 CT 409.) There is no basis for concluding that this instruction rendered Petitioner's trial fundamentally unfair. Estelle, 112 S.Ct. at 482.

Moreover, the Supreme Court has never held that an " acquittal first" instruction, such as that at issue here, is unconstitutional. Indeed, the United States Supreme Court has never held that the federal Constitution requires any instructions regarding lesser included offenses in state non-capital trials, let alone a particular procedure for choosing between the greater offense and the lesser included offense. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2390 n.14, 65 L.Ed.2d 392 (1980). Thus, the instructions given at Petitioner's trial did not violate any clearly established Supreme Court precedent. See Brewer v. Hall, 378 F.3d 952, 955--956 (9th Cir. 2004) (finding that a California appellate court's decision rejecting a due process challenge to a jury instruction " was not contrary to or an unreasonable application of clearly established Supreme Court precedent, because no Supreme Court case establishes that an instruction such as [the instruction in question] violates an existing constitutional right"); see generally Wright v. Van Patten, 552 U.S. 120, 128 S.Ct. 743, 747, 169 L.Ed.2d 583 (2008) (when Supreme Court cases " give no clear answer to the question presented, let alone one in [petitioner]'s favor, " state court cannot have unreasonably applied clearly established federal law).

Accordingly, the state court's rejection of Petitioner's claim was not contrary to, or an unreasonable application of, clearly established federal law. Ground Two, therefore, does not warrant federal habeas relief.

III. GROUND THREE DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Three, Petitioner contends that the prosecution violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to disclose the " memorialized" terms of an agreement between federal authorities and witness Adrian Butts. (First Amended Petition at 5-6.) As previously discussed, the Court will review this claim de novo .

A. Background

Before Petitioner's trial started, the trial court held a hearing regarding granting immunity to several prosecution witnesses, including Butts. (1 RT 31-62.) Butts appeared with his counsel, who indicated that Butts was willing to testify in return for immunity from prosecution on narcotics offenses. (1 RT 43.) Butts questioned the trial court regarding the scope of the immunity, specifically whether it would extend to federal court, since he had already been convicted and sentenced for the narcotics offenses in federal court. He said that " detectives" had represented to him that the federal court would grant him " immunity" if he testified. (1 RT 44.) The prosecutor told the trial court that, approximately three months after Ward's murder, Butts was arrested for federal firearms and narcotics offenses, and he was prosecuted in federal court. Butts pleaded guilty and was sentenced. (1 RT 45.) The trial court told Butts that it could only grant immunity from state prosecution, but that it understood Butts' federal case had already been resolved. (1 RT 46-47.) The trial court signed the order granting immunity. (1 RT 47.)

Defense counsel expressed concern about possible promises made to Butts in federal court that had not been disclosed to the defense. Defense counsel requested that the trial court order the prosecutor to obtain and provide information about any such promises. (1 RT 48-49.)

The prosecutor advised the trial court that he had contacted the United States Attorney's Office and had listened to the recording of Butts' interview with state investigators, during which the Assistant United States Attorney (AUSA) prosecuting Butts was also present. The prosecutor stated that, most likely, Butts was hoping that if he testified in state court, the federal court would reduce his federal sentence under Fed. R. Crim. P. 35.[4] The prosecutor stated that if there was such an agreement, he had no knowledge of it. Investigator Gary Bowen, who was present during the interview with Butts, confirmed that no offers were made to Butts at that time. (1 RT 49-50.) The trial court instructed the prosecutor to determine whether there was anything memorializing representations made to Butts that the federal court would consider a downward departure under the sentencing guidelines if he testified in the state court case against Petitioner. The trial court suggested that the prosecutor contact the AUSA, but the prosecutor said that he would contact Butts' counsel, who would be the best source of information. (1 RT 50-51.)

Butts testified at trial wearing a jail-issued jumpsuit, waist chains, and leg shackles. (2 RT 413.) He testified that he was in federal custody based on a conviction for drug and gun offenses involving drugs and guns found in his residence on August 2, 2007. (2 RT 414.) He acknowledged that he had been granted immunity from state prosecution based on his testimony in the case against Petitioner and that he was hoping to have his sentence reduced and be released from prison after testifying. (2 RT 429-32.) He had been sentenced to thirteen years and had served over 30 months of his sentence. (2 RT 467.)

Butts further testified that, in May 2007, he was a drug dealer, sometimes making as much as $10, 000 a week, and having a murder take place on his street was bad for his business. (2 RT 432-33.) After Wade's murder he looked for the responsible person so that he could complain to him. (2 RT 433-34.) Butts tracked Petitioner down by talking to Lenoir and Kuyateh, who told him that Petitioner was the shooter. (2 RT 436-37.) He told Petitioner that killing Wade in Butts' neighborhood was wrong and that Petitioner should have killed her in his own neighborhood. Petitioner said that he was sorry for doing it. (2 RT 434, 438, 440-41.)

Butts claimed that he initiated Petitioner's arrest and prosecution when he identified him at a photographic lineup 18 months or so after the murder. (2 RT 442.) However, he acknowledged on cross-examination that he initially told the police he did not know anything about the Ward murder. (2 RT 454-55.) After he was in federal custody, Butts and his counsel contacted the AUSA regarding the matter, and Butts provided information to state investigators that Petitioner had confessed to him that he killed Wade. (2 RT 455-56, 466.) He said that he did not have documentation of his agreement with the federal authorities, because it was " sealed information." [5] (2 RT 474.)

On re-direct examination, the prosecutor questioned Butts regarding a telephone call placed by the prosecutor during recess to Victor Sherman, who was Butts' counsel in the federal action. The call was made using the speakerphone feature of the prosecutor's phone, and defense counsel was also present. (2 RT 475-76.) According to Butts, Sherman said that, as part of the deal, the AUSA would file a Rule 35 motion for a downward departure, and the federal judge would decide whether and how much to reduce Butts' sentence. (2 RT 476-77.)

After the jury returned a guilty verdict, Petitioner filed a motion for a new trial on the ground that the prosecution had withheld information about the extent of the benefit to Butts for testifying at Petitioner's trial. (2 CT 445-62.) In an accompanying declaration, defense counsel declared that he spoke with Sherman, who told him that Butts' testimony about the agreement was incorrect. Sherman told defense counsel that Butts had already received " at least a year" for his cooperation before he testified at Petitioner's trial, and he was going to receive additional consideration after the AUSA filed a Rule 35 motion. The Rule 35 motion would be filed and heard after Butts' criminal case, which was currently on appeal before the Ninth Circuit, returned to the district court. (2 CT 455.) Sherman said that the agreements were all in writing, but that he did not have Petitioner's file with him and was relying on his memory. (2 CT 455-56.)

The trial court denied Petitioner's motion for a new trial. It found no evidence that the prosecution had withheld information. It also found that defense counsel had done an excellent job discrediting Butts on cross-examination and that additional information about the agreement between Butts and federal authorities would not have made any difference. (3 RT 738-39.)

B. The Applicable Federal Law

Under Brady v. Maryland, supra, the State violates a defendant's right to due process if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment. Smith v. Cain, 132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012). Evidence is material under Brady " if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) ( quoting United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). " A reasonable probability does not mean that the defendant 'would more likely than not have received a different verdict with the evidence, ' only that the likelihood of a different result is great enough to 'undermine[] confidence in the outcome of the trial.'" Smith, 132 S.Ct. at 630 (quoting Kyles, 115 S.Ct. at 1566). " There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

C. Analysis

Petitioner contends that the prosecutor violated Brady by failing to provide documentation of Butts' agreement with the federal authorities, even though the trial court had ordered him to do so. (First Amended Petition at 6; Traverse at 27-31.) Petitioner also contends that the prosecutor failed to disclose that, in addition to the possible sentence reduction after the AUSA filed a Rule 35 motion for downward departure, Butts had already received a benefit of " at least a year" in return for his cooperation in Petitioner's prosecution. Thus, Petitioner argues, the information provided to the defense about Butts' agreement was incomplete and misleading. (Traverse at 27-28; see 2 CT 448-56.)

The Brady rule requires prosecutors to disclose any benefits, including lenient treatment, that are given to a government informant. Benn v. Lambert, 283 F.3d 1040, 1057 (9th Cir. 2002); see Bagley, 105 S.Ct. at 3384 (prosecution must disclose evidence that witnesses received inducements to testify); Jackson v. Brown, 513 F.3d 1057, 1071-72 (9th Cir. 2008) (prosecution's failure to disclose incentives for testifying promised to witness violated Brady).

To show a Brady violation, however, Petitioner must show suppression by the state. See Benn, 283 F.3d at 1053 (" [T]he terms 'suppression, ' 'withholding, ' and 'failure to disclose' have the same meaning for Brady purposes."). There is no showing that the prosecution withheld any information about Butts' agreement with federal authorities. Petitioner's counsel knew before his trial started that Butts had been convicted and sentenced in federal court and that Butts believed he had an agreement for a reduced sentence if he cooperated in Petitioner's prosecution. The matter was discussed at a pre-trial hearing, and the trial court ordered the prosecutor to determine whether there was any memorialized agreement that the United States Attorney's Office would seek a downward departure if Butts testified. (1 RT 51.) It appears that no written documentation of an agreement was provided, and that the defense did not know that Butts' cooperation with state authorities with respect to Petitioner's prosecution had already resulted in a benefit to him when he received his thirteen-year sentence.[6] (2 CT 455.) However, there is no evidence that the prosecutor had access to the sealed documentation of Butts' agreement and sentencing in federal court or otherwise knew that Butts had already received a benefit. " The prosecution is under no obligation to turn over materials not under its control." United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) (an AUSA's failure to turn over a California Department of Correction file did not violate Brady, because the AUSA had no control over state files). Petitioner has not shown that there was any information or documentation in the prosecutor's actual or constructive possession that the prosecutor failed to produce. As the trial court stated in denying Petitioner's motion for a new trial, there is " not even a scintilla of evidence" that the prosecution withheld Brady materials. (3 RT 738.)

Moreover, when a defendant " has enough information to be able to ascertain the supposed Brady material on his own, there is no suppression." Aichele, 941 F.2d at 764; but see Benn, 283 F.3d at 1061 (characterizing statement in Aichele as dictum). The Ninth Circuit has recently clarified that Brady does not require defense counsel to conduct interviews or investigations to discover Brady material the prosecution was required to provide, but defense counsel " cannot ignore that which is given to him or of which he otherwise is aware." Amado v. Gonzalez, 758 F.3d 1119, 1137 (9th Cir. 2014). In this case, unlike Amado and Benn, the prosecution did not have access to the undisclosed documentation, because Butts was prosecuted by federal authorities. Contrast Amado, 758 F.3d at 1138 (the prosecution had access to the witness's conviction and probation records, because the witness was prosecuted by the same office as the defendant); Benn, 283 F.3d at 1061 (the prosecution had undisclosed expert findings in its possession). Thus, this is not a situation in which defense counsel was entitled to rely on the prosecution's Brady obligations instead of utilizing the information he already had to investigate further. Defense counsel could have obtained further information by contacting Sherman, as he did after Petitioner's conviction. In fact, defense counsel was present when the prosecutor telephonically questioned Sherman about the agreement during a break in Butts' testimony, and defense counsel could have posed additional questions to Sherman (2 RT 475-76.)

Finally, even if there was suppression within the meaning of Brady, Petitioner has not shown prejudice. See Strickler, 119 S.Ct. at 1948. In determining whether suppression of impeachment evidence is sufficiently prejudicial to rise to the level of a Brady violation, the totality of the undisclosed evidence must be analyzed in the context of the entire record. Benn, 283 F.3d at 1058. Defense counsel cross-examined Butts at length. He questioned him about his lengthy criminal record, lucrative drug-dealing business, and refusal to provide information until after he was facing charges. He questioned Butts about his understanding of his agreement with the federal authorities and his belief that he would be released after he testified at Petitioner's trial. (2 RT 445-74, 481-84.) In denying the motion for a new trial, the trial court described defense counsel's cross-examination of Butts as one of the best the court had seen and declared that, even if additional information regarding Butts' agreement with the federal authorities existed, it could not possibly have discredited him further. (3 RT 783, 784.) The Court concurs. Both on direct examination and cross-examination, Butts made no secret that he was testifying because he believed that he would receive a substantial reduction in his 13 year sentence. In fact, he stated several times that he believed he would be released after he testified. (2 RT 430-32, 446.) Evidence that his 13 year sentence was already lower than it would have been without his cooperation, or evidence of the actual terms of his agreement with federal authorities with respect to a Rule 35 motion, may well have lessened the impact of Butts' optimistic view of the hoped-for benefits of his testimony rather than further impugned his credibility. Indeed, the docket of Butts' criminal case does not reflect that a Rule 35 motion was ever filed or that Butts' 157-month sentence was reduced.

Moreover, Petitioner's characterization of Butts as the linchpin of the prosecution's case is unfounded. The California Court of Appeal did not even mention Butts' testimony in its summary of the evidence at trial. (Lodg. No. 6 at 2-5.) Far more important than Petitioner's admission to Butts was the testimony of four eyewitnesses: Lenoir (1 RT 98-151); Byrd (1 RT 209-43); Kuyateh (2 RT 247-347); and Graham (2 RT 350-412). There is no reasonable probability that the jury would have returned a more favorable verdict if Petitioner had received documentation regarding the agreement between Butts and federal authorities, or had received additional information regarding the benefits promised to Butts for his testimony. See Kyles, 115 S.Ct. at 1565.

Accordingly, Petitioner has not shown a Brady violation. Ground Three does not warrant federal habeas relief.

IV. PETITIONER IS NOT ENTITLED TO AN EVIDENTIARY HEARING.

Petitioner requests an evidentiary hearing. (Traverse at 32.) As to those of his claims governed by the Section 2254(d) standard of review, his request for an evidentiary hearing is foreclosed. See Pinholster, 131 S.Ct. at 1398 (habeas review under Section 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits). As to the claim the Court reviewed de novo, no evidentiary hearing is necessary, because the record clearly shows that Petitioner is not entitled to habeas relief. See Landrigan, 127 S.Ct. at 1940. Accordingly, Petitioner's request for an evidentiary hearing must be denied.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the District Judge issue an Order: (1) accepting the Report and Recommendation; (2) denying the First Amended Petition; and (3) directing that judgment be entered dismissing this action with prejudice.


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