United States District Court, C.D. California
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.
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.
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 On April 14, 2011, the Court of Appeal affirmed the judgment in an unpublished decision.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." 
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 ...