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Everett v. McDonald

United States District Court, N.D. California

April 2, 2015

JAMAL T. EVERETT, Petitioner,
M.D. McDONALD, Respondent.


CLAUDIA WILKEN, District Judge.

Petitioner Jamal T. Everett, a state prisoner proceeding pro se, filed this amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state criminal conviction, asserting the following four claims: (1) violation of his Fifth Amendment rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); (2) violation of his right to a fair trial by the trial court's failure to instruct sua sponte on a lesser included offense; (3) violation of his right to a public trial; and (4) violation of his right to effective assistance of trial counsel. Respondent has filed an answer and a memorandum of points and authorities in support thereof and Petitioner has filed a traverse. For the reasons discussed below, the Court DENIES the petition and a certificate of appealability.


I. Procedural History

On June 15, 2004, a complaint was filed charging Petitioner and two co-defendants with the murder of Jose Roberto. People v. Everett, 2009 WL 5153747, *3 (Cal.Ct.App.) (unpublished). The complaint alleged that Petitioner intentionally murdered Roberto by discharging a firearm from a motor vehicle and that he personally and intentionally used and discharged a firearm, causing death. Id. Although Petitioner was seventeen at the time of the offense, he was tried as an adult. Id. at *4. By the time the case came to trial in 2008, Petitioner was no longer a minor. Id. On May 19, 2008, Petitioner's case was severed from that of his co-defendants for trial. Id. On June 9, 2008, a jury found Petitioner guilty of second degree murder and found true the allegations that he personally used a firearm, causing death. Id. On July 29, 2008, Petitioner was sentenced to forty years to life in prison. Id.

Petitioner submitted two claims on direct appeal: (1) a Miranda violation; and (2) trial court error in failing to instruct on a lesser included offense. On December 10, 2009, the California Court of Appeal affirmed the judgment in an unpublished opinion. Ex. 10; Everett, 2009 WL 5153747. On March 10, 2010, the California Supreme Court denied review. Ex. 12.

On September 24, 2010, Petitioner filed a timely petition for a writ of habeas corpus in this Court. Dkt. No. 1. On February 2, 2011, the Court granted Respondent's motion to dismiss the petition as unexhausted. Dkt. No. 7. On March 1, 2011, the Court ordered the proceedings stayed so Petitioner could exhaust his unexhausted claims. Dkt. No. 14.

On June 16, 2011, Petitioner filed a petition for a writ of habeas corpus in the Alameda County Superior Court, asserting two claims: (1) the violation of his right to a public trial; and (2) ineffective assistance of trial counsel. Ex. 13. On August 12, 2011, the Superior Court denied the petition as untimely and failing to state a prima facie case for relief. Ex. 14. On March 5, 2012, Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court, which was summarily denied on June 13, 2012. Exs. 15 & 16.

On July 12, 2012, Petitioner notified this Court that the California Supreme Court had denied his petition and moved to reopen the action and lift the stay. Dkt. No. 27. On March 8, 2013, the Court lifted the stay and directed Petitioner to file an amended petition, which he filed on April 11, 2013. II. Statement of Facts

The following is a summary of facts taken from the Court of Appeal opinion. On the evening of September 26, 2003, Petitioner and two other young men were driving in Oakland in a gray Toyota Cressida. Everett, 2009 WL 5153747, at *2. Petitioner was in possession of a nine-millimeter Glock pistol with about eight bullets in it, which he had purchased the preceding day. Id. Petitioner's friend, Steve Bell, had a black.38-caliber revolver. Id. Timothy Allen was driving the car. Id. at *3. Because Petitioner and Bell both had guns, they decided they "might as well go get some of the people that they were having problems with." Id. One of the people they discussed was named J.D. Id.

The three men drove along Coolidge Avenue where they thought their target would be. Id. Petitioner spotted some people, pointed them out, urged Bell to shoot, and then to shoot again. Id. After Bell fired two shots, Petitioner "got out the window" and started to shoot his own gun, firing over the roof of the car in the direction of the driver's side. Id. Petitioner and Bell emptied their guns and drove away. Id.

There were five or six people in the group at whom Petitioner and Bell were firing. Id. Petitioner was aiming at the person he knew as J.D. Id. According to Petitioner, he was shooting at J.D. in order to scare him and induce him to leave Petitioner's friend alone. Id. He told police that he did not intend to kill J.D., but acknowledged that he was aiming at him and trying to shoot him, and was aware that J.D.'s death could result. Id.

J.D. was not shot, but an individual in the group named Jose Roberto was shot in the head and killed. Id. at *2. Petitioner said he did not intend to kill Roberto. Id. at *3. A firearms expert testified at Petitioner's trial that Petitioner's gun fired the casings found on the street at the crime scene. Id. at *2. The expert testified that the markings on the nine-millimeter bullet recovered from Roberto's body indicated that it had probably been fired from a Glock, although he could not say for certain that it was the same Glock that fired the casings. Id.


A federal court may entertain a habeas petition from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, a district court may not grant habeas relief unless the state court's 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." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000).

A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409. Under AEDPA, the writ may be granted only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 131 S.Ct. 770, 786 (2011).

When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion of the highest court to analyze whether the state judgment was erroneous under the standard of § 2254(d). Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). In the present case, the highest court to issue a reasoned decision on the Miranda and jury instruction claims is the California Court of Appeal and the highest court to issue a reasoned decision on the public trial and ineffective assistance of counsel claims is the Alameda County Superior Court.


I. Miranda Violation

A. Federal Authority

Miranda requires that a person subjected to custodial interrogation be advised that "he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney." 384 U.S. at 444. The warnings must precede any custodial interrogation, which occurs whenever law enforcement officers question a person after taking that person into custody or otherwise significantly deprive a person of freedom of action. Id. The requirements of Miranda are "clearly established" federal law for purposes of federal habeas corpus review under 28 U.S.C. § 2254(d). Juan H. v. Allen, 408 F.3d 1262, 1271 (9th Cir. 2005).

If a suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney, " all questioning must cease. Miranda, 384 U.S. at 444-45. A suspect who has expressed a desire to have counsel present during custodial interrogation therefore is not subject to further interrogation by the authorities until counsel is made available to him, unless the suspect himself initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

B. Court of Appeal Opinion

The California Court of Appeal denied this claim as follows:

The trial court held an evidentiary hearing on appellant's motion to suppress his statements to the police. The evidence at that hearing was as follows. On June 11, 2004, FN4 Sergeant Phil Green of the Oakland Police Department and his partner, both wearing plain clothes, picked appellant up at Juvenile Hall and transported him to the Oakland Police Department Homicide Section for questioning. Although Green was not in uniform, he was wearing his police badge in a visible location, but appellant denied seeing it. Appellant was not given Miranda FN5 warnings at Juvenile Hall before being taken to the police station. According to Green, between the time he met appellant at Juvenile Hall until he was placed in an interrogation room at the police station, appellant never requested that he be given an attorney or allowed to call his mother.
FN4 This date was about a month before appellant's ...

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