United States District Court, N.D. California, San Jose Division
ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT ON CLAIMS 22 AND 23 RE: DKT. NO. 213.
H. KOH United States District Judge.
1991, Petitioner Curtis Lee Ervin ("Petitioner")
was convicted of the murder of Carlene McDonald and sentenced
to death. On September 7, 2007, Petitioner filed an amended
petition for a writ of habeas corpus before this Court, which
included 37 claims in total. ECF No. 97 ("Pet.").
Before the Court is Respondent's motion for summary
judgment as to all 37 claims in Petitioner's amended
habeas petition. ECF No. 213 ("Mot."). Petitioner
opposes Respondent's motion and requests an evidentiary
hearing on 15 of Petitioner's 37 claims.
Order addresses claims 22 and 23 in Petitioner's amended
habeas petition. Petitioner does not request an evidentiary
hearing on these claims. For the reasons discussed below,
Respondent's motion for summary judgment as to claims 22
and 23 is GRANTED.
February 21, 1991, a jury convicted Petitioner of first
degree murder with the special circumstance finding of murder
for financial gain. Evidence presented at Petitioner's
trial established that Robert McDonald
("McDonald"), the former spouse of Carlene McDonald
("Carlene"), had hired Petitioner and Arestes
Robinson ("Robinson"), to kill Carlene for $2, 500.
trial, Armond Jack ("Jack") testified that he had
driven with Petitioner to meet McDonald to negotiate the
price for killing Carlene. Jack also testified that he had
driven Petitioner and Robinson to Carlene's apartment on
November 7, 1986, the night of the murder. While Petitioner,
Robinson, and Jack were driving to Carlene's apartment,
Petitioner asked for and received a knife from Robinson. With
the assistance of a BB gun, Petitioner and Robinson kidnapped
Carlene and used Carlene's vehicle to take Carlene to
Tilden Park, where Petitioner stabbed Carlene to death with
Robinson's assistance. A patrol officer found
Carlene's body the following afternoon.
and Robinson met with McDonald the day after Carlene's
murder and presented McDonald with Carlene's driver's
license as proof of the murder. McDonald paid Petitioner $2,
500, which Petitioner shared with Robinson and others to
purchase cocaine. A few weeks after Carlene's murder,
McDonald paid Petitioner an additional $1, 700. Sharon
Williams ("Williams"), Petitioner's girlfriend,
testified that Petitioner gave her a watch and ring later
identified as belonging to Carlene.
addition to the physical evidence linking Petitioner to
Carlene's murder, Petitioner also admitted various
incriminating aspects of the crime to David Willis
("Willis"), Zane Sinnott ("Sinnott"), and
the investigating police officer, Sergeant Dana Weaver
("Weaver"). According to these witnesses,
Petitioner admitted that he and Robinson had confronted
Carlene, had pointed the BB gun at her, had forced her into
her car, and had driven her to Tilden Park. Petitioner
further admitted to stabbing Carlene to death at Tilden Park
while Robinson held her. The prosecution also introduced
testimony from Robinson's girlfriend, Gail Johnson
("Johnson"), who stated that Robinson had admitted
to participating in Carlene's murder.
McDonald, and Petitioner were tried together. Petitioner made
no claims of innocence, but sought to impeach the testimony
of prosecution witnesses Jack, Sinnott, and Willis. In
addition, Dr. Fred Rosenthal, a psychiatrist, testified that
Petitioner's cocaine consumption might have impaired
Petitioner's thought process and that Petitioner thus did
not appreciate the seriousness and finality of killing
someone for money. The jury found Petitioner's defenses
unavailing and convicted Petitioner of first degree murder.
During the penalty phase of Petitioner's trial, the
prosecution introduced evidence of a prior bank robbery
conviction and some jail disciplinary problems. Petitioner
introduced mitigating evidence regarding his character,
employment, family, drug use, religious involvement, and
musical skills. McDonald and Robinson also introduced
mitigating evidence. The jury returned death verdicts for
Petitioner and McDonald, but chose life imprisonment without
parole for Robinson.
January 6, 2000, the California Supreme Court affirmed
Petitioner's conviction and sentence on direct appeal.
People v. Ervin, 990 P.2d 506, 537 (Cal. 2000). The
United States Supreme Court denied certiorari on October 2,
2000. Ervin v. California, 531 U.S. 842 (2000). On
November 12, 2002, Petitioner filed a federal habeas petition
before this Court. ECF No. 32. On January 22, 2003,
Petitioner filed a corrected federal habeas petition. ECF No.
45. That same day, the Court stayed all federal habeas
proceedings so that Petitioner could exhaust his claims in
state court. Petitioner filed a state habeas petition on
October 1, 2003, and on December 14, 2005, the California
Supreme Court denied Petitioner's state habeas petition.
the California Supreme Court's decision, Petitioner filed
an amended federal habeas petition on September 7, 2007. ECF
No. 97. Respondent filed a response on March 7, 2008, ECF No.
110, and Petitioner filed a traverse on November 13, 2008.
ECF No. 133.
February 14, 2012, Respondent filed the instant motion for
summary judgment. On January 8, 2013, Petitioner filed an
opposition and a request for an evidentiary hearing. ECF No.
249 ("Opp'n"). Respondent filed a reply on May
10, 2013, which included an opposition to Petitioner's
request for an evidentiary hearing. ECF No. 259 ("Resp.
Reply"). On August 16, 2013, Petitioner filed a reply to
Respondent's opposition to Petitioner's request for
an evidentiary hearing. ECF No. 266 ("Pet. Reply").
Petitioner's reply specified that Petitioner sought an
evidentiary hearing on claims 7-10, 20, 26-29, and 32-34.
Id. at 5.
January 7, 2015, the instant action was reassigned from U.S.
District Judge Claudia Wilken to the undersigned judge. ECF
No. 268. On March 16, 2015, the Court stayed Petitioner's
penalty phase claims pending the Ninth Circuit's decision
of an appeal filed in Jones v. Chappell, 31
F.Supp.3d 1050 (C.D. Cal. 2014). ECF No. 269. The Ninth
Circuit decided Jones on November 12, 2015, and
determined that the district court had erred in finding
California's post-conviction system of review in
violation of the Eighth Amendment. Jones v. Davis,
806 F.3d 538 (9th Cir. 2015). In the wake of the Ninth
Circuit's decision in Jones, all of
Petitioner's claims are now ripe for review.
December 11, 2015, this Court issued an order granting
Respondent's motion for summary judgment as to claims
1-5. ECF No. 271. On March 28, 2016, this Court issued an
order granting Respondent's motion for summary judgment
as to claims 14-15 and 17-18. ECF No. 281. On March 29, 2016,
this Court issued an order granting Respondent's motion
for summary judgment as to claims 7-13. ECF No. 282. On June
14, 2016, this Court issued an order granting
Respondent's motion for summary judgment as to claims 21,
35, and 36. ECF No. 283. On June 15, 2016, this Court issued
an order granting Respondent's motion for summary
judgment as to claims 6 and 16. ECF No. 284. Petitioner's
remaining claims shall be addressed in subsequent orders.
Antiterrorism and Effective Death Penalty Act (28 U.S.C.
Petitioner filed his original federal habeas petition in
2002, the Anti-Terrorism and Effective Death Penalty Act of
1996 ("AEDPA") applies to the instant action.
See Woodford v. Garceau, 538 U.S. 202, 210 (2003)
(holding that AEDPA applies whenever a federal habeas
petition is filed after April 24, 1996). Pursuant to AEDPA, a
federal court may grant habeas relief on a claim adjudicated
on the merits in state court only if the state court's
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." 28 U.S.C. § 2254(d).
Contrary To or Unreasonable Application of Clearly
Established Federal Law
28 U.S.C. § 2254(d)(1), the "contrary to" and
"unreasonable application" prongs have separate and
distinct meanings. Williams v. Taylor, 529 U.S. 362,
404 (2000) ("Section 2254(d)(1) defines two categories
of cases in which a state prisoner may obtain federal habeas
relief with respect to a claim adjudicated on the merits in
state court."). A state court's decision is
"contrary to" clearly established federal law
"if the state court arrives at a conclusion opposite to
that reached by [the U.S. Supreme Court] on a question of law
or if the state court decides a case differently than [the
U.S. Supreme Court] has on a set of materially
indistinguishable facts." Id. at 412-13.
court's decision is an "unreasonable
application" of clearly established federal law if
"the state court identifies the correct governing legal
principle . . . but unreasonably applies that principle to
the facts of the prisoner's case." Id. at
413. "[A]n unreasonable application of federal
law is different from an incorrect application of
federal law." Harrington v. Richter, 562 U.S.
86, 101 (2011). A state court's determination that a
claim lacks merit is not unreasonable "so long as
‘fairminded jurists could disagree' on [its]
correctness." Id. (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
of the U.S. Supreme Court at the time of the state court
decision are the sole determinant of clearly established
federal law. Williams, 529 U.S. at 412. Although a
district court may "look to circuit precedent to
ascertain whether [the circuit] has already held that the
particular point in issue is clearly established by Supreme
Court precedent, " Marshall v. Rodgers, 133
S.Ct. 1446, 1450 (2013) (per curiam), "[c]ircuit
precedent cannot refine or sharpen a general principle of
[U.S.] Supreme Court ...