Todd v. Frauenheim

          MEMORANDUM DECISION

          JAMES K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE

         William Michael Todd, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Todd is in the custody of the California Department of Corrections and incarcerated at Pleasant Valley State Prison. Respondent has answered, and Todd has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On October 8, 2010, Todd was charged with the murder of David Endres. The information further alleged that Todd personally used a knife in the commission of the crime. Todd pled not guilty and denied the allegation. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Todd:

Memorial Day 2010 began with [Todd] and his wife, Traci, drinking beer at her cousin Larry Pinson's house. David Endres (the victim) and Susan Childress were also drinking beer with [Todd], Traci, and Pinson. Pinson, Childress, and Endres were good friends. [Todd] and Endres appeared to know each other because earlier that day, when Endres introduced [Todd] to Childress, he referred to [Todd] as "my friend Bill" and "a cool guy." There was no evidence that Endres had a prior relationship with Traci. At about 8:10 p.m., [Todd] and Endres rode in the same car with Pinson and Traci to Childress's apartment to continue drinking. Pinson stated that he did not recall any angry words or problems in the car ride over to Childress's apartment between [Todd] and Endres, or between Endres and Traci. Dorothy Lenz, Childress's sister, was also present in the apartment.

At one point, [Todd], Endres, Pinson, and Traci were outside the front door on the landing smoking cigarettes, talking, and drinking beer. Pinson turned to put out a cigarette in an ashtray when he heard a thud. From "out of nowhere, " [Todd] became mad, said something about Endres looking at his wife, and stabbed Endres in the chest. Endres was holding his chest, saying, "What the fuck?" Childress stated that, from inside her apartment, she heard Endres say, "What the fuck you do that for homeboy?" He then fell backwards through the front door, and Childress caught him as he fell in the doorway. [Todd] immediately ran away. Blood was everywhere, and despite efforts to save his life, Endres died quickly.

There was no prior argument between [Todd] and Endres. No yelling, arguing, or punching occurred on the landing. Childress and Pinson thought that [Todd] and Endres were friends. The attack was unprovoked. There was no evidence that [Todd] was suffering from paranoia, delusions, or hallucinations.

Endres was stabbed twice by a single-edged knife in essentially the center of his torso. One wound was on the lower left chest and measured four-and-a-half inches deep. It sliced open the bottom of his heart, causing the heart sac to fill with blood. The other wound was in the mid-upper abdomen and measured four inches deep. It cut the edge of his liver and perforated his stomach. Both wounds had rectangular hilt marks, meaning that the knife went all the way in with enough force to have the hilt leave a mark. Each wound could have been fatal by itself, but the wound to the heart would have caused death more rapidly. Endres's defensive wounds, cuts to his left palm and right little finger, indicated that he was aware that he was being attacked.

After stabbing Endres, [Todd] immediately ran down the stairs and away from the scene. Multiple eyewitnesses in the neighborhood testified that they saw [Todd], who attempted to get into locked cars parked in the area, throw his wallet in someone's yard. [Todd] entered a bush with his shirt on, and a few minutes later, left the bush shirtless. [Todd's] keys were found in a bush in the neighborhood. Blood was found on [Todd's] shirt which matched Endres's DNA profile.

Pinson and Childress testified that they did not see [Todd] or Endres use methamphetamine that day. A blood sample from Endres had 0.08 milligrams per liter of methamphetamine and 0.02 milligrams per liter of amphetamine. A blood sample from [Todd] showed a level of 0.11 milligrams per liter of methamphetamine and 0.02 milligrams per liter of amphetamine. [Todd's] level of methamphetamine could be considered in both the therapeutic range and the abuse range.

Philip Mitchell, a friend of Traci's, testified at trial that, in August 2009, [Todd] had attacked him with pepper spray or mace. Mitchell was traveling with Traci in a car to help get her things at her house because she was having domestic problems with [Todd]. Before Mitchell and Traci arrived at her house, [Todd] pulled up in another car, jumped out, ran up to their car, and sprayed Mitchell with mace or pepper spray.

People v. Todd, No. C068975, 2014 WL 104422, at *1-2 (Cal.Ct.App. Jan. 10, 2014).

         On March 23, 2011, Todd proceeded to a jury trial. On April 18, 2011, the jury found Todd guilty of first-degree murder and also found that Todd personally used a knife in the crime. Prior to sentencing, Todd filed a Marsden^[1] motion to substitute counsel based on inadequate representation. At the Marsden hearing, Todd complained that counsel had failed to request an instruction on voluntary manslaughter and had not timely reviewed a psychiatric report that caused counsel to break his opening argument promise that he would offer an expert witness. The trial court denied the motion. It later sentenced Todd to an aggregate term of 26 years to life imprisonment.

         Through counsel, Todd appealed his conviction, arguing that: 1) the trial court should have sua sponte instructed the jury on the lesser-included offense of voluntary manslaughter; 2) trial counsel was ineffective for failing to request a voluntary manslaughter instruction; 3) trial counsel was ineffective for failing to request an instruction telling the jury that provocation may reduce murder from first degree to second degree; 4) trial counsel was ineffective for promising in his opening argument that he would present an expert who he ultimately declined to offer; 5) there was insufficient evidence of premeditation and deliberation to sustain the jury's first-degree murder verdict; and 6) the trial court abused its discretion in denying his Marsden motion. The Court of Appeal unanimously affirmed the judgment against Todd in an unpublished, reasoned decision issued on January 10, 2014. Todd, 2014 WL 104422, at *7. Todd petitioned for review in the California Supreme Court, which was summarily denied on April 9, 2014.

         Todd timely filed a pro se petition to this Court on January 21, 2015. See 28 U.S.C. § 2244(d)(1)(A).

         II. GROUNDS RAISED

         In his pro se Petition before this Court, Todd raises the same arguments he unsuccessfully raised on appeal to the state courts, namely that: 1) the trial court erred in failing to sua sponte instruct the jury on the lesser-included offense of voluntary manslaughter; 2) trial counsel was ineffective for failing to request the voluntary manslaughter instruction; 3) trial counsel was ineffective for failing to request a pinpoint instruction on provocation; 4) trial counsel was ineffective for not offering expert testimony that it had promised the jury in opening argument that it would hear; 5) there was insufficient evidence of deliberation and premeditation to support the first-degree murder verdict; and 6) the trial court erred in denying his pre-sentencing Marsden motion.

         III. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

         The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

         In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         IV. DISCUSSION

         A. Instructional Error (Ground 1)

         Todd first argues that the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter.

         Because jury instructions in state trial are typically matters of state law, federal courts are bound by a state appellate court's determination that a jury instruction was not warranted under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that the Supreme Court has repeatedly held that "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). An instructional error, therefore, "does not alone raise a ground cognizable in a federal habeas proceeding." Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).

         A challenged instruction violates the federal constitution if there is a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380 (1990). The question is whether the instruction, when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471 U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the "almost invariable assumption of the law that jurors follow their instructions"); see Francis, 471 U.S. at 323-24 & n.9 (discussing the subject in depth).

         It is well-established that not only must the challenged instruction be erroneous but it must violate some constitutional right, and it may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the constitution and that the category of infractions that violate "fundamental fairness" is very narrowly drawn. Id. at 72-73. "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process clause has limited operation." Id. Where the defect is the failure to give an instruction, the ...