United States District Court, E.D. California
K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE
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.
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
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
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
People v. Todd, No. C068975, 2014 WL 104422, at *1-2
(Cal.Ct.App. Jan. 10, 2014).
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 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
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.
timely filed a pro se petition to this Court on
January 21, 2015. See 28 U.S.C. §
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.
STANDARD OF REVIEW
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).
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).
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).
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).
Instructional Error (Ground 1)
first argues that the trial court erred in failing to
instruct the jury sua sponte on voluntary
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).
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).
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