United States District Court, N.D. California, San Jose Division
ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT ON CLAIMS 32 AND 33 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.").
Respondent filed a motion for summary judgment as to all 37
claims in Petitioner's amended habeas petition. ECF No.
213 ("Mot."). Petitioner opposed Respondent's
motion and requested an evidentiary hearing on 15 of
Petitioner's 37 claims. This Court has ruled on 23 of the
Order addresses claims 32 and 33 in Petitioner's amended
habeas petition, which pertain to the alleged ineffective
assistance of Petitioner's appellate counsel. Petitioner
requests an evidentiary hearing on both claims 32 and 33. For
the reasons discussed below, Respondent's motion for
summary judgment as to claims 32 and 33 is GRANTED, and
Petitioner's request for an evidentiary hearing as to
claims 32 and 33 is DENIED.
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 ("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.
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. 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.
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 on claims
7-10, 19-20, 25-30, and 32-34. 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").
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. On June 16,
2016, this Court issued an order granting Respondent's
motion for summary judgment as to claims 22 and 23. ECF No.
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 jurisprudence into a specific legal
rule, " Lopez v. Smith, 135 S.Ct. 1, 4 (2014)
(per curiam) (internal quotation marks omitted).
Unreasonable Determination of the Facts
order to find that a state court's decision was based on
"an unreasonable determination of the facts, " 28
U.S.C. § 2254(d)(2), a federal court "must be
convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record before the state
court, " Hurles v. Ryan, 752 F.3d 768, 778 (9th
Cir. 2014) (internal quotation marks omitted). "[A]
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance." Burt v.
Titlow, 134 S.Ct. 10, 15 (2013). That said, "where
the state courts plainly misapprehend or misstate the record
in making their findings, and the misapprehension goes to a
material factual issue that is central to petitioner's
claim, that misapprehension can fatally undermine the
fact-finding process, rendering the resulting factual finding
unreasonable." Taylor v. Maddox, 366 F.3d 992,
1001 (9th Cir. 2004).
examining whether a petitioner is entitled to relief under 28
U.S.C. § 2254(d)(1) or § 2254(d)(2), a federal
court's review "is limited to the record that was
before the state court that adjudicated the claim on the
merits." Cullen v. Pinholster, 563 U.S. 170,
181 (2011). In the event that a federal court
"determine[s], considering only the evidence before the
state court, that the adjudication of a claim on the merits
resulted in a decision contrary to or involving an
unreasonable application of clearly established federal law,
or that the state court's decision was based on an
unreasonable determination of the facts, " the federal
court evaluates the petitioner's claim de novo.
Hurles, 752 F.3d at 778. If error is found, habeas
relief is warranted if that error "had substantial and
injurious effect or influence in determining the jury's
verdict." Brecht v. Abrahamson, 507 U.S. 619,
638 (1993). ...