United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
M. Chen, United States District Judge
Vlahos-Schmidt filed this pro se action for a writ
of habeas corpus under 28 U.S.C. § 2254. The Court
issued an order to show cause why the writ should not be
granted. Respondent has filed an answer and Ms.
Vlahos-Schmidt has filed a traverse. For the reasons
explained below, the petition will be
28, 2011, Ms. Vlahos-Schmidt stabbed her housemate, Zenon
Lopata. At trial, Ms. Vlahos-Schmidt admitted stabbing Mr.
Lopata, and the critical question was whether the stabbing
was done in self-defense based on his behavior that day and
on previous occasions. The California Court of Appeal
described the evidence at trial about the household history
and the criminal episode that led to Ms. Vlahos-Schmidt's
conviction for assault with a deadly weapon:
The Prosecution’s Case
[Zenon] Lopata, defendant, and Alicia Brown shared a
three-bedroom flat on the top floor of an old Victorian on
the corner of East 15th Street and 24th Avenue in Oakland.
Each roommate had his or her own bedroom and shared a common
kitchen, living room, and hallway.
On February 20, 2011, Brown invited a group of musician
friends to spend the night in the common area of the
apartment. Lopata was unhappy about that and phoned the
landlord from his room to complain. Defendant overheard the
conversation and when he opened the door to his room, she
stabbed him in the bicep with a pocket knife. He admitted
pushing defendant, but denied slapping her in the face. The
guests came to her defense, “beat[ing him] up and
jump[ing] in [his] face.” Lopata called 911 three times
and said his life had been threatened, but “nobody
came.” Police dispatch evidence corroborated
There was also a dispute that day over vodka. Defendant had
been drinking Lopata's vodka the day before and had
promised to replace it the next day. Lopata asked defendant
if she had replaced the vodka, and since she had not, Brown
went out to get more.
For many weeks after that incident, there was no conversation
or socializing between the three roommates, but by June 28,
defendant and Lopata had begun talking again. Defendant had
downloaded the television series “Weeds” on her
laptop, and she offered to watch it with him. They plugged
the computer into the television in his bedroom and watched
the show for an hour and a half or two hours. He was in his
chair eating and having “a few shots” while
defendant sat on his bed drinking beer and vodka.
For some reason Lopata could not remember, a dispute arose
and defendant punched him in the face. Defendant is a small
woman, and he is 5 feet, 10 inches tall and weighs 220
pounds. She did not hit him very hard, but it was hard enough
that he wanted the evening to be over. He pushed her out of
his room and placed the laptop on the counter in the kitchen.
She was not injured and went to her room.
About 10 or 15 minutes later, while he was hanging clothes in
his room, he heard running steps and felt a big jolt in his
back on the left side. He forcefully pushed her away from him
and she fell to the ground against the heater and Alicia
Brown's door. It is possible she could have been injured,
but he did not see it because he was bleeding profusely and
was in great pain as he knocked on Brown's door. He
denied punching defendant in the face.
Defendant got up and ran away, yelling at Lopata that she was
going to “call her friends at Hells Angels to have them
kill me.” At that point, he saw the knife in her hand.
Lopata could not find his cell phone and Brown refused to
open her door, so Lopata called 911 from the manager's
apartment downstairs. Evidence of the 911 call was presented.
This time, the police came right away and he was transported
to Highland Hospital by ambulance. Defendant was detained and
disarmed of the knife outside the gate to the apartment
building. Her nose was injured, and she was distraught.
Photos taken of both defendant and Lopata at the scene were
admitted into evidence.
Lopata acknowledged that defendant had accused him of
throwing her down the stairs, tossing her out of a futon, and
spanking her, but Lopata maintained, “that never
happened.” He denied telling defendant “your time
is coming to an end, darling. You're going to get
what's coming to you.” He denied calling somebody
on February 20 and saying, “you've got to come over
here; we've got to kill these bitches.” He did
admit throwing a slipper that defendant had left in his room
down the hallway in her direction.
The Defense Case
.Defendant testified in her own behalf. Significantly, she
testified to prior assaults and threats committed by Lopata.
According to defendant, when she moved into the apartment in
October 2010, Brown and Lopata already lived there. At first,
they all got along well; she and Lopata cooked and ate
together. Things began to change after a month. Lopata would
get pushy and mad if defendant declined to drink with him.
Lopata pretty much drank all day. He made mean, derogatory
comments to defendant, argued with everything she said and
put her down.
Once, in November or December 2010, for no apparent reason,
Lopata overturned a futon while defendant was reclining on
it. Lopata then went into his room and stayed there for the
rest of the night. The next day Lopata apologized and
acknowledged that his actions were “uncalled
Another time, shortly before February 20, 2011, Lopata threw
defendant onto the futon and spanked her when she refused to
drink with him. Defendant talked to Brown, a few of her
friends, and the landlord about this incident.
On February 20, 2011, defendant asked Brown to go to the
store to get more vodka, because Lopata's vodka was
running low and defendant was afraid he would get angry when
he ran out of it. When Lopata ran out of vodka before Brown
returned, he yelled at defendant, grabbed her arms, and
brought her towards him really hard. Because she was afraid
of defendant who was out of control, she had a pocket knife
in her hands. When Lopata would not let go of her, she
brought the knife down onto his arm. “[T]hen he let
go” and pushed her away. Some musician friends of Brown
were staying at the apartment at the time of this incident.
Defendant heard Lopata say several times that he was calling
the police. She also overheard Lopata say to someone on the
phone: “You need to get over here now. We need to kill
a couple of these bitches over here. We have two bitches. We
need to take care of them.” She told Brown to call the
police and then waited outside with her son for the police to
arrive for about 40 minutes. When no one came, defendant left
with her son. She did not make a police report. After this
incident, she asked the landlords to let her out of her
contract, but they refused to do so.
Defendant was not on speaking terms with Lopata for many
months after the February 20 incident. At some point, Lopata
started making small talk with her when her son was visiting,
and she was courteous to Lopata to keep the peace in front of
Lopata kept asking defendant if she would let him watch the
last season of the television series “Weeds”
before the new season began, and on June 28 she agreed. She
set up the computer and sat down to watch it with him for a
few minutes before leaving to do something else, but he
closed the door to his room after she sat down. She felt very
uncomfortable with the door closed, but she “just
played it off, ” talking to him for a few minutes
before making an excuse to exit. She left and entered the
room several times to “see where he was in the series,
Right before the incident, defendant left to smoke a
cigarette outside on the balcony. It was raining, and she put
on her jacket. In the jacket pocket was a knife she had put
there earlier in the day when she went to a store in a
dangerous part of the neighborhood to buy cigarettes. After
smoking her cigarette for about five minutes, she went back
inside to check on Lopata again. “As soon as I turned
the corner to his room, he started punching me in the
face[.]” Defendant was pinned against the door and
could not move while he was hitting her. Defendant was
scared, shocked, and in pain. She “didn't know if
he was going to stop.” She pulled the knife out of her
jacket pocket, “swung with it” just once with her
right hand and connected. She was not aiming at any part of
his body and could not see what she was doing because she
“was being pummeled in the face.” When the knife
connected with Lopata he stopped hitting defendant. Defendant
testified on cross-examination that she stabbed Lopata in
self-defense. She did not, however, call the police that
Defendant ran as fast as she could out the door, slipped on a
towel Lopata kept outside his door, and hit the heater with
her left shoulder and arm. She caught herself before she fell
down and continued running out the front door with the knife
and sheath in her hand. She got into her car and drove to a
friend's house for help. The friend did not respond to
her honking and yelling outside his house. She drove back to
her apartment and parked the car in the secure parking area.
She was detained by police when she walked into the front
yard of the apartment building. Defendant testified she had a
broken nose, a lump on her forehead, a chipped and loose
tooth, and a swollen face. Her eyes turned black the next
day. She was taken by ambulance to the hospital. Defendant
gave her statement to the police about what Lopata had done
to her. However, at the hospital, “the woman” who
arrested defendant said she did not write down
defendant's statement; she just wrote that defendant
wanted to wait until she spoke to an attorney.
Alicia Brown testified that on the night of June 28, she
arrived home from work around 6:00 p.m. and heard defendant
in Lopata's room. It sounded friendly. She went into her
room and turned on her music. She did not see or hear the
Nor did Brown see the altercation between defendant and
Lopata on February 20. However, she generally corroborated
defendant's version of the events leading up to that
altercation and its aftermath. In particular, she testified
that while she and defendant were waiting for the police to
arrive, Lopata told somebody on the phone, “You need to
get over here. We need to kill these bitches.” Brown
called 911 and left the apartment. The police responded two
hours later. Brown also testified that while she never saw
Lopata hit or hurt defendant, she was afraid of Lopata.
Defendant's former boyfriend testified as a character
witness. In the eight or nine years he had known defendant,
he had never known her to be physically assaultive or
violent, even when she had too much to drink.
One of the visiting musicians testified about the
confrontation between defendant and Lopata on February 20.
Lopata became loud, rude and angry. Defendant was trying to
calm him down and Lopata was yelling at her. Lopata pushed
defendant forcefully into the wall. The visitor confronted
Lopata about his behavior, but Lopata responded that he could
do whatever he wanted to defendant because it was his house.
The visitor did not see defendant stab Lopata in the arm.
People v. Vlahos-Schmidt, Cal.Ct.App. No. A133704,
June 12, 2013 Opinion (“Cal.Ct.App. Opinion”) at
a jury trial in Alameda County Superior Court, Ms.
Vlahos-Schmidt was found guilty of assault with a deadly
weapon, and was found to have inflicted great bodily injury.
On October 28, 2011, she was sentenced to a total of five
years in state prison, composed of the low term of two years
for the assault and a consecutive three-year term for the
great bodily injury enhancement.
Vlahos-Schmidt appealed. The California Court of Appeal
affirmed the judgment of conviction. The California Supreme
Court denied her petition for review. Ms. Vlahos-Schmidt also
filed unsuccessful state habeas petitions before filing this
federal petition for writ of habeas corpus, Ms.
Vlahos-Schmidt asserts the following claims: (1) the
exclusion of some of her proposed testimony about a prior
threat and prior violence by the victim violated her right to
testify; (2) she received ineffective assistance of counsel;
(3) the prosecutor engaged in misconduct in his closing
argument; (4) cumulative error; and (5) ineffective
assistance of appellate counsel.
Court issued an order to show cause why the writ should not
be granted. Respondent has filed an answer and Ms.
Vlahos-Schmidt has filed a traverse. The matter is now ready
for a decision on the merits.
JURISDICTION AND VENUE
Court has subject matter jurisdiction over this habeas action
for relief under 28 U.S.C. § 2254. 28 U.S.C. §
1331. This action is in the proper venue because the petition
concerns the conviction and sentence of a person convicted in
Alameda County, California, which is within this judicial
district. 28 U.S.C. §§ 84, 2241(d).
STANDARD OF REVIEW
Court may entertain a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court 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).
Antiterrorism And Effective Death Penalty Act of 1996
(“AEDPA”) amended § 2254 to impose new
restrictions on federal habeas review. A petition may not be
granted with respect to any claim that was adjudicated on the
merits in state court 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).
the „contrary to' clause, a federal habeas court
may grant the writ 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] Court has on a set of materially indistinguishable
facts.” Williams (Terry) v. Taylor, 529 U.S.
362, 412-13 (2000).
the „unreasonable application' clause, a federal
habeas court may grant the writ if the state court identifies
the correct 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. “[A] federal habeas court 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.
Rather, that application must also be unreasonable.”
Id. at 411. “A federal habeas court making the
„unreasonable application' inquiry should ask
whether the state court's application of clearly
established federal law was „objectively
unreasonable.'” Id. at 409.
state-court decision to which § 2254(d) applies is the
“last reasoned decision” of the state court.
See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991);
Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.
2005). “When there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding
that judgment or rejecting the same claim rest upon the same
ground.” Ylst, 501 U.S. at 803. The
presumption that a later summary denial rests on the same
reasoning as the earlier reasoned decision is a rebuttable
presumption and can be overcome by strong evidence.
Kernan v. Hinojosa, 136 S.Ct. 1603, 1605-06 (2016).
Although Ylst was a procedural default case, the
“look through” rule announced there has been
extended beyond the context of procedural default and applies
to decisions on the merits. Barker, 423 F.3d at 1092
n.3. In other words, when the last reasoned decision is a
decision on the merits, the habeas court can look through
later summary denials to apply § 2254(d) to the last
2254(d) generally applies to unexplained as well as reasoned
decisions. “When a federal claim has been presented to
a state court and the state court has denied relief, it may
be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary.” Harrington
v. Richter, 562 U.S. 86, 99 (2011). When the state court
has denied a federal constitutional claim on the merits
without explanation, the federal habeas court “must
determine what arguments or theories supported or . . . could
have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the U.S. Supreme]
Court.” Id. at 102.
Limitations On Testimony About Victim's Past
trial, a critical issue was whether Ms. Vlahos-Schmidt had
acted in self-defense when she admittedly stabbed Mr. Lopata.
The court allowed Ms. Vlahos-Schmidt to testify about several
prior incidents of a threatening and violent nature, but
refused to allow her to testify about two particular
incidents. Ms. Vlahos-Schmidt contends in her federal habeas
petition that the exclusion of this testimony violated her
constitutional right to testify.
trial, the parties focused on the history of altercations and
arguments between Ms. Vlahos-Schmidt and Mr. Lopata that
preceded the June 28th stabbing. After the cross-examination
of Mr. Lopata, the prosecutor objected that defense counsel
had been referring to more incidents than those that had been
discussed during in limine proceedings where it had
been determined which past incidents would be admitted in
evidence. RT 90. The prosecutor wanted advance notice of
events not previously discussed so their admissibility could
be litigated before the evidence was presented to the jury,
or he wanted the evidence excluded. RT 90-91. The trial court
eventually ruled that the defense would be limited to
presenting evidence about “the shoe issue, the spanking
on the Futon, and the slapping in the face shortly before the
February 20 incident.” RT 92-93. The trial court
apparently based its ruling on state law requirements for
reciprocal discovery and explained that the defense had not
“made a motion to bring that [evidence] in. We just
can't have random things coming in.” RT 93.
trial court's evidentiary ruling put limits on Ms.
Vlahos-Schmidt's testimony because she was the only one,
other than Mr. Lopata, who was present for two particular
incidents. RT 93. Ms. Vlahos-Schmidt thus was not allowed to
testify to an incident in November 2010 where Mr. Lopata
“pushed [Ms. Vlahos-Schmidt] down the steps while they
were smoking.” RT 93. And Ms. Vlahos-Schmidt was not
allowed to testify to an incident in March 2011 in which Mr.
Lopata told her, “„Your time is coming to an end,
darling. You are going to get what you deserve.'”
RT 184. (During his testimony, Mr. Lopata had denied that
either incident occurred. RT 85, 88.)
appeal, Ms. Vlahos-Schmidt contended that the trial
court's ruling excluding this evidence was an abuse of
discretion and violated her federal constitutional right to
testify. The California Court of Appeal agreed that there had
been error, but found it harmless. The trial court had erred
under state law because California law did not require the
advance disclosure of a defendant's own statements.
Cal.Ct.App. Opinion at 7. And the trial court erred because
the introduction of this relevant evidence would not have
caused an undue consumption of time. Id. at 8.
Evidence of Lopata's prior threats and acts of violence
towards defendant were admissible and relevant to
defendant's claim she acted in self-defense. “Of
course, the right to present relevant testimony is not
without limitation. The right „may, in appropriate
cases, bow to accommodate other legitimate interests in the
criminal trial process.' [Citation & fn. omitted.]
But restrictions of a defendant's right to testify may
not be arbitrary or disproportionate to the purposes they are
designed to serve. In applying its evidentiary rules a State
must evaluate whether the interests served by a rule justify
the limitation imposed on the defendant's constitutional
right to testify.” (Rock v. Arkansas, supra,
483 U.S. [44, 55-56 (1987)].) In our view, the court's
response to defendant's proposed testimony that Lopata
pushed her down the stairs and later threatened her life was
disproportionate to the purposes served by Evidence Code
section 352. In particular, the court abused its discretion
when it prevented defendant from testifying that Lopata
threatened her life, particularly after it permitted Lopata
to deny he ever said, “[y]our time is coming to an end,
darling. You are going to get what you deserve.”
Defendant maintains the error was prejudicial under
Chapman v. California (1967) 386 U.S. 18
(Chapman) and requires reversal, but after careful
review of the entire record, we do not agree [that the error
was not harmless]. In fact, the court did allow the jury to
consider a great deal of evidence of Lopata's prior
violent behavior toward defendant which, if believed, could
have supported an acquittal based on self-defense. Moreover,
the court correctly instructed the jury on self-defense and
antecedent threats, and evidence of one such threat was
admitted. In addition, defendant testified at length about
the injuries she suffered at Lopata's hands on June 28
and about the circumstances under which she stabbed Lopata in
the back. Photos of both parties' injuries were admitted,
as well as evidence of Lopata's 911 calls to police, and
defendant's failure to call the police. “Under
Chapman, the question is whether there is a
reasonable doubt that the error contributed to the
verdict.” (People v. James (2000) 81
Cal.App.4th 1343, 1362.) Here, we are convinced beyond a
reasonable doubt the error did not contribute to the verdict
because the excluded evidence was “unimportant in
relation to everything else the jury considered on the
question of the defendant's guilt, as revealed in the
record.” (Ibid., citing Yates v.
Evatt (1991) 500 U.S. 391, 403, italics added,
disapproved on other grounds in Estelle v. McGuire
(1991) 502 U.S. 62, 72–73, fn. 4.)
Cal.Ct.App. Opinion at 8-9.
last reasoned decision from a state court, the California
Court of Appeal's decision is the decision to which
§ 2254(d) is applied. See Ylst, 501 U.S. at
803-04; Barker, 423 F.3d at 1091-92. Ms.
Vlahos-Schmidt is entitled to habeas relief only if the
California Court of Appeal's decision was contrary to, or
an unreasonable application of, clearly established federal
law from the U.S. Supreme Court, or was based on an
unreasonable determination of the facts in light of the
right to testify on one's own behalf at a criminal trial
has sources in several provisions of the United States
Constitution. It is one of the rights that “are
essential to due process of law in a fair adversary
process.” Rock v. Arkansas, 483 U.S. 44, 51
(1987) (holding that Arkansas' per se rule
excluding all hypnotically enhanced testimony was
unconstitutional when used to restrict a defendant's
right to testify). It is a fundamental Constitutional right.
See Id . at 53 n.10. The harmless error standard
applies if the court finds that the right to testify has been
denied. See Martinez v. Ylst, 951 F.2d 1153, 1155
(9th Cir. 1991). That is, habeas relief is not available
unless the error resulted in actual prejudice -- that it had
a “„substantial and injurious effect or influence
in determining the jury's verdict.'” Brecht
v. Abrahamson, 507 U.S. 619, 638 (1993).
California Court of Appeal impliedly held that the error by
the trial court in limiting Ms. Vlahos-Schmidt's
testimony was of constitutional magnitude when it applied
Chapman's prejudice analysis, because
Chapman “fashion[ed] a
harmless-constitutional-error rule.” Chapman,
386 U.S. at 23. When, as here, the state court has found the
error harmless, federal habeas relief is not available for
the error “unless the harmlessness determination
itself was unreasonable.” Davis v. Ayala,
135 S.Ct. 2187, 2199 (2015) (emphasis in original). In other
words, a federal court may grant relief only if the state
court's harmlessness determination “was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. (quoting
Harrington v. Richter, 562 U.S. at 103). “A
determination that the error resulted in „actual
prejudice' Brecht, 507 U.S. at 637, necessarily
means that the state court's harmlessness determination
was not merely incorrect, but objectively unreasonable,
Davis, 135 S.Ct. at 2198-99.” Mays v.
Clark, 807 F.3d 968, 979-80 (9th Cir. 2015).
outset, it is helpful to understand the significance of the
evidence of the victim's prior acts in relation to the
crime and defense offered at trial. That understanding is
aided by a review of the self-defense jury instruction given
in Ms. Vlahos-Schmidt's case, which correctly stated