United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding through counsel with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges a judgment of conviction
entered against him on January 4, 2008 in the Sacramento
County Superior Court on charges of first degree murder
committed in the commission of a robbery, with an enhancement
for personal discharge of a firearm causing great bodily
injury or death. He seeks federal habeas relief on the
following grounds: (1) the trial court violated his right to
a public trial; (2) his trial counsel rendered ineffective
assistance in failing to object more aggressively to the
trial court’s failure to open the courtroom to more
spectators, failing to move to sever petitioner’s trial
from the trial of one of his co-defendants, and failing to
object to the admission of inflammatory evidence at trial;
and (3) his sentence of life without parole plus 25
years-to-life constitutes cruel and unusual punishment in
light of the fact that he was a juvenile when the crime was
careful consideration of the record and the applicable law,
the undersigned will recommend that petitioner’s
application for habeas corpus relief be denied.
AND FACTUAL BACKGROUND
unpublished memorandum and opinion affirming
petitioner’s judgment of conviction on appeal, the
California Court of Appeal for the Third Appellate District
provided the following factual summary:
Reginald Thomas Bunn and Antonio Lamar Minor were convicted
of first degree murder (Pen.Code, § 187, subd.
of a marijuana dealer named Gamaliel Torres. The jury found
true the special circumstance that the murder was committed
while Bunn and Minor were engaged in the crime of robbery or
attempted robbery within the meaning of section 190.2,
subdivision (a)(17). The jury found true the allegation that
Bunn and Minor had each personally discharged a firearm (Bunn
fired a .357-caliber handgun and Minor fired a .410-gauge
shotgun) causing Torres's death within the meaning of
section 12022.53, subdivision (d).
Rejecting the claims of Bunn and Minor, who were each 17
years old at the time of the murder, of unconstitutional
cruel and unusual punishment, the trial court declined to
exercise its discretion to impose a 25-years-to-life sentence
and instead sentenced both Bunn and Minor to indeterminate
terms of life without the possibility of parole (LWOP)
(§ 190.5, subd. (b)), plus 25 years to life for the
firearm enhancement. A restitution fine of $10, 000 was
imposed under section 1202.4 and a parole revocation fine of
the same amount was imposed and stayed under section 1202.45.
No credit for time served was awarded.
On appeal, Bunn claims (1) the trial court in effect closed
the courtroom to some of the defendant's friends and
family violating his constitutional right to a public trial;
and (2) his trial counsel provided ineffective assistance by
(a) failing to move for severance, and (b) by failing to
object and move for exclusion of certain inflammatory bad
character evidence. Both Bunn and Minor claim on appeal their
LWOP sentence constitutes cruel and unusual punishment and
the trial court abused its discretion in rejecting a
25-years-to-life sentence. Both assert, and the People
concede, the trial court erred in denying them custody credit
for actual time served and by imposing a parole revocation
fine when they had been given a LWOP sentence. We shall
accept the People's concession of the last two claims and
reject all others. With the aforementioned modifications, we
shall affirm the judgments.
On March 9, 2006, at about 10:00 p.m., George Gomez, who
lived next door to the parking lot for Chorley Park, heard a
male say something in an angry voice, followed by several
gunshots. He heard a car rev its engine. When he peered out
of his blinds, Gomez saw a dark blue small SUV exit the park.
Jasmine Ramos was inside her home near Chorley Park on March
9, 2006. Around 10:00 p.m., she heard gunshots and when she
looked out her window, she saw a car that looked like a Ford
Explorer speed past.
A little after 10:00 p.m. that same night, Sacramento Police
Officer Garrett Dutra was doing a park check at Chorley Park
when he noticed a black Toyota pickup parked in the parking
lot. Both doors were open and the truck engine was running.
When Dutra approached the truck, he saw the driver's
window was shattered, although intact, and there was a bullet
hole through the window. The driver, who was later identified
as 19-year-old Gamaliel Torres, was still seat belted in his
seat with his hands in his lap and his head leaning down.
Torres was dead from a fatal gunshot wound to the upper left
side of his head behind the ear and a fatal shotgun wound to
his right arm. It was later determined from stippling
surrounding the head wound that the gun had been either in
contact with or very close to the glass window at the time
Torres was shot. The muzzle of the shotgun was within three
to four feet of Torres at the time of shooting. Dutra
observed a cell phone headset hanging from Torres's head
with no phone attached. Dutra saw blood on the inside of the
window and blood dripping from the truck onto the ground.
Torres was a known dealer of marijuana. He used little
baggies printed with hearts, skulls and marijuana leaves as
packaging. Torres had been wearing a chain necklace that day.
Meanwhile, less than a half mile away from Chorley Park,
Sacramento Police Officer Stephen Moore had stopped a dark
blue Mercury Mountaineer (SUV) for speeding. Moore approached
the SUV and the driver, Mylove-Smith, provided his license
and insurance. Moore smelled a strong odor of marijuana and
decided to search the SUV. He called for assistance as there
were four individuals in the SUV. Mylove-Smith was in the
driver's seat, Howard was next to him in the front
passenger seat, defendant Bunn was behind Mylove-Smith in the
left rear passenger seat, and defendant Minor was behind
Howard in the right rear passenger seat. Sacramento Police
Officer Brian Laird arrived to assist Moore.
Laird instructed everybody in the SUV to put their hands
where the officers could see them, but Minor repeatedly
dropped his hands from the back of the seat down to his seat.
When the occupants of the SUV were removed, the officers
discovered three sandwich-size baggies containing what
appeared to be marijuana on the seat where Minor had been
sitting. Laird searched Minor and found a cell phone, some
change, and a .410 shotgun round in his pants pocket.
About this time, Moore heard Dutra broadcast his discovery of
the body at Chorley Park. A subsequent search of the SUV
uncovered a shotgun under the front passenger seat, where it
would have been accessible only to Minor. The shotgun had
blood on the wood part at the front. In the seat pocket in
front of where Minor had been sitting, a live shotgun shell
was found along with a small baggie stamped with hearts,
containing some unidentified purple pills. Under the
driver's seat near where Bunn's feet had been, Laird
found a black .357-magnum revolver with two live rounds and
one spent casing. Moore noticed blood on Bunn's hands and
on the fingers of both of Minor's hands. Bunn had blood
spatter on both sides of his pants, as well as on his left
shoe. Later examination of the SUV disclosed blood stains in
the back passenger area in eight places; seven connected with
the right rear passenger area and one on the rear
driver's side passenger door. DNA testing of the blood
found on Minor's hand, Bunn's clothes and shoes and
from the interior driver's and passenger's side rear
doors of the SUV was conducted and the samples were
determined to contain the same DNA profile as Torres.
The search of the SUV also revealed a Sprint cell phone and a
chain necklace on the rear passenger's floorboard, where
Minor had been sitting, next to a baggie of marijuana. There
appeared to be blood on the phone and necklace, as well as on
some of the baggies of marijuana in the SUV. A close friend
of Torres identified the necklace and cell phone as
Torres's phone and necklace. A shoebox in the cargo area
of the SUV contained athletic shoes and about 20 small
baggies of marijuana, stamped with hearts or marijuana
leaves. Bunn's jacket in the rear cargo area contained
marijuana packaged in a baggie with red hearts. A backpack
with Howard's identification card inside was also found
in the cargo area. The backpack contained a plastic baggie
with 21 smaller plastic baggies inside, stamped with hearts
or marijuana leaves. Beanies and a ski mask were also found
inside the SUV.
Later testing showed a large amount of gunshot residue (GSR)
on Torres, consistent with his having been shot twice. GSR
was also found on Minor's hands, along with a large
number of lead particles, consistent with the lead shot
pellets of a shotgun. GSR was found on the back of Bunn's
hands, but not his palms. The People's expert opined that
Minor and Bunn had either fired a weapon, were within the
vicinity of a weapon when it was fired or had handled a fired
weapon or fired ammunition. One particle of GSR and nine
particles of lead were recovered from the rear driver side
door of the SUV. Two particles of GSR and over 30 lead
particles were recovered from the rear passenger side door.
No GSR was detected on the front driver or front passenger
side doors. Neither Mylove-Smith or Howard had any GSR on
At autopsy it was determined that the bullet components
recovered from Torres's skull were from a single jacketed
bullet fired from the revolver recovered from the SUV. The
shotgun shell components removed during autopsy were
consistent with the shells used in the shotgun found in the
Minor's MySpace page included a photograph of himself
holding the revolver used in Torres's murder.
Minor testified in his own defense.
On the evening of March 9, Minor called Bunn to ask him for a
ride to the store to buy baby formula for Minor's baby,
although Minor also planned to smoke some marijuana and hang
out before going home. Bunn, Mylove-Smith, and Howard picked
Minor up around 8:45 or 9:00 p.m. Bunn told Minor they were
going to make a stop before they took Minor to the store.
Bunn asked Minor to call Torres for him, explaining that his
cell phone was dead. Minor had never met Torres. Minor called
Torres and arranged for them to meet Torres at Chorley Park.
They drove to the park where they waited about an hour for
Torres to arrive. Minor knew Bunn sold marijuana, but did not
know who his supplier was.
When Torres arrived, Minor claimed that Mylove-Smith got out
of the car and walked to Torres's truck. He came back
after a minute and spoke to Bunn. Bunn got out of the car and
both he and Mylove-Smith walked back to Torres's truck.
Minor then heard three loud bangs. He looked up and saw
Mylove-Smith at the passenger side of Torres's truck and
Bunn at the driver's window. Bunn was looking at his own
shirt. Thinking Bunn might be hurt, Minor got out of the car
and ran to the truck. He saw Torres in the truck with his
head leaning towards the steering wheel. Minor saw Bunn had a
long black gun in his hand and Mylove-Smith was holding a
shotgun. Bunn kept reaching in the truck for something. Minor
bear-hugged Bunn, trying to get him to leave. Minor got blood
on himself in the process. Minor, Bunn, and Mylove-Smith ran
back to their car. Bunn put his head down and said “I
killed him, blood.” Mylove-Smith drove away from the
About 30 seconds after they left the park, Minor became aware
that they were being followed by a police officer. He told
Mylove-Smith to slow down as he was driving too fast.
Mylove-Smith then began tossing baggies of marijuana to the
back seat, telling Minor to “hold this.” He also
slid the shotgun back to Minor, who grabbed it with both
hands and slid it under the seat in front of him.
Mylove-Smith tossed some shotgun shells back to Minor who put
one in the seat pocket and one in his pants pocket.
Minor claimed the revolver in the MySpace photograph and the
shotgun belonged to Bunn. He denied seeing any weapons until
after he heard the gunshots and had no idea where they came
Bunn testified in his own defense. He denied shooting Torres.
Bunn testified he sold marijuana in small quantities, mostly
at his high school. Torres was his regular supplier and his
friend. Torres had delivered two ounces of marijuana to Bunn
the night of March 8, the day before the shooting. He also
gave Bunn some baggies for packaging. Some of the marijuana
and packages were in the shoebox found in the SUV's cargo
area the next day.
On March 9, Minor called Bunn asking to buy a quarter pound
of marijuana. Bunn told him he did not have that much. Minor
asked Bunn to take him to “the Mexican dude” that
supplied Bunn. Bunn knew Torres still had eight ounces left
to sell and eventually Bunn agreed, hoping for a referral
fee. Mylove-Smith, Howard, and Bunn picked Minor up and began
to head in the direction of Torres's house, but Minor
called Torres and arranged to meet him at Chorley Park. They
arrived about 45 minutes before Torres did.
Torres arrived at the park around 10:00 p.m., pulling up
behind and to the right of the SUV defendants were in. Bunn
rolled down his window to greet Torres. They nodded at each
other and Bunn rolled his window back up. Minor got out and
went to the passenger side of Torres's truck. Minor went
back and forth between the SUV and the truck several times.
Mylove-Smith asked Bunn to go see what was taking so long. As
Bunn approached the driver's side of the truck, he heard
a loud gunshot. He saw Minor run back to the SUV and then
back to the driver's side of the truck, where Minor hit
the window with a revolver. As Bunn reached up to hit the gun
out of Minor's hand, the gun went off.
Bunn opened the driver's door to check on Torres and saw
that he was dead. Torres fell towards Bunn, who pushed him
back upright. Bunn picked up the revolver from where it had
fallen on the ground and got back in the SUV. Bunn placed the
revolver on the back seat near Minor and told Minor:
“You killed him.” Once the police were behind
them, Minor put the gun on the floorboard in front of Bunn.
Bunn kicked it under the seat.
Bunn denied ever seeing the revolver or shotgun before this
(Doc. 17-1 (hereinafter Opinion) at 1-11.)
Standards of Review Applicable to Habeas Corpus
application for a writ of habeas corpus by a person in
custody under a judgment of a state court can be granted only
for violations of the Constitution or laws of the United
States. 28 U.S.C. § 2254(a). A federal writ is not
available for alleged error in the interpretation or
application of state law. See Wilson v. Corcoran,
562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); Park v.
California, 202 F.3d 1146, 1149 (9th Cir. 2000).
28 U.S.C. § 2254(d) sets forth the following standards
for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the 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;
(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.
purposes of applying § 2254(d)(1), “clearly
established federal law” consists of holdings of the
United States Supreme Court at the time of the state court
decision. Greene v. Fisher, ___ U.S. ___,
___, 132 S.Ct. 38, 44 (2011); Stanley v.
Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
“Circuit court precedent may be persuasive in
determining what law is clearly established and whether a
state court applied that law unreasonably.”
Stanley, 633 F.3d at 859 (quoting Maxwell v.
Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However,
circuit precedent may not be “used to refine or sharpen
a general principle of Supreme Court jurisprudence into a
specific legal rule that th[e] [Supreme] Court has not
announced.” Marshall v. Rodgers, U.S. ___,
___, 133 S.Ct. 1446, 1450 (2013) (citing
Parker v. Marrhews, U.S. ___, ___, 132 S.Ct. 2148,
2155 (2012)). Nor may it be used to “determine whether
a particular rule of law is so widely accepted among the
Federal Circuits that it would, if presented to th[e]
[Supreme] Court, be accepted as correct. Id.
Further, where courts of appeals have diverted in their
treatment of an issue, it cannot be said that there is
“clearly established Federal law” governing that
issue. Carey v. Musladin, 549 U.S. 70, 77.
court decision is “contrary to” clearly
established federal law if it applies a rule contradicting a
holding of the Supreme Court or reaches a result different
from Supreme Court precedent on “materially
indistinguishable” facts. Price v. Vincent,
538 U.S. 634');">538 U.S. 634, 640 (2003). Under the “unreasonable
application” clause of § 2254(d)(1), 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.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003);
Williams, 529 U.S. at 413; Chia v. Cambra,
360 F.3d 997, 1002 (9th Cir. 2004). 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.” Williams, 529 U.S. at
412. See also Schriro v. Landrigan, 550 U.S. 465,
473 (2007); Lockyer, 538 U.S. at 75 (it is
“not enough that a federal habeas court, in its
independent review of the legal question, is left with a
‘firm conviction’ that the state court was
‘erroneous.’”). “A state
court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly,
“[a]s a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Richter, 562 U.S. at 103.
state court’s decision does not meet the criteria set
forth in § 2254(d), a reviewing court must conduct a de
novo review of a habeas petitioner’s claims.
Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.
2008); see also Frantz v. Hazey, 533 F.3d 724, 735
(9th Cir. 2008) (en banc) (“[I]t is now clear both that
we may not grant habeas relief simply because of §
2254(d)(1) error and that, if there is such error, we must
decide the habeas petition by considering de novo the
constitutional issues raised.”).
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley, 633
F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004). If the last reasoned state court
decision adopts or substantially incorporates the reasoning
from a previous state court decision, this court may consider
both decisions to ascertain the reasoning of the last
decision. Edwards v. Lamarque, 475 F.3d 1121, 1126
(9th Cir. 2007) (en banc). “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.” Richter, 562 U.S. at 99. This
presumption may be overcome by a showing “there is
reason to think some other explanation for the state
court’s decision is more likely.” Id. at
99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991)). Similarly, when a state court decision on a
petitioner’s claims rejects some claims but does not
expressly address a federal claim, a federal habeas court
must presume, subject to rebuttal, that the federal claim was
adjudicated on the merits. Johnson v. Williams, ___
U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).
the state court reaches a decision on the merits but provides
no reasoning to support its conclusion, a federal habeas
court independently reviews the record to determine whether
habeas corpus relief is available under § 2254(d).
Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision
is objectively unreasonable.” Himes, 336 F.3d
at 853. Where no reasoned decision is available, the habeas
petitioner still has the burden of “showing there was
no reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 98.
is clear, however, that a state court has not reached the
merits of a petitioner’s claim, the deferential
standard set forth in 28 U.S.C. § 2254(d) does not apply
and a federal habeas court must review the claim de novo.
Stanley, 633 F.3d at 860; Reynoso v.
Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph
v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Right to a Public Trial
first claim for federal habeas relief is that the trial judge
violated his right to a public trial when he refused to allow
more of petitioner’s family members and friends to
attend the trial, even though there were empty seats in the
courtroom. (Doc. No. 8 (hereinafter Pet.) at 5. Petitioner
raised this claim for the first time on direct appeal. The
California Court of Appeal explained the background to the
claim as follows:
After the selection of the three juries impaneled for this
case (one for Howard, one for Mylove-Smith and one for Bunn
and Minor), counsel for Bunn pointed out that only six seats
were left available for the public. Counsel stated there
probably would not be enough room for “even
representative family members.” Recognizing the
difficulties of having multiple juries, counsel felt that
“we ought to open up some of the additional seats that
are blocked off in here so more of the public can get
in.” He suggested the better solution was to get a
bigger courtroom or to not do the trials all at once.
The trial court noted “it's now 9:15 on the day
that we are going to start this case, and we had known all
along we were going to do this case in this courtroom.
[¶] And I appreciate that there is not enough room for
everybody who wants to be here. We have set aside about, I
think we got at least eight seats, allowing for buffers, for
members of the public who want to be here.” The trial
court found “we are not impacting anybody's
constitutional rights to the extent it's going to require
a continuance of this case, or removal of this case from this
courtroom to another courtroom.”
Counsel for codefendant Howard then expressed the interest of
the Howard family in having more than two seats for their
family representatives “so that friends and the church
bishop and others may come and show their support . . .
.” Counsel for codefendant Mylove-Smith observed that
“of the eight seats . . . available, two of them are
going to be earmarked for the victim and the victim's
family, so I believe that probably leaves six for the
[defendants'] family.” The court replied that the
victim's father and someone from victim services wanted
to be present “for today alone[.]” There would
otherwise be eight seats available, two for each defendant.
(Opinion at 11-12.)
states that a number of his friends and family members were
unable to attend the trial, or as much of the trial as they
wished to attend, because of the trial court’s ruling
limiting the available seats to two per defendant. (Pet. at
16.) He explains that several of his supporters tried to
enter the courtroom during the trial proceedings but were
turned away by the bailiff because of an ostensible lack of
available seating. (Id.) He also notes that the
trial court did not justify the need for a buffer zone of
seats, or even explain what or whom those seats were for, and
he observes that there were empty seats in the courtroom
during the course of the trial. (Doc. No. 26 (Traverse) at
6.) Petitioner argues,
The partial closure of the courtroom during the majority of
the trial proceedings violated petitioner’s right to a
public trial. There was no state interest, compelling or
otherwise, that justified keeping the entire front two rows
of the courtroom empty when petitioner’s friends and
family members were waiting to enter the courtroom.”
Pet. at 18. Petitioner points out that no federal case holds
that “a trial court may block off rows of seats in the
courtroom upon a defendant’s objection without stating
a justification for the closure, thereby preventing
interested friends and family members from attending a
criminal defendant’s trial.” (Traverse at 9-10.)
Petitioner informs that court that “more than 25
people” wanted to attend his trial. (Pet. at 5). He
also notes that “no seats were made available for the
press or general public.” (Traverse at 6.)
California Court of Appeal rejected these arguments,
reasoning as follows:
Bunn now claims on appeal that his constitutional right to a
public trial was violated by the trial court's refusal to
open up additional courtroom seats or to consider other
alternatives that would provide more space for
defendant's family, ...