Ivy v. Muniz

          FINDINGS AND RECOMMENDATIONS

          Edmund F. Brennan, United States Magistrate Judge

         Petitioner is a state prisoner proceeding without 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 April 30, 2012, in the San Joaquin County Superior Court on charges of three counts of premeditated attempted murder, one count of shooting at an occupied vehicle, three counts of assault with a semi-automatic firearm, and one count of causing corporal injury to a child, with several firearm and great bodily injury enhancement allegations found to be true. He seeks federal habeas relief on the following grounds: (1) the evidence introduced at his trial was insufficient to support his conviction on two of the counts against him; (2) his trial counsel rendered ineffective assistance; and (3) the trial judge violated his federal constitutional rights in responding to a question from the jury. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, the application for habeas corpus relief must be denied.

         I. Background

         In its unpublished memorandum and opinion affirming petitioner’s judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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:

Defendant DeVaughn Lee Ivy fired multiple rounds from a semiautomatic SKS rifle at rival gang member Antoneyo Robinson, who was standing in front of a liquor store in Stockton. Robinson's girlfriend, Bretina Moore, was standing next to her car across the street when defendant opened fire. Their infant son, Jayshawn, was seated in a car seat in the back of the vehicle. Robinson ran for the car. Moore, now in the driver's seat, waited for Robinson to get inside and then drove away at a high rate of speed. Defendant got into a car driven by another man and followed, firing at least 11 additional rounds into the back of Moore's car before abandoning the pursuit. A bullet fragment struck Jayshawn in the back of the head and lodged beneath the skin. Fortunately, the fragment had slowed considerably due to its impact with the car and did not cause a fatal injury.

Convicted by jury of three counts of premeditated attempted murder (Counts 1-3), one count of shooting at an occupied vehicle (Count 4), three counts of assault with a semi-automatic firearm (Counts 5- 7), and one count of causing corporal injury to a child (Count 8), with various firearm and great bodily injury enhancement allegations found to be true, defendant was sentenced to serve an indeterminate term of 25 years to life, plus three consecutive life terms, plus a consecutive determinate term of 13 years 4 months in state prison. On appeal, defendant contends: (1) the evidence is insufficient to support his convictions for the attempted murders of Moore and Jayshawn (Counts 2 and 3); (2) defendant's trial counsel rendered constitutionally deficient assistance by (a) failing to object to certain statements made by the prosecutor during closing argument concerning the concurrent intent (i.e., kill zone) theory of attempted murder, and (b) stating during the defense closing argument the SKS rifle was “an attempted murder weapon” and a kill zone was created within Moore's car during the shooting; and (3) the trial court prejudicially erred and violated his constitutional rights by telling the jury, in response to a question concerning the premeditation allegation attached to Counts 2 and 3 (i.e., “can you use that same kill zone scenario for premeditation?”), “yes, the jury can use the theory and logic of the kill zone in determining whether or not it was willful, deliberate, premeditated.” We affirm. As we explain, the evidence was more than sufficient to support defendant's attempted murder convictions in Counts 2 and 3. Defense counsel's performance during his and the prosecutor's closing arguments did not fall below an objective standard of reasonableness. And the trial court's response to the jury's question did not misstate the law or violate defendant's constitutional rights.

FACTS

Defendant and Robinson were members of rival street gangs. Defendant was a member of the Taliban Crips. Robinson was a member of the Sutter Street Crips. These rival gangs fought over who could sell drugs in certain areas of Stockton. Robinson and Michael McKinney, one of the leaders of the Sutter Street Crips, routinely sold drugs near the Cal Park liquor store, at the intersection of California Street and Park Street. At one time, defendant, Robinson, and McKinney were friends.

On January 26, 2011, around 7:00 p.m., defendant left his house on the north side of Stockton in a Honda Accord belonging to one of his roommates, Alicia Colwart. He brought with him a semiautomatic SKS rifle he kept in his room. Defendant had previously told another roommate, Michael Patrick, that he “had problems” with McKinney and needed the rifle “for protection.” About an hour later, Robinson called Moore on her cell phone and told her to meet him at Cal Park. Moore, who was at her mother's house with Jayshawn about a mile away, placed the child in a car seat in the back of her Chevy Caprice and drove to the liquor store. She parked across Park Street. Robinson was in the store's parking lot with a group of people. As Moore described, “everybody was just out there talking.” One of Moore's friends, who was also in the parking lot, walked over to Moore's car and agreed to watch Jayshawn while Moore went into the store to buy a bottle of water. Robinson walked over to Moore as she crossed the street. They entered the store together, but Robinson returned to the parking lot while Moore spoke briefly with the store owner, paid for the water, and then walked back to the Caprice.

When Moore reached the driver's side door, defendant opened fire on the parking lot with the SKS rifle. He was standing outside Colwart's car on the corner of Park Street and American Street, one block east of the liquor store. From this position, defendant fired “five to seven” rounds. His intended target was Robinson, who ran to Moore's car after the shooting stopped and got in the front passenger seat. Moore, now in the driver's seat, drove away as Jayshawn cried in his car seat.

Defendant got into the passenger side of the Accord, which was being driven by another man, and followed in pursuit. They caught up with the Caprice several blocks down Park Street. “Hanging out the passenger side window, ” defendant fired at least 11 rounds into the back of Moore's car. Bullets struck the trunk and rear window, shattering the glass. One of the bullets fragmented upon impact with the car and struck Jayshawn in the back of the head, lodging in the muscle beneath the skin. As Moore described the chaotic scene inside the car: “First I heard like dinging, dinging, that is when I turned around and seen the lights. [Robinson] told me to go and more bullets kept coming, my back window shattered down. A bullet came through the vehicle, went - one went through my radio. As I had my foot all the way on the pedal, [Robinson] reached over and grabbed the steering wheel. I hit a garbage can at the time that he reached over and grabbed the steering wheel, a bullet came through the back and straight through the front window. We kept going, and once we hit the garbage can, the vehicle behind us turned off.” Moore continued down Park Street, got onto Interstate Highway 5, and drove to their house.

When they reached the house, Moore inspected Jayshawn and discovered he had been hit by one of the bullets. She called 911. Robinson “yelled that they had shot his baby in the head” and “walked out” of the house. Police and emergency medical personnel arrived a short time later. Jayshawn was transported to San Joaquin General Hospital and then transferred to Children's Hospital in Oakland. The chief of surgery explained that, had the fragment not slowed considerably due to the bullet's impact with the car, it would have penetrated “through the spinal cord and through the brain which would have been almost certainly a fatal injury.” The decision was made to clean and dress the wound and allow the fragment to “work itself out on its own.” A few days later, defendant was again seen in the passenger seat of the same car near the Cal Park liquor store. This time, McKinney was standing next to the store. As the car drove south down California Street in front of the store, defendant pointed a gun at McKinney, who ran behind a woman. The car then drove away without shots being fired.

Defendant was arrested on February 9, 2011. His house was searched the same day. The SKS rifle was recovered from the living room. The rifle's magazine contained 26 unfired TulAmmo 7.62 by 39 millimeter rounds. A single unfired round was in the chamber. Another round was sitting on the coffee table. Three shell casings were found elsewhere in the house. Shell casings of the same brand and caliber recovered from the scene of the shooting were determined to have been fired by defendant's rifle.

In addition to the forensic evidence, the prosecution presented eyewitness testimony from Delbert Rivers. About an hour before the shooting, Rivers robbed a gas station four blocks from Cal Park. He then ran to his house a short distance away, got onto his bicycle, and made his way to a house diagonally across the intersection from the liquor store. Rivers described the shooting recounted above and identified defendant as the shooter. Rivers was arrested for a string of robberies about a week after defendant was arrested for the shooting. Several months later, Rivers and defendant were in the same elevator at the San Joaquin County courthouse. Defendant said, “what's going on” to Rivers, who told defendant not to speak to him and added: “[Y]ou shot that baby and I don't play that kind of stuff, I don't, you know, go like that. You don't shoot kids.” Defendant responded that “he was trying to shoot [Robinson] and not the child.”

People v. Ivy, No. C071077, 2014 WL 1327709, at *1-3 (Cal.Ct.App. Apr. 3, 2014).

         II. Standards of Review Applicable to Habeas Corpus Claims

         An 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. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Title 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; 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.

         For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, __U.S.__, 132 S.Ct. 38 (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, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148');">132 S.Ct. 2148, 2155 (2012) (per curiam)). 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 diverged 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 (2006).

         A state 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.^[1] 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). In this regard, 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.

         If the 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.”).

         The 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 785 (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).

         Where 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.

         A summary denial is presumed to be a denial on the merits of the petitioner’s claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any “reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories ... 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 Supreme] Court.” Id. at 102. The petitioner bears ...