United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND
DENYING CERTIFICATE OF APPEALABILITY
GONZALEZ ROGERS United States District Judge.
Nickie Donald, a state prisoner currently incarcerated at the
California Substance Abuse Treatment Facility brings the
instant pro se habeas action under 28 U.S.C. §
2254 to challenge his 2013 conviction and sentence rendered
in the Contra Costa County Superior Court.
read and considered the papers filed in connection with this
matter and being fully informed, the Court hereby DENIES all
claims in the petition for the reasons set forth below.
California Court of Appeal described the relevant facts as
Around 10:00 p.m., on June 25, 2010, Asama Ayyad and Odey
Saeidah were driving in a white Lexus with tinted windows on
Bissell Avenue in Richmond, California. While at the
intersection of Bissell and 22nd Street, Saeidah, the
passenger, looked in the right side view mirror and noticed a
white van approach. The van pulled up on the passenger side
of the Lexus. Saeidah saw an African-American male in a white
t-shirt “hanging out of the window.” The man
suddenly started shooting into the passenger-side window with
a semi-automatic handgun. The window was rolled up when the
shooting began. The van was slowly moving forward as the
driver shot into the Lexus. As Ayyad drove away, the man in
the van kept shooting at their car.
Saeidah was shot in the thigh and the bullet passed entirely
through his leg. Ayyad had been shot in the right side of his
body. Although he was able to drive a short distance, he soon
fainted and the car crashed into a light pole. Saeidah
testified that neither he nor Ayyad was carrying a gun and
they did not do anything to provoke the shooting. Ayyad died
that evening of a gunshot to the chest.
Arei Lewis was riding in the van with defendant and four
other men at the time of the shooting. There were three rows
of seats in the van, and Lewis was riding in the rear seat.
Defendant was driving. As they approached the intersection of
23rd and Bissell, Lewis heard someone in the van say,
“Is that the same car from earlier?” The men were
referring to a Lexus coupe stopped at the light. Then,
someone asked whether there was a gun in the car. Lewis heard
the men talking, and a gun was passed up to defendant from
the middle seat. When the light changed, defendant made a
left on to Bissell to follow the Lexus. Defendant stopped at
the intersection of 22nd and Bissell beside the Lexus. A few
seconds later, defendant fired six or seven gunshots into the
Lexus. He handed the gun back to one of the other men and
drove from the scene.
Richmond Police Officer Miles Bailey was on patrol in the
area when he heard multiple gunshots. He drove in the
direction of the gunshots and within a minute after the shots
were fired he saw defendant's van travelling away from
the scene of the shooting at a high rate of speed. The
officer followed the van and activated his overhead lights
Within seconds of the shooting, Lewis heard police sirens.
She heard the men talk about getting rid of the gun and heard
one of them say, “Get the shells out of the car. Get
the shells out of the car.” One of the men rolled down
his window and threw the gun out of the car into some bushes
or trees. The men started taking money from the front seat
and putting it into Lewis's purse. They told her to act
like she was asleep.
When defendant pulled over, the police officer ordered
everyone out of the van. The officers went through
Lewis's purse and found the money that had been passed
back to her. Initially, Lewis told the police that one of the
other men, not defendant, was the shooter. When the officers
confronted her with conflicting evidence, she acknowledged
that defendant fired the gun. Lewis told them where the gun
had been thrown and pointed out the location of the shooting.
Lewis told the police that she was afraid to testify about
the incident, and she expressed concern for her family's
safety. Her purse was taken from her that night, and she
subsequently began to receive calls and text messages telling
her that she must return the money because defendant needed
it for his lawyer. The threatening text messages were
provided to the police and their content admitted at trial.
On cross-examination, Lewis acknowledged that she was smoking
marijuana in the van prior to the shooting.
Police Detective Avon Dobie testified that when he
interviewed Lewis shortly after the shooting she reported
hearing the men say “There goes that white car”
or “There goes that white coupe” and someone else
said, “We need to follow-we need to get that
car.” Officers recovered a .40-caliber semi-automatic
handgun in the shrubbery near where the van was pulled over.
Bullets removed from the Lexus and Ayyad's body were
consistent with the gun, but there were insufficient markings
to determine whether they were actually fired from that gun.
Defendant testified that prior to the shooting he had taken
two Valium pills, four Ecstasy pills, and drank “bo,
” a mixture of promethazine and codeine. He testified
that just prior to the shooting, he noticed that someone
behind him was driving close to him and had their high-beam
headlights on. He did not say anything to the others in the
car because he did not want them to think he was having a
panic attack for no reason, but he did circle around the
block. As he turned from 23rd onto Bissell, he heard someone
in the van mention a white car. When he saw the white car
pulling up alongside them on Bissell, he asked the others if
there was a gun in the car and someone passed him a gun.
Defendant admitted that he fired the gun at the white car,
“one shot after the other.” His sole testimony as
to why he fired the gun was as follows: “Q. Why did you
shoot the gun? A. Because I panicked.”[FN 2]
[FN 2:] Shortly after this answer, on direct examination,
defendant was asked whether he saw the passenger window of
the white car was “cracked, ” i.e., lowered, when
he fired the gun, and he answered, “I couldn't
really get a view because it happened too quick.” On
cross-examination, he testified that someone in the van had
yelled “the window was cracked.” He took it as
“it [the window] was going down.”
Presumably in explanation of why he “panicked, ”
defendant presented evidence that he had been shot by people
riding in white cars on three separate occasions in the prior
six months and he testified that he was anxious about seeing
white cars. Defendant's uncle testified that defendant
was shot in December 2009 by someone in a large
“beige-ish white” four-door sedan. The car passed
by their residence slowly and then returned and stopped in
front of house. There were three or four people in the car at
the time. Defendant was standing in the driveway near the
porch when he was shot. Defendant testified that as a result
of the shooting he “had a lot of sharp pain shooting
through [his] head and headaches, migraines, things like
that.” He testified that he had anxiety after being
shot. Asked what he was anxious about, he responded, “I
don't like seeing white cars and I continue to hear
multiple gunshots going off in my head.”
Defendant also testified that in May 2010 he got into a
shootout with two Miles brothers driving a white Camry. He
claimed that he had a long-standing dispute with the brothers
and they drove by his house and started shooting. He shot
back, but his gun jammed. Testimony was presented that one of
the brothers claimed that defendant began shooting at their
car first and kept shooting until his gun jammed.
Finally, defendant testified that in early June 2010, he was
again shot at by two people driving in a white, two-door
Lexus. He did not know who the men were because they were
wearing hats and he did not get a good look at them.
Defendant's cousin also testified that defendant was
afraid of white cars. He was particularly scared when he saw
white Lexus coupes. He testified that if he and defendant
were driving and they saw a white Lexus coupe, the cousin
would “try to make sure that the car would be on my
side instead of being on [defendant's] side . . . to make
him feel more protected. So I would necessarily get shot
instead of him.”
Expert psychologist Andrew Pojman testified that defendant
has post-traumatic stress disorder and that people with the
disorder often respond to visual cues associated with a past
trauma with an exaggerated fight or flight response.
People v. Donald, A139326, 2015 WL 1250446, *1-3
(Cal.Ct.App. Mar. 17, 2015).
was charged with first degree murder (Cal. Penal Code §
187; count 1), attempted murder (Cal. Penal Code §§
187/664; count 2), shooting at an occupied vehicle (Cal.
Penal Code § 246; count 3), and shooting from a motor
vehicle (Cal. Penal Code § 12034(d); count 4).
Id. at *1. The information also alleged in
connection with all counts that Petitioner personally used a
firearm (Cal. Penal Code § 12022.53) and that he
committed the offenses to benefit a street gang (Cal. Penal
Code § 186.22). Id.
was convicted on all counts as charged, and the firearm use
enhancements were found true. Id. at *3. The gang
enhancement was not found true. Id. On June 27,
2013, Petitioner was sentenced to prison for 77 years and
four months to life in prison. Id; Dkt. 1 at 1.
appealed his conviction to the California Court of Appeal. On
March 17, 2015, the California Court of Appeal affirmed the
convictions. Donald, 2015 WL 1250446, *8.
April 17, 2015, Petitioner filed a petition for review in the
California Supreme Court. Resp't Ex. D. On June 17, 2015,
the California Supreme Court denied review. Resp't Ex. E.
October 26, 2015, Petitioner filed the instant petition,
which alleged the same claims raised in his state petition
for review. Dkts. 1, 1-1.
December 4, 2015, this Court issued an Order to Show Cause.
Dkt. 6. Respondent filed an Answer. Dkt. 10. Although he was
given the opportunity to do so, Petitioner did not file a
Traverse. The matter is fully briefed and ripe for
federal court may entertain a habeas petition from a state
prisoner “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). Under the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, a district court may not grant
a petition challenging a state conviction or sentence on the
basis of a claim that was reviewed 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 first prong applies both to
questions of law and to mixed questions of law and fact,
see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09
(2000), while the second prong applies to decisions based on
factual determinations, see Miller-El v. Cockrell,
537 U.S. 322, 340 (2003).
court decision is “contrary to” Supreme Court
authority, that is, falls under the first clause of section
2254(d)(1), only 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 Supreme] Court has on a set of
materially indistinguishable facts.” Williams
(Terry), 529 U.S. at 412-13. A state court decision is
an “unreasonable application of Supreme Court
authority, falling under the second clause of section
2254(d)(1), if it correctly identifies the 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. The
federal court on habeas review 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.” Id. at 411. Rather, the
application must be “objectively unreasonable” to
support granting the writ. Id. at 409.
28 U.S.C. § 2254(d)(2), a state court decision
“based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court
proceeding.” See Miller-El, 537 U.S. at 340;
see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th
Cir. 2000). Moreover, “a determination of a factual
issue made by a State court shall be presumed to be correct,
” and the petitioner “shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
constitutional error is established, habeas relief is
warranted only if the error had a “substantial and
injurious effect or influence in determining the jury's
verdict.” Penry v. Johnson, 532 U.S. 782,
795-96 (2001) (quoting Brecht v. Abrahamson, 507
U.S. 619, 638 (1993)).
federal habeas review, AEDPA “imposes a highly
deferential standard for evaluating state-court
rulings” and “demands that state-court decisions
be given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks
omitted). In applying the above 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).
there is no reasoned opinion from the highest state court to
consider the petitioner's claims, the court looks to the
last reasoned opinion. Ylst v. Nunnemaker, 501 U.S.
797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d
1072, 1079 n.2 (9th Cir. 2000). Thus, a federal court will
“look through” the unexplained orders of the
state courts rejecting a petitioner's claims and analyze
whether the last reasoned opinion of the state court
unreasonably applied Supreme Court precedent. See
Ylst, 501 U.S. at 804-06; LaJoie v. Thompson,
217 F.3d 663, 669 n.7 (9th Cir. 2000). The last reasoned
decision in this case is the state appellate court's
unpublished disposition issued on March 17, 2015.
See Resp't Ex. C; Donald, 2015 WL
Instructional Error - Imperfect Self-Defense
state appellate court gave the following background relating
to this claim:
The jury was instructed, pursuant to CALCRIM No. 571 as
follows: “A killing that would otherwise be murder is
reduced to voluntary manslaughter if the defendant killed a
person because he acted in imperfect self-defense. [¶]
If you conclude the defendant acted in complete self-defense,
his action was lawful and you must find him not guilty of any
crime. The difference between complete self-defense and
imperfect self-defense depends on whether the defendant's
belief in the need to use deadly force was reasonable.
[¶] The defendant acted in imperfect self-defense if:
[¶] 1. The defendant actually believed that he was in
imminent danger of being killed or suffering great bodily
injury; [¶] AND [¶] 2. The defendant actually
believed that the immediate use of deadly force was necessary
to defend against the danger; [¶] BUT [¶] 3. At
least one of those beliefs was unreasonable. [¶] Belief
in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. [¶] In evaluating the
defendant's beliefs, consider all the circumstances ...