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Donald v. Sherman

United States District Court, N.D. California

April 17, 2017

NICKIE DONALD, Petitioner,
STUART SHERMAN, Warden, Respondent.


          YVONNE GONZALEZ ROGERS United States District Judge.


         Petitioner 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.

         Having 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.


         The California Court of Appeal described the relevant facts as follows:

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 and siren.
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).

         Petitioner 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.

         Petitioner 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.

         Petitioner 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.

         On 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.

         On October 26, 2015, Petitioner filed the instant petition, which alleged the same claims raised in his state petition for review. Dkts. 1, 1-1.

         On 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 adjudication.


         A 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).

         A state 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.

         Under 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).

         Even if 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)).

         On 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).

         When 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 1250446, *1-8.


         A. Instructional Error - Imperfect Self-Defense

         The 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 ...

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