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Nomesiri v. Seibel

United States District Court, E.D. California

June 6, 2017

CHINDA NOMESIRI, Petitioner,
v.
KIMBERLY A. SEIBEL, Warden, Deuel Vocational Institution, [1] Respondent.

          MEMORANDUM DECISION

          JAMES K. SINGLETON, JR. Senior United States District Judge.

         Chinda Nomesiri, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Nomesiri is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Deuel Vocational Institution. Respondent has answered, and Nomesiri has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On August 26, 2013, Nomesiri was charged with discharge of a firearm in a grossly negligent manner (Count 1); felon in possession of a firearm (Count 2); and assault with a deadly weapon (Count 3). As to Count 3, the information alleged that Nomesiri personally inflicted great bodily injury and had suffered a prior serious felony conviction. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying this case and the evidence presented at trial:

[Nomesiri's] family grew marijuana in their backyard, and there were alarms in place to alert the family of attempted raids. On September 18 or 19, 2011, [Nomesiri], a convicted felon, fired a .22-caliber Iver Johnson carbine rifle into the air to scare off potential raiders (counts one and two, grossly negligent discharge and firearm possession by a convicted felon).
On the night of September 22, 2011, victim Cheng was among those attempting another raid, and [Nomesiri's] mother shot Cheng in the neck.FN1 [Nomesiri] then bashed Cheng repeatedly in the head with a shovel as he lay on the ground (count three, assault with a deadly weapon with personal infliction of great bodily injury).
FN1. [Nomesiri's] mother, originally a codefendant charged with involuntary manslaughter (Pen. Code, § 192, subd. (b)), died before trial, on November 24, 2012.
When two officers arrived and examined Cheng, they each detected a pulse, and one heard Cheng gasping for breath. Cheng was dead when a paramedic arrived and examined him minutes later.
The People's witness, pathologist Dr. Stephany Fiore, testified the bullet wound to the neck was fatal. Death was caused by the bullet wound, not by the blows from the shovel, which caused a skull fracture, lacerations, and facial bruising that indicated Cheng was still alive when struck by the shovel. Cheng could have spoken after the gunshot, and could have lived for several minutes; a pulse detected by first responders would signal he was still alive.
Pathologist Dr. Judy Melinek, called to testify by the defense, agreed the gunshot wound to the neck caused death, but opined the resulting loss of blood to the brain would cause death within seconds. She thought “it would be unlikely to damn near impossible” for Cheng to have made noises or talked after he was shot. On cross-examination, she conceded it was possible that his heart may have continued to beat for several minutes, but believed he was dead when first struck by the shovel. In her view, under California law, the heart can still be beating, but a person can be brain dead. The bleeding did not indicate that Cheng was alive after he was shot. She conceded “brain death” was a term used in a hospital setting, not in the field.
In a pretrial interrogation, partly admitted into evidence (see Part II of the Discussion, post) [Nomesiri] stated an alarm sounded just after 2 a.m., but he did not see anybody in the yard and went back to bed.FN2 About an hour or so later, he heard something and then saw two men in the yard, one cutting at a plant with a machete or large knife, and another trying to jump the fence. [Nomesiri] screamed or yelled, and his mother fired the gun. [Nomesiri] heard one man (Cheng) on the ground speaking Hmong, telling his companion that he had been shot, and [Nomesiri] then struck the man on the ground repeatedly with a shovel. He hit Cheng around 10 to 20 times on his head, body, back, and legs.
FN2. The parties on appeal cite to the transcript used as an aid by the jury. We do the same.

People v. Nomesiri, No. C075767, 2015 WL 1577431, at *1-2 (Cal.Ct.App. Apr. 9, 2015).

         Prior to trial, the court granted the prosecutor's motion to strike the prior serious felony conviction allegation. On December 5, 2013, the jury found Nomesiri guilty as charged. The trial court subsequently denied probation and sentenced Nomesiri to an imprisonment term of 6 years and 9 months, calculated as follows: 3 years on Count 3 plus 3 years for the great bodily injury enhancement, plus 8 months on Count 2. The court stayed the term on Count 1.

         Through counsel, Nomesiri appealed his conviction, arguing that: 1) insufficient evidence was presented to sustain his assault with a deadly weapon conviction; 2) the trial court erred by failing to sua sponte instruct the jury on the legal definition of life; 3) trial counsel was ineffective for failing to request a pinpoint instruction giving the legal definition of life; 4) the prosecutor committed misconduct by misstating the law and misleading the jury as to the legal definition of life, and trial counsel was ineffective for failing to object; 5) the trial court's admission of his pre-trial statements to law enforcement violated his Miranda[2] rights, and trial counsel was ineffective for failing to move to suppress the statements; and 6) the trial court abused its discretion by ordering Nomesiri to pay victim restitution in the amount of $40, 000. On April 9, 2015, the California Court of Appeal issued a reasoned, unpublished opinion vacating the restitution order but otherwise unanimously affirming the judgment against Nomesiri. Nomesiri, 2015 WL 1577431, at *11. Nomesiri petitioned in the California Supreme Court for review of his unsuccessful claims, which was denied without comment on June 17, 2015.

         Nomesiri then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on August 4, 2015. See 28 U.S.C. § 2244(d)(1)(A). Briefing is now complete, and the case has been reassigned to the undersigned judge for adjudication.

         II. GROUNDS/CLAIMS

         In his pro se Petition before this Court, Nomesiri argues that: 1) there was insufficient evidence to support his assault with a deadly weapon conviction; 2) the trial court erred in failing to sua sponte instruct the jury on the legal definition of life; 3) the prosecutor committed misconduct when she misstated the law and misled the jury as to the legal definition of life; 4) the admission of his pre-trial statements to law enforcement violated Miranda; and 5) trial counsel was ineffective for failing to request a pinpoint instruction on the legal definition of life.

         III. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set ...


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