United States District Court, E.D. California
PETE V. SHELTON, Petitioner,
SCOTT KERNAN, Secretary, California Department of Corrections and Rehabilitation, Respondent.
K. SINGLETON, JR. Senior United States District Judge
V. Shelton, a California state prisoner proceeding pro
se, filed a Petition for a Writ of Habeas Corpus with
this Court pursuant to 28 U.S.C. § 2254. At the time he
filed his Petition, Shelton was in the custody of the
California Department of Corrections and Rehabilitation and
incarcerated at Folsom State Prison. It appears that he has
been released on supervised parole, as a search on the
Department of Corrections and Rehabilitation's inmate
locator website (http://inmatelocator.cdcr.ca.gov/, Inmate
No. AH9967) has no record of him. Shelton has not filed a
change of address with this Court. Respondent has answered,
and Shelton has not replied.
December 17, 2010, Shelton was charged with the attempted
murder of Joseph Davidson (Count 1) and assaulting Davidson
with a deadly weapon (Count 2). As to both counts, the
information alleged that Shelton personally inflicted great
bodily injury and, with regard to the attempted murder count,
that Shelton personally used a deadly weapon-a knife-during
the commission of the offense. Shelton pled not guilty and
proceeded to a jury trial on May 9, 2011. 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:
[Shelton] and Davidson did not like each other. In 2006,
while working as a bartender at the Stockman Club, [Shelton]
kicked Davidson out of the bar and convinced the owner to
permanently ban him from returning. After being removed from
the bar, Davidson challenged [Shelton] to fight him at a park
across the street. According to Davidson, rather than follow
him across the street, [Shelton] stood in front of the bar
and “ran his mouth.” On another occasion,
Davidson and a friend went to a deli near the Stockman Club.
[Shelton] was also there. As Davidson explained:
“[Shelton] was running his mouth saying we needed to
leave. We need to leave. It's his place. It's his
town.” [Shelton] then walked outside. Davidson
followed, tapped [Shelton] on the shoulder, and slapped him
across the face as he turned around. [Shelton] walked away
On August 19, 2009, Davidson, Jason Flatt, Shaun Ross, and
Janee McCalister were drinking at another Fair Oaks bar
called the Vent. After drinking for a couple of hours, they
decided to go back to the apartment Davidson shared with
Flatt and Ross. McCalister asked to be driven to the Stockman
Club so she could pick up her bicycle. The men agreed. As
mentioned, Davidson was banned from entering the Stockman
Club. So was Ross. Flatt drove the foursome in his pickup
truck and parked in front of the bar. McCalister went inside.
Davidson, Flatt, and Ross stood next to the truck.
While Davidson and his roommates waited for McCalister to
return with her bicycle, [Shelton] walked out of the Stockman
Club. Ross greeted [Shelton] with: “[H]ello, Peaches.
How are you doing?” [Shelton] no longer worked at the
Stockman Club, but nevertheless informed Davidson and Ross
they would “need to leave his bar.” [Shelton] was
“staring them down” and had one hand at his
waistband, “posturing like he had a weapon.”
Davidson told [Shelton] they “weren't at his bar,
” explained they were waiting for McCalister, and told
him to “get back inside.” The conversation became
heated. [Shelton] repeated several times Davidson and Ross
“need[ed] to leave his bar.” Davidson repeated:
“[T]his ain't your bar, dude. We are here for a
reason and then we are leaving. So leave us alone. Go back
inside and leave us alone.” Davidson “was getting
more and more worked up.” Ross told [Shelton] he had
“an open-ended offer” to “step over in the
park and, you know, if he wanted to continue talking we'd
go do something about it.” At about this time,
McCalister came out of the bar and said she would be staying
there. Ross then told Davidson and Flatt: “He
doesn't want to fight. He doesn't want to do
anything. He just wants to run [his] mouth. Let's get out
As Davidson, Flatt, and Ross were getting into the truck to
leave, [Shelton] said: “I'll get you motherfuckers
when no one's around.” Angered by this threat,
Davidson pushed Ross out of his way and rushed [Shelton],
pinning him against a wall and punching him in the face.
Within seconds, Nazra Bertelli, the Stockman Club's
doorman, tackled both Davidson and [Shelton]. Davidson fell
on top of [Shelton]. Bertelli was on top of Davidson and had
him in a rear chokehold. While on the ground, Davidson
“felt a sudden, sharp pain in [his] side.”
Bertelli then got up and lifted Davidson off of the ground,
still holding him in the chokehold. Davidson was in a
“daze” and his eyes were “rolling back in
his head.” Seeing that his friend was in trouble, Flatt
yelled to Bertelli: “[Y]ou're killing him, man.
You're killing him. Let him go.” Before Bertelli
could do so, [Shelton] got up and lunged at Davidson.
Davidson felt another sharp pain, this time in his chest.
Bertelli then threw Davidson into the side of Flatt's
truck. Davidson staggered upright as blood began to stream
down his shirt. Lifting his shirt, Davidson said to Flatt:
“[H]e stuck me, Jay. The fucker got me.”
[Shelton] went back in the Stockman Club and locked the door
behind him. Flatt and Ross helped Davidson into the truck and
applied pressure to his stab wounds. They also restrained
Davidson, who wanted to go after [Shelton] for stabbing him.
Law enforcement officers arrived on scene a short time later.
They were unable to locate [Shelton]. Paramedics also arrived
and took Davidson to Mercy San Juan Medical Center. Davidson
had two stab wounds. The first was to Davidson's left
hip. The second was to the left side of the chest, narrowly
missing his heart. Davidson survived his injuries.
[Shelton] called McCalister the day after the stabbing.
McCalister told [Shelton] he was in “a lot of
trouble” and she was “going to try to stay out of
it.” [Shelton] asked McCalister to tell him where
Davidson and his roommates lived. McCalister answered:
“[W]hy do you want to know where they live, Pete? . . .
[Y]ou stabbed Joe. He almost died. You won.” [Shelton]
did not respond.
As mentioned, the trial court admitted into evidence
testimony concerning specific instances of violent conduct
engaged in by [Shelton] about 10 years before he stabbed
Davidson in front of the Stockman Club. We describe this
testimony in the discussion that follows. For purposes of
this opinion, we need not describe [Shelton's] evidence.
Suffice it to say [Shelton] did not dispute stabbing
Davidson. Instead, he claimed self-defense. The jury accepted
that [Shelton] honestly believed in the need to use force
against Davidson in order to defend himself, but found either
this belief was unreasonable or the amount of force used to
defend himself from Davidson's attack was unreasonable.
Accordingly, the jury found [Shelton] not guilty of attempted
murder and convicted him of attempted voluntary manslaughter
on the basis of imperfect self-defense.
People v. Shelton, No. C068708, 2013 WL 3778137, at
*1-2 (Cal.Ct.App. Jul. 18, 2013).
jury also found him guilty of assault with a deadly weapon
(Count 2). With regard to the attempted voluntary
manslaughter conviction, the jury found true the personal use
of a deadly weapon allegation, and found the great bodily
injury allegation true as to both counts.
trial court subsequently sentenced Shelton to an aggregate
term of 7 years' imprisonment (3 years for Count 1, plus
1 consecutive year for the personal use of a deadly weapon
allegation, plus 3 consecutive years for the great bodily
injury allegation). The court also imposed an imprisonment
term of 3 years for Count 2, plus 3 years for the great
bodily injury allegation, both of which were stayed pursuant
to California Penal Code § 654.
counsel, Shelton appealed his conviction, arguing that: 1)
the trial court abused its discretion by admitting testimony
evidence concerning specific instances of violent conduct
engaged in by Shelton about 10 years before the incident at
the Stockman Club; 2) if the trial court did not err in its
admission of the evidence, he was denied the effective
assistance of counsel because counsel opened the door for the
admission of evidence; and 3) the court erred in denying his
motion for a mistrial based on the erroneous admission. On
July 18, 2013, the California Court of Appeal issued a
reasoned, unpublished opinion unanimously affirming the
judgment against Shelton. Shelton, 2013 WL 3778137,
at *7. Shelton petitioned in the California Supreme Court for
review, which was denied without comment on October 9, 2013.
next filed in the California Superior Court a pro se
petition for habeas relief. In that petition, he again argued
that evidence of his prior violent conduct was wrongfully
admitted, and also argued that trial counsel was ineffective
for persuading him not to testify on his own behalf and for
failing to rehabilitate Shelton's character by
introducing the character references that were later only
presented at sentencing. The superior court denied the
petition in an unpublished, reasoned opinion issued on
February 11, 2014. Ortega raised the same claims in a pro
se habeas petition in the California Court of Appeal,
which was summarily denied on September 15, 2011. Shelton
raised the same claims in pro se habeas petitions in
the California Court of Appeal and the California Supreme
Court, which were denied without comment on March 27, 2014,
and June 25, 2014, respectively.
then timely filed a pro se Petition for a Writ of
Habeas Corpus to this Court on August 14, 2014. See
28 U.S.C. § 2244(d)(1)(A). Briefing is now complete, and
the case has been reassigned to the undersigned judge for
pro se Petition before this Court, Shelton argues
that: 1) trial counsel was ineffective for overriding
Shelton's desire to testify; 2) the prosecutor and trial
judge committed misconduct by lulling his counsel into being
ineffective; 3) the trial court erred in admitting evidence
of his past violent conduct; and 4) appellate counsel was
ineffective for failing to raise trial counsel's errors
STANDARD OF REVIEW
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
of facts that are materially indistinguishable from a
decision” of the Supreme Court, but nevertheless
arrives at a different result. Williams v. Taylor,
529 U.S. 362, 406 (2000).
Supreme Court has explained that “clearly established
Federal law” in § 2254(d)(1) “refers to the
holdings, as opposed to the dicta, of [the Supreme Court] as
of the time of the relevant state-court decision.”
Id. at 412. The holding must also be intended to be
binding upon the states; that is, the decision must be based
upon constitutional grounds, not on the supervisory power of
the Supreme Court over federal courts. Early v.
Packer, 537 U.S. 3, 10 (2002). Where holdings of the
Supreme Court regarding the issue presented on habeas review
are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal
law.'” Carey v. Musladin, 549 U.S. 70, 77
(2006) (citation omitted).
extent that the Petition raises issues of the proper
application of state law, they are beyond the purview of this
Court in a federal habeas proceeding. See Swarthout v.
Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding
that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual
federalism that the states possess primary authority for
defining and enforcing the criminal law. See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a
federal habeas court cannot reexamine a state court's
interpretation and application of state law); Walton v.
Arizona, 497 U.S. 639, 653 (1990) (presuming that the
state court knew and correctly applied state law),
overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
applying these 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) (citing Avila v. Galaza, 297 F.3d 911,
918 (9th Cir. 2002)). A summary denial is an adjudication on
the merits and entitled to deference. Harrington v.
Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the
state court's findings of fact are presumed to be correct
unless the petitioner ...