United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel, with an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges his 2013 conviction. In
his amended petition, petitioner raises two claims that his
conviction violates the Constitution. Respondent filed an
answer; petitioner did not file a traverse. After careful
review of the record, this court concludes that the petition
should be denied.
jury found petitioner guilty of battery with serious bodily
injury (count 1), willfully resisting, delaying or
obstructing a police officer, a misdemeanor (count 2), and
assault by means of force likely to produce great bodily
injury (count 3). In connection with counts 1 and 3, the jury
found petitioner personally inflicted great bodily injury. In
bifurcated proceedings, petitioner admitted a strike prior
(1995 robbery), a prior felony conviction, and four prior
prison terms. On July 22, 2013, petitioner was sentenced to
20 years in state prison.
Petitioner appealed the conviction to the California Court of
Appeal, Third Appellate District. The Court of Appeal
affirmed the conviction on October 24, 2014.
November 25, 2014, petitioner filed a petition for review in
the California Supreme Court. Petitioner raised two claims:
(1) the trial court abused its discretion and violated his
Fourteenth Amendment right to due process and a fair trial by
allowing him to be impeached by six prior misdemeanor
convictions and six prior felony convictions, and trial
counsel's assistance was ineffective for failing to
object; and (2) trial counsel was ineffective for failing to
present evidence through cross-examination of the victim
and/or a defense expert of the meaning and extent of the
victim's impairment. On January 14, 2015, the California
Supreme Court denied review.
Petitioner filed the instant amended petition on April 21,
2016. (ECF No. 21.)
unpublished memorandum and opinion affirming petitioner's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:
About 2:00 p.m. on February 5, 2013, at the corner of 10th
and G Streets in Marysville, defendant punched 51-year-old
Bradley Kirkegaard, rendering him unconscious. Defendant then
fled the scene. An officer saw defendant a few blocks from
the scene and ordered him to stop several times. Defendant
fled from the officer and jumped over a fence. Officers found
defendant hiding in a locked fenced yard.
The victim was transported to the hospital. He suffered a
broken nose and facial lacerations which required stitches.
At trial, the victim testified he had never seen defendant
before, did not know who he was, and did not converse with
him. The victim felt the blow without warning. The victim
admitted he had been drinking, having had four or five beers
that day, but claimed he was not drunk. His blood-alcohol
content at the hospital was 0.18 percent.
Two eyewitnesses who saw defendant punch the victim testified
at trial. John Wilhelm was a passenger in a car driven by his
spouse Jill Wilhelm. [FN2] They were stopped at a light on
10th Street preparing to turn left onto G Street. They were
behind three cars. According to the officer who responded to
the scene, the Wilhelm's location was about 120 feet from
the scene. John saw defendant “sucker punch” the
victim without “rhyme or reason.” On
cross-examination, John testified it looked like the two were
leaning on a light pole and could have been talking.
[FN2: We will use their first names to avoid confusion; no
disrespect is intended.]
Jill testified that as she was driving that day, John
exclaimed, “That guy just sucker punched that other
guy.” Jill did not see the blow but called 911 because
she saw defendant fleeing from the scene.
Wade Horton saw the punch as well. Horton was on 10th Street
waiting for the light to turn green so he could turn left
onto G Street. He was a couple of car lengths away, about 80
feet, from the scene. Horton observed defendant standing to
the right and slightly behind the victim, “bouncing
left to right, acting kind of agitated” before he hit
the victim. Horton did not see the two conversing before the
punch. Horton testified defendant “sucker
punch[ed]” the victim who was completely defenseless.
Defendant threw an “overhand right, ” hitting the
victim square in the face.
The 44-year-old defendant testified. Defendant claimed the
victim, who was drunk and smelled like alcohol, leaned or
lunged into defendant, punching him “in the
nuts.” Defendant admitted hitting the victim, claiming
he did so in self-defense.
Two character witnesses testified for defendant. Dianna
Burke-Knapp had seen defendant casually a couple of times a
year for nine years and about once a week in the previous
eight months. She opined that defendant was a “gentle
spirit and very kind” who had never been violent in her
presence. She believed he had to have been provoked in the
current incident. He had written to her to explain his
version of the incident. She had seen him provoked previously
where he did not respond with anger. Defendant's prior
convictions did not change her opinion of him.
Darren Brenegan, defendant's cousin, testified that he
had grown up with defendant. Brenegan claimed that
defendant's father was a “mean drunk” and
that defendant “need[ed] help.” Brenegan had
never seen defendant violent but was aware of his prior
convictions. Brenegan believed that defendant had to have
been provoked in the current incident. Defendant had told his
version of the incident to Brenegan when he visited defendant
in jail. Brenegan had told a defense investigator that
defendant was a different person when he used drugs and
alcohol which he used to suppress what happened to him in his
People v. Leonard, No. C074430, 2014 WL 5396205, at
*1-2 (Cal.Ct.App. Oct. 24, 2014).
Standards for a Writ of Habeas Corpus
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, 4 (2010); Estelle v. McGuire, 502 U.S.
62, 67-68 (1991).
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;
(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).
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,
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, 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).
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. Lockyer v. Andrade, 538 U.S. 63,
75 (2003); Williams v. Taylor, 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 v. Taylor, 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
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 ...