United States District Court, E.D. California
DAWAN D. ROWEMANNS, SR., Petitioner,
WARDEN J. KATAVICH, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. He challenges a judgment of conviction entered
against him on March 17, 2005 in the Sacramento County Superior
Court on charges of battery with serious bodily injury (Cal.
Pen. Code § 243(d)) and battery (Cal. Pen. Code §
242). He seeks federal habeas relief on the following
grounds: (1) juror misconduct which the trial court failed to
address warrants reversal of his conviction; (2) the trial
court did not give the jury proper instructions on
superseding cause; (3) his trial counsel was ineffective in
failing to request either an instruction on superseding cause
or an evidentiary hearing on juror misconduct; and (4) the
trial judge failed to perform his “ministerial”
duties. Upon careful consideration of the record
and the applicable law, it is recommended that
petitioner's application for habeas corpus relief be
unpublished memorandum and opinion affirming petitioner's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:
A jury found defendant Dawan Donte Rowe-Manns guilty of
battery with serious bodily injury (Pen.Code, 1 § 243,
subd. (d)) on Brandi Marshall (Brandi) and battery (§
242) on her boyfriend, Zackary Doyle (Zack). In a court
trial, the court found defendant had a prior strike
conviction and sentenced him to 13 years in state prison.
Defendant contends reversal of his conviction is required
because of: (1) juror misconduct; (2) error in instructing
the jury on causation; and (3) the cumulative prejudicial
effect of the foregoing errors. We conclude defendant's
failure to pursue his claim of juror misconduct in the trial
court forfeits that issue for appeal. We also conclude that
there was neither instructional error as asserted by
defendant nor was there prejudice due to cumulative error.
FACTUAL AND PROCEDURAL BACKGROUND
During the afternoon of March 5, 2004, Brandi, her
ten-year-old sister Megan, Zack, and Steven Caldwell arrived
on bicycles outside the gate to the apartment complex where
Brandi lived. Defendant and his wife also lived in the
complex and were sitting in a car parked outside the gate.
Brandi and Zack were acquainted with defendant and his wife.
Brandi's friend Tara was parked nearby in her car.
Brandi testified that as she walked over to speak with Tara,
defendant approached her and Zack, yelling at Zack that he
had been in defendant's apartment. Brandi screamed for
help, opened the gate to the complex, and then ran back to
aid Zack. Defendant struck Brandi on the right side of her
face, beneath her right eye, causing Brandi to fall and hit
her head on the cement, rendering her unconscious. As Brandi
regained consciousness, she saw that her neighbor, Katherine
Tucker, was holding a young girl who was trying to break away
from her. Brandi described the girl as a short, skinny
teenager with pigtails. Brandi, Megan, and Zack got into
Tara's car and Tara drove them to Zack's residence
where they called 911.
Megan, 11 years old at the time of trial, testified that
defendant struck Zack only once, but “another
guy” also hit Zack. Defendant then struck Brandi once
in the face below her eye, causing Brandi to fall and strike
her head on the cement curb. While Brandi was on the ground a
young girl was trying to hit Brandi and was pulling her hair.
Brandi was treated at a hospital for facial bone fractures
and the loss of a tooth from her partial plate.
Katherine Tucker, who also lived in the complex, testified
that upon returning to the complex she saw a small girl on
top of Brandi, repeatedly hitting Brandi in the face. Tucker
was able to pull the girl off Brandi.
Deputy Sheriff Christopher Bittle responded to the 911 call
and drove to Zack's home where he interviewed Brandi.
Brandi gave no names, but said she was attacked by a black
male and black female who were in a car. The black male got
out from the passenger side and began yelling at Zack and
then hit Zack in the face. When Brandi tried to intervene,
the black female got out of the car and was yelling at her.
The black male then struck Brandi, causing her to black out,
but she did not know for how long. Brandi also said that a
second black male and a black female came out from the
complex, and the black male started hitting Zack. Two black
females also hit Brandi in the face.
Caldwell, who did not know defendant or his wife, testified
that after defendant hit Zack, Brandi pushed defendant. The
black female then got out of the driver's side of the car
and she and Brandi pulled each other's hair. The black
male struck Brandi and she fell to the ground crying and
looking for her tooth.
People v. Rowe-Manns, No. C072576, 2014 WL 7334314,
at *1-2 (Cal.Ct.App. Dec. 23, 2014), review denied (Feb. 25,
Standards of Review Applicable to 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, 5 (2010); Estelle v. McGuire, 502 U.S.
62, 67-68 (1991); Park v. California, 202 F.3d 1146,
1149 (9th Cir. 2000).
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.
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,
___ U.S.___, 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');">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, 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, 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 103.
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 there is such error, we must
decide the habeas petition by considering de novo the
constitutional issues raised.”).
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley, 633
F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004). If the last reasoned state court
decision adopts or substantially incorporates the reasoning
from a previous state court decision, this court may consider
both decisions to ascertain the reasoning of the last
decision. Edwards v. Lamarque, 475 F.3d 1121, 1126
(9th Cir. 2007) (en banc). “When a federal claim has
been presented to a state court and the state court has
denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the
contrary.” Richter, 562 U.S. at 99. This
presumption may be overcome by a showing “there is
reason to think some other explanation for the state
court's decision is more likely.” Id. at
785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991)). Similarly, when a state court decision on a
petitioner's claims rejects some claims but does not
expressly address a federal claim, a federal habeas court
must presume, subject to rebuttal, that the federal claim was
adjudicated on the merits. Johnson v. Williams, ____
U.S.___, ___, 133 S.Ct. 1088, 1091 (2013).
the state court reaches a decision on the merits but provides
no reasoning to support its conclusion, a federal habeas
court independently reviews the record to determine whether
habeas corpus relief is available under § 2254(d).
Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision
is objectively unreasonable.” Himes, 336 F.3d
at 853. Where no reasoned decision is available, the habeas
petitioner still has the burden of “showing there was
no reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 98.
summary denial is presumed to be a denial on the merits of
the petitioner's claims. Stancle v. Clay, 692
F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal
court cannot analyze just what the state court did when it
issued a summary denial, the federal court must review the
state court record to determine whether there was any
“reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 98. This court
“must determine what arguments or theories ... could
have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the Supreme]
Court.” Id. at 102. The petitioner bears
“the burden to demonstrate that ‘there was no
reasonable basis for the state court to deny
relief.'” Walker v. Martel, 709 F.3d 925,
939 (9th Cir. 2013) (quoting Richter, 562 U.S. at
is clear, however, that a state court has not reached the
merits of a petitioner's claim, the deferential standard
set forth in 28 U.S.C. § 2254(d) does not apply and a
federal habeas court must review the claim de novo.
Stanley, 633 F.3d at 860; Reynoso v.
Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph
v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).