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Davis v. Montgomery

United States District Court, N.D. California

July 19, 2017

DERRELL DAVIS, Petitioner,
W. L. MONTGOMERY, Respondent.


          WILLIAM H. ORRICK United States District Judge


         Petitioner Derrell Davis seeks federal habeas relief from his state convictions because (1) the trial court violated constitutional rights to due process and to present a defense when it failed to give an accomplice instruction; (2) the trial court violated his right to counsel and his right to present a defense and confront witnesses when it denied a continuance; (3) defense counsel rendered ineffective assistance; (4) the trial court violated his right to due process when it admitted opinion evidence; (5) the prosecutor committed misconduct; and (6) there was cumulative error. None of these claims has merit and, for the reasons set forth below, the petition for federal habeas relief is DENIED.


         In November 2008, Davis shot Ronnie Grier to death in a vehicle driven by Davis's cousin Jamerl Taylor. Davis's half-brother, Terrell Fisher, was also present in the car, but, unlike Taylor, was uninvolved in the plan to kill Grier.

         Evidence of Davis's guilt was provided by Taylor[1] and Fisher, who each testified about the murder:

Taylor was driving; Grier was in the front passenger seat; Davis was sitting in the back behind Grier; and Fisher got in the back behind Taylor. Taylor drove them to a convenience store, where only Fisher got out and bought alcohol.
When Fisher got back in the car, it appeared Taylor did not want him in the car; Taylor suggested taking Fisher back to [Grier's girlfriend's] house. Davis said he, Grier, and Taylor were going to pick up some girls. Fisher wanted to stay and asked what they were going to do. Davis said Fisher could come with them. Rap music was playing loudly on a boom box in the front of the car. Davis and Grier were dancing to the beat of the music. Fisher was looking out the window. Davis tapped his shoulder and showed Fisher he was holding a gun. Davis said, ‘It's loaded too.' Fisher returned to looking out the window. Fisher and Taylor heard a shot, and Fisher saw a flash. Fisher and Taylor both looked and saw Davis had the gun to Grier's head. Davis then fired a second shot. Fisher testified that, after the second shot, the gun appeared to jam. Davis moved his hand back and forth on the gun to fix the slide, and then shot a third time. Grier's head slumped forward.
Fisher and Taylor testified the gun Davis used appeared to be a .22 caliber semiautomatic. Both Fisher and Taylor had seen Davis with the gun before and had noticed that it jammed.
Taylor stopped the car on a dead-end street, kept his foot on the brake, lifted the center console, reached over Grier, and opened the passenger door. Taylor tried to push Grier's body out of the car. Taylor asked Davis for help, and Davis reached from the back seat to help push Grier's body out. Fisher also testified Taylor used a foot to push Grier out of the car. Fisher did not touch Grier. The top part of Grier's body was out of the car, and his feet were still inside. Taylor began to drive, and Grier's feet fell out, so that his body was entirely in the street. Taylor testified that, as he made a turn, the passenger door closed on its own.
Fisher testified that Taylor said to Davis, ‘Good shit.' Davis and Taylor clasped hands and ‘gave each other some skin.' Davis told Fisher, ‘I know that was your friend, but he had to go.' Taylor looked at Fisher in the rear view mirror and told Fisher, ‘[Y]ou better not say shit.' Taylor testified he told Fisher not to say anything because he was afraid Davis would do something to Fisher too. Taylor thought Fisher looked shaken and afraid. Davis said, ‘He ain't going to say nothing.'

(Ans., Ex. E at 3-4.)

         In 2011, an Alameda County Superior Court jury found Davis guilty of first degree murder and found true various sentencing enhancements. He was sentenced to 80 years to life in state prison. (Ans., Ex. E at 1 (State Appellate Opinion, People v. Davis, No. A134279, 2014 WL 1694969 (Cal.Ct.App. Apr. 30, 2014) (unpublished)).) Davis's attempts to overturn his convictions in state court were unsuccessful. This federal habeas petition followed.


         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court 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). The petition may not be granted with respect to any claim that was adjudicated 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).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

         “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. “[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.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” Id. at 409.


         I. Accomplice Instruction

         Davis alleges the trial court violated his trial rights by (A) failing to a give an accomplice instruction sua sponte and (B) approving the prosecutor's comment that Fisher was not an accomplice. (Pet., Dkt. No. 5 at 9.)

         A. Accomplice Instruction

         The relevant facts were summarized by the state appellate court:

During closing argument, defense counsel stated: ‘But when you break it down, it is as reasonable to assume that Jamerl Taylor and Terrell Fisher were the accomplices to this homicide as it is to say that Derrell Davis is. They both lied and they both lied at the same time and the same way. They admit to consulting with one another in the same way at the same time.'
In his rebuttal closing argument, the prosecutor stated: ‘[Defense counsel] stated that Terrell Fisher was an accomplice. Wrong. You will receive instructions on accomplice testimony. The accomplice instruction only applies to Jamerl Taylor. Before relying on anything Jamerl Taylor says, you must find slight corroborating evidence. [¶] If the [c]ourt . . . believed Terrell Fisher was an accomplice, you would have received an instruction saying that Terrell Fisher is an accomplice.' Defense counsel objected: ‘Objection. Misstatement of law.' The court responded: ‘What [the prosecutor] is saying is correct.' The prosecutor continued: ‘You will not receive any statements or instructions that Terrell Fisher is an accomplice. Just because [defense counsel] says he's an accomplice does not make it so.'
The court instructed the jury that, if anyone committed the murder, then Taylor was an accomplice to that crime, and his testimony required corroboration. (See CALCRIM No. 335.) The court did not give an accomplice instruction as to Fisher.

(Ans., Ex. E at 4-5.)

         Davis claims the trial court interfered with his defense, a part of which was to lay blame on Fisher.[2] He alleges that he was prevented from doing so by the trial court's refusal to give an accomplice instruction under California Penal Code section 1111.[3]

         The state appellate court rejected this claim because there wasn't sufficient evidence to support the giving of such an instruction:

As the parties note, Fisher's presence at the scene of the shooting is not sufficient to establish his status as an accomplice on an aiding and abetting theory. [Citation omitted.] A person's presence at the scene of the crime and his ‘intimate knowledge' of the crime, without more, only establish he was an eyewitness and not necessarily an accomplice. [Citation omitted.] Davis points to no testimony or physical evidence showing that Fisher committed the shooting, or that he intended to and did assist in the crime with knowledge of the perpetrator's criminal intent. [Citation omitted.]
[The state court also rejected Davis's claim that Fisher's inconsistent statements were evidence that he was an accomplice. It found that those statements were relevant to his credibility, not to his criminal liability.]
Davis also argues there was ‘strong evidence' Fisher had a motive to kill Grier, and Taylor implicated Fisher in the killing. But Davis overstates the evidence on these points. As to Fisher's alleged motive, Davis cites Fisher's testimony that Taylor told Fisher a few nights before the shooting to watch out for Grier, because Grier might be trying to set up Fisher. Fisher testified he had no idea what Taylor was talking about, and he told Taylor he had no problem with Grier. As to Taylor's alleged implication of Fisher, Taylor wrote a note to his police interviewers saying: ‘Terrell Fisher knows everything. More than me. I really don't know much. I'm serious.' Taylor brought up Fisher's name as someone the police should interview. Davis cites no evidence that Taylor accused Fisher of committing, or aiding and abetting, the shooting. The cited evidence is not sufficient to support a conclusion Fisher was an accomplice, i.e., that he could have been charged as a principal in the shooting of Grier. (See Pen. Code, § 1111.)
. . . We conclude there was ‘no evidence other than speculation that [Fisher] planned, encouraged or instigated [the murder of Grier] to give rise to accomplice liability.' [Citation omitted.]

(Ans., Ex. E at 6-8.)

         A state trial court's failure to give an instruction does not alone raise a ground cognizable in federal habeas corpus proceedings. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See Id. A habeas petitioner whose claim involves failure to give a particular instruction, as opposed to a claim that involves a misstatement of the law in an instruction, bears an “especially heavy burden.” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).

         Due process requires that “‘criminal defendants be afforded a meaningful opportunity to present a complete defense.'” Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Therefore, a criminal defendant is entitled to adequate instructions on the defense theory of the case. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence). However, a defendant is entitled to an instruction on his defense theory only “if the theory is legally ...

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