United States District Court, E.D. California
MICHAEL S. THOMAS, Petitioner,
JOHN SUTTON, Warden, Respondent.
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
is currently in the custody of the California Department of
Corrections and Rehabilitation serving a state prison
sentence of 62-years-to-life for the attempted murder of his
brother. He challenges his conviction, alleging defense
counsel was ineffective in failing to request a jury
instruction on attempted voluntary manslaughter. The Court
finds that the state court rejection of the claim was not
contrary to, or an unreasonable application of, Supreme Court
precedent and recommends the petition be
August 1, 2014, Petitioner was convicted of attempted murder
involving the personal and intentional discharge of a firearm
that proximately caused great bodily injury (Cal. Pen. Code
§§ 187(a), 664, 12022.53(d); assault with a firearm
involving the personal use of a firearm and personal
infliction of great bodily injury (Cal. Penal Code
§§ 245(a)(2), 12022.5(a), 12022.7(a)); and
possession of a firearm by a felon (Cal. Penal Code §
29800(a)(1)). People v. Thomas, 2016 WL 4506103, at
*1 (Cal.Ct.App. 2016). In addition, Petitioner was found to
have suffered two prior serious felony convictions and served
two prior prison terms under California's Three Strikes
law (Cal. Penal Code §§ 667(a)(1), (b)-(i),
1170.12(a)-(d), 667.5(a)). Id. He was sentenced to
prison for a total unstayed term of 10 years plus
appealed to the California Court of Appeals, Fifth Appellate
District (hereinafter “Fifth DCA”). Id.
On August 29, 2016, the Fifth DCA affirmed the judgment.
Id. Petitioner then petitioned for review in the
California Supreme Court, and the petition was summarily
denied on November 16, 2016. Id.
February 13, 2017, Petitioner filed the instant petition for
writ of habeas corpus in this Court. (Doc. 1.) Respondent
filed an answer on June 1, 2017. (Doc. 15.) Petitioner did
not file a traverse.
Court adopts the Statement of Facts in the Fifth DCA's
March 24, 2014, Steven Thomas (Thomas), defendant's
brother, resided in an apartment complex on Saginaw, in
Fresno. [FN2] Defendant and the brothers' mother lived in
different apartments in the complex. Defendant drove a white
Chevrolet Caprice. At trial, Thomas denied having a
disagreement with defendant, in the days leading up to March
24, about a white paint transfer on Thomas's
girlfriend's car. Thomas also denied having any
disagreement with defendant about how defendant was
disrespecting their mother, although they had had such a
discussion in the past. Thomas denied getting into an
altercation with defendant a day or so before March 24; they
merely had “an issue.”
[FN2] Unspecified references to dates in the statement of
facts are to the year 2014.
6:00 a.m. on March 24, Thomas heard a knock at his apartment
door. He did not see who it was. He went outside and saw
“a random person” and asked if he had knocked,
but the person said no, and so Thomas went back inside. He
subsequently took out his trash. Because he threw away
something he needed to retrieve, he came out twice. The first
time, he saw defendant sitting outside defendant's
apartment. The second time, Thomas did not see defendant. He
saw some men, but they were too far away for him to identify.
None called out to him, and no words were exchanged. He
turned away, then felt something hit him. At the same time,
he heard gunshots. He ran without looking back. He was struck
in the back and both legs. [FN3]
[FN3] Three expended cartridge casings were found at the
apartment complex. Two of the shell casings were stamped
“.45 auto, ” meaning they were .45-caliber
ammunition. The third casing appeared to be the same caliber.
There were no fingerprints on the casings.
made it as far as the medical center on Dakota, “a
pretty good block or two” from his apartment. There, he
sat down. People came to help him, but he “blank[ed]
out” a bit. He did not recall what he said, other than
that he had been shot and was in a lot of pain. When he was
talking, he did not lie about what had happened.
March 24, Eric Munoz was a security officer at the Sierra
Community Health Center on Dakota. Around 7:20 or 7:25 a.m.,
he came in contact with Thomas, who was near the health
center entrance. Thomas's leg was bleeding and members of
the medical staff were assisting him.
response to Munoz's questions, Thomas gave his name, said
he had been shot by his brother (whose name he also gave),
and told where it had happened. He said he and his brother
were arguing because his brother was cussing at their mother.
When the argument went nowhere, Thomas walked away. That was
when he got shot with a .38 caliber handgun. A police officer
and emergency personnel then arrived; Munoz turned the
information over to the officer, and Thomas was transported
to Fresno Community Regional Medical Center (CRMC) in Fresno.
Police Officer Garza followed Thomas to CRMC and spoke with
him about 20 to 30 minutes after arrival. Although Thomas had
an IV in his arm and was complaining about pain, his eyes
were open and he appeared to respond coherently to
Garza's questions. Thomas was alert and angry.
Garza asked what happened, Thomas said his brother Michael
shot him. [FN4] Thomas said they had been arguing over the
last couple of days. He thought defendant was disrespecting
their mother, calling her names and things, and he told him
to stop doing that. Thomas said the night before, they got
into a wrestling-type fight. Nobody threw a punch; they were
just on the floor, wrestling.
[FN4] At trial, Thomas stated that when he spoke to Garza, he
was traumatized and on medication. He assumed it was
defendant who shot him because of past arguments they had
had. Months earlier, they had argued over defendant borrowing
a little money on occasion and Thomas wanting it back. Also,
defendant had shot Thomas in the toe in 1992. Defendant did
not shoot him on March 24, however.
told Garza that he was in his apartment around 6:00 that
morning when defendant knocked on the front door. Thomas
ignored him. Between 7:00 and 7:30 a.m., Thomas walked out of
the apartment to discard the trash. As he was walking away
from the trash cans, defendant came up and said he had been
waiting up all night for Thomas. Defendant then pulled a gun
that Thomas thought was a .38- or .40-caliber, and pointed it
at Thomas. Thomas was shocked. He was not sure what to do,
but then decided to turn around and run away. As he was
running, he heard several gunshots and felt bullets striking
Police Detective Miranda and his partner, Detective
Fenstermaker, responded to the hospital around 10:00 a.m.,
after being briefed by officers on scene at the apartment
complex. Miranda spoke with Thomas, who was being treated in
the emergency room. Thomas was upset, angry, and in a lot of
pain. He was, however, very coherent.
the interview (an audio recording of which was played for the
jury), Thomas said what happened was the “same
shit” as happened 15 years earlier, with defendant
disrespecting people and their mother, and Thomas asking
defendant to “chill out” a little. Thomas said he
did not think defendant was trying “to do it, ”
but was just trying to scare him. [FN5] Thomas related that
the day before, Thomas's ...