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Thomas v. Sutton

United States District Court, E.D. California

September 1, 2017

MICHAEL S. THOMAS, Petitioner,
v.
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

         Petitioner 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 DENIED.

          I.PROCEDURAL HISTORY

         On 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 52-years-to-life. Id.

         Petitioner 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.

         On 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.

         II.FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision.[1]

         As of 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.

         Around 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.

         Thomas 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.

         On 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.

         In 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.

         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.

         When 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.

         Thomas 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 his body.

         Fresno 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.

         During 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 ...


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