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Abiel v. Rackley

United States District Court, S.D. California

November 3, 2017

ABAN ABIEL, Petitioner,
R.J. RACKLEY, Warden, Respondent.



         Petitioner Aban Abiel (“Petitioner” or “Abiel”), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his second degree murder conviction in San Diego Superior case number SCD244879. (Pet. at 1, ECF No. 1 “Pet.”)[1] The Court has reviewed the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer, the Traverse, the lodgments, and all supporting documents submitted by both parties. For the reasons set forth below, the Court DENIES the Petition for Writ of Habeas Corpus and DECLINES to issue a certificate of appealabilty.

         Factual Background

         The Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are entitled to a statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:

Prosecution Evidence
On February 17, 2012, Abiel attended an event at “Club Kabanas” in Clairemont (the club), a location used for parties and gatherings. Also there were Faroog Maluahi, Madol Wiir, Kedid Manon and victim Marko Aluat. All of the men were friends from the Sudanese community. Aluat and Wiir were best friends. At some point, Abiel told Manon and Kuol Monythot, who was acting as a security guard, that Aluat had pushed him. Abiel was visibly upset. Manon told Abiel not to take it seriously; that Aluat was just playing around. After Manon returned to the club, he heard a fight erupt, and when he went outside he saw Abiel and Wiir fighting. Abiel was screaming and angry, exclaiming at one point, “You a bitch homie.” [Footnote 2: Manon identified Abiel's voice on a 911 call recorded at 3:34 a.m. on February 18, 2012. In that call, an unidentified man (No. 1) says, “Hey, stop. Aban, ” and tells everyone to go home. Another unidentified man says, “I'm not the one (unintelligible). He trying to do this because Marko [Aluat] get mad and whatever then he try to come (unintelligible) mother fucker (unintelligible) tonight.” The first unidentified man says, “Aban, Aban, Aban, Aban, Aban, Aban, c'mon man (unintelligible) everybody gotta leave, man (unintelligible) just leave.” He then urges Abiel to get in the car to leave because he did not want to get arrested.] Police arrived and told everyone to go home.
Manon and Maluahi left the club and drove to Maluahi's apartment. While in the car, Abiel called Maluahi and asked to speak with Manon. Abiel was cussing at Manon and told him, “I'm going to beat you if I get you.” Manon asked what he had done; he did not understand why Abiel was acting hostile toward him. When Maluahi and Manon got to Maluahi's house, Abiel was there. As Manon was getting out of the car, Abiel came running up yelling and cussing, and started to attack him. The men argued, shoving each other, with Manon trying to get Abiel off of him. Monythot and Maluahi broke up the fight, and police eventually arrived. A police officer took Manon home. Manon was crying and upset. Abiel, Maluahi, Monythot and Maluahi's girlfriend returned to Maluahi's apartment, where they looked unsuccessfully for Abiel's car keys. Because Abiel had parked on the sidewalk illegally, he decided to sleep in his car so it would not get towed. Maluahi gave Abiel a blanket and returned to his apartment to sleep.
After Manon got home, he called several people, including Aluat and Abiel, to find out why Abiel was acting in such a way. Abiel accused Manon of taking his car keys and hung up. Manon denied taking Abiel's keys, but later realized he in fact had them in his pants pocket. Manon decided to return to Maluahi's house to return a parking ticket and end his association with the men. He planned to walk there, but while he talked to Aluat on the phone, Aluat told him he wanted to go with him. [Footnote 3 omitted.]
At around 4:00 a.m. or 5:00 a.m. on February 18, 2012, Aluat called his girlfriend, Tonisha Alexander, to pick him up from Wiir's house. According to Alexander, Aluat received multiple phone calls from the time he got in her car; his phone was “constantly ringing.” Aluat was not angry, upset or drunk. After several hours, Aluat instructed Alexander to drive to Manon's house to pick up Manon, who Alexander noticed was anxious. Aluat then told her to go to Maluahi's house. When they arrived, Manon left the car first and started walking to Maluahi's house. Aluat spoke briefly with Alexander, who drove away when Aluat waved her off.
Before Manon got to Maluahi's door, he heard Aluat and Abiel yelling and rushed back to them. Abiel had a knife and was standing next to Aluat, who was on the ground. Alexander, who had returned to the scene after looking back and seeing Aluat lying in the street, was screaming, “He had a knife, he had a knife.” Manon asked Abiel if he wanted to stab him with it. Abiel punched Manon and walked toward Maluahi's apartment. Manon followed and when Abiel got close to Maluahi's door, Abiel yelled for Maluahi to come out and said, “These people, they come to jump me.” Manon told Abiel they had not come there to jump him. Abiel called 911 while he walked into the alley and threw the knife into a dumpster, then returned and punched Manon again. Abiel denied to the 911 operator having any weapons, but claimed he had been attacked in his car and that he had hit Aluat, who went down and needed an ambulance. Police arrived while Abiel was still speaking with the 911 operator. An officer handcuffed Abiel, who had a small abrasion on his thumb and a small cut on the inside of his lip. Abiel complained to the officer that his face hurt, but he declined medical assistance.
Nineke Koopman, who lived in the area, was awoken early in the morning of February 18, 2012, by loud yelling and called police. She saw four to six black individuals, mostly men, yelling back and forth. When police arrived, some of the individuals left and an officer offered one of the men a ride home. Koopman heard yelling again at about 6:45 that morning. She looked out to see the same three or four individuals yelling at each other. One of the men, who she identified at trial as Abiel, advanced and took a swing at the other, who had been backing away. The man who was trying to get away fell to the ground and never got up. A third man was watching the fight and another was off to the side on his phone. The woman did not see the falling man hit kick or shove Abiel, or physically attack him. Koopman saw Alexander drive up and jump out of her vehicle while Abiel walked back toward the apartment complex.
Aluat suffered a stab wound to his chest, and was in a coma from the time of the stabbing until his feeding tube was removed, resulting in his death. Aluat would not have died but for the stabbing, and the medical examiner ruled his death a homicide.
Defense Evidence
Abiel testified in his own defense. He claimed that while at the club, Aluat approached him and he extended his hand but that Aluat responded by punching him in the head. Abiel asked him to stop, but Aluat pushed him. Abiel then spoke to Monythot, who removed Aluat from the club. Abiel testified he left the club at about 3:00 a.m. and while he walked to his car, was approached by Wiir, Manon and Aluat. Abiel told Wiir that Aluat had punched him, and the men began pushing and punching each other. Aluat and Manon also punched Abiel, who fought back. Police eventually arrived.
While Abiel was heading home, he called Manon to ask why he was fighting with him but Manon ended the call. He then called Maluahi, who was with Manon. Abiel asked to speak with Manon, but Manon again ended the call. Abiel went to Maluahi's house, and when Manon eventually arrived there and saw him, Manon “rushed” him. Abiel grabbed Manon, who started throwing punches. Police arrived and Manon walked away, but as soon as police left, he returned and tried to engage in another fight with Abiel. Police returned and gave Manon a ride home. After police left, Abiel could not find his car keys, and tried to call Manon to beg for his keys. Manon cussed at him and ended the call. Abiel decided to sleep in his car, which was blocking the sidewalk. While he was resting, he texted his employer and went through his phone.
Abiel testified that at around 7:00 a.m., his driver's side door opened. When Abiel opened his eyes, he saw Aluat moving toward him. According to Abiel, Aluat punched him and said, “I got you now, motherfucker.” Aluat punched Abiel two or three times while Abiel tried to fight his way out of the car. Manon jumped in to punch Abiel with his left hand, and Abiel saw a knife in his right hand. Abiel grabbed Manon's right hand, hit it, and the knife fell to the ground. As soon as Abiel picked up the knife, Aluat closed in on him, punching him and grabbing him by the neck. The men were yelling and Abiel was screaming for help. When Aluat choked him, Abiel jabbed him in the back with the knife, then jumped back and slashed at Aluat when Aluat closed in on him again. Manon walked away, and Abiel called 911. He testified he did not tell the 911 operator about the knife because he panicked, the incident was still fresh, and everything happened fast.
On cross-examination, Abiel admitted that he walked to a dumpster in the alley and tossed the knife in it. He also admitted that he lied to police about using a knife and stabbing Aluat.

(Lodgment No. 7 at 2-7.)

         Procedural Background

         On June 10, 2013, the San Diego District Attorney filed a one-count amended information charging Petitioner with murder (Cal. Penal Code § 187(a)). (Lodgment No. 2 at 6-7.) In the amended information, it was also alleged that Abiel personally used a deadly or dangerous weapon during the commission of the murder (Cal. Penal Code §§ 1192.7(c)(23) & 12022(b)(1)). (Id.)

         On June 25, 2013, a jury convicted Abiel of second degree murder, and found the deadly weapon allegation to be true. (Id. at 198; see also Lodgment No. 1, vol. 9 at 1016.) On September 6, 2013, the trial court sentenced Petitioner to 16 years-to-life in prison.[2](Lodgment No. 2 at 195; see also Lodgment No. 1, vol. 10 at 1026.)

         Abiel appealed his conviction to the California Court of Appeal, arguing (1) the trial court improperly instructed the jury on the mutual combat exception to self-defense, under CALCRIM No. 3471; (2) the evidence was insufficient to support an instruction on mutual combat; (3) the instruction erroneously prevented the jury from considering self-defense and imperfect self-defense; and (4) the cumulative effect of the errors required reversal of his conviction. (See Lodgment No. 4.) On December 17, 2014, the appellate court denied Abiel's claims and affirmed the conviction. (See Lodgment No. 7.) On January 22, 2015, Abiel filed a petition for review in the California Supreme Court, raising the same four claims. (Lodgment No. 8.) The court denied the petition on March 13, 2015, without comment or citation. (Lodgment No. 9.)

         Abiel filed a petition for writ of habeas corpus with the California Court of Appeal on April 18, 2016. (Lodgment No. 10.) In it, Petitioner raised the same four claims presented in his direct appeal and added three additional, but related, claims: his conviction was unconstitutional because there was overwhelming evidence presented at trial that he acted in self-defense; he was denied his right to present a defense when the trial court failed to adequately instruct the jury on self-defense; and trial counsel was ineffective by failing to develop exculpatory evidence regarding self-defense and imperfect self-defense. (See id.) On April 9, 2016, the appellate court denied the petition in a short, reasoned opinion. (Lodgment No. 11.)

         Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court on May 17, 2016. (Lodgment No. 12.) The court denied the petition with an order which stated: “The petition for writ of habeas corpus is denied. See People v. Duvall, 9 Cal.4th 464, 474 (1995); In re Waltreus, 62 Cal. 2d 218, 225 (1965); In re Dixon, 41 Cal. 2d 756, 759 (1953); In re Swain, 34 Cal. 2d 300');">34 Cal. 2d 300, 304 (1949); In re Lindley, 29 Cal. 2d 709, 723 (1947).” (Lodgment No. 14.)

         On October 5, 2016, Abiel filed the instant federal petition for writ of habeas corpus.[3] (ECF No. 1.) Respondent filed an Answer and Memorandum of Points and Authorities on March 10, 2017. (ECF No. 19.) On April 12, 2017, Petitioner filed a Traverse. (ECF No. 22.) On August 18, 2017, the Court determined that neither a Report and Recommendation nor oral argument were necessary for disposition of this case. (ECF No. 23.)

         Scope of Review

         Abiel's Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002).

         A federal court is not called upon to decide whether it agrees with the state court's determination; rather, the Court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In order to grant relief under § 2254(d)(2), a federal court “must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

         A federal habeas court may grant relief under the “contrary to” clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable application” clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the “unreasonable application” clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “[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. 362, 411 (2000). “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)).

         Where there is no reasoned decision from the state's highest court, the Court “looks through” to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for its reasoning, ” federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent, ]” the state court decision will not be “contrary to” clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means “the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 72.


         In his Petition, Abiel raises claims related to jury instruction, sufficiency of evidence, and ineffective assistance of counsel. Because the claims are not consistently enumerated in the Petition and its attachments and some of the claims overlap and/or are repetitive, [4] the Court has grouped Petitioner's claims as follows: (1) whether the trial court improperly instructed the jury on “mutual combat” and self-defense, in violation of his right to present a defense and his due process rights; (2) whether there was insufficient evidence to support his conviction, in violation of his due process rights; and (3) whether Petitioner received ineffective assistance of trial counsel, in violation of his Sixth Amendment rights. (See generally, Pet. at 5-6, 9-13, 33-34.)

         Respondent argues that, as to claims one and two, the state court's denial was neither contrary to, nor an unreasonable application of, clearly established law. (See Mem. of P.&A. Supp. Answer at 18-28, ECF No. 19-1.) As to claim three, Respondent argues that Petitioner has failed to state a claim with sufficient legal and factual specificity. (See Id. at 28-29.)

         1. Right to Present a Defense and Jury Instructions

         Abiel argues that his right to present a defense and his right to due process were violated when the trial court erroneously instructed the jury on “mutual combat” and self-defense. Specifically, he contends there was insufficient evidence to support instructing the jury regarding “mutual combat” pursuant to CALCRIM No. 3471. Further, he claims that by erroneously instructing the jury on “mutual combat, ” the trial court prevented the jury from properly considering his self-defense theory. (See Pet. at 9, 33, 50-52, see also Traverse at 10, 18-19.)

         Abiel raised this claim in his petition for review to the California Supreme Court and it was denied without comment or citation. (See Lodgment Nos. 8 & 9.) The Court therefore looks through to the last reasoned decision to address the claim, that of the California Court of Appeal. See Ylst, 501 U.S. at 805-06. The appellate court denied the claim, stating:

A. Standard of Review
“We review de novo whether a jury instruction correctly states the law. [Citations.] Our task is to determine whether the trial court ‘“fully and fairly instructed on the applicable law.” [Citation.]' [Citation.] When instructions are claimed to be conflicting or ambiguous, ‘we inquire whether the jury was “reasonably likely” to have construed them in a manner that violates the defendant's rights.' [Citation.] We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citations.] We assume that the jurors are ‘“‘intelligent persons and capable of understanding and correlating all jury instructions . . . given.'”' [Citation.] If reasonably possible, we will interpret the instructions to support the judgment rather than to defeat it. [Citation.] Instructional error affects a defendant's substantial rights if the error was prejudicial under the applicable standard for determining harmless error.” (People v. Franco, supra, 180 Cal.App.4th at p. 720; italics omitted; see also People v. Bryant (2014) 60 Cal.4th 335, 433.)
B. Contentions
Abiel contends CALCRIM No. 3471 does not accurately reflect the law with regard to the mutual combat exception to the right of self-defense. He argues the instruction, which he maintains has two “critical flaws, ” includes language that permits a finding of mutual combat even when the prearrangement, mutual consent or agreement to fight did not precede the initiation of hostility. Abiel argues the first flaw in the instruction is its language indicating a fight is mutual combat when it is continued by express or implied mutual consent, and not merely when the mutual consent precedes the initiation of hostilities. He argues the second flaw is that the instruction states the agreement must occur “before the claim to self-defense arose.” According to Abiel, based on the evidence, the jurors could reasonably have concluded that the final confrontation between Abiel and Aluat, culminating in Aluat's stabbing, was a continuation of the fight or fights that occurred at the club and that the men's conduct evinced an implied agreement to continue the fight before Manon introduced his knife. Thus, Abiel argues, the jury would have found under the given self-defense and mutual combat instructions that the continuation of the fight preceded the moment when he reasonably feared death or great bodily injury, and ...

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