United States District Court, E.D. California
DAVID B. DAVIS, Petitioner,
MARTIN FRINK, Respondent.
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 July 24, 2014 in the Shasta County
Superior Court on charges of: (1) assault with force likely
to cause great bodily injury pursuant to Cal. Penal Code
§ 24(a)(4); (2) criminal threats pursuant to Cal. Penal
Code § 422; and (3) corporal injury pursuant to Cal.
Penal Code § 273.5(A). He seeks federal habeas relief on
the following grounds: (1) the trial court erroneously
admitted evidence of his 2004 conviction for domestic
violence; (2) the trial court denied him the right to present
a defense by excluding evidence of what motivated him to
plead guilty to a prior offense which was presented to the
jury; and (3) the cumulative effect of the first two deprived
him due process. Upon careful consideration of the record and
the applicable law, it is recommended that petitioner's
application for habeas corpus relief be denied.
unpublished memorandum and opinion affirming petitioner's
judgment of conviction on appeal, the California Court of
Appeal for the Third District Appellate District provided the
following factual summary:
On the afternoon of January 3, 2014, Shasta County Deputy
Sheriff Meghan Bliss arrived at the home of Carl Norquist, a
neighbor of victim Lisa Campbell. Campbell was there and was
visibly upset, crying, and her face was red and bloody. When
asked about her injuries, Campbell told Bliss that in the
morning defendant had “either punched or kicked her in
the face while they were laying in bed arguing.”
Immediately following the incident, Campbell ran to
Norquist's home for help. Norquist saw Campbell
“was beat up, ” “[s]he had marks on her
face, ” “[s]he had a bloody lip, ” and was
“rattled” because “she was crying.”
Campbell told Norquist defendant had “slugged”
her in the face and asked him to call 911. While on the
phone, Norquist saw defendant leave in his truck.
Campbell told Bliss defendant had also placed both of his
hands around her neck and threatened to kill her the night
before (January 2). Bliss examined and photographed
Campbell's neck, finding no visible injuries there, but
did see a bruise directly under Campbell's left eye and
injuries on her lips. Defendant was charged with three counts
based on this conduct, count 1 for the January 3 injuries to
Campbell and counts 2 and 3 for the January 2 threat and
At trial, Bliss and Norquist testified as outlined above.
Campbell testified and essentially recanted, denying she and
defendant had argued on January 2 or 3, 2014, and denying
that he injured her intentionally, instead claiming that he
was “thrashing around” and accidently hit her.
She claimed throughout her testimony that she did not
remember or did not understand. She admitted to lying for
defendant to protect him. She identified letters she wrote to
him while he was in jail, professing her love for him. She
claimed his prior convictions related to their relationship
were also based on accidental conduct, as we describe in more
detail post. She did confirm that she had started dating
defendant in 2007 and during the last two years they had
lived together intermittently; she was living with him at the
time of the January 2014 incidents.
District Attorney's Investigator Mike Wallace testified
as an expert that domestic violence victims will often recant
or refuse to cooperate with the criminal justice system. Even
if initially cooperative, victims can become hostile as the
case progresses and when testifying in court tend to give
different versions of events from those in the original
police report. Wallace explained strangulation is a form of
domination used to instill fear in a victim, and that it is
possible to strangle someone without leaving a visible
Defendant testified that on January 3, 2014, he was not at
Campbell's house. He also denied being at Campbell's
on January 2. Defendant claimed Campbell fabricated stories.
He did, however, characterize his relationship with her as
violent, as we describe in more detail immediately post.
Prior Domestic Violence Convictions
The trial court admitted evidence of three prior domestic
violence incidents pursuant to Evidence Code section 1109,
all of which resulted in criminal convictions. Two were for
assaultive conduct against Campbell, and had occurred in 2009
and 2010 with resulting convictions in 2009 and 2011.
Defendant does not challenge the admission of these two prior
incidents on appeal.
The third incident occurred in 2003 and resulted in a 2004
conviction for criminal threats against defendant's
then-wife. The witness was unavailable, and the specifics of
the threat-which the jury never heard-were that defendant
gave his wife a black eye and threatened to kill her, telling
her would cut off her head and drink her blood. The trial
court took judicial notice of the incident, sanitized as
follows: “On March 8th, 2004, in Shasta County Court
case No. 03F9579, the defendant pled guilty and was convicted
of Penal Code section 422, which is criminal threats, a
domestic violence conviction, for an offense occurring on
November 29, 2003.” This was read to the jury in the
form of a stipulation. In addition, the parties stipulated
that the 2004 conviction involved a woman other than
Campbell, and the court informed the jury that an officer
“would testify that he responded to a domestic violence
call on November 29, 2003, and contacted victim Cynthia
At trial, Campbell characterized the 2009 and 2010 incidents
as accidents and claimed to remember very little about both
incidents when asked for details.
When asked about the three priors, defendant testified that
the 2009 and 2010 incidents were accidents, and that he did
not intentionally “stomp on” Campbell in 2009,
nor did he intentionally gouge her eyes or stab her with a
screwdriver in 2010. When asked about the 2003 threat, he
admitted he threatened to kill the victim.
People v. Davis, 2016 WL 347842, at *1-2 (Cal.App. 3
Dist., 2016) (unpublished).
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,
565 U.S. 34 (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, 567 U.S. 37, 49 (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, 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 ...