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Menzies v. Spearman

United States District Court, E.D. California

May 2, 2018

JEFFEREY JAMES MENZIES, Petitioner,
v.
M.E. SPEARMAN, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] Petitioner challenges a judgment of conviction entered against him on August 19, 2013 in the Butte County Superior Court on charges of first degree murder (Cal. Penal Code §187(a)) with a special circumstance of lying in wait (Cal. Penal Code §190.2(a)(15)) and intentionally discharging a firearm, causing great bodily injury or death during commission of a murder (Cal. Penal Code §12022.53(d)). He seeks federal habeas relief on the following grounds: (1) the trial court erred in admitting statements he made during two ‘pretext' telephone calls into evidence; (2) the trial court erred when it allowed the prosecution to present video of petitioner shooting handguns while garbed in a collared shirt as impeachment evidence; and (3) the trial court's lying in wait special circumstance instruction violated his constitutional rights because it failed to meaningfully distinguish between commission of first degree murder with and without the special circumstance. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application for habeas corpus relief be denied.

         I. Background

         In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

In the early morning hours of September 21, 2011, David Yang drove to his job at a residential care facility. His commute took him along Highway 32, where he would turn onto Bruce Road. At about 3:21 a.m., officers found Yang dead in the driver's seat of his car, which was stopped partially in the left-hand turn lane and partially in the intersection of Highway 32 and Bruce Road. The car was still in gear, the engine was on, the turn signal was activated, and the brakes were engaged. The driver's side window was open, and the front passenger window was shattered, with glass both inside and outside the car where it was stopped and in the left-hand turn lane.
Yang had been shot in the head, with the entry point for the bullet directly over his right ear and the exit point on the left side of his skull and forehead. The bullet wound was consistent with being shot by a high-velocity rifle. Evidence indicated the shot had come from outside the car and entered through the passenger window, and that it had likely come from a raised position in the direction of the southwest corner of the intersection, where there was a raised berm.
Officers found a car parked near the intersection. In it, officers found a black rifle case containing a box of .270 Winchester-brand ammunition, some of which was missing, some expended, and some live; a .22-caliber rifle with a scope; military-issued clothing with defendant's name stitched into it; a scope cover; and a camouflage-colored magazine for a rifle. The .270 rifle was missing.
At approximately 2:30 a.m., defendant had called his friend Daniel Slack. According to Slack, defendant sounded angry and said he “needed to go shoot something.” When Slack suggested that defendant go to his family farm and shoot a can of gasoline, defendant responded that he “has an idea” and that he would get in touch with Slack later. Slack asked what he was going to do, and defendant told him to “watch the news.” Defendant called Slack about two hours later and asked Slack to pick him up at defendant's house because he needed a ride. When Slack arrived at defendant's house, defendant placed a bag in the back of the truck, and they drove toward the intersection, which was by then blocked off by police. Slack asked defendant if he had anything to do with it, and defendant responded affirmatively. Since they could not get through the intersection, they drove back to Slack's apartment. Defendant took the bag from the back of the pickup truck and threw it in the dumpster. They went to sleep, and after they woke up, defendant suggested they go for breakfast. They drove past the intersection on their way to breakfast and noticed the police were still there.
In the truck, Slack asked defendant what had happened the night before, and defendant said he “shot somebody on that corner.” Initially, Slack did not believe him, in part because of defendant's calm demeanor. After breakfast, they drove past the intersection again to see if the police were still there. They were, so Slack and defendant went back to defendant's house. During the drive, Slack asked what had happened, and defendant said he “sat up on a hill ... and ... waited for the next car to come by and ... shot the person.” On leaving defendant's house, Slack noticed the police had left the intersection, so he returned to defendant's house and drove defendant to where defendant had left his car, but the car was no longer there. Concluding the car had likely been towed, Slack drove defendant home and suggested defendant would have to talk to the police to get his car back. Slack also suggested defendant wash his hands before going to the police station, so that any gunpowder residue would be washed away. At defendant's house, defendant drew a crude map for Slack showing where he had taken the shot and where he had left the gun. Defendant told Slack he “walked through a dry creek bed, over a fence, through a field, and [the gun] was next to a tree underneath a bush.” Slack then dropped defendant at the police station, drove home, and then went to work.
Later that day, two police officers approached Slack while he was working and asked if he knew anything about defendant's activities the night before. Initially, Slack was dishonest with the officers, but when pressed Slack told officers about the telephone calls, the car rides, and defendant's statement that he had shot someone. The officers then asked Slack to participate in pretext telephone calls with defendant. (The information obtained from these calls is summarized below.)
The next day, an officer searched the dumpster at Slack's apartment complex. In it, she found “a pair of men's blue jeans, [a] pair of black socks, and a faded black dark-colored polo-type shirt.” The blue jeans had several fresh tears and bloodstains on the inside, and the shirt also had some tears or large snags and a lot of “plant matter” attached to it. A later inspection on September 23, 2011, also revealed defendant had a small laceration or puncture wound on his lower left leg, a scratch on the back of his left arm, a significant scratch on the left side of his front torso, small scratches on his back, and a puncture wound with surrounding bruising on the right side of his torso.
About a week after the shooting, based on information disclosed by defendant in a pretext call, an officer searched for the rifle used in the homicide in the Dead Horse Slough area northwest of the intersection. The officer found a rifle “right after the bend in the slough” under the branch of a tree next to a barbed wire fence on the south side of the embankment for the slough. The rifle was registered to defendant.
During another search of the area along the barbed wire fence, an officer found blue denim-like material and black cotton knit fabric caught in the barbed wire about a hundred feet west of where defendant's car had been parked. The officer also found a black glove and a part of a label from a pair of jeans lying in the dry grass; the label appeared to match the torn label on the jeans found in the dumpster. The dark fabric removed from the barbed wire was consistent with the polo shirt found in the dumpster. Defendant could not be excluded as a contributor of the DNA culled from inside the glove, and his DNA profile matched the DNA profile pulled from the blood found inside the jeans located in the dumpster and that from the dark fabric caught in the barbed wire.
A couple of days later, a trained dog was used to search the area for shell casings. After finding nothing in the creek bed, the dog moved into the field, where his handler spotted a .270 shell casing. (The same dog and handler conducted a search on September 27, but did not find anything.) The casing had been cycled through the rifle located in the area, but was not necessarily fired from that weapon.

People v. Menzies, 2015 WL 5686769, at *1-2 (Cal.App. 3 Dist., 2015) (unpublished).

         II. Standards of Review Applicable to Habeas Corpus Claims

         An 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).

         Title 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; 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.

         For 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, 132 S.Ct. 2148, 2155 (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).

         A state 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.[2] 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.

         If the 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 there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”).

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be overcome by a showing “there is reason to think some other explanation for the state court's decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289 (2013).

         Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of “showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

         A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any “reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102. The petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the state court to deny relief.'” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

         When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

         III. Petitioner's Claims

         A. Fourth ...


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