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Vilkin v. Neuschmid

United States District Court, S.D. California

September 12, 2019

ROBERT NEUSCHMID, Warden, et al., Respondents.



         Petitioner Michael Vilkin, a state prisoner represented by counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for first degree murder. (Doc. no. 1 ("Petition").) The Petition was referred to United States Magistrate Judge Andrew G. Schopler for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). After Petitioner supplemented his Petition, Respondent filed a response, and Petitioner filed a traverse. The Magistrate Judge issued a report and recommendation (doc. no. 10 ("Report and Recommendation" or "R&R"), recommending to deny the Petition. Petitioner objected. (Doc. no. 10 ("Objections").) Respondent did not respond to the Objections. For the reasons which follow, the Report and Recommendation is adopted, Petitioner's Objections are overruled, and the Petition is denied. Certificate of appealability is denied.

         In reviewing a Magistrate Judge's Report and Recommendation, the District Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Petitioner objected to the Report and Recommendation in its entirety.

         I. BACKGROUND

         Petitioner shot his neighbor John Upton. When Upton's girlfriend Evelyn Zeller approached Upton's body shortly thereafter, Petitioner pointed his gun at her and told her to move away. Petitioner was convicted of first-degree murder and assault with a firearm. The jury also found that Petitioner personally discharged a firearm when he shot Upton, and personally used a firearm to assault Zeller. In total, he was sentenced to a term of 64 years to life.[1]

         A. Summary of Relevant Evidence

         At trial, the jury heard nearly six days of testimony, including Petitioner's. In 2008 Petitioner purchased an undeveloped lot in Encinitas, which he planned to develop and sell. To that end, he spent several hours almost every day cutting down brush and trees. In 2011, Petitioner's neighbor John Bonanno rented his house to Upton and Zeller. Upton disapproved of vegetation clearing on Petitioner's property. Although the interactions between Upton and Petitioner were initially cordial, the relationship gradually became hostile.

         According to Petitioner, the turning point was in spring of 2012, when he was clearing brush on his property close to Upton's house. Upton became angry. Petitioner felt verbally assaulted because Upton was a "big man" with a "big voice" and his body language was threatening. (RT at 960-61; see also Id. at 968.) Upton said he needed privacy and told Petitioner not to approach his house. (Id. at 970-71.) In response to this exchange, Petitioner decided not to cut brush in that area, but elsewhere on his property.

         Nevertheless, Upton would approach Petitioner approximately once a week to protest his brush clearing in a hostile manner. Although Upton did not make any verbal threats of bodily harm, Petitioner perceived his body language and tone of voice as threatening. Upton cursed at Petitioner and sometimes called him names using foul language. Petitioner testified he was concerned that Upton might "snap." (Id. at 967.) He called the sheriff's department to complain that Upton did not let him clear brush or even walk on his own property.

         Bonanno witnessed an exchange between Petitioner and Upton in the summer or fall of 2012. He testified Petitioner's activity was making Upton "nuts." Upton's demeanor at the time was "elevated," and his voice was loud. (RT at 642, 644.) Petitioner was visibly angry with Upton, repeatedly clinching his fist while holding a shovel in the other hand as he moved closer to Bonanno and Upton during the exchange.

         Petitioner testified about another confrontation. He was smoothing the road on his property after dark in October 2012, when Upton approached him to approximately 30 feet. Petitioner saw a "short black pistol" in Upton's left hand by his side. (RT at 988.) When Petitioner told Upton that he would not continue working on the road, Upton left. (Id.) After seeing the gun, Petitioner felt that "something serious is going on," however, he did not call law enforcement because he believed that Upton had a right to carry a gun on his "rented property" and because Upton did not point the gun at Petitioner or make a "specific threat." (Id. at 989.) Petitioner recalled a prior conversation with the sheriff's department: "I remember that unless there is a specific threat, the sheriff department will not do anything." (Id.)

         Petitioner purchased a gun. On October 31, 2012, he again called the sheriff's department and spoke to Deputy Sheriff Scott Hill. He asked if there were any laws that prevented him from carrying a gun on his own property, and explained he was having a property dispute with his neighbor. Petitioner told Deputy Hill that he had purchased a gun because he felt threatened by Upton. According to Deputy Hill, as Petitioner described his interactions with Upton, they did not explain Petitioner's concern for his safety or his firearm purchase.

         Petitioner had researched firearms on the internet. In August 2012, he legally purchased a .22 caliber revolver because he was concerned about Upton's behavior. In October 2012, he legally purchased a .44 magnum after he determined that the .22 caliber revolver "would not stop a big guy like John Upton." (RT at 991-92.) Petitioner thought, "he could come to me in the evening and who knows what he would do to me." (Id. at 992.) He "was afraid that one day it would be a deadly confrontation." (Id.)

         Deputy Hill told Petitioner he could not give him legal advice. He suggested Petitioner contact an attorney and told him it was a bad idea to carry a weapon when one is expecting an argument. A week later, Petitioner ran into sheriff's deputies in the street and approached them with the same inquiry because "a week before - [he] did not get what [he] wanted." (RT at 981.) One of the deputies was Deputy Hill, who gave Petitioner the same information again.

         Petitioner took his gun with him "all the time" when he was on his property because he was concerned about his safety. (RT at 998-99.) He kept it loaded in its case together with ammunition and a video camera. (Id. at 998-1000.) He explained he carried the camera "in case Mr. Upton does something, I would record it." (Id. at 1000.)

         On one occasion in November 2012, Petitioner was clearing brush late at night close to Upton's house. Upton approached him and told him to stop, because the brush provided a privacy screen. When Petitioner agreed to trim only dead branches, Upton went back inside. Nevertheless, in the morning all vegetation in that area was cut to the ground. Zeller and Upton approached Petitioner. Upton was upset that Petitioner did not keep his promise and yelled at him. Zeller, who witnessed the exchange, testified that Upton "used foul language and was verbally intense." (RT at 349.) Petitioner, who was also upset, cursed and yelled back at Upton. The exchange ended with Upton and Zeller walking away. Zeller's impression was that Petitioner was not afraid of Upton, because he yelled back and stood his ground.

         Petitioner hired Sampo Engineering to do a boundary survey in connection with his plan to construct a road. Vince Sampo visited the property in November 2012. Petitioner showed him his gun and told him he was "very concerned" about Upton and "need[ed] a weapon for self-protection." (RT at 1000.) Sampo testified that Petitioner "said something to the effect of . . . I would rather spend my life in prison than . . . get blown away or get shot." (Id. at 584 (ellipses added).)

         In December 2012, Jesse Owens of Sampo Engineering visited Petitioner's property to locate monuments marking the boundaries. Owens and Petitioner could not locate the monuments along the boundary with Bonanno's property due to vegetation. Nevertheless, Owens determined that Bonanno's wall was encroaching, and informed Petitioner. He asked Petitioner to clear a small area close to Upton's house to help locate the markers at the next visit.

         Despite weekly confrontations with Upton in early 2013, Petitioner continued to clear the brush. Petitioner described the hostility at the time to be at "a maximum level." (RT at 1003.)

         On March 21, 2013, Petitioner called the sheriff's department because Owens needed some brush cleared to locate the monuments, and Petitioner wanted a deputy present to avoid a confrontation with Upton. Deputy Marshall Abbott responded. Petitioner told Deputy Abbott he felt threatened by Upton, that Upton had yelled at him and they had arguments about Petitioner's brush clearing. At Owens's request, Deputy Abbott contacted Upton to move his car, as the car was parked where the monument likely was located. Upton complied.

         Owens described Upton as "very angry" when he came out of his house. (RT at 1226.) He screamed and cursed at Petitioner for approximately 15 minutes, including profanities, while Petitioner remained calm. (Id. at 1227, 1228.) / / / / / Deputy Abbott testified that Upton appeared calm but frustrated. He complained about Petitioner's brush clearing. Deputy Abbott told him that Petitioner could cut brush on his own property. Petitioner approached while Deputy Abbott was speaking to Upton and said something that upset Upton. "Mr. Upton got pretty angry and began pointing at Mr. Vilkin and said, don't come any closer to me you [profanities]." (RT at 714.)

         Deputy Abbott diffused the situation, told them he could not stay all day to prevent a fight, instructed them to stay separated and call the sheriff's department if there is a problem. According to Owens, Deputy Abbott spoke with Petitioner and told him that what he had heard from Upton at that time did not legally constitute a threat. He told Upton to avoid a physical confrontation. Upton replied something to the effect that he was not "stupid enough" or that "it wasn't worth it to him to get in any sort of trouble." (RT at 1231.)

         After Deputy Abbott left, Petitioner and Owens continued unimpeded with their work. Petitioner also had workers cut brush in the same area a day or two later and had no trouble with Upton. (RT at 1028-29.)

         On March 27, 2013, Petitioner nailed a no-parking sign to a large tree near Upton's house because he intended to cut the trees and brush in the area where Upon and Zeller parked their cars.[2] The incident occurred next day. When Petitioner arrived on the property with two workers, the sign was gone. Upton's and Zeller's cars were parked under the tree Petitioner intended to cut. Petitioner told his workers he had a "bad neighbor who is very hostile," but that he had a gun, and, if a man came out of the house, they should come to Petitioner, who would "deal with it." (RT at 1022.) When the workers started their work, Petitioner left to stand a distance away and hide because he was afraid of Upton. (Id. at 1029, see also Id. at 1030-33.) He was "very concerned" that Upton "might do something . . . very dangerous." (Id. at 1031.) He was holding the gun case in his hand. (Id. at 1034.)

         Petitioner could see Upton's porch from where he was standing. He was wearing his computer glasses. When asked about it, he explained:

[Petitioner:] In case if there is a shoot-out, which I was afraid it might [. . .] happen. Right or wrong, [. . .] I feared him. And I would change to computer glasses . . . And you can say I was ready for a shoot-out.
[Mr. Uyar:] And this was every time you went to the Lone Jack property, at least after you purchased the .44 magnum pistol -- or almost every time?
A. Yes. [. . .]

(RT at 1184-85 (omissions and alterations indicated by brackets).)

         A few minutes after he saw Upon come out of his house, Petitioner put his gun in his waistband because he "was getting ready for eventual confrontation that might happen" and he covered it up with his shirt. (RT at 1034, 1066, 1074, 1130.) Petitioner did not want Upton to see his gun because he did not want Upton to call 911. (Id. at 1101.) Although Petitioner always brought his gun when he was on his property, he kept it in its case. He believed this occasion was different:

. . . he removed the sign. The cars are still there. It shows he's defiant. He has not complied, and he is likely to get involved in confrontation [sic] with me.
And I am cutting the bushes in front of his house, which he did not allow me to do, and the confrontation was likely, given that he's not complying.

(Id. at 1166-67 (brackets added).)

         Upton came out. He asked the workers if they were going to cut the trees close to his house and if he should move the cars. Petitioner then heard Upton say, "give me a few minutes," as Upton looked at Petitioner and started walking toward him. (RT at 1038.) Petitioner did not want to have eye contact with Upton "because it could provoke him," and he saw Upton look at the tools on the ground, including an axe or a pic, as he was walking slowly toward Petitioner. (Id. at 1039-41; see also Id. at 1134-36.) He was standing with his arms folded over the gun in his waistband. (Id. at 1136-37.)

         According to Petitioner, as Upton walked toward him, Upton yelled, "Get the fuck out of here," in a threatening voice. (RT at 1042.) He looked "enraged." (Id.) At that point Petitioner "cocked [his] revolver." (Id.) They had an angry exchange of words. (Id. at 1043; see also Id. at 1137-39.) Although Upton did not verbally threaten Petitioner, Petitioner felt threatened by Upton. (Id. at 1139.) He explained:

[Petitioner:] I was feeling both angry and in fear of him.
[Mr. Berkon:] What were you afraid of?
A. I was afraid that he, being an unpredictable person, he could come and harm me.
Q. Did you see anything in his hands?
A. When he was about 10 feet away, I saw a pistol in his right hand.
Q. How did that make you feel?
A. It was . . . It was like one second . . . and I pulled out my revolver and shot him.

(RT at 1043-44 (ellipses in original, brackets added).) Petitioner testified Upton held the gun in his right hand at his side, pointed at the ground, and did not point it at Petitioner because Petitioner "would not allow him." (Id. at 1109; see also Id. at 1103.) Petitioner explained why he did not warn Upton he was armed:

Mr. Berkon: Do you think you would have had time to brandish only . . . Meaning point your gun at Mr. Upton . . . and protect yourself if that didn't work?
Petitioner: Well, I cannot say -- only this way -- I saw the pistol and after that it was automatic, another second and the shot was placed. I did not have time to ...

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