United States District Court, S.D. California
ORDER (1) OVERRULING OBJECTIONS TO REPORT AND
RECOMMENDATION; AND (2) DENYING PETITION
JAMES LORENZ UNITED STATES DISTRICT JUDGE.
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.
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
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.
Summary of Relevant Evidence
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
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.
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
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.
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
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
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."
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.
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.)
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.
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).)
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
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.)
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.
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.)
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.)
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.)
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. 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.)
could see Upton's porch from where he was standing. He
was wearing his computer glasses. When asked about it, he
[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
[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
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
. . . 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).)
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.)
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.)
[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
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