United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO
LABSON FREEMAN UNITED STATES DISTRICT JUDGE.
a California prisoner, filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254, challenging his 2009
criminal judgment.The second amended petition is the
operative petition in this action. Dkt. No. 57,
("Pet."). Respondent filed an answer on the merits.
Dkt. No. 66, ("Ans."). Petitioner did not file a
traverse although given an opportunity to do so. For the
reasons set forth below, the petition is
11, 2009, an Alameda County jury convicted Petitioner of
first degree murder, with an enhancement for personal
discharge of a firearm causing death. Ans., Ex. 1, Vol. 2 of
Clerk's Transcript (2 CT) 411-413. On October 5,
2009, the trial court sentenced Petitioner to 50 years to
life in state prison. Ex. 2, Vol. 2 of Reporter's
Transcript (2 RT) 421-424.
April 27, 2011, the California Court of Appeal affirmed the
judgment of conviction. Ex. 6. On August 10, 2011, the
California Supreme Court denied review. Exs. 7, 8.
November 8, 2012, Petitioner filed a habeas petition in this
Court, containing both the claims he had exhausted on direct
appeal and several unexhausted claims relating to juvenile
sentencing issues. Subsequently, he filed a motion for stay
and abeyance in order to exhaust his claims in state court,
which was granted. Dkt. No. 10.
December 20, 2012, Petitioner filed a habeas petition in the
California Supreme Court. Following briefing, on March 12,
2014, the state high court denied the petition without
prejudice to any relief Petitioner might be entitled to after
the court decided other pending cases regarding juvenile
sentencing. Ex. 9.
additional proceedings, on October 17, 2016, this Court
reinstated the stay to allow Petitioner to exhaust the
juvenile sentencing claims. Dkt. No. 42. Petitioner filed a
habeas petition in the state superior court, which agreed,
pursuant to new procedures outlined in People v.
Franklin, 64 Cal.4th 261 (2016), that Petitioner would
be eligible for a parole hearing after 25 years, and that he
could make a contemporaneous record of any factors that would
affect his eligibility. Accordingly, Petitioner acknowledged
that the juvenile sentencing claims were moot, and asked this
Court to dismiss those claims and proceed on the other
claims. Dkt. No. 52. The Court did so. Dkt. No. 53. On August
30, 2018, Petitioner filed a second amended petition raising
three exhausted claims. Dkt. No. 57.
STATEMENT OF FACTS
following brief summary is from the opinion of the state
appellate court on direct appeal:
Stamps shot and killed Elric Wheeler during an encounter in a
shopping mall parking lot. When he walked up to the car in
which Wheeler was riding as a passenger, Stamps was looking
for a friend's dog that he thought the driver, Brandon
Jaquez, had taken hostage to assure payment for a previous
drug transaction that went wrong. Jaquez and Wheeler
initially got out of the car and moved away, then headed back
towards the car to prevent Stamps from taking it. As they
approached, Stamps shot Wheeler in the chest.
People v. Stamps, No. A126440, slip op. at 1-2
(Cal.Ct.App. Apr. 27, 2011) (Ex, 6, hereinafter
Court may entertain a petition for a writ of habeas corpus
"in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2254(a);
Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may
not be granted with respect to any claim that was adjudicated
on the merits in state court unless the state court's
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." 28 U.S.C. § 2254(d).
the 'contrary to' clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor,
529 U.S. 362, 412-13 (2000). The only definitive source of
clearly established federal law under 28 U.S.C. §
2254(d) is in the holdings (as opposed to the dicta) of the
Supreme Court as of the time of the state court decision.
Id. at 412; Brewer v. Hall, 378 F.3d 952,
955 (9th Cir. 2004). While circuit law may be
"persuasive authority" for purposes of determining
whether a state court decision is an unreasonable application
of Supreme Court precedent, only the Supreme Court's
holdings are binding on the state courts and only those
holdings need be "reasonably" applied. Clark v.
Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on
other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
the 'unreasonable application' clause, 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."
Williams, 529 U.S. at 413. "Under §
2254(d)(1)'s 'unreasonable application' clause,
... 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." Id. at
411. A federal habeas court making the "unreasonable
application" inquiry should ask whether the state
court's application of clearly established federal law
was "objectively unreasonable." Id. at
Claims and Analyses
raises the following three claims for federal habeas relief:
(1) there was insufficient evidence to sustain the conviction
for first degree murder on either an express malice or felony
murder theory; (2) the trial court erred in instructing the
jury on CALCRIM 361, depriving Petitioner of his right to due
process; and (3) ineffective assistance of counsel for
failing to request CALCRIM 522.
was tried for first degree murder under the alternative
theories of (1) premeditated and deliberate murder, and (2)
felony murder committed during an attempted carjacking. Op.
at 2. Petitioner claims the evidence was insufficient to
support his conviction under either theory.
state appellate court summarized the relevant factual
background for this claim:
Two days before the shooting, Jaquez met Stamps and sold him
some marijuana. Jaquez also gave Stamps his cell phone number
for any possible future deals. The next day, Stamps called
Jaquez to buy more marijuana, and they met again. After
Jaquez arrived with his friend Wheeler, Stamps and another
man got into the back seat of Jaquez's car and asked to
see the marijuana. When Jaquez handed it to them, they ran
off without paying for it.
The following day Jaquez saw Stamps and the other man
standing in front of a house while he was driving through the
neighborhood. As Jaquez drove closer, the two men ran inside
the house and left a small dog on the front lawn. Soon after
Jaquez drove by, he received a phone call from the telephone
number he recognized as Stamps, and Jaquez heard "the
same voice that called [him] for the weed." The caller
demanded to know where his dog was, and he called Jaquez
repeatedly over the next hour, threatening to kill him and
his family unless he got his dog back. At trial, Jaquez
denied that he took the dog, although a detective testified
that Jaquez's friend, Joe Segon, said that he did.
While he was getting the threatening phone calls, Jaquez
arranged to meet Wheeler at a local mall. Jaquez drove to the
mall with two passengers, and Wheeler got into the car.
Wheeler told Jaquez that someone was looking for him about a
dog. Just then, Jaquez saw Stamps standing outside the
driver's door of his car, pointing a gun at him through
the open window. Stamps said "Where's my fucking
dog?" Jaquez got out of the car and left the key in the
ignition. He told Stamps he did not know where the dog was.
When Jaquez heard a male voice from the sidewalk say,
"Just shoot him," he ran behind his car. Then he
heard the voice call out, "Just take his car."
Stamps pointed the gun at the three passengers and ordered
them out of the car. Two of them went towards the sidewalk,
and Wheeler walked over to Jaquez. As Stamps appeared to
climb into the driver's seat, Jaquez and Wheeler began to
walk back toward the car to prevent Stamps from taking it.
Stamps stepped away from the car and backed up. When Jaquez
and Wheeler were a few feet away, Stamps fired and hit
Wheeler in the chest. Stamps got into a waiting car and drove
When he first spoke to police, Jaquez seemed afraid and said
he did not know the gunman, but he later identified a photo
of Stamps. His account of the events in the mall parking lot
was generally confirmed by eyewitness Jesse Calles, who was
employed at a nearby store.
When police arrived at the mall, they spoke to Joe Segon, who
happened to be passing by when the shooting occurred. Segon
told police he could point out the house of the men who might
be responsible. He directed police to a house where a car was
parked with a license plate that matched a partial number
obtained by an eyewitness to the shooting. Police surrounded
the house, and. after a lengthy standoff, Stamps, Darell
McDowell, and Danny Coleman surrendered. In the crawlspace
under the house, the police found a cell phone and
semiautomatic handgun wrapped in a towel. ...