United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
is a California state prisoner who, proceeding with counsel,
brings an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He was convicted in the Sacramento
County Superior Court of attempted deliberate and
premeditated murder (Pen. Code §§ 187, subd. (a),
664) and firearm enhancements (§§ 12022, subd.
(a)(1), 12022.5, subd. (a), 12022.53, subds. (b), (c), (d)).
The instant petition raises the following claims: (1) the
trial court's failure to properly instruct the jury as to
the elements of petitioner's defense violated his
Fourteenth Amendment due process rights and Sixth Amendment
right to a jury trial; (2) petitioner's trial counsel was
ineffective in failing to object to the foregoing
instructional error; (3) the state court of appeal
unreasonably applied United States Supreme Court precedent
when it determined that petitioner was not prejudiced by the
trial court's denial of a jury trial as to whether his
prior conviction was a ‘strike'; and (4)
petitioner's Fourteenth Amendment due process rights were
violated when the state court of appeal determined that there
was sufficient evidence to support a finding that his prior
conviction was a strike.
reasons stated below, it is recommended that the petition be
denied in its entirety.
Williams (“Joe”) - petitioner's co-defendant
- was cousins with Julian Williams (“Julian”). In
mid- February 2010, Joe phoned Julian and asked him to come
to his home and collect an SKS assault-style rifle. Joe
explained that he was currently fighting with his girlfriend,
sometimes violently, and was concerned that police responding
to a domestic violence incident might discover the gun.
Julian took the gun.
February 28, 2010, Julian had the rifle in his vehicle when
he was stopped by police. A victim had told police that they
had been verbally threatened by someone claiming to have an
SKS rifle and Julian's vehicle matched their description.
Officers found the rifle in the vehicle, confiscated it, and
arrested Julian for possession of a firearm. The next day,
Julian posted the six-thousand dollar bail.
after, Joe called Julian and demanded payment of three
hundred and fifty dollars for the confiscated rifle. Joe
threatened to shoot Julian if he did not comply with the
demands. These threats were repeated by phone and voice-mail
March 7, 2010, Julian was at his residence with his
girlfriend Zinha Sylvester. At approximately 10:30 p.m., a
gun was fired two or three times at the house. After
investigating, Julian discovered three bullet holes in his
garage door. Julian called Joe and demanded to know whether
he was responsible for the shooting. Joe denied
responsibility. Police arrived shortly thereafter, and Julian
informed them of his belief that Joe was responsible.
March 10, 2010, Julian went with Sylvester to a shopping
center where she had her eyebrows waxed. As the two exited
the salon, Joe confronted them and again demanded payment for
the confiscated rifle. Julian explained that, having recently
posted six-thousand dollar bail, he did not have the money.
Irritated, Joe indicated a willingness to physically fight
Julian, but ultimately turned and walked away.
continued toward his parked vehicle and, on the way,
encountered petitioner. Petitioner had accompanied Joe to the
shopping center that day and had watched Joe and Julian
nearly come to blows over payment for the gun. To this point,
Julian had met petitioner on only one other occasion and had
no history with him. Upon seeing Julian, petitioner said
something to the effect of “Nigga, you got my gun took.
You think we playing.” Julian had little time to react
before petitioner fired a gun at him several times, from a
distance of roughly five or six feet. Julian suffered gunshot
wounds to his arm, elbow, and penis. He survived the
trial, petitioner stated that he believed Julian was carrying
a gun based on the latter's assertion, made during the
confrontation with Joe, that he “stay[ed]
strapped.” He claimed to have seen Julian reach under
his shirt and, believing he was going for a gun, chose to
fire first. Petitioner stated that he aimed low on
Julian's body because he intended only to injure, rather
than kill him. Petitioner claimed that he only realized that
Julian was not armed after he saw the latter hit the ground
with an empty hand.
GOVERNING HABEAS RELIEF UNDER THE AEDPA
Applicable Statutory Provisions
U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
provides in relevant part as follows:
(d) 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.
2254(d) constitutes a “constraint on the power of a
federal habeas court to grant a state prisoner's
application for a writ of habeas corpus.” (Terry)
Williams v. Taylor, 529 U.S. 362, 412 (2000). It does
not, however, “imply abandonment or abdication of
judicial review, ” or “by definition preclude
relief.” Miller El v. Cockrell, 537 U.S. 322,
340 (2003). If either prong (d)(1) or (d)(2) is satisfied,
the federal court may grant relief based on a de novo finding
of constitutional error. See Frantz v. Hazey, 533
F.3d 724, 736 (9th Cir. 2008) (en banc).
statute applies whenever the state court has denied a federal
claim on its merits, whether or not the state court explained
its reasons. Harrington v. Richter, 562 U.S. 86,
99-100 (2011). State court rejection of a federal claim will
be presumed to have been on the merits absent any indication
or state law procedural principles to the contrary.
Id. at 784-785 (citing Harris v. Reed, 489
U.S. 255, 265 (1989) (presumption of a merits determination
when it is unclear whether a decision appearing to rest on
federal grounds was decided on another basis)). “The
presumption may be overcome when there is reason to think
some other explanation for the state court's decision is
more likely.” Id. at 785.
“Clearly Established Federal Law”
phrase “clearly established Federal law” in
§ 2254(d)(1) refers to the “governing legal
principle or principles” previously articulated by the
Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 7172
(2003). Only Supreme Court precedent may constitute
“clearly established Federal law, ” but courts
may look to circuit law “to ascertain whether . . . the
particular point in issue is clearly established by Supreme
Court precedent.” Marshall v. Rodgers, 133
S.Ct. 1446, 1450 (2013).
“Contrary To” Or “Unreasonable
Application Of” Clearly Established Federal Law
2254(d)(1) applies to state court adjudications based on
purely legal rulings and mixed questions of law and fact.
Davis v. Woodford, 384 F.3d 628, 637 (9th Cir.
2003). The two clauses of § 2254(d)(1) create two
distinct exceptions to AEDPA's limitation on relief.
Williams, 529 U.S. at 404-05 (the “contrary
to” and “unreasonable application” clauses
of (d)(1) must be given independent effect, and create two
categories of cases in which habeas relief remains
court decision is “contrary to” clearly
established federal law if the decision “contradicts
the governing law set forth in [the Supreme Court's]
cases.” Id. at 405. This includes use of the
wrong legal rule or analytical framework. “The
addition, deletion, or alteration of a factor in a test
established by the Supreme Court also constitutes a failure
to apply controlling Supreme Court law under the
‘contrary to' clause of the AEDPA.” Benn
v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002).
See, e.g., Williams, 529 U.S. at 391, 39395
(Virginia Supreme Court's ineffective assistance of
counsel analysis “contrary to”
Strickland because it added a third prong
unauthorized by Strickland); Crittenden v.
Ayers, 624 F.3d 943, 954 (9th Cir. 2010) (California
Supreme Court's Batson analysis “contrary
to” federal law because it set a higher bar for a prima
facie case of discrimination than established in
Batson itself); Frantz, 533 F.3d at 734 35
(Arizona court's application of harmless error rule to
Faretta violation was contrary to U.S.
Supreme Court holding that such error is structural). A state
court also acts contrary to clearly established federal law
when it reaches a different result from a Supreme Court case
despite materially indistinguishable facts.
Williams, 529 U.S. at 406, 41213; Ramdass v.
Angelone, 530 U.S. 156, 16566 (2000) (plurality
court decision “unreasonably applies” federal law
“if the state court identifies the correct rule from
[the Supreme Court's] cases but unreasonably applies it
to the facts of the particular state prisoner's
case.” Williams, 529 U.S. at 407 08. It is not
enough that the state court was incorrect in the view of the
federal habeas court; the state court decision must be
objectively unreasonable. Wiggins v. Smith, 539 U.S.
510, 52021 (2003). This does not mean, however, that the
§ (d)(1) exception is limited to applications of federal
law that “reasonable jurists would all agree is
unreasonable.” Williams, 529 U.S. at 409
(rejecting Fourth Circuit's overly restrictive
interpretation of “unreasonable application”
clause). State court decisions can be objectively
unreasonable when they interpret Supreme Court precedent too
restrictively, when they fail to give appropriate
consideration and weight to the full body of available
evidence, and when they proceed on the basis of factual
error. See, e.g., Williams, 529 U.S. at 397-98;
Wiggins, 539 U.S. at 526 28 & 534; Rompilla
v. Beard, 545 U.S. 374, 388909 (2005); Porter v.
McCollum, 558 U.S. 30, 42 (2009).
“unreasonable application” clause permits habeas
relief based on the application of a governing principle to a
set of facts different from those of the case in which the
principle was announced. Lockyer, 538 U.S. at 76.
AEDPA does not require a nearly identical fact pattern before
a legal rule must be applied. Panetti v. Quarterman,
551 U.S. 930, 953 (2007). Even a general standard may be
applied in an unreasonable manner. Id. In such
cases, AEDPA deference does not apply to the federal
court's adjudication of the claim. Id. at 948.
under § 2254(d) is limited to the record that was before
the state court. Cullen v. Pinholster, 131 S.Ct.
1388, 1398 (2011). The question at this stage is whether the
state court reasonably applied clearly established federal
law to the facts before it. Id. In other words, the
focus of the § 2254(d) inquiry is “on what a state
court knew and did.” Id. at 1399.
the state court's adjudication is set forth in a reasoned
opinion, § 2254(d)(1) review is confined to “the
state court's actual reasoning” and “actual
analysis.” Frantz, 533 F.3d at 738 (emphasis
in original). A different rule applies where the state court
rejects claims summarily, without a reasoned opinion. In
Richter, supra, the Supreme Court held that
when a state court denies a claim on the merits but without a
reasoned opinion, the federal habeas court must determine
what arguments or theories may have supported the state
court's decision, and subject those arguments or theories
to § 2254(d) scrutiny. Richter, 131 S.Ct. at
“Unreasonable Determination Of The
is also available under AEDPA where the state court
predicated its adjudication of a claim on an unreasonable
factual determination. Section 2254(d)(2). The statute
explicitly limits this inquiry to the evidence that was
before the state court.
factual determinations that are generally accorded heightened
deference, such as credibility findings, are subject to
scrutiny for objective reasonableness under §
2254(d)(2). For example, in Miller El v. Dretke, 545
U.S. 231 (2005), the Supreme Court ordered habeas relief
where the Texas court had based its denial of a
Batson claim on a factual finding that the
prosecutor's asserted race neutral reasons for striking
African American jurors were true. Miller El, 545
U.S. at 240.
unreasonable determination of facts exists where, among other
circumstances, the state court made its findings according to
a flawed process - for example, under an incorrect legal
standard, or where necessary findings were not made at all,
or where the state court failed to consider and weigh
relevant evidence that was properly presented to it. See
Taylor v. Maddox, 366 F.3d 992, 9991001 (9th Cir.),
cert. denied, 543 U.S. 1038 (2004). Moreover, if “a
state court makes evidentiary findings without holding a
hearing and giving petitioner an opportunity to present
evidence, such findings clearly result in a
‘unreasonable determination' of the facts”
within the meaning of § 2254(d)(2). Id. at
1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055
(9th Cir. 2003) (state court's factual findings must be
deemed unreasonable under section 2254(d)(2) because
“state court . . . refused Nunes an evidentiary
hearing” and findings consequently “were made
without . . . a hearing”), cert. denied, 543
U.S. 1038 (2004); Killian v. Poole, 282 F.3d 1204,
1208 (9th Cir. 2002) (“state courts could not have made
a proper determination” of facts because state courts
“refused Killian an evidentiary hearing on the
matter”), cert. denied, 537 U.S. 1179 (2003).
court factual conclusion can also be substantively
unreasonable where it is not fairly supported by the evidence
presented in the state proceeding. See, e.g.,
Wiggins, 539 U.S. at 528 (state court's “clear
factual error” regarding contents of social service
records constitutes unreasonable determination of fact);
Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008)
(state court's finding that the prosecutor's strike
was not racially motivated was unreasonable in light of the
record before that court); Bradley v. Duncan, 315
F.3d 1091, 1096 98 (9th Cir. 2002) (state court unreasonably
found that evidence of police entrapment was insufficient to
require an entrapment instruction), cert. denied,
540 U.S. 963 (2003).
The Relationship of § 2254(d) To Final Merits
prevail in federal habeas proceedings, a petitioner must
establish the applicability of one of the § 2254(d)
exceptions and also must also affirmatively establish the
constitutional invalidity of his custody under pre-AEDPA
standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir.
2008) (en banc). There is no single prescribed order in which
these two inquiries must be conducted. Id. at 736,
37. The AEDPA does not require the federal habeas court to
adopt any one methodology. Lockyer v. Andrade, 538
U.S. 63, 71 (2003).
cases, § 2254(d) analysis and direct merits evaluation
will substantially overlap. Accordingly, “[a] holding
on habeas review that a state court error meets the §
2254(d) standard will often simultaneously constitute a
holding that the [substantive standard for habeas relief] is
satisfied as well, so no second inquiry will be
necessary.” Frantz, 533 F.3d at 736. In such
cases, relief may be granted without further proceedings.
See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 1070 71
(9th Cir. 2006) (finding § 2254(d)(1) unreasonableness
in the state court's conclusion that the state had proved
all elements of the crime, and granting petition); Lewis
v. Lewis, 321 F.3d 824, 835 (9th Cir. 2003) (finding
§ 2254(d)(1) unreasonableness in the state court's
failure to conduct a constitutionally sufficient inquiry into
a defendant's jury selection challenge, and granting
petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir.
2010) (finding § 2254(d)(1) unreasonableness in the
state court's refusal to consider drug addiction as a
mitigating factor at capital sentencing, and granting penalty
other cases, a petitioner's entitlement to relief will
turn on legal or factual questions beyond the scope of the
§ 2254(d) analysis. In such cases, the substantive
claim(s) must be separately evaluated under a de novo
standard. Frantz, 533 F.3d at 737. If the facts are
in dispute or the existence of constitutional error depends
on facts outside the existing record, an evidentiary hearing
may be necessary. Id. at 745; see also
Earp, 431 F.3d 1158 (remanding for evidentiary hearing
after finding § 2254(d) satisfied).
Failure to Properly Instruct on Self-Defense
argues that his rights were violated when the trial court
provided an erroneous self-defense instruction.