United States District Court, N.D. California
DIANTAY M. POWELL, Petitioner,
STU SHERMAN, Respondent.
ORDER DENYING PETITION FOR A WRIT OF HABEAS
M. CHEN UNITED STATES DISTRICT JUDGE
M. Powell, a prisoner currently incarcerated at Mule Creek
State Prison in Ione, filed this pro se action for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Respondent has filed an answer and Mr. Powell has filed a
traverse. Mr. Powell's petition is now before the Court
for review on the merits. For the reasons discussed below,
the petition for writ of habeas corpus will be denied.
California Court of Appeal described the crime as follows:
In the early morning hours of November 25, 2012, 18-year-old
[Mr. Powell] was socializing with his cousin Antonio Edwards
and their 16-year-old friend, Quincy Carter. They had
consumed cough syrup, Valium and cocaine during the day and
[Mr. Powell] may have snorted heroin or cocaine. At some
point in the evening, [Mr. Powell] showed Carter a nine
millimeter Beretta with a 30-round magazine attached.
Edwards borrowed a Nissan from Albert Rich and at 5:00 a.m.,
they picked up 16-year old Bobbie Sartain and 15-year-old
Raquel Gerstel at a Union 76 gas station in Oakland. The
girls sat in the back seat with Carter while [Mr. Powell] sat
in the front passenger seat. Edwards drove the group to
Brookdale Park and parked on a residential street.
[Mr. Powell] received a phone call and told Sartain and
Gerstel to get out of the car because he needed to go pick up
his girlfriend. The girls refused. After a heated verbal
argument, [Mr. Powell] got out of the car, opened the rear
door on the driver's side, and pulled Sartain out of the
car. Sartain punched or slapped [Mr. Powell] and he knocked
her to the ground. Sartain said she was going to call the
Gerstel got out of the car and confronted [Mr. Powell],
saying, “Did you just hit my cousin?” [Mr.
Powell] responded, “Bitch, I'll knock you out
too.” [Mr. Powell] got his gun from the passenger seat
and shot Gerstel in the head; she also suffered grazing
wounds to the shoulder and buttock and a gunshot wound to the
hip. Sartain began to run away, pleading with [Mr. Powell]
that she would not tell anyone. [Mr. Powell] shot her at
least a dozen times, emptying the clip of his gun. Both
Gerstel and Sartain died of their wounds.
[Mr. Powell] got back inside the car and Edwards drove to
West Oakland. When they returned the car to Rich, Edwards
asked Rich if he had seen the news and [Mr. Powell] told Rich
he had “domed a bitch, ” meaning he had shot a
woman in the head.
At trial, the defense did not dispute that Mr. Powell had
shot Sartain and Gerstel, but sought to show that the
killings were second degree murder or manslaughter rather
than first degree murder.
People v. Powell, 2017 WL 6397814, *1-2 (Cal.Ct.App.
Dec. 15. 2017).
12, 2016, a jury found Mr. Powell guilty of the first degree
murder of Bobbie Sartain and the second degree murder of
Raquel Gerstel, with enhancements on each count for
personally inflicting great bodily injury, personally and
intentionally discharging a firearm, and proximately causing
great bodily injury (Cal. Penal Code §§ 187, 189,
12022.5(a), 12022.53(b)-(d), (g), 12022.7(a)). CT 523-25. The
jury also found a multiple murder special circumstance
allegation to be true (Cal. Penal Code § 190(a)(3)).
Id. at 526. The court sentenced Mr. Powell to an
aggregate term of life in prison without the possibility of
parole, consecutive to a term of sixty-five years to life in
prison. CT 670.
Powell appealed. On appeal, the California Court of Appeal
remanded Mr. Powell's case to give the trial court the
opportunity to exercise its discretion to strike the firearm
enhancements under then-new legislation, but otherwise
affirmed the judgment. See Powell, 2017 WL 6397814.
The California Supreme Court summarily denied review. Docket
No. 19-5 at 351. Mr. Powell then filed this federal habeas
petition for writ of habeas corpus in this action alleges the
following claims: (1) the trial court's failure to
provide “instructions relating intoxication to heat of
passion” violated Mr. Powell's right to a fair
trial, Pet., Docket No. 1 at 21; (2) trial counsel provided
ineffective assistance of counsel by not requesting such
instructions, id.; (3) the trial court's
instruction that the jury could not consider the fact that
witnesses Carter and Rich were in state custody for purposes
of evaluating their credibility violated Mr. Powell's
constitutional rights to due process, to present a defense,
and to have the jury determine every material issue
presented, see Id. at 40, 44.
JURISDICTION AND VENUE
Court has subject matter jurisdiction over this action for a
writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C.
§ 1331. This action is in the proper venue because the
petition concerns the conviction and sentence of a person
convicted in Alameda County, California, which is within this
judicial district. 28 U.S.C. §§ 84, 2241(d).
STANDARD OF REVIEW
Court may entertain a petition for 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).
Antiterrorism And Effective Death Penalty Act of 1996
(“AEDPA”) amended § 2254 to impose new
restrictions on federal habeas review. A petition 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] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362,
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.” Id.
at 413. “[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.”
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 409.
state-court decision to which § 2254(d) applies is the
“last reasoned decision” of the state court, if
there is a reasoned decision. See Ylst v.
Nunnemaker, 501 U.S. 797, 803-04 (1991). When confronted
with an unexplained decision from the last state court to
have been presented with the issue, “the federal court
should ‘look through' the unexplained decision to
the last related state-court decision that does provide a
relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning.”
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).