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Powell v. Sherman

United States District Court, N.D. California

January 16, 2020

DIANTAY M. POWELL, Petitioner,
STU SHERMAN, Respondent.




         Diantay 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.


         A. The Crime

         The 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 police.
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).

         B. Procedural History

         On May 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.

         Mr. 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.

         The 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.


         This 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).


         This 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).

         The 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).

         “Under 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, 412-13 (2000).

         “Under 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.

         The 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).

         V. ...

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