Hale v. Asuncion, 2:18-cv-1924-JAM-EFB P

ISAIAH DOMINIC HALE, Petitioner, v. DEBBIE ASUNCION, Respondent.

No. 2:18-cv-1924-JAM-EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 29, 2019

FINDINGS AND RECOMMENDATIONS

Petitioner 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.

For the reasons stated below, it is recommended that the petition be denied in its entirety.

FACTUAL BACKGROUND

Joe 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.

On 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.

Soon 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 several times.

On 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.

On 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.

///// Julian 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 shooting.

At 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.

STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

I. Applicable Statutory Provisions

28 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; 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.

Section 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).

The 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.

A. "Clearly Established Federal Law"

The 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, 71 72 (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).

B. "Contrary To" Or "Unreasonable Application Of" Clearly Established Federal Law

Section 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 available).

A state 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, oralteration 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, 393 95 (Virginia Supreme Court's ineffective assistance of counsel analysis "contrary to" Strickland¹ because it added a third prong unauthorized by Strickland); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir. 2010) (California Supreme Court's Batson² 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 Faretta³ 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, 412 13; Ramdass v. Angelone, 530 U.S. 156, 165 66 (2000) (plurality op'n).

A state 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, 520 21 (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...