Opinion
No. C 00-2694 WHA (PR)
September 23, 2003
JUDGMENT
The Court has denied the petition for a writ of habeas corpus. Judgment is entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.
IT IS SO ORDERED.
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.STATEMENT
Petitioner was convicted of one count of second degree murder, Cal. Pen. Code § 187; and one count of possession of a firearm by a convicted felon, Cal. Pen. Code § 12021. He was sentenced to prison for eighteen years to life. As grounds for habeas relief he asserts that: (1) the evidence presented at trial was insufficient to support the murder conviction; and (2) his appellate counsel was ineffective.
Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.
The evidence presented to the court showed that on the morning of May 20, 1996, the defendant was staying at his girlfriend's apartment at 1458 52nd Avenue in Oakland. That morning, defendant was awakened by a bus honking for the children who lived next door at 1500 52nd Avenue. Defendant went next door and complained to the children's mother, Carol Braswell. Defendant was upset but polite.
Later that afternoon, Gary Braswell, Carol's husband, had a conversation with defendant. Braswell was not upset after the conversation. At about 1 a.m. the following morning, the Braswells heard banging on the front door. Braswell got up to see who was at the door. Defendant told Braswell that he was tired of Braswell's threats to his girlfriend and daughter. Braswell responded that he hadn't threatened defendant's girlfriend. Carol then heard a loud "pop" like a firecracker. She went to the living room and saw that Braswell had been shot in the head.
Carol's sons, Quasi and Danyama, were in the house when Braswell was shot. Quasi is developmentally disabled. He observed the argument between defendant and Braswell but did not identify defendant as the shooter at trial. Instead, he testified that defendant's defense counsel was the shooter. Officer Ramirez, who interviewed Quasi at the scene, testified that Quasi identified defendant as the person involved in the incident. Danyama was asleep in the living room when he was awakened by the argument between defendant and Braswell. He got scared and ran into the kitchen because he thought there was going to be a fight. He then heard the gunshot and subsequently saw that Braswell had been shot.
The police arrived on the scene at approximately 1:10 a.m. and found Braswell lying face down on the living room floor. A nine millimeter shell casing was on the floor. No weapons were recovered. Defendant was arrested approximately an hour later.
Defendant initially denied any involvement in the shooting. He subsequently admitted that he shot Braswell. A taped interview of defendant's admissions was played for the court.
An autopsy revealed that Braswell died of a gunshot wound to the head.
In defense, Anita Green, who married defendant shortly after the incident, testified that Braswell called and threatened her the evening of the shooting. Green spoke with defendant about the call and asked him to go see Braswell when he returned home. Torrey Hodges, Braswell's ex-wife, testified that her relationship with Braswell was marked by violence and that she had obtained a restraining order against him. Christopher Watts testified that he observed a domestic violence incident between Braswell and his wife. He also testified that. Braswell fought with him and that he suffered a cut on his head that required staples.
Daniel Weiss, a psychologist, testified as an expert on post-traumatic stress disorder. Based on his examination of defendant for three and one-half to four hours and his review of defendant's medical records, Weiss opined that defendant suffered from post-traumatic stress disorder resulting from having been shot in 1991. Defendant had full post traumatic stress disorder in 1991 and subsequently continued to suffer partial post traumatic stress disorder. His most prominent symptom was hyperarousal. Defendant showed signs of hypervigilance — a heightened alertness to potential threats or danger.
All "Exh." citations are to the exhibits filed by respondent at the request of the Court.
DISCUSSION
A. Standard of reviewThe petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997): Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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 first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2001), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 123 S.Ct. 1029, 1041 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only 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 (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority, falls under the second clause of § 2254(d)(1); if it correctly identifies the 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. The federal court on habeas review 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. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 409.
B. Issues Presented
1. Sufficiency of the evidence
Petitioner contends that the evidence going to the malice element of second degree murder was insufficient to support his conviction on that count.
A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim. Jackson v. Virginia, 443 U.S. 307, 321 (1979). However, a federal court engaged in collateral review of a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court "determines only whether, `after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson. 443 U.S. at 319).
Under California law, "[s]econd degree murder is the unlawful killing of a human being with malice aforethought, but without the premeditation, deliberation and willfulness necessary to elevate the offense to first degree murder." People v. Bohana, 84 Cal.App.4th 360, 368 (2000) (citing People v. Nieto Benitez, 4 Cal.4th 91, 102 (1992)). Malice may be express or implied. People v. Cortez. 18 Cal.4th 1223, 1229 (1998). Express malice is murder committed with the intent to kill.Ibid. "Malice is implied when the killer lacks an intent to kill but acts with conscious disregard for life, knowing such conduct endangers the life of another." People v. Lasko, 23 Cal., 4th 101, 104 (2000) (emphasis in original).
Petitioner does not contest the trial court's finding that he initiated the confrontation by going to the victim's residence about 1:00 a.m. with a loaded firearm, nor that he shot the victim in the head following a verbal altercation. Exh. A at 236. He also does not dispute the trial court's finding that he then disposed of the gun by throwing it off the Fruitvale Bridge. Id. at 230.
At his bench trial, petitioner claimed "imperfect self-defense." Exh. A at 250 (petitioner's motion for new trial). Under California law, imperfect self-defense applies if the defendant intentionally and unlawfully killed the victim in a good-faith but unreasonable belief that his life was in danger or deadly force was necessary to defend himself.People v. Barton. 12 CaI. 4th 186, 199 (1995). If the finder of fact concludes that the defendant had an unreasonable but good faith belief in having to act in self-defense, the defendant is guilty of voluntary manslaughter rather than murder. Ibid.
As petitioner points out, he was the only witness other than the victim as to exactly what happened. His taped statement to police was admitted at trial, where petitioner did not testify. Exh. B at 249. The statement is the only evidence of petitioner's version of events, and he does not dispute here the trial court's findings as to its contents. In the statement petitioner said that when the victim opened the screen door and stepped towards him, he "flinched," pulled out the gun, touched the safety "or something," and the gun went off. Exh. A at 230. He was just trying to intimidate the victim. Ibid. He did not know whether the victim's intention was to strike him. Ibid. At trial doubt was cast on petitioner's veracity by expert testimony: the prosecution's expert witnesses testified that the physical evidence showed that the shooting took place inside the house, rather than on the porch as petitioner said in his statement. Exh. B at 232-33.
Petitioner's wife's sons, Quasi and Danyama, were witnesses to part of the confrontation, but Quasi, who is developmentally disabled, was unable to identify the shooter, and Danyama fled to the kitchen before the shooting. The victim's wife testified that she heard petitioner tell the victim to stop threatening his wife, the victim say he hadn't, and then the "pop" of the shot.
Petitioner's statement was substantial evidence of imperfect self-defense under the California law; that is, the finder of fact could have disbelieved petitioner's contention that the shooting was accidental, but believed the implication that he honestly but unreasonably believed he had to use deadly force to defend himself. See Barton, 12 Cal.4th at 202. The trial court did not do this; instead it disbelieved both the part of petitioner's statement in which he contended the shooting was accidental and the part which might be read, under Barton, to imply that he shot in fear of attack. The trial court, sitting as trier of fact, therefore concluded that petitioner did not have an honest belief in the need to use deadly force to defend himself. Exh. A at 237.
The evidence supported either an inference of malice or an inference that petitioner acted in an honest but unreasonable belief he had to use deadly force to defend himself. In that situation a federal court on habeas corpus must defer to the state court's resolution of the question. See Wright v. West, 505 U.S. 277, 296-7 (1992) (quotingJackson, 443 U.S. at 326) (a federal reviewing court "`faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'"). The Court cannot say that no rational trier of fact could have found petitioner guilty beyond a reasonable doubt. There therefore was no constitutional violation, so the state courts' affirmance of the conviction was not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority.
2. Ineffective assistance of counsel
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). A defendant therefore must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Miller, 882 F.2d at 1434 n. 9 (citing Strickland, 466 U.S. at 688, 694).
Petitioner contended in the petition that his appellate counsel was ineffective because he filed a Wende brief, thus failing to raise the sufficiency of the evidence argument discussed above. In his traverse, he also complains counsel should have notified the California Court of Appeal that the trial court transcript had missing pages.
Counsel's decision to file a Wende brief was not ineffective. Using theWende procedure is not ineffective assistance in itself, Smith v. Robbins, 528 U.S. 259, 279 (2000) (Wende brief appropriate when appellate counsel finds petitioner's case lacking any arguable issues), and because petitioner's sufficiency of the evidence issue has no merit under either federal law, as discussed above, or state law, see People v. Johnson, 26 Cal.3d 557, 575-78 (1980) ("California decisions state an identical standard" to the federal Jackson standard); see, e.g., People v. Frye, 18 Cal.4th 894, 953 (1998); People v. Ochoa, 6 Cal.4th 1199, 1206 (1993), petitioner was not prejudiced by appellate counsel's failure to raise the substantial evidence isssue. Additionally, petitioner fails to indicate how he was prejudiced by his appellate counsel's failure to notify the California Court of Appeal of missing pages from the record, and the Court can discern no prejudice from this record.
It is unclear whether pages really are missing. The portion of the transcript at issue was for October 14, 1998, the first day of trial. Exh. B at 5. At the end of the transcript for that day, on page 117, the court recessed "until 9:30 tomorrow morning." Id. at 117. At the bottom of the page are the words: "(Pages 1-200 inclusive)." The next portion of the transcript takes up on page 201 with the commencement of proceedings the next day, October 15. Petitoner does not say what proceedings he contends were reported but not included in the appellate record, but rather deduces that there must have been some, given that the transcript for October 14 supplied to the appellate court, and this court, has no pages 118-200.
Because petitioner was not prejudiced by the actions about which he complains, his Sixth Amendment rights were not violated. The state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.