Opinion
SA CV 23-2455-FLA(E)
05-16-2024
RICHARD LEE AUSTIN, JR., Petitioner, v. EDWARD BORLA, ACTING WARDEN, ETC., Respondent.
REPORT AND RECOMMENDATION OF OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Fernando L. Aenlle-Rocha, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a “Petition for Writ of Habeas Corpus by a Person in State Custody” on December 25, 2023. Respondent filed an Answer on April 24, 2024. Petitioner filed a Reply on May 9, 2024.
BACKGROUND
A Superior Court jury found Petitioner guilty of, inter alia, attempted murder. See People v. Austin, 2022 WL 2763171 (Cal.App. July 15, 2022). The California Court of Appeal affirmed in a reasoned decision. Id. The California Supreme Court summarily denied review (Lodgment 8).
PETITIONER'S CONTENTION
Petitioner contends that the trial evidence was insufficient to support his conviction for attempted murder.
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is “the only question that matters under § 2254(d)(1).” Id. (internal quotations and citation omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103; see also Shinn v. Kayer, 592 U.S. 111, 112 (2020) (per curiam). “If this rule means anything, it is that a federal court must carefully consider all the reasons and evidence supporting the state court's decision.” Mays v. Hines, 592 U.S. 385, 391 (2021).
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 596 U.S. 118, 141 (2022) (under AEDPA, federal habeas court must “assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim”) (citation and quotations omitted); Wilson v. Sellers, 584 U.S. 122, 128-32 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, “[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
Additionally, federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Austin, 2022 WL 2763171 (Cal.App. July 15, 2022). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
In 2017, attorney L.L. worked in a law firm housed on two floors of a large office building in Newport Beach. L.L. was out of the office on Friday, March 31, 2017, when the firm's receptionist, B.M., received a phone call from defendant, who was in Albuquerque, New Mexico. Defendant gave a false name, Robert Brown, and asked when L.L. would be in the office. He said he was a Chicago attorney and wanted to meet with L.L. to talk to her about working on a high profile case with him in California. When B.M. offered to transfer the call to L.L.'s secretary, he declined the offer. He said he was in a hurry and hung up without leaving any contact information. B.M. sent L.L. an e-mail recounting the phone call. She indicated she told the caller to try again the next business day.
Anticipating L.L. would be in the office the following week, defendant traveled to California with a pistol registered to him and zip ties large enough to restrain a person, which he purchased before leaving New Mexico. He rented a car in Los Angeles on April 1, 2017. Later that day, he checked into a hotel in Costa Mesa.
The next day, defendant surveilled L.L.'s office building and went to a shooting range in Mission Viejo.
On Monday, April 3, 2017, L.L. was again out of the office. B.M. received another phone call from defendant, who again falsely identified himself as Robert Brown. He gave her the same story about being an attorney and needing to meet with L.L. to discuss a case. He wanted to know if L.L. would be in the office the following day and became irritated when B.M. did not know. Defendant did not want to speak to L.L.'s secretary and refused to leave his contact information. Instead, he hung up. B.M. sent L.L. an e-mail chronicling this phone call.
On Monday, defendant purchased a gas can and a lighter. He checked out of his hotel about 3:00 a.m. on April 4th.
Shortly after 7:30 a.m. on April 4, 2017, defendant entered the office building where L.L.'s law firm was located. He was wearing a disguise - a long brown wig and big black sunglasses. He sat in a chair in the lobby. He had his face behind a newspaper, but would glance surreptitiously at people entering the building, especially women. He had a briefcase and a black bag with him.
One building tenant found defendant's appearance and behavior to be very suspicious. She notified building security and called the police department's nonemergency line to report a suspicious man in the lobby. Building security contacted defendant in the lobby and defendant said he was waiting for an attorney. About 9:30 a.m., nearly two hours after he entered the building, security escorted defendant from the property because of multiple tenant complaints about his presence.
L.L. arrived at the office later that morning and parked in the building's attached parking structure. That afternoon, defendant called L.L.'s firm and asked if she was in the office. Defendant did not identify himself, but B.M. recognized his voice as that of the man who had previously identified himself as Robert Brown. After B.M. indicated L.L. was in the office, defendant hung up.
B.M. had an uneasy feeling and went to talk to L.L. about the phone calls she had received. B.M. explained she suspected Robert Brown was not who he said he was. She relayed his most recent call, in which he had said he just wanted to make sure L.L. was in and then hung up. At L.L.'s request, B.M. checked the phone's caller identification. She informed L.L. it showed the caller was Richard Austin, Jr.
L.L. immediately recognized the name and became frightened. She had been involved in litigation in four prior civil cases involving defendant and his wife and their insurance company. L.L. had represented the interests of the insurance company in these cases. One of the cases went to trial and L.L. obtained a money judgment in favor of the insurance company, which was subsequently upheld on appeal. Defendant's behavior during the litigation alarmed L.L. Once after a settlement conference, defendant got “in her face” and yelled at her. Defendant's attorney ushered him out of the courtroom, and the bailiff escorted L.L. out through the back of the courthouse. During the appeal, defendant wrote letters with derogatory statements about L.L. and sent them to partners at the law firm where she was working at that time. L.L. had not heard from defendant once the litigation ended around April 2016.
As a result of the past contact, L.L. instructed B.M. to lock their office suite door and call building security. L.L. contacted the insurance company and learned defendant was now living in New Mexico. B.M. checked the caller identification for Monday's call and discovered the call came from a nearby hotel. When B.M. called the hotel, she was informed a man named Richard Austin had checked out of the hotel earlier that day. L.L. was terrified as she believed defendant was coming for her.
Shortly after 4:00 p.m., L.L. was escorted to her car by four men from her office, including Nathaniel P. (Nathaniel) and Matthew R. (Matthew). They accompanied her in the elevator down from their office and through the building lobby to the parking garage. At the parking garage, one of the men climbed the stairs to the second floor, while the rest took the elevator to the second floor where L.L.'s car was parked. As Nathaniel exited the elevator with L.L. and the others, he saw defendant standing by the stairwell. Defendant was wearing a blue jacket, a baseball cap, and sunglasses. His hands were not visible as he had what appeared to be blue medical scrubs draped over them. When Nathaniel looked at defendant, defendant turned away and pulled down his cap to cover his face.
As the group walked with L.L. toward her car and away from the stairwell, Nathaniel fell back and walked toward the stairwell. Defendant remained standing by the stairwell, looking in the direction L.L. and her escorts had walked. Nathaniel noticed defendant was fidgeting with his hands underneath the scrubs. As Nathaniel approached him, defendant turned away. Nathaniel started walking back to the group, while keeping an eye on defendant. When he saw defendant peek around the corner in L.L.'s direction, Nathaniel shouted, “That's him.”
Defendant turned and ran down the stairwell. Nathaniel and Matthew chased after him. Defendant got into a car parked on the first floor of the parking structure and drove toward the exit. At the exit, he drove through the parking gate arm and broke it. Nathaniel ran after the car and was able to obtain the license plate number, which he later gave to the police.
Sergeant Vincelet with the Newport Beach Police Department was assigned to the case and obtained defendant's cell phone records, as well as information from the car rental agency, the hotel in Costa Mesa, and the shooting range. Defendant's rental car was similar to the one seen at L.L.'s office building, except for the license plate number. The license plate number provided by Nathaniel was not the same as that on the car when defendant rented it on April 1st or drove it on April 2nd. The license plate on defendant's rental car when he sped away from L.L.'s office building on April 4th, had been reported stolen from a car at the Orange County airport that day.
Defendant's cell phone records showed after the incident at L.L.'s office, he returned to Albuquerque. Vincelet obtained a warrant for defendant's arrest and traveled to Albuquerque on April 17th. Once there, with the assistance of Albuquerque law enforcement, he searched defendant's residence pursuant to a search warrant. In conducting the search, police discovered a .45-caliber handgun registered to defendant in the master bedroom. The gun was loaded and another magazine loaded with ammunition was next to it inside a gun case. They also found a briefcase that matched the one defendant was seen with at L.L.'s office building. In the briefcase, they found the owner's manual for defendant's handgun, a box of ammunition, packages of large zip ties, and a police scanner. A Los Angeles area newspaper dated April 4, 2017, was also found in the briefcase, further evidence defendant had the briefcase with him on his trip.
Additional evidence was found in the search of defendant's residence. In his wallet, defendant had a handwritten note with the phone number for a wig shop. The police also discovered a receipt for the purchase of the zip ties and duct tape in Albuquerque on March 31, 2017, and a receipt for the purchase of a gas can and a lighter in Costa Mesa on April 3, 2017. Clothes and shoes matching those defendant was wearing on April 4th were also obtained.
Defendant was arrested on April 20, 2017, following the search of his residence, and he remained in custody in New Mexico until he was extradited to California in late May. While he was in custody in New Mexico, he placed numerous telephone calls to his wife from the jail. The prosecution played recordings of three phone conversations between defendant and his wife. At the beginning of each call was an advisement the call was “subject to recording and monitoring.”
In a call on April 22, defendant told his wife about his police interview and the police theory he intended to kill L.L. Defendant stated he blamed L.L. and another woman for his pancreatic cancer. He accused them of killing him with their lies. He claimed he was falsely arrested in 2008 and this caused him to drink more, resulting in his pancreatic cancer. He stated the justice system was broken and “you have to take justice into your own hands sometimes.” Defendant said he did not care who was listening to their conversation. He expressed hope their conversation would be played in court and then he made a derogatory comment directly at L.L. He commented, “Shakespeare had it right. First thing we do is kill all the attorneys.”
In the call on April 25, defendant told his wife about the evidence they had against him before stating his case was “unwinnable.” In the call on May 18, defendant stated he messed up, continuing: “when I saw those five people I should have, I should have just said, to hell, to hell with the little boys and the fathers, I'm gonna shoot them up. Ya know, I should have . . . I . . . that's what I should have done. But I had a moment of conscience, okay. And, ya know, gee all these innocent people that are standing around, I'm not really after them.”
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed with prejudice.
I. Federal Habeas Law Regarding Sufficiency of the Evidence
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was “so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.” Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and internal quotations omitted). A conviction cannot be disturbed unless the Court determines that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979) (“Jackson”). A verdict must stand unless it was “so insupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 655 (2012).
Jackson establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). “First, a reviewing court must consider the evidence presented at trial in the light most favorable to the prosecution.” Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). At this step, a court “may not usurp the role of the finder of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial.” United States v. Nevils, 598 F.3d at 1164 (citation omitted). “Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 566 U.S. at 655 (“Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts”) (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 2 (2011) (“it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial”). The State need not rebut all reasonable interpretations of the evidence or “rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson.” United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
At the second step, the court “must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court “may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id. (citations and internal quotations omitted; original emphasis).
In applying these principles, the federal habeas court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense “is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. at 655; see also Maquiz MacDonald v. Hedgpeth, 907 F.3d 1212, 1218 (9th Cir. 2018). The Court “must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.” McDaniel v. Brown, 558 U.S. at 131 (citation omitted). The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). This Court has conducted such an independent review.
The Supreme Court has “made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. at 651; see also Parker v. Matthews, 567 U.S. 37, 43 (2012) (combination of AEDPA standard of review and Jackson standard imposes a "twice-deferential standard”); Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018) (“In addition to Jackson's already deferential standard, a second level of deference applies under AEDPA.”). In assessing a sufficiency of evidence challenge governed by the AEDPA standard of review, a federal habeas court must apply a “double dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), cert. denied, 566 U.S. 1039 (2012).
II. California State Law Regarding Attempted Murder
To prove attempted murder under California state law, the prosecution must show: (1) a specific intent to kill the alleged victim; and (2) a direct but ineffectual act toward accomplishing the intended killing. See People v. Canizales, 7 Cal. 5th 591, 602, 248 Cal.Rptr.3d 370 (2019); see also Cal. Penal Code '' 187(a), 664(a). “Because direct evidence of a defendant's intent rarely exists, intent may be inferred from the circumstances of the crime and the defendant's acts.” People v. Sanchez, 63 Cal.4th 411, 457, 204 Cal.Rptr.3d 682 (2016), cert. denied, 580 U.S. 1204 (2017); see also Jackson, 443 U.S. at 325. Furthermore, California state courts “have long recognized that whenever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.” People v. Decker, 41 Cal.4th 1, 8, 58 Cal.Rptr.3d 421, 157 P.3d 1017 (2007) (citations and quotations omitted); accord People v. Garton, 4 Cal. 5th 485, 510, 229 Cal.Rptr.3d 624, 647, cert. denied, 139 S.Ct. 417 (2018). “A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control.” CALCRIM No. 600; see People v. Dillon, 34 Cal.3d 441, 455, 668 P.2d 697, 194 Cal.Rptr. 390 (1983) (“when the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway and a last- minute change of heart by the perpetrator should not be permitted to exonerate him”); accord Moore v. Samuel, 2022 WL 3229344, at *7 (N.D. Cal. Aug. 10, 2022) (applying California law).
Courts sometimes refer to this aspect of the California law of attempt as the “slight acts rule.” See, e.g., People v. Garton, 4 Cal. 5th at 510, 229 Cal.Rptr.3d at 647.
III. Analysis
Viewed in the light most favorable to the prosecution, the trial evidence sufficed to support Petitioner's conviction for attempted murder. The evidence clearly showed Petitioner's specific intent to kill the victim, through convincing proof of: Petitioner's obsession with the victim (whom Petitioner blamed for financial, personal and medical problems); the elaborate and stealthy measures Petitioner undertook to ambush the victim; Petitioner's visit to a shooting range on April 2, 2017 for the purpose (it reasonably may be inferred) of practicing what he intended soon to perform; Petitioner's April 4, 2017 parking garage encounter with the victim while (it may reasonably be inferred) Petitioner was carrying a firearm; and Petitioner's post-arrest admissions of his prior intent to kill the victim and his subsequent regret at not having done so. The trial evidence also showed numerous direct but ineffectual acts toward accomplishing the intended killing, including those acts Petitioner undertook in and around the victim's place of business on April 4, 2017. Indeed, the evidence showed that only the unanticipated close accompaniment of the victim by four of her co-workers foiled the consummation of Petitioner's specific intent.
Petitioner argues the lack of any evidence that he actually drew, displayed, pointed or fired a gun at the victim. Such argument fails to refute the sufficiency of the evidence. “[A] defendant need not point a gun at an intended victim to be guilty of attempted murder. . . .” People v. Garton, 4 Cal. 5th at 514; see People v. Dillon, 34 Cal.3d at 455 (“the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized”); see also People v. Scully, 11 Cal. 5th 542, 584, 486 P.3d 1029, 278 Cal.Rptr.3d 792 (2021) (the “direct but ineffectual act” “need not be the last step toward commission of the crime”); People v. Morales, 5 Cal.App.4th 917, 926-27, 7 Cal.Rptr.2d 358 (1992) (evidence was sufficient to support conviction for attempted murder where the defendant said he was going to “get” the victim and the defendant then carried a concealed firearm to a location near the victim's residence, where the defendant crouched down behind a garbage can) (cited with approval in People v. Johnson, 57 Cal.4th 250, 258 n.4, 159 Cal.Rptr.3d 70, 303 P.3d 379 (2013)).
Petitioner's possible last-minute change of heart in the parking garage did not exonerate him from criminal liability for attempted murder. See CALCRIM No. 600; Moore v. Samuel, 2022 WL 3229344 (applying California law); see also People v. Dillon, 34 Cal.3d at 455.
In his Petition for Review (and perhaps herein as well), Petitioner invites a departure from the California Court of Appeal's arguable adherence to the “slight acts rule” aspect of the California law of attempt. On habeas review, this federal Court cannot properly depart from the Court of Appeal's interpretation of state law. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”) (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (federal habeas court erred in failing to defer to state court's interpretation of state law; “[w]e have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”) (citations omitted; emphasis added); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law”); Hubbart v. Knapp, 379 F.3d 773, 780 (9th Cir. 2004), cert. denied, 543 U.S. 1071 (2005) (“We may not second-guess the California appellate court's construction of its own state law....”). For the same reason, this Court cannot properly credit any related argument that the California courts never should have imported the “slight acts rule” into California jurisprudence from a 1908 Mississippi court decision or that the California courts sometimes have not articulated or applied the rule with complete consistency. See id.
In his Petition for Review, Petitioner unsuccessfully urged the California Supreme Court to overturn the “slight acts rule,” while essentially conceding that, under this rule, Petitioner's conviction for attempted murder would stand (Petition for Review, Doc. 1, p. 42 (“If a person intends to kill another person and does the slight act of buying a gun, or loading a gun, or getting into a car with the gun in order to drive to the victim's location, he would be guilty of an attempted murder under the slight-acts rule”)).
In the Reply, although not in the Petition or in the Petition for Review, Petitioner argues that his earlier conviction (by a different jury) for attempted kidnapping “fatally undermines the conviction for attempted murder.” This argument is specious. “Jury verdicts are insulated from review for inconsistency.” United States v. Dota, 33 F.3d 1179, 1187 (9th Cir. 1994), cert. denied, 514 U.S. 1052 (1995) (citation omitted); see United States v. Ares-Garcia, 420 Fed. App'x 707, 708 (9th Cir.), cert. denied, 565 U.S. 924 (2011) (“inconsistent verdicts may not be used to demonstrate the insufficiency of the evidence for the count on which the defendant was convicted”) (citation and footnote omitted); Dallas v. Arave, 984 F.2d 292, 295 (9th Cir. 1993) (“the fact that the various jury verdicts could be interpreted in ways that could be inconsistent is not a justification for setting aside the verdicts”). In any event, there was no necessary inconsistency material to the issues presented herein. From the trial evidence in this case, a rational jury could find a “direct but ineffectual act toward accomplishing” a murder as well as a “direct but ineffectual act toward accomplishing” a kidnapping.
To the extent Petitioner's “inconsistent verdicts” claim is unexhausted, the claim should be denied as not “colorable.” See Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (federal habeas courts may deny on the merits unexhausted claims that are not “colorable”).
In sum, as a matter of federal constitutional law, the trial evidence was sufficient to support Petitioner's conviction for attempted murder. Accordingly, the Petition must be denied. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37.
The Petition also fails under the AEDPA standard of review. In rejecting Petitioner's challenge to the sufficiency of the evidence, the California Court of Appeal did not unreasonably apply Jackson or any other United States Supreme Court precedent. For this reason as well, the Petition must be denied. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011).
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.