Opinion
No. C 01-3276 CRB
October 18, 2002
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issued have been tried or heard and a decision has been rendered.
Petitioner was convicted by a jury of assault with a deadly weapon with personal infliction of great bodily injury. On October 8, 1999, he was sentenced to five years in prison. The California Court of Appeal affirmed the convictions and denied habeas corpus relief, rejecting petitioner's claim that trial counsel was ineffective by failing to request an instruction on antecedent threats. On June 20, 2001, the California Supreme Court denied review.
Petitioner then filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on November 19, 2001, this court found that the petition stated two claims for relief — (1) ineffective assistance of trial counsel for failure to request an instruction on the effect of antecedent threats; and (2) ineffective assistance of appellate counsel for failure to demonstrate prejudice to the petitioner by the deficiency of trial counsel — and ordered respondent to show cause why a writ of habeas corpus should not be granted.
Respondent instead moved to dismiss the petition on the ground that it contained both exhausted and unexhausted claims because claim (2) had not been fairly presented to the Supreme Court of California. The court agreed and petitioner promptly filed an amended petition in which he made clear that he wished to go forward only with claim (1).
Per order filed on April 30, 2002, the court reinstated its order to show cause as to claim (1). Respondent has filed an answer and petitioner has filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the relevant facts of the case as follows:
A. Prosecution's case
On September 24, 1998, appellant stabbed Brett Lewis (Lewis) three times in the back in the parking lot of a Concord apartment complex. As a result of the stabbing, Lewis suffered a pneumothorax and partially collapsed lung and was hospitalized for several days. The question at trial was not whether appellant stabbed Lewis, but why.
Sometime in early September, appellant made an angry, hostile late night phone call to the home of Lewis's father, Marvin, and brother, Jason. Believing Jason was sleeping with his girlfriend, appellant threatened him. Appellant also threatened Marvin, who responded that there was another member of the family appellant would have to deal with. Appellant said, "Oh, Brett. I know him. I'll deal with him when I see him." Jason mentioned the call to Lewis, who was upset that his family had been disturbed.
On the afternoon of September 24, Lewis picked up his girlfriend, Bobbi Jo Wilson, at the Concord apartment of some friends. They saw appellant in the parking lot, putting gas in his car. Lewis approached appellant to ask whether he had been "messing wit " Lewis's motorcycle and also to talk about the phone call. Lewis said he was upset but did not threaten appellant. Lewis also said he was not carrying a weapon or wearing a knife sheath and did not reach for a weapon during the confrontation.
According to Lewis, he put whatever he was carrying on the ground and began to question appellant about the motorcycle and the phone call. He recalled appellant saying, "Now what?" and laughing. Then appellant swung at him. Lewis tripped over something and fell, and appellant stabbed him in the back three times.
Wilson witnessed the stabbing. She said that as the two men began to argue, appellant suddenly swung a knife at Lewis. Lewis jumped back, turned, tripped over a backpack, and fell. He got up and started to run from appellant, but tripped and fell again, face down on the ground. Appellant quickly ran up and stabbed Lewis in the back three times. Wilson was screaming. Appellant ran into the apartment complex, came out with his girlfriend, and drove away with her.
Wilson tried to help Lewis, who was having difficulty breathing. When she put her hand on the back of his shirt, the blade of a knife fell out onto the ground. While she was assisting Lewis, she saw appellant's friend, Rob Chapple, pick up the blade with a towel and go back toward his apartment. Police later recovered a knife blade from the canal behind the apartment.
Ken Bewley, who was with his wife and children at a pizza restaurant across from the parking lot, also saw the stabbing. Bewley said the stabber and the victim initially appeared to be arguing. The stabber swung at the victim, who took a few steps back and fell. The victim got up and tried to run away. The stabber chased the victim and pushed him. The victim fell again, face down. The stabber got on top of the victim, raised his fist and made several stabbing motions with a shiny metallic object. As Bewley and another person left the restaurant to try to stop the attack, the stabber got up and left with a woman in a car. Bewley pulled up the victim's shirt and saw stab wounds. He did not see any weapons or a knife sheath on the victim, and he did not see anyone take a belt or anything else from the victim. Throughout the entire incident, Bewley never saw the victim reach into his waistband or pocket or make any aggressive motions toward the stabber. The victim never tried to attack or stab the stabber; instead, he was trying to get away.
The police officer who responded to the scene of the stabbing did not see a knife or any weapons or a knife sheath. He did not recall whether Lewis was wearing a belt.
B. Defense
Appellant testified in his own defense. He acknowledged the late night call to the Lewis home, but said it occurred about three months before the stabbing. Appellant admitted that during the phone call he yelled and swore and threatened Jason; he was angry and upset because he suspected Jason of an affair with his girlfriend that resulted in her pregnancy.
Appellant testified that after the phone call, he heard from several people that Lewis was looking for him and had threatened to hurt him. Appellant had seen Lewis with a knife and believed he always carried a knife. All these threats made him fearful and he tried to avoid Lewis.
On the day of the incident, a friend warned appellant that Lewis was going to be visiting someone at the apartment complex where appellant lived at around 5:00 that afternoon. At about 4:30 p.m., appellant was in the parking lot, pouring some gasoline into his car because it wouldn't start. Appellant saw Lewis's girlfriend outside of one of the apartments; he waved to her. Lewis came out of the apartment, disappeared from view, and then reappeared behind appellant.
Lewis asked if appellant had been messing with his motorcycle; appellant said he hadn't. Lewis than said that appellant was "disrespecting" Lewis's father. Appellant responded, "F your father." By this time, both men were yelling. Lewis said, "I'm going to kick your ass," but appellant said he was not going to
Lewis put his backpack and his boom box down, and appellant "knew something was going to happen." Appellant put the gas can on the ground between them and took a step back. Lewis stepped over the can and started to draw a long knife he was carrying in a sheath, but it got caught in the sheath. Frightened, appellant reached into the carp et layer's pouch he was carrying on his back, grabbed one of his three knives, and "stuck [Lewis] twice in the gut."
Lewis stepped back, tripped over the gas can, slipped on the spilled gasoline, and he fell. His knife came out of the sheath and he rolled over and reached for it. Appellant "poked him lightly in the back" and said "`Dude, it's over. Get off it. It's over."' Appellant's knife handle broke off in his hand. Lewis threatened to kill appellant and got up with his knife despite the blade in his back. Appellant panicked; Lewis still had his knife but appellant's was broken. He called for his girlfriend and they left. Several days later, he turned himself in to the police.
Appellant's friend Robert Chapple also witnessed the incident. Chapple saw Lewis approach appellant in the parking lot, and he knew from Lewis's body language that the encounter was not friendly. According to Chapple, Lewis dropped his boom box, twisted around, an d grab bed his sheath. Appellant "punched Lewis in the side. Appellant slugged Lewis again and ran away. Lewis fell and tried to get up. Chapple approached and told Lewis he should rest because he had a knife broken off in his back; Lewis said he wanted to kill appellant. Chapple found the knife blade and tossed it into the canal behind his apartment; later, he told the police where he had discarded it.
Appellant's friend Dale Yoders testified that Lewis had been threatening appellant.
It was stipulated that a blood test of Lewis on the night of the assault showed the presence of .70 micrograms per milliliter of methamphetamine and .04 micrograms per milliliter of morphine. A forensic toxicologist testified about the effects of methamphetamine and stated that it has been linked with violence and aggression in some users.People v. Wexler, No A08953, slip op. 1-5 (Cal.Ct.App. Mar. 7, 2001) (footnotes omitted) (Resp't Ex. III).
DISCUSSION
A. Standard of Review
This court may grant a petition for a 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 writ 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." Id. § 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 `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] 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 the 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.
In our circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — in other words, "that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2000)
B. Claim
Defense counsel argued to the jury that appellant acted in self-defense. The trial court gave several standard instructions on self-defense, including CALJIC Nos. 5.30 (explaining the right of self-defense against assault); 5.50 (assailed person need not retreat); 5.51 (actual danger not necessary and 5.54 (availability of self-defense to an aggressor). Petitioner claims that these instructions fell short. Specifically, he claims that he received ineffective assistance of counsel because defense counsel did not request an additional instruction on the effect of antecedent threats on the reasonableness of petitioner's perception of the need for self-defense and the nature of his response.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
In California, a defendant is entitled to an instruction on the effect of antecedent threats where the evidence reasonably supports that the defendant was either the aggressor or the victim of fear induced by the victim's threats or actions. See People v. Moore, 43 Cal.2d 517, 527-529 (1954); People v. Pena, 151 Cal.App.3d 462, 475 (1984); People v. Bush, 84 Cal.App.3d 294, 302-303 (1978).
Here, the California Court of Appeal rejected petitioner's claim that counsel's failure to request the antecedent threat jury instruction constituted ineffective assistance of counsel on the ground that petitioner had not demonstrated that he was prejudiced under the rationale of Strickland.
First, the court found that, despite the lack of a specific antecedent threat instruction, the given instructions allowed the jury to consider all circumstances in evaluating the reasonableness of his self-defense claim, including the antecedent threats. Nothing in the instructions, the court reasoned, would have led the jurors to believe they were precluded from considering the effect of the victim's threats on petitioner's conduct. Specifically, the court wrote:
The [trial] court instructed that a person may use all force and means that believes to be reasonably necessary and that a reasonable person in the same circumstances would consider to be reasonably necessary. It instructed that a person exercising his right of self-defense may stand his ground and defend himself with all force and means that would appear necessary to a reasonable person in a similar circumstance and with similar knowledge. It instructed that actual danger is not necessary, if a person is confronted by the appearance of danger and a reasonable person in a similar situation, seeing and knowing the same facts, would be justified in believing himself in similar danger.People v. Wexler, No. A0893 53, slip op. at 7.
Second, the court found that both defense counsel and the prosecutor covered the subject of threats during argument. Specifically, the court noted defense counsel's argument that a reasonable person "confronted with the threats, confronted with this guy who is searching him out, shows up doped up . . . and is in his face and he reaches for something, he has the right to respond. He doesn't have to wait for this man to attack him with the knife . . . ." Id. at 7.
The court also noted that the evidence in the record contradicted petitioner's account of the confrontation. Although the California Supreme Court has held that an antecedent threat instruction is appropriate "where the evidence on the issue of which of the parties was the aggressor is . . . closely balance, People v. Moore, 43 Cal.2d at 531, the court found that the evidence in this case on which of the parties was the aggressor was "not closely balanced." Petitioner's account was contradicted by the victim, the victim's girlfriend and an unbiased witness. Additionally, petitioner's testimony that he only "poked" Lewis lightly in the back was inconsistent with the evidence about the severity of one of the stab wounds.
The California Court of Appeal's conclusion that petitioner failed to demonstrate prejudice is supported by the record and is not an unreasonable application of clearly established federal law to the facts of the case. As discussed above, the jury was not precluded from considering the effect of the evidence of the victim's threats on petitioner's perception of danger or the nature of his response. Rather, the court's instructions directed the jury to consider all the circumstances, including what petitioner knew or believed, in evaluating the reasonableness of his claim of self defense. In addition, both the prosecutor and defense counsel made reference to those threats during argument, with defense counsel specifically arguing to the jury about the reasonableness of using force when confronted with threats and aggressive behavior. The jury nonetheless rejected petitioner's theory of self-defense. There is no "reasonable probability" that petitioner would have obtained a more favorable result but for counsel's failure to request an instruction on antecedent threats. See Strickland, 466 U.S. 668, 687-88 (1984).
Because the California Court of Appeal did not clearly err in rejecting petitioner's ineffective assistance of counsel claim, federal habeas relief on this claim is not available. See Weighall v. Middle, 215 F.3d 1058, 1063 (9th Cir. 2000)).
And for essentially the same reasons, petitioner's claim of ineffective assistance of counsel on appeal, although not yet exhausted, lacks merit.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.The clerk shall enter judgment in favor of respondent and close the file.