Opinion
No. C 00-0987 CRB (PR)
August 17, 2001
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Henry Curtis Williams, III, who represented himself at trial, was convicted of second degree murder by a jury in the Superior Court of the State of California in and for the County of Alameda. On or about April 1997, the trial court sentenced petitioner to state prison for a term of 15 years to life. Petitioner unsuccessfully appealed his conviction and sentence to the California Court of Appeal. Petitioner also sought state habeas relief. The Supreme Court of California denied his final state habeas petition on October 25, 2000.
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on May 4, 2000, the court found that the petition, liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. However, the court dismissed petitioner's claim that the trial court denied him the right to present a defense by refusing to appoint advisory counsel. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.
BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
On the morning of October 19, 1996, Carl Johnson was discovered dead in an Oakland motel room, a telephone cord wrapped around his neck. Defendant, who knew Johnson, was seen shortly before the discovery leaving Johnson's room and driving away from the scene.
According to the coroner, Johnson suffered manual as well as ligature strangulation. Johnson also had suffered several blows to the side and back of his head, blows that could have been caused by a bloody liquor bottle found in Johnson's room.
After defendant was apprehended, he gave a statement to police in which he admitted killing Johnson. The statement was recorded on tape, which was played to the jury and received in evidence. In his statement defendant acknowledged arguing with Johnson on the morning of the 19th, hitting him with the liquor bottle, and wrapping the telephone cord around Johnson's neck.
Defendant did not testify at trial.
People v. Williams, No. AO81984, slip op. at 1-2 (Cal.Ct.App. May 25, 1999) (Resp't Ex. F) (hereinafter "Court of Appeal Opinion").
DISCUSSION
A. Standard of Review
This court may entertain 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. "[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). cert. denied, 531 U.S. 944 (2000).
Where the state court does not articulate a rationale for its decision, a federal court must conduct "an independent review of the record" to determine whether the state court "clearly erred" in its application of controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
B. Claims
1. Confession Under Duress
Petitioner claims that he attempted suicide in the interrogation room of the Oakland Police Department and that the police put him on suicide watch while he awaited trial. He argues that his statement was obtained under duress and that it should have been prohibited from use at trial. Petitioner unsuccessfully tried to suppress his statement at trial, though on grounds slightly different from those raised here. RT (March 27, 1997) [Vol. B] 1-50.
The California Supreme Court denied petitioner's claim with citations to state procedural bars. Any procedural default argument is deemed waived by respondent's failure to raise it. See Brown v. Maass, 11 F.3d 914, 914-15 (9th Cir. 1993).
Involuntary confessions in state criminal cases are inadmissable under the Fourteenth Amendment. See Blackburn v. Alabama, 361 U.S. 199, 207 (1960). To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant. See Schueckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973). Absent police misconduct causally related to the confession, there is no basis for concluding that a confession was involuntary in violation of the Fourteenth Amendment. See Colorado v. Connelly, 479 U.S. 157, 167 (1986). A confession is only involuntary if the police use coercive activity to undermine the suspect's activity to exercise his free will. See Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir. 1990), cert. denied, 502 U.S. 853 (1991). "The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (quoting Haynes v. Washington, 373 U.S. 503, 513-14 (1963)).
A state court's finding that a confession was voluntarily given is a mixed question of law and fact. Any state court findings of fact, even if implied, are entitled to a presumption of correctness, which petitioner must rebut by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Conclusory assertions will not suffice. See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001), amended 253 F.3d 1150, 1151 (9th Cir. 2001).
On February 17, 1997, before his trial commenced, petitioner filed a motion with the trial court to have his statement suppressed "on the grounds that the Oakland Police Department detectives led me to believe that this statement was only a formality and that they understood this was a self-defense case." CT 128. Petitioner did not mention suicide in this motion or in his oral argument; rather, he claimed he had been tricked. Id. At the suppression hearing on March 27, 1997, petitioner told the trial court: "It's self-defense. And therefore I gave an honest statement to them. If I had known that it was going to be treated any other way I would have never given a statement. And that's annotated everywhere." RT (March 27, 1997) [Vol. B] 49.
Officers Greg Bingham and Enoch Olivas were the sole witnesses at the suppression hearing. Bingham testified that petitioner was "very placid," cooperative, coherent, sober, and calm. Id. at 6, 22. He said that during the interview petitioner was not handcuffed, coerced. or threatened in any way. Id. at 21. Bingham testified that petitioner never indicated that he wanted to speak to a lawyer or stop the interview, and that petitioner's statement was "completely voluntary." Id. at 21-22. He added that after the interview the petitioner "was obviously pretty depressed and there were some things that happened there. But he never had any outbursts, anything like that." Id. at 7. There is no evidence in the record that petitioner attempted suicide while being questioned. In his statement petitioner did indicate that his wrist was cut. However, Bingham testified that this happened prior to the homicide. RT (April 3-7, 1997) [Vol. B] 240. Petitioner's reference to his wrist being cut does not imply petitioner was suicidal while police questioned him, or that the police coerced his statement. See Connelly, 479 U.S. at 167.
The trial court denied petitioner's motion at the suppression hearing. It implicitly found that petitioner was sober and calm during the interrogation and that he was not coerced or threatened in any way. It also implicitly found that petitioner was competent during the interrogation and that his wrists had been cut prior to the homicide. See RT 50. The trial court's findings of fact are entitled to a presumption of correctness. Petitioner does not offer clear and convincing evidence to rebut them. See 28 U.S.C. § 2254(e)(1). His conclusory assertions that his statement was obtained under duress are not enough. See Bragg, 242 F.2d at 1087. Petitioner is not entitled to habeas relief on this claim.
2. Suppression of Evidence
Petitioner next argues that the prosecution did not disclose allegedly favorable evidence to him — a pocket knife and razors found on a dresser in the motel room where he murdered the victim, Carl Johnson. He claims that the prosecution and the court refused to honor his request to produce this evidence. Petitioner contends that had the existence of the knife and razors not been suppressed. his self-defense argument would have carried more weight and the jury might have acquitted him. "This suppression of key evidence destroyed any exculpatory value to the defense at trial." Petitioner's brief, at 13.
The California Supreme Court also denied this claim with citations to procedural bars. See id.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. There are three components of a Brady violation: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching: that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). A violation will be found under Brady by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. See Kyles v. Whitley, 514 U.S. 419, 435. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial. See id. at 434.
Delay in disclosure does not deprive an accused of due process where disclosure is made during trial and the disclosure, though tardy, is still of value to the accused. See United States v. Vgeri, 51 F.3d 876, 880 (9th Cir. 1995). Due process requires only the disclosure of exculpatory material in sufficient time to permit defendant to make effective use of the material. "Lower courts agree that [Brady does not] impose a general requirement of pretrial disclosure of exculpatory material. Due process, it is said, requires only that disclosure of exculpatory material be made in sufficient time to permit defendant to make effective use of that material." W. LaFave J. Israel, Criminal Procedure § 19.5(e) at 760 (1985). See, e.g., United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988) ("No violation occurs if the evidence is disclosed to the defendant at a time when the disclosure remains of value."); LaMere v. Risley, 827 F.2d 622, 625 (9th Cir. 1987) ("In determining whether disclosure was timely enough to satisfy due process, we consider the prosecution's reasons for late disclosure and whether the defendant had an opportunity to make use of the disclosed material.")
Here, the record reflects that Oakland police evidence technician Randall Lew initially testified that he did not find any weapons in the motel room. RT 126-27. But during petitioner's cross-examination, Lew acknowledged he had found a knife in the room, as his written report indicated. "I could not immediately recall" that the knife had been on the dresser, Lew stated. RT 142-43. On redirect, he testified that the knife was a pocket knife about two and one-half inches long. He said that the knife was on the dresser and that he could not remember whether it was open or closed when he found it. RT 144, 149.
Petitioner's Brady claim fails because the record shows that the pocket knife's existence came up in trial at a point when the disclosure remained of value and petitioner could make use of it. See Vgeri, 51 F.3d at 880. This conclusion is further supported by the fact that petitioner was well aware of the evidence at issue. His cross-examination of Lew led to the testimony that the knife existed. Petitioner cannot claim a Brady violation where, as here, he was "aware of essential facts enabling him to take advantage of any exculpatory evidence." United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986). Petitioner is not entitled to federal habeas relief on this claim.
It also cannot be said that the absence of the knife at trial undermines confidence in the verdict. See Kyle, 514 U.S. at 435. The jury knew there was a knife and nonetheless rejected petitioner's self-defense argument.
3. Law Library Access
Petitioner claims the Alameda County Jail deprived him of access to its law library during his trial. He states that he received no access whatsoever to the library and that this denial of access was not even based upon security considerations.
"An incarcerated defendant may not meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools to prepare a defense." Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985). The entitlement to access is not absolute, but extends only so far as "some access." Id. "A pro se defendant's right of `some access' to resources to aid the preparation of his defense must, however, be balanced against security considerations and the limitations of the penal system." United States v. Robinson, 913 F.2d 712, 717 (9th Cir. 1990).
Before his trial, at a hearing on March 12, 1997, petitioner complained of limited access to the law library. RT (March 12, 1997) 2-15. The court told petitioner that his pro per jail privileges were the same as all inmates and refused to order the jail to grant him special law library privileges. RT (March 12, 1997) 9-15.
Petitioner next complained of limited access to the law library during the conference on jury instructions after both sides had rested. Petitioner told the court he could not prepare a typed copy of his proposed instructions because he was not allowed access to the law library or a typewriter, "just like they've been doing throughout this trial." RT 418. After petitioner gave the court a handwritten request for instructions, the court told him it needed cases in support of his request for a perfect self-defense instruction. Petitioner then repeated his prior complaints about lack of access to the law library. RT 451.
After the jury returned its verdict, the defendant requested the appointment of counsel for sentencing. Appointed counsel moved for a new trial on various grounds, one of which was that "the court committed an error of law by not providing the defendant with access to a law library." CT 315-16. After conducting an evidentiary hearing, the trial court denied the motion. RT 685. The California Court of Appeal upheld this ruling.
The record shows that petitioner's pretrial incarceration was at the Santa Rita Jail. He was moved to the North County Jail just prior to trial. RT 661, 668. Jury trial commenced March 31, 1997. CT 149.
Deputy Sheriff C.J. Viegas worked at Santa Rita while petitioner was incarcerated there. RT 636-37. Viegas testified that once the jail learns an inmate is representing himself, he is placed in a rotation that gives him access to the library for about six hours a week. The inmate is given the library rules and schedule and is informed of the availability of two attorneys and staff to assist with legal research. In addition, the inmate is told that if he is in court on a day he was scheduled to go to the library, he will miss his library rotation if he returns after 3 p.m., when the library closes. RT 637-638, 647, 651, 654-57. Viegas testified that Santa Rita's library log showed that petitioner was at the library on March 4, 5, 10, 12, 17, 19, and 25, 1997. His total library time for these visits was over 21 and one-half hours. RT 644-47.
The North County Jail library has the same hours and rules as the Santa Rita library, although the deputy in charge at North County will attempt to reschedule a rotation period missed because of a court appearance. Deputy Sheriff Janis Ullon, who was responsible for the North County Jail between March and April 1997, testified that petitioner never submitted a request to go to the library on a Friday when court was not in session. She said he never asked to be taken to the library on a day he returned early from court. RT 661, 665-66. Ullon reported that her library log showed that between March 27 and April 22, petitioner spent only one day at the library, April 21. He was scheduled for a three-hour visit but asked to leave after one hour. RT 663-665.
Petitioner testified that no deputy gave him the rules at either the Santa Rita or North County Jail libraries. He said he made written requests to be taken to the law library at both jails but that these were not granted. RT 675. Petitioner claimed he did not know Friday was an available law library day at North County, because he never got a schedule. He said he assumed the schedule was the same as at Santa Rita. RT 675-76. Petitioner also said that there were days when he got back early from court, but Ullon refused to take him to the library. RT 676-77.
The California Court of Appeal explained its ruling against petitioner as follows:
[T]he evidence between the jailhouse deputies' testimony summarized above, and defendant's testimony, was in sharp conflict. The trial court obviously treated the deputies' evidence as more credible, a determination we have no power to overturn. That evidence is more than sufficient to defeat defendant's claim that he was the victim of a systematic effort to prevent him from getting access to the libraries. Moreover, [Ullon] testified that she sent a memo to the court after "the deputy at the court had called and asked me to write a letter as to the library status of the defendant." It is a reasonable inference from this evidence that the inquiry originated with the trial court. It is equally reasonable to infer that the deputy advised the court as to the same information later given under oath at the hearing on defendant's new trial motion. In light of this information the court could conclude that defendant was not, as he claimed, being denied any access to the library. This reasoning refutes defendant's argument that the court "failed to ensure . . . access to the law library." There is consequently no basis on this record to conclude, as a matter of law, that defendant was deprived of "some access," i.e., reasonable access, to materials that would assist him in representing himself.
Court of Appeal Opinion, at 6.
The California Court of Appeal's decision is not objectively unreasonable. The record shows that petitioner's access to the North County law library was not arbitrarily denied. In fact, he did have "some access" to both law libraries. He spent over 20 hours in the Santa Rita library. The North County deputy testified that petitioner never asked to go to the library on his noncourt days or on days when court adjourned early. The record thus reflects that it was the ongoing trial and petitioner's own inaction — not the court or the jail — which kept petitioner from the North County library. While petitioner disputes this, the state court's decision here was supported by substantial evidence, and petitioner presents no clear and convincing evidence to rebut the presumption of correctness we must accord to the state court's findings of fact. See 28 U.S.C. § 2254(e)(1). This court is not left with the firm conviction that the state court "clearly erred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2000), cert. denied, 531 U.S. 944 (2000).
4. Imperfect Self-Defense Instructions
Petitioner argues that the imperfect self-defense instruction (CALJIC No. 5.17) was contradicted by the giving of instructions on when self-defense, ceases to be available (CALJIC Nos. 5.52, 5.53). He contends that the two instructions were in tension because under CALJIC No. 5.17 petitioner would be guilty of manslaughter, not murder, if he subjectively but unreasonably believed in the need for self-defense (subjective standard), while under CALJIC Nos. 5.52 and 5.53. self-defense would no longer be available if the danger had ceased for a reasonable person (objective standard). In other words, petitioner argues that the instructions on when self-defense ceases to be available as a defense apply only in connection with the perfect self-defense instructions.
To obtain federal collateral relief for errors in the jury charge, petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some constitutional right." Id. The instruction may not be judged in artificial isolation. but must be considered in the context of the instructions as a whole and the trial record. See id. The court must evaluate jury instructions in the context of the overall charge to the jury and as a component of the entire trial process. See United States v. Frady, 456 U.S. 152, 169 (1982). In reviewing an ambiguous instruction, the inquiry is not how reasonable jurors could or would have understood the instruction as a whole; rather, the court must inquire whether there is a "reasonable likelihood" that the jury applied the challenged instruction in such a way that violates the Constitution. Estelle, 502 U.S. at 72. The defined category of infractions that violate fundamental fairness is very narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Id. at 73.
Here, the instructions were given as follows:
CALJIC No. 5.17:
A person, who kills another in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter.
As used in this instruction, an imminent peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer.
However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful conduct created the circumstance which legally justifies his adversary's use of force, attack, or pursuit. RT 570-71; CT 229-30.
CALJIC No. 5.52:
The right of self-defense exists only as long as the real or apparent threat and danger continues to exist. When such danger ceases to appear to exist, the right to use force in self-defense ends. RT 571; CT 232.
CALJIC No. 5.53:
The right of self-defense ceases to exist when there is no longer any apparent danger of further violence on the p art of an assailant. Thus where a person is attacked under circumstances which justify the exercise of the right of self-defense, and thereafter such person uses such force up on his attacker as to render the attacker apparently incapable of inflicting further injuries, the right to use force in self-defense ends. RT 571; CT 233.
The California Court of Appeal found these instructions to be compatible with each other: "Neither CALJIC Nos. 5.52 nor 5.53 establish the proposition defendant perceives in them, i.e., that they address only situations of perfect self-defense where there are objectively reasonable fears of imminent danger. The language of the instructions shows that they are not so limited." Court of Appeal Opinion, at 8. Indeed, the two instructions on when self-defense ceases to apply refer to the "apparent threat and danger," the "apparent danger of further violence," and an "apparently incapable" attacker. This language clearly encompasses the subjective mindset of the defendant. These two instructions are consistent with the imperfect self-defense instruction, which defines an "imminent peril" as one that is "apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer."
Accordingly, the state court concluded that these jury instructions were not legally flawed and that petitioner could have proposed clarifying instructions to remedy any possible defects. Id. at 9. The state court's decision was not "clearly erroneous." Van Tran, 212 F.3d at 1153-54. These instructions did not by themselves "so infect the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72.
5. Perfect Self-Defense Instruction
Petitioner claims that the trial court erroneously refused to give the jury an instruction on perfect self-defense. He contends that the evidence of weapons at the scene supported giving such an instruction. He references his own confession to the police to the effect that "decedent was still attacking and wrestled Petitioner over the beds and onto floor [sic] where Petitioner used the phone cord to finally subdue a drug crazed and much larger, more powerful assailant [sic]." Petitioner's brief, at 20.
"For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. If the belief subjectively exists but is objectively unreasonable, there is `imperfect self-defense,' i.e., `the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. To constitute `perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable." People v. Humphrey, 13 Cal.4th 1073, 1082 (1996).
Petitioner protests the trial court's refusal to instruct the jury with CALJIC No. 5.12:
The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes:
1. That there is imminent danger that the other person will either kill him or cause him great bodily injury; and
2. That it is necessary under the circumstances for him to use in self-defense force or means that might cause the death of the other person, for the purpose of avoiding death or great bodily injury to himself.
A bare fear of death is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate, and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one's self from death or great bodily harm.
A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceeding. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of a fair trial guaranteed by the Fourteenth Amendment. See id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995). It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (holding that it was error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence). But due process does not require that an instruction be given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982). A habeas petitioner whose claim involves a failure to give a particular instruction bears an "especially heavy burden." Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).
Here, the evidence showed that Carl Johnson, the victim, was struck four times on the head with the brandy bottle. Three of these blows were to the back of the head. According to Dr. Paul Hermann, who performed the autopsy, these blows could not have been inflicted while Johnson was facing the perpetrator. RT 172. Dr. Hermann also observed that it is extremely difficult to strangle to death a large man. An adult male can generally defend himself and prevent another from killing him in this way. RT 174. The evidence thus showed that strangling Johnson would be an extremely difficult thing to do unless Johnson were in some way incapacitated, probably by the blows to the head — which is incompatible with petitioner's self-defense theory. In his statement to the police, petitioner said he was angry at Johnson for not returning his computer. After Johnson grabbed him, the two men began to struggle. Petitioner said he hit Johnson with the brandy bottle without noticing whether Johnson was armed. It is true that petitioner had seen Johnson carry and use a knife to cut up rocks of cocaine. Petitioner also knew Johnson had a reputation as a "tough guy." See Court of Appeal Opinion, at 12. And Johnson's actions in the motel room could possibly be construed as an assault. Nevertheless, "[a] simple assault does not justify homicide." People v. Anderson, 57 Cal.App. 721, 727 (1922). In sum, the evidence did not support a conclusion that the killing was reasonable or compatible with perfect self-defense.
After examining the evidence and petitioner's statement, the state court concluded,
In light of the complete absence of any history of violence between Johnson or defendant, or any instances of violence involving Johnson that defendant had witnessed, defendant's basis for establishing a right of perfect self-defense is fatally weakened . . . . Defendant could point to no threatening comments made by Johnson, certainly none that could be construed as imparting a clear and immediate danger to defendant's life . . . . [T]he evidence, viewed most favorably to the defendant, simply does not come close to satisfying the legal requirements for perfect self-defense.
Court of Appeal Opinion, at 10-12. The court also found any error necessarily harmless in light of the jury's rejection of imperfect self-defense. See id.
In rejecting imperfect self-defense, the jury necessarily rejected the possibility that petitioner had a subjective belief he was under imminent threat of attack — a belief that is a necessary element for perfect self-defense as well. Because the state court did not err in concluding that any error was harmless, it follows that its decision is not reversible under 28 U.S.C. § 2254(d). Van Tran, 212 F.3d at 1156.
6. Heat of Passion Instruction
Petitioner objects to the heat of passion instruction that the trial court gave the jury. He claims it was legally erroneous to instruct the jury, at the prosecution's request, that "provocation can only serve to reduce murder to manslaughter when the victim actually initiated the provocation." RT 577. Petitioner argues that the instruction precluded the jury from considering provocation based upon the fact that Johnson would not return petitioner's computer.
Again, petitioner must show that any error so infected the trial that he was denied due process. Estelle, 502 U.S. at 72. In addition, he must show that any error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
The heat of passion instruction at issue was not legally flawed. The California Court of Appeal noted that the instruction "expresses the sound principle that the aggressor or initiator of a fight cannot kill the victim under the guise of a manufactured quarrel. (E.g., People v. Williams (1977) 75 Cal.App.3d 731, 737-740; People v. Walker (1946) 76 Cal.App.2d 10, 15; People v. Montezuma (1931) 117 Cal.App. 125, 130.)" Court of Appeal Opinion, at 12. Under California's objective standard, it is the victim's conduct, not the defendant's state of mind, that determines whether the defendant has a legitimate heat of passion defense. See People v. Rich, 45 Cal.3d 1036, 1112 (1988). "No defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." People v. Logan, 175 Cal. 45, 49 (1917).
The instruction correctly told the jury that if petitioner initiated the struggle leading up to the killing, as the prosecution sought to prove, petitioner could not claim the killing was manslaughter. The instruction accorded with state law and did not deny petitioner due process.
7. Juror Dismissal
Finally, petitioner claims that the trial court erred in dismissing juror number three. He argues that the trial court did not conduct a sufficient inquiry into her alleged misconduct and relied on hearsay to dismiss her.
California's statute for discharge and substitution of jurors has been upheld as facially constitutional. See Miller v. Stagner, 757 F.2d 988, 995 (9th Cir. 1985), amended, 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). This does not preclude a Sixth Amendment attack on a particular juror substitution on grounds there was not good cause for it. See Perez v. Marshall, 119 F.3d 1422, 1426 (9th Cir. 1997), cert. denied, 522 U.S. 1096 (1998). Because on habeas review a trial court's findings regarding juror fitness are entitled to special deference, review is for manifest error. See id.
Here, a deputy district attorney. Michael O'Connor, overheard the juror in question expressing opinions about the case in public before final arguments. RT 472-473. He heard her say that the case was provoking strong emotions in her and that she had almost raised her hand to ask the judge to excuse her. RT 474-76. The court informed the juror of this information and gave her a chance to respond. She replied, "At this point, I don't think there is anything to say. Had I disagreed with what you said, it wouldn't make any difference. So, therefore, I don't have anything to say." Then. the juror denied the events, saying she had no idea what the court was talking about. At that point, the court read the juror the transcript of O'Connor's testimony and asked her if the person O'Connor reported was not her. She replied, "What can I say? It speaks for itself. I don't have anything else to say." The court then replaced juror number three with an alternate. RT 482-83.
The California Court of Appeal upheld the trial court's action: "Juror No. 3 was guilty of obvious and serious misconduct. (In re Hitchings (1993) 6 Cal.4th 799, 843.) Defendant does not claim otherwise. Misconduct is good cause for removal. (People v. Daniels (1991) 52 Cal.3d 815, 863-866). As for the court supposedly `by failing to conduct a sufficient inquiry,' it is hard to see what more the court could have done with an obdurately uncommunicative juror." Court of Appeal Opinion, at 7.
In habeas proceedings, a trial court's decision to replace a juror is entitled to special deference, and the petitioner must show manifest error to merit relief. See Perez, 119 F.3d at 1426. Petitioner does not meet this standard or show that the Court of Appeal's decision was objectively unreasonable. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
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.