David Viens v. Stuart Sherman

Filing 38

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS by Magistrate Judge Frederick F. Mumm: (see attached) The Magistrate Judge, therefore, orders that judgment be entered denying the Petition on the merits with prejudice. (jm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID VIENS, 12 Petitioner, 13 v. 14 15 STUART SHERMAN, Respondent. 16 17 ) No. CV 15-8593-FFM ) ) ORDER DENYING PETITION FOR ) WRIT OF HABEAS CORPUS ) ) ) ) ) ) ) I. PROCEEDINGS 18 Petitioner, David Viens, a state prisoner in the custody of the California 19 Department of Corrections, constructively filed a Petition for Writ of Habeas 20 Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on November 21 3, 2015. On July 25, 2016, Respondent filed an Answer. On November 21, 2016, 22 Petitioner filed a Reply. The parties have consented to have the undersigned 23 conduct all proceedings in this case, including the resolution of all dispositive 24 matters. The matter, thus, stands submitted and ready for decision. 25 /// 26 /// 27 /// 28 /// 1 1 II. PROCEDURAL HISTORY 2 A Los Angeles County Superior Court jury found Petitioner guilty of 3 second degree murder (Cal. Penal Code § 187). He was, thereafter, sentenced to 4 fifteen years to life in state prison. 5 Petitioner then appealed his conviction. On July 23, 2014, the California 6 Court of Appeal filed an unpublished opinion in which it affirmed the judgment 7 against Petitioner. Petitioner then filed a petition for review in the California 8 Supreme Court, which denied the petition on October 22, 2014. Subsequently, 9 Petitioner filed a series of state court collateral attacks to his conviction, the last 10 of which was denied on July 15, 2015. 11 Petitioner then initiated this action. 12 13 III. FACTUAL BACKGROUND 14 The following facts were taken verbatim from the overview of the factual 15 summary in the California Court of Appeal’s opinion affirming Petitioner’s 16 conviction:1 17 I. Prosecution Evidence [Petitioner’s] Relationship with His Wife 18 A. 19 [Petitioner] was charged with the murder of his 20 wife, Dawn Marie Viens, who was last seen alive on 21 Sunday, October 18, 2009. [Petitioner] and Dawn lived 22 in a two-bedroom apartment in Lomita, California and 23 had been together for over 15 years. [Petitioner] was a 24 1 The California Court of Appeal’s opinion also contains a lengthy, exhaustive summary of the facts underlying Petitioner’s conviction. See People v. Garcia, 26 2009 WL 1315504, *1-19 (Cal. Ct. App. May 13, 2008). Because of the length of 27 that summary, only the court of appeal’s “overview” of the facts is included in this Report. Any reference to facts not included in the court of appeal’s “overview” 28 will be accompanied by a pinpoint citation to the court of appeal’s opinion. 25 2 1 chef who owned his own restaurants, and he and Dawn 2 generally worked together in the restaurants. Friends 3 and family described their relationship as a typical 4 marriage. They appeared to love one another and 5 worked well together. They argued at times, but always 6 made up, and no one had witnessed [Petitioner] engage 7 in physical violence against Dawn. 8 [Petitioner] had three children from a prior 9 marriage, including a 19-year-old daughter, Jacqueline. 10 Jacqueline was close to both her father and Dawn, and 11 had lived with them for a period of time when she was a 12 teenager. As described by Jacqueline, both she and 13 Dawn were heavy drinkers, and Dawn would drink 14 alcohol throughout the day. They occasionally drank 15 alcohol together, and they also used drugs together from 16 time to time. When Jacqueline and her siblings were 17 younger, [Petitioner] would joke with them that if he 18 ever needed to get rid of a body, he would cook it. 19 In Spring 2009, [Petitioner] and Dawn opened a 20 small restaurant in Lomita called the Thyme 21 Contemporary Café. The restaurant typically was open 22 from Tuesday through Saturday, but was closed for a 23 major remodeling between May and September 2009. 24 During that time, [Petitioner] spent long hours working 25 on the remodel while Dawn supported them financially 26 by working as a waitress at another restaurant. Once the 27 Thyme Café was reopened, [Petitioner] worked as the 28 /// 3 1 chef in the kitchen while Dawn worked as the hostess 2 and server. 3 Joe Cacace owned a motorcycle repair shop that 4 was located in the same shopping center as the Thyme 5 Café. Cacace had a friendly relationship with both 6 [Petitioner] and Dawn and saw them at the restaurant on 7 a daily basis. During the summer of 2009, Dawn gave 8 Cacace an envelope with $640 in cash and asked him to 9 hold it for her. She told Cacace that the money was a 10 11 “nest egg” that she wanted to put aside for later. Karen Patterson was an interior designer for 12 restaurants and a close friend of [Petitioner] and Dawn 13 for many years. In 2009, she worked with [Petitioner] on 14 the remodel of the Thyme Café, and she saw the couple 15 at the restaurant several times a week. During that 16 summer, Patterson and Dawn became very close after 17 Dawn’s mother died of cancer. On one occasion in 18 August 2009, Patterson observed red marks on Dawn’s 19 neck. When Patterson asked her about it, Dawn began 20 crying and said that [Petitioner] had been drinking and 21 tried to choke her. Dawn also said that [Petitioner] had 22 been very angry with her and that there were other 23 incidents when he had hurt her. 24 On another occasion in September 2009, Dawn 25 called Patterson late one night and said that she had 26 locked herself in the bathroom of her home. She told 27 Patterson that [Petitioner] was angry with her and she 28 was afraid that he was going to beat her. Patterson could 4 1 hear [Petitioner] pounding on the door and yelling, but 2 could not understand what he was saying. Patterson 3 wanted to call the police, but Dawn asked her not to 4 because [Petitioner] could lose his restaurant. Dawn 5 decided to wait in the locked bathroom until [Petitioner] 6 went to sleep. Dawn called Patterson back a short time 7 later and said that [Petitioner] had gone to bed and she 8 would be okay. 9 B. 10 Dawn’s October 2009 Disappearance Donna Morton lived in the same apartment 11 complex as [Petitioner] and Dawn. One afternoon in 12 October 2009, Morton overheard an argument between 13 them. She could not hear what they were saying, but 14 their voices were both raised and it sounded like objects 15 were being thrown in their apartment. After about 15 16 minutes, Dawn stormed out of the apartment; Morton 17 never saw her again. When Morton later asked 18 [Petitioner] about Dawn, he said that they were no longer 19 together because Dawn did not want him to stay in the 20 restaurant business. He also said that Dawn had a 21 drinking problem but did not want to get help, and she 22 had decided to go live in the mountains. 23 Richard Stagnitto was a friend of [Petitioner] and a 24 former business associate of [Petitioner’s] family. On 25 the evening of Sunday, October 18, 2009, Stagnitto went 26 to the Thyme Café to install a pot and pan rack in the 27 kitchen. At about 10:00 p.m., after completing the 28 installation, Stagnitto sat down with [Petitioner] and 5 1 another man who was interviewing for a chef position. 2 [Petitioner] complained that the restaurant was not 3 working out the way he wanted and that Dawn was 4 drinking too much and not doing her job as a hostess. 5 He said that Dawn was a “sloppy mess” at work and that 6 it was embarrassing to have her in the restaurant while he 7 was trying to start the business. [Petitioner] was 8 reviewing the restaurant receipts as he talked and became 9 angry when the receipts did not balance. He said, “That 10 bitch is stealing from me, and nobody steals from me, 11 and I will kill that bitch.” When Stagnitto tried to calm 12 down [Petitioner] by suggesting that he send Dawn to 13 rehab, [Petitioner] told him, “You’re just a pussy.” 14 Shortly thereafter, [Petitioner] and the other man left to 15 go to a club and Stagnitto went home. 16 At 11:01 p.m. that night, Dawn called Cacace on 17 the telephone. She told him that she had some more 18 money saved that she wanted to drop off at the 19 motorcycle shop, and made plans to bring the money to 20 Cacace the following day. Later that night, at 11:49 21 p.m., Dawn called Stagnitto. During their telephone 22 conversation, Stagnitto told Dawn that [Petitioner] was 23 upset with her and had accused her of stealing money 24 from the restaurant. At that point, Dawn became very 25 upset and began crying hysterically. Stagnitto and Dawn 26 exchanged a few more telephone calls that night about 27 where [Petitioner] was and how he would get home, but 28 after those calls, Stagnitto did not hear from her again. 6 1 Dawn also never showed up at Cacace’s motorcycle shop 2 to drop off the money. 3 On the morning of Monday, October 19, 2009, 4 [Petitioner] had a meeting with the employees at the 5 Thyme Café. He appeared tired and upset, and told them 6 that Dawn would no longer be working there and they 7 needed to figure out a new management system to keep 8 the restaurant running smoothly. He gave no reason for 9 the change. One of the employees at the meeting was 10 Kathy Galvan, who had been working as a part-time 11 server at the restaurant for a few weeks. During the time 12 that she worked with Dawn, Galvan observed that Dawn 13 was moody, got easily upset, and yelled at the staff 14 whenever there was an error with an order. At the 15 meeting, [Petitioner] asked Galvan to take on some of 16 Dawn’s managerial duties, and as a result, Galvan began 17 working at the restaurant on a full-time basis. 18 On Tuesday, October 20, 2009, Dawn was 19 supposed to meet Patterson at the hospital where 20 Patterson was undergoing treatment for cancer. When 21 Dawn did not show up at the hospital or call, Patterson 22 and her husband decided to stop by the restaurant to 23 check on her. They did not find Dawn, but spoke with 24 [Petitioner] who was not himself and appeared very 25 agitated. As described by Patterson, [Petitioner] was 26 drenched in sweat, seemed to be distraught, and had a 27 large bandage on his hand. [Petitioner] told Patterson 28 that he and Dawn had an argument because she refused 7 1 to go to rehab, and that she had left him. [Petitioner] 2 also said that he recently had reviewed the restaurant 3 receipts and was concerned that Dawn had been taking 4 money from the business for some time. At 5 [Petitioner’s] request, Patterson reviewed a large pile of 6 receipts, but found only a small cash shortage of less 7 than $25. Patterson asked [Petitioner] whether Dawn 8 had taken her belongings with her, and why her car was 9 still in the parking lot. [Petitioner] said that Dawn had 10 taken some luggage but not her car because it was not 11 registered or working properly. [Petitioner] was nervous 12 throughout their conversation, and appeared very 13 irritated by Patterson’s questions. At one point, 14 [Petitioner] said “good riddance” in reference to Dawn. 15 Three days later, on October 23, 2009, Patterson 16 again asked [Petitioner] about Dawn. [Petitioner] said 17 that he had been communicating with Dawn via 18 telephone and text messages, and she had conveyed to 19 him that she needed time away. Patterson asked 20 [Petitioner] to have Dawn call her directly because she 21 was very worried. That same afternoon, Patterson 22 received a text message from Dawn’s cell phone which 23 stated that she just needed some time to think. The 24 message contained a number of spelling errors, which 25 was unusual for Dawn, and was signed “Love, Pixy.” 26 Although Patterson’s nickname for Dawn was “Pixie,” it 27 was misspelled in the message as “Pixy.” Patterson later 28 received a second text message from Dawn’s cell phone 8 1 which likewise contained many misspellings, including 2 the nickname “Pixy.” The message stated that Dawn was 3 moving back east and would provide a new phone 4 number once she was settled. 5 Over the next several weeks, Patterson repeatedly 6 tried to contact Dawn on her cell phone, but could not 7 reach her. On multiple occasions, Patterson asked 8 [Petitioner] about Dawn’s whereabouts, and he told her 9 different stories about who Dawn might be with and 10 what she might be doing. Cacace also asked [Petitioner] 11 about Dawn when he noticed she was missing, and 12 [Petitioner] said that he had fired her because she was 13 drinking on the job and making mistakes with money. A 14 week after Stagnitto last spoke with Dawn, he received a 15 text message from her cell phone. The message stated 16 that Dawn was leaving town for awhile and needed to 17 clear her head. [Petitioner] later told Stagnitto that Dawn 18 had refused to go to rehab and had left him. About two 19 weeks after Dawn disappeared, [Petitioner] and Galvan 20 began a romantic relationship. When Galvan first visited 21 the Lomita apartment, she noticed that Dawn’s 22 belongings were still there and became concerned that 23 Dawn might be coming back. [Petitioner] assured 24 Galvan that Dawn had left him and that their marriage 25 was over. 26 In late October 2009, [Petitioner] called his 27 daughter, Jacqueline, who was then living in South 28 Carolina, and asked her to come to Lomita to help him 9 1 with the restaurant. [Petitioner] made no mention of 2 Dawn at the time, but later told Jacqueline that Dawn 3 had taken off for a few days because they had a fight. 4 Jacqueline arrived in Lomita in early November 2009 5 and stayed for six weeks. A day or two after her arrival, 6 [Petitioner] asked Jacqueline to pack up Dawn’s clothes 7 and place them in storage because Dawn was not coming 8 back. At [Petitioner’s] request, Galvan came over to the 9 Lomita apartment and helped Jacqueline move Dawn’s 10 clothes into a rental storage unit. By mid-November 11 2009, Galvan had moved into the Lomita apartment with 12 [Petitioner]. [Petitioner] later showed both Galvan and 13 Jacqueline text messages that he claimed were from 14 Dawn and which stated that Dawn still loved [Petitioner] 15 but was leaving him. 16 One night in late 2009, [Petitioner] and Jacqueline 17 were driving home together from the restaurant. They 18 were both drunk, and Jacqueline had smoked marijuana. 19 As he was driving, [Petitioner] began crying and 20 confessed to Jacqueline that Dawn was not coming back. 21 According to [Petitioner], he and Dawn had an argument 22 at their apartment one night. [Petitioner] had taken a 23 sleeping pill and had asked Dawn to leave the room so 24 that he could sleep, but she kept badgering him and 25 trying to talk. [Petitioner] moved a dresser in front of the 26 bedroom door to keep Dawn out, but she somehow got 27 back inside the room. [Petitioner] then brought Dawn 28 into the living room, tied her up and restrained her 10 1 mouth, and returned to the bedroom to sleep. When 2 [Petitioner] woke up the next morning, Dawn had died in 3 her own vomit. [Petitioner] repeatedly told Jacqueline 4 that it was an accident. He also said that Dawn’s body 5 would never be found. At [Petitioner’s] request, 6 Jacqueline sent a text message to one of Dawn’s friends 7 from Dawn’s cell phone which stated that Dawn was 8 okay and was starting over in Florida. After sending the 9 message, Jacqueline threw away Dawn’s cell phone in an 10 attempt to protect her father. The Missing Persons Investigation 11 C. 12 On November 8, 2009, Dawn’s sister filed a 13 missing persons report with the Los Angeles County 14 Sheriff’s Department. Sheriff’s Detective Tamar 15 Abraham led the missing persons investigation and took 16 numerous steps to locate Dawn, including distributing 17 flyers with her photograph to local law enforcement 18 agencies, reviewing her financial and cell phone records 19 for recent activity, interviewing her friends and family, 20 and updating a nationwide missing persons database with 21 her identifying information. None of these actions 22 produced any leads. At Detective Abraham’s request, 23 Sheriff’s Deputy James Dondis interviewed [Petitioner] 24 at his Lomita apartment on November 11, 2009. 25 [Petitioner] told Deputy Dondis that he and Dawn had 26 ongoing marital problems due to Dawn’s drug and 27 alcohol abuse, and had argued in late October 2009 28 because Dawn was upset that [Petitioner] was working 11 1 so hard at the restaurant. [Petitioner] said that Dawn left 2 the day after their argument and had not contacted him 3 since that time. He also said that he did not report Dawn 4 as missing because he thought she was with her drug 5 friends and would return home when she was done. 6 On December 9, 2009, Detective Abraham 7 conducted a tape-recorded telephone interview with 8 [Petitioner] during which he said the following: Prior to 9 her disappearance, Dawn had been drinking 18 beers a 10 day, yelling at restaurant staff, and causing cash 11 shortages of $200 to $300 by miscalculating customer 12 bills. On the night of October 18, 2009, [Petitioner] left 13 Dawn at home while he went to the restaurant and then 14 to a bar with a man he was interviewing for a chef 15 position. When [Petitioner] returned home later that 16 night, Dawn was gone. Dawn came home the following 17 week, wearing unclean clothes and smelling of alcohol. 18 She told [Petitioner] that she wanted them to leave the 19 restaurant business and live in the mountains. 20 [Petitioner] urged her to get help in a rehabilitation 21 program and Dawn ultimately agreed. Two days later, 22 Dawn left again with some of her belongings. Over the 23 next few weeks, [Petitioner] received several text 24 messages from Dawn and they spoke on the telephone 25 twice. In one text message, Dawn said that she loved 26 [Petitioner] and needed time to work things out. The Homicide Investigation 27 D. 28 In August 2010, after 10 months had passed 12 1 without any contact from Dawn, Detective Abraham 2 formed the opinion that Dawn had not left her home 3 voluntarily, and transferred the case to the sheriff’s 4 department’s homicide bureau. Los Angeles County 5 Sheriff’s Sergeant Richard Garcia led the homicide 6 investigation. In October 2010, Sergeant Garcia 7 arranged for a search of the Lomita apartment, which 8 [Petitioner] and Galvan recently had vacated. 9 Bloodstains were found on the bedroom wall and 10 bathroom floor, but the samples were too degraded for 11 testing. No other physical evidence was recovered from 12 the Lomita apartment. 13 On February 22, 2011, Jacqueline was contacted 14 by two Los Angeles County Sheriff’s detectives as part 15 of the homicide investigation. During an interview with 16 the detectives in South Carolina, Jacqueline disclosed 17 what [Petitioner] had told her about Dawn’s death. At 18 the detectives’ request, Jacqueline then called 19 [Petitioner] and informed him that she had spoken to the 20 police about his prior confession. 21 On the morning of February 23, 2011, [Petitioner] 22 showed Galvan an article in the local newspaper which 23 indicated that Dawn’s disappearance was now being 24 investigated as a homicide. After reading the article, 25 [Petitioner] told Galvan that he was really sorry, but 26 Dawn was not coming back. He also said that it was an 27 accident. [Petitioner] and Galvan got into his car and he 28 drove them to nearby cliffs. [Petitioner] was crying as he 13 1 drove and told Galvan he was going to jump. A patrol 2 car began following them and tried to initiate a traffic 3 stop, but [Petitioner] sped away. After stopping at a 4 scenic overlook, [Petitioner] walked to the edge of the 5 cliff followed by Galvan. [Petitioner] again apologized 6 to Galvan and said that no one was going to believe him 7 and they were never going to be together after this. He 8 also said to tell his mother and his brother that he loved 9 them very much. [Petitioner] then jumped off the cliff. 10 He was immediately rescued by a police helicopter and 11 transported to the hospital, where he survived his 12 injuries. 13 Following [Petitioner’s] suicide attempt, Sergeant 14 Garcia executed search warrants on [Petitioner’s ] new 15 residence, his mother’s house, and the Thyme Café. No 16 physical evidence relating to Dawn’s death was 17 recovered during those searches. However, a cadaver 18 dog that was used during the search of the Thyme Café 19 stopped at a shed and several other areas behind the 20 restaurant. [Petitioner’s] Statements to the Police 21 E. 22 On March 1, 2011, Sergeant Garcia and his partner 23 conducted a tape-recorded interview with [Petitioner] at 24 the hospital. [Petitioner] made the following statements 25 during that interview: On October 18, 2009, Dawn 26 wanted to use cocaine with [Petitioner]. He agreed, but 27 found the experience was not enjoyable. Later that 28 night, [Petitioner] “got violent” because he had caught 14 1 Dawn stealing money from the business, and when he 2 found her with the money, he “snapped.” [Petitioner] 3 placed duct tape around Dawn’s mouth, feet, and hands, 4 left her on the living room floor, and fell asleep. Dawn 5 did not cry, scream, or resist [Petitioner] as he restrained 6 her, and he did not recall seeing any blood. When 7 [Petitioner] woke up the next morning, Dawn was dead. 8 [Petitioner] initially put her body in the closet. He later 9 put her body in a garbage bag that he placed in the 10 dumpster behind the restaurant. [Petitioner] had 11 duct-taped Dawn twice before because he “didn’t want 12 her driving around wasted, whacked out on coke, and 13 drinking.” 14 On March 15, 2011, at [Petitioner’s] request, 15 Sergeant Garcia and his partner conducted another 16 tape-recorded interview with [Petitioner] at the jail 17 hospital. [Petitioner] made the following statements 18 during the second interview: Since the restaurant 19 opening, [Petitioner] had been working 100 hours a week 20 while Dawn was drinking and using cocaine. One 21 Sunday morning, after reviewing the restaurant receipts, 22 [Petitioner] realized a lot of money was missing, but 23 thought it was due to Dawn making mistakes. Later that 24 evening, Dawn went home while [Petitioner] went to the 25 restaurant to help install a pot and pan rack in the 26 kitchen. While at the restaurant, [Petitioner] met with a 27 friend about a chef’s position and they went out drinking 28 at various bars and clubs. Dawn kept calling [Petitioner] 15 1 because she thought he was partying instead of coming 2 home. At some point, [Petitioner] spoke to Dawn on the 3 telephone and she showed up at the bar and was “being 4 difficult.” [Petitioner] decided to walk home while 5 Dawn went to help his friend. Once at home, [Petitioner] 6 took an Ambien and moved a large bureau in front of the 7 bedroom door to keep Dawn out. After Dawn arrived 8 home, she began “raising hell” outside the door and 9 found a way inside the room. [Petitioner] was lying 10 down and feeling lightheaded from the Ambien when 11 Dawn was suddenly “all over [him] and she’s got the 12 light on [his] face, calling [him] all kinds of mean names 13 and stuff.” He kept telling her to leave him alone and let 14 him sleep, but she would not listen. [Petitioner] 15 “grabb[ed]” Dawn by both hands, brought her into the 16 leaving room, “forc[ed] her onto the floor,” wrapped her 17 hands and feet with duct tape, placed duct tape over her 18 mouth, and then went to sleep. When he awoke four 19 hours later, Dawn was dead. 20 During the second interview, [Petitioner] also said 21 the following about his disposal of Dawn’s body: After 22 realizing Dawn was dead, [Petitioner] came up with the 23 idea of “cleaning the grease traps” in the restaurant and 24 “comingling . . . the excess proteins in those units.” He 25 placed Dawn’s body in a large vat of boiling water and 26 slowly cooked it for four days. He then mixed her 27 remains with grease and other debris from the restaurant 28 and placed them in large garbage bags inside the 16 1 dumpster. The only body part that [Petitioner] did not 2 dispose of was Dawn’s skull, which he hid in his 3 mother’s attic in case he wanted to leave it somewhere 4 else. [Petitioner] appeared to be in pain during the 5 interview, but did not show signs of drowsiness or 6 confusion. Following the interview, law enforcement 7 conducted a search of the attic in [Petitioner’s] mother’s 8 house, but did not recover Dawn’s skull or any other 9 evidence relating to her death. Dawn’s remains were 10 never found. 11 II. 12 Defense Evidence Charlie Negrete was a chef who previously had 13 worked with [Petitioner]. On the evening of October 18, 14 2009, Negrete met with [Petitioner] at the Thyme Café to 15 discuss a chef position. Negrete sat at a table and spoke 16 briefly with [Petitioner] and another man, but he could 17 not recall their conversation. He did not remember 18 [Petitioner] making any statements about Dawn. Later 19 that night, Negrete and [Petitioner] left the Thyme Café 20 and went to a couple of bars where they both drank 21 alcohol. They then returned to the Thyme Café and went 22 their separate ways. 23 Detective Abraham interviewed Patterson in 24 November 2009. Detective Abraham did not recall 25 Patterson’s exact words during the interview, but her 26 report indicated that Patterson said that she had seen 27 Dawn “strike” [Petitioner] in the past. Patterson did not 28 mention in the interview that she had seen bruises on 17 1 Dawn’s neck or that Dawn had told her that [Petitioner] 2 previously had choked her. Patterson also did not 3 mention that [Petitioner] had said “good riddance” in 4 reference to Dawn. Detective Abraham interviewed 5 Stagnitto in December 2009. Stagnitto did not disclose in 6 the interview that [Petitioner] had said “I’ll kill that 7 bitch” when talking about Dawn, or had made any 8 statements about Dawn stealing. 9 Dr. Marvin Pietruszka was a forensic toxicologist 10 and pathologist. He testified that the drug Ambien could 11 create a significant confused state in which the user 12 might not be aware of his or her surroundings and might 13 have a problem with alertness. Other potential side 14 effects of Ambien included drowsiness, 15 light-headedness, fatigue, delusion, hallucination, 16 tremors, and irritability. Alcohol use while taking 17 Ambien could aggravate these side effects and could 18 cause the user to become irrational, experience memory 19 loss, or develop delusions such as seeing or hearing 20 things that did not exist. Dr. Pietruszka reviewed 21 [Petitioner’s] medical records from March 2011 when he 22 was hospitalized. [Petitioner] had been prescribed 23 lorazepam, hydrocodone, morphine, and Benadryl. The 24 potential side effects of these drugs included drowsiness, 25 sleepiness, weakness, confusion, altered memory, and 26 difficulty performing daily activities. The extent to 27 which the user might experience these side effects would 28 /// 18 1 depend on the dosage, the user’s metabolism, and the 2 combination of medications being used. 3 III. Verdict and Sentencing 4 The trial court instructed the jury on first and 5 second degree murder, voluntary manslaughter, and 6 excusable homicide, but refused the defense request to 7 instruct the jury on involuntary manslaughter. At the 8 prosecution’s request, the trial court gave a special 9 pinpoint instruction that verbal provocation was 10 insufficient to reduce an intentional homicide to 11 manslaughter. The jury found [Petitioner] guilty of 12 second degree murder, and the trial court sentenced him 13 to 15 years to life in state prison. 14 (Lodged Doc. No. 3 at 1-5.) 15 16 17 IV. PETITIONER’S CLAIMS 1. Trial counsel deprived Petitioner of his Sixth Amendment 18 right to effective assistance of counsel by committing the 19 following errors: 20 a. failing to suppress Petitioner’s pre-trial custodial 21 statements that were obtained when Petitioner was 22 hospitalized and was under the influence of numerous 23 medications; 24 b. 25 26 Petitioner’s defense; c. 27 28 failing to call five available witnesses to testify in failing to adequately cross-examine three of the prosecution’s witnesses; d. failing to research and investigate how Petitioner’s 19 1 combined use of Ambien, alcohol, and drugs may have 2 impacted his actions on the night that he killed his wife; 3 e. 4 failing to call an appropriate expert witness to testify about the effects of using Ambien; 5 f. failing to call a forensic psychiatrist to evaluate 6 Petitioner’s “mental state and competency” in light of 7 the facts that Petitioner had attempted suicide, had used 8 prescription and non-prescription drugs, and had a 9 history of mental illness; 10 g. failing to pursue voluntary and involuntary intoxication 11 defenses, as well as failing to pursue an 12 unconsciousness defense, based on Petitioner’s use of 13 Ambien, drugs, and alcohol; and 14 h. failing to adequately investigate facts to dispute the 15 specific intent and malice elements of second degree 16 murder. 17 2. 18 The prosecutor failed to present sufficient evidence to support Petitioner’s conviction for second degree murder. 19 3. The trial court deprived Petitioner of his right to due process 20 and a fair trial by committing the following two instructional 21 errors: 22 a. misinstructing the jury on the concept of provocation as 23 that term applied to the crime of voluntary 24 manslaughter; and 25 b. failing to instruct the jury on the crime of involuntary 26 manslaughter, a lesser-included offense to the crime of 27 which Petitioner was convicted. 28 /// 20 1 V. STANDARD OF REVIEW 2 The standard of review applicable to Petitioner’s claims herein is set forth 3 in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death 4 Penalty Act of 1996 (“AEDPA”) (Pub. L. No. 104-132, 110 Stat. 1214 (1996)). 5 See 28 U.S.C. § 2254(d); see also Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 6 2059, 138 L. Ed. 2d 481 (1997). Under AEDPA, a federal court may not grant 7 habeas relief on a claim adjudicated on its merits in state court unless that 8 adjudication “resulted in a decision that was contrary to, or involved an 9 unreasonable application of, clearly established Federal law, as determined by the 10 Supreme Court of the United States,” or “resulted in a decision that was based on 11 an unreasonable determination of the facts in light of the evidence presented in 12 the State court proceeding.”2 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 13 U.S. 362, 402, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). 14 The phrase “clearly established Federal law” means “the governing legal 15 principle or principles set forth by the Supreme Court at the time the state court 16 renders its decision.”3 Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 17 155 L. Ed. 2d 144 (2003). However, a state court need not cite the controlling 18 Supreme Court cases in its own decision, “so long as neither the reasoning nor the 19 result of the state-court decision contradicts” relevant Supreme Court precedent 20 2 In addition, under 28 U.S.C. § 2254(e)(1), factual determinations by a state court “shall be presumed to be correct” unless the petitioner rebuts the 22 presumption “by clear and convincing evidence.” 23 3 Under AEDPA, the only definitive source of clearly established federal law is 24 set forth in a holding (as opposed to dicta) of the Supreme Court. See Williams, 25 529 U.S. at 412; see also Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). Thus, while circuit law may be “persuasive 26 authority” in analyzing whether a state court decision was an unreasonable 27 application of Supreme Court law, “only the Supreme Court’s holdings are binding on the state courts and only those holdings need be reasonably applied.” 28 Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 21 21 1 which may pertain to a particular claim for relief. Early v. Packer, 537 U.S. 3, 8, 2 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam). 3 A state court decision is “contrary to” clearly established federal law if the 4 decision applies a rule that contradicts the governing Supreme Court law or 5 reaches a result that differs from a result the Supreme Court reached on 6 “materially indistinguishable” facts. Williams, 529 U.S. at 405-06. A decision 7 involves an “unreasonable application” of federal law if “the state court identifies 8 the correct governing legal principle from [Supreme Court] decisions but 9 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 10 A federal habeas court may not overrule a state court decision based on the 11 federal court’s independent determination that the state court’s application of 12 governing law was incorrect, erroneous, or even “clear error.” Lockyer, 538 U.S. 13 at 75. Rather, a decision may be rejected only if the state court’s application of 14 Supreme Court law was “objectively unreasonable.” Id. 15 The standard of unreasonableness that applies in determining the 16 “unreasonable application” of federal law under Section 2254(d)(1) also applies 17 in determining the “unreasonable determination of facts in light of the evidence” 18 under Section 2254(d)(2). Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). 19 Accordingly, “a federal court may not second-guess a state court’s fact-finding 20 process unless, after review of the state-court record, it determines that the state 21 court was not merely wrong, but actually unreasonable.” Id. 22 Where more than one state court has adjudicated the petitioner’s claims, the 23 federal habeas court analyzes the last reasoned decision. Barker v. Fleming, 423 24 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 25 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991) for presumption that later unexplained 26 orders, upholding judgment or rejecting same claim, rest upon same ground as the 27 prior order). Thus, a federal habeas court looks through ambiguous or 28 unexplained state court decisions to the last reasoned decision in order to 22 1 determine whether that decision was contrary to or an unreasonable application of 2 clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 3 2003). 4 5 VI. DISCUSSION 6 A. 7 In his first claim for relief, Petitioner contends that his trial counsel 8 committed a host of errors that deprived Petitioner of his Sixth Amendment right 9 to effective assistance of counsel. The Los Angeles Superior Court denied Trial Counsel’s Performance 10 Petitioner’s allegations of attorney error on their merits. In doing so, the superior 11 court set forth and applied the proper federal legal standard governing ineffective 12 assistance of counsel challenges. (See Lodged Doc. No. 7.) Accordingly, the 13 superior court’s resolution of Petitioner’s claim was not contrary to the Supreme 14 Court’s clearly established precedent. As such, the only avenue through which 15 Petitioner can obtain habeas relief on his ineffective assistance of counsel 16 allegations is by showing that the superior court’s resolution of his claim 17 constituted an “unreasonable application of” the Supreme Court’s clearly 18 established precedent -- that is, he must show that the superior court unreasonably 19 applied the governing legal standard to the facts of his case. See Penry v. 20 Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001). As 21 explained below, Petitioner cannot make that showing.4 22 23 24 25 26 27 28 4 Respondent contends that this claim is unexhausted because, in rejecting the claim, the superior court cited several procedural deficiencies in Petitioner’s state court petition, in addition to addressing the merits of Petitioner’s ineffective assistance of counsel claim. The Court, however, need not reach Respondent’s exhaustion argument because, for the reasons set forth below, Petitioner’s ineffective assistance of counsel allegations fail irrespective of whether the superior court’s opinion is afforded AEDPA deference or not. See Berghuis v. (continued...) 23 1 Each of Petitioner’s allegations of attorney error is governed by the two- 2 prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 3 2052, 80 L. Ed. 2d 674 (1984). Under the first prong of that test, the petitioner 4 must prove that his attorney’s representation fell below an objective standard of 5 reasonableness. Strickland, 466 U.S. at 687-88, 690. To establish deficient 6 performance, the petitioner must show his counsel “made errors so serious that 7 counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 8 Sixth Amendment.” Id. at 687; Williams, 529 U.S. 362, 391, 120 S. Ct. 1495, 146 9 L. Ed. 2d 389 (2000). In reviewing trial counsel’s performance, however, courts 10 “strongly presume[] [that counsel] rendered adequate assistance and made all 11 significant decisions in the exercise of reasonable professional judgment.” 12 Strickland, 466 U.S. at 690; Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 13 157 L. Ed. 2d 1 (2003). Only if counsel’s acts and omissions, examined within 14 the context of all the surrounding circumstances, were outside the “wide range” 15 of professionally competent assistance, will petitioner meet this initial burden. 16 Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 91 L. Ed. 2d 305 17 (1986); Strickland, 466 U.S. at 690. 18 Under the second part of Strickland’s two-prong test, the petitioner must 19 show that he was prejudiced by demonstrating a reasonable probability that, but 20 for his counsel’s errors, the result would have been different. Strickland, 466 21 U.S. at 694. The errors must not merely undermine confidence in the outcome of 22 the trial, but must result in a proceeding that was fundamentally unfair. Williams, 23 529 U.S. at 393 n.17; Lockhart, 506 U.S. at 369. The petitioner must prove both 24 25 (...continued) Tompkins, 560 U.S. 370, 390, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (“Courts 26 can, however, deny writs of habeas corpus under § 2254 by engaging in de novo 27 review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is 28 rejected on de novo review.”) (citation omitted). 24 1 deficient performance and prejudice. A court need not, however, determine 2 whether counsel’s performance was deficient before determining whether the 3 petitioner suffered prejudice as the result of the alleged deficiencies. Strickland, 4 466 U.S. at 697. 5 6 7 Here, Petitioner is not entitled to habeas relief with respect to any of his allegations of attorney error. Each of those allegations is addressed in turn below. 1. Petitioner’s Pre-trial Custodial Statements 8 Petitioner faults counsel for failing to suppress the statements that 9 Petitioner made in two interviews with police. According to Petitioner, both of 10 his statements were involuntary because, when he made them, he was under the 11 influence of numerous medications and was recovering from numerous injuries 12 that he sustained from attempting suicide by jumping off a cliff. Petitioner 13 maintains that, given his physical and mental state, he could not have validly 14 waived his right to remain silent. Moreover, he suggests that his statements to 15 police were inherently unreliable because he made them while under the effects of 16 multiple medications and while enduring severe pain. In support of this 17 argument, Petitioner cites what he characterizes as the inherent implausibility of 18 his custodial statement that he disposed of his wife’s body by boiling it in a 55- 19 gallon vat for four days at the restaurant that he operated. According to 20 Petitioner, doing so would have been impossible because of the weight involved 21 in moving the vat from the restaurant’s kitchen to the outside dumpster. Further, 22 he argues that such a scenario is even more implausible considering that the 23 restaurant was open for business during the relevant period. Given these facts, 24 Petitioner believes that counsel should have been able to suppress Petitioner’s 25 pre-trial statements and that counsel’s failure to do so shows that counsel’s 26 performance was unreasonable. 27 Petitioner can show neither deficient performance nor prejudice with 28 respect counsel’s efforts to suppress Petitioner’s pre-trial statements. As an 25 1 initial matter, trial counsel moved to suppress Petitioner’s pre-trial statements. 2 And, in doing so, counsel argued, among other things, that Petitioner was not able 3 to knowingly waive his rights because of his injuries and medications. Although 4 Petitioner faults counsel for failing to present additional evidence, such as expert 5 testimony, showing that Petitioner could not have knowingly waived his right to 6 silence, there is no reason to believe that any such evidence would have altered 7 the trial court’s conclusions regarding the admissibility of Petitioner’s pre-trial 8 statements. The trial court listened to the audio tape of the interviews and 9 concluded that Petitioner’s waivers were valid. What is more, the trial court was 10 well-aware of the potential side effects of the medications that Petitioner was 11 taking when he submitted to the custodial interviews. Indeed, after denying the 12 motion to suppress, the trial court conducted a hearing regarding the extent to 13 which it would allow Petitioner’s expert to testify about those side effects and 14 how they may have impacted Petitioner. Ultimately, the trial court permitted the 15 expert to testify generally about the side effects of the medications that Petitioner 16 was using. 17 Moreover, the testimony regarding Petitioner’s demeanor and behavior 18 during the two interrogations undermines Petitioner’s claims that he was 19 incapable of knowingly waiving his right to silence. Indeed, the interrogating 20 officer testified that Petitioner showed no signs of loss of memory, loss of 21 orientation, or loss of cognitive function. The officer also noted that Petitioner’s 22 hospital bed confessions were consistent with his earlier accounts of how the 23 victim died.5 Although the officer noted that Petitioner was experiencing pain 24 25 5 Notably, in terms of how the victim died, Petitioner’s pre-trial statement to his 26 daughter about his wife’s death is nearly identical to the confession he gave to the 27 interrogating officer. In each iteration of his accounts of his wife’s death, he maintained that the death was accidental. He, likewise, told his girlfriend that he 28 (continued...) 26 1 and discomfort, the officer stated that Petitioner was not confused and did not 2 appear drowsy. Thus, there is no reason to believe that presenting expert 3 testimony regarding Petitioner’s state of mind would have caused the trial court to 4 grant the motion to suppress Petitioner’s pre-trial statements.6 5 Regardless, even assuming that counsel could have successfully suppressed 6 Petitioner’s hospital bed confessions, there is little reason to believe that the jury 7 would have reached a verdict more favorable to Petitioner than the one it actually 8 reached. To be sure, “[a] confession is like no other evidence. Indeed, ‘the 9 defendant’s own confession is probably the most probative and damaging 10 evidence that can be admitted against him.’” Arizona v. Fulminante, 499 U.S. 11 279, 296, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). The impact of a confession 12 can be so “profound” that a reviewing court may “‘justifiably doubt [a jury’s] 13 ability to put [a confession] out of mind even if told to do so.’” Id. But here, even 14 if the hospital bed confessions had been suppressed, the jury nevertheless would 15 have heard essentially the same confessions from other sources. Indeed, before 16 confessing to police that he killed his wife, Petitioner confessed the same facts to 17 his daughter. Although he did not tell his daughter the manner in which he 18 disposed of his wife’s body, he nevertheless made clear that, in fact, he had 19 disposed of her body and that it would never be found. What is more, he 20 /// 21 /// 22 /// 23 24 5 (...continued) 25 killed his wife by accident. Although Petitioner did not tell his daughter that he disposed of his wife’s body by boiling it, he nevertheless assured his daughter that 26 his wife’s body would never be found. 27 6 The Court also notes that Petitioner -- not the investigating officers -- initiated 28 the second custodial interview. 27 1 confessed to his girlfriend that he had killed his wife and that he had not meant to 2 do so.7 3 Moreover, apart from Petitioner’s multiple confessions, there was strong 4 and compelling evidence supporting the jury’s verdict. Testimony established 5 that Petitioner had motive to kill his wife because he believed that she was 6 stealing money from the restaurant that he operated. And, on the night of the 7 murder, he stated to a friend that he was going to kill his wife because she was 8 stealing money. Additionally, after the murder, he devised and carried out an 9 elaborate and prolonged scheme to cover-up his wife’s murder. What is more, 10 two weeks after his wife’s death, Petitioner began a sexual relationship with a 11 nineteen-year-old co-worker. Finally, when he believed that he would be arrested 12 for his wife’s murder, he fled from police and attempted suicide by jumping off a 13 cliff. Given the weight of that evidence, there is little doubt that the jury would 14 have found Petitioner guilty of second degree murder regardless of whether or not 15 Petitioner’s hospital bed confessions were admitted into evidence. 16 2. 17 Petitioner’s Use of Ambien and Other Substances Several of Petitioner’s allegations of attorney error pertain to the purported 18 fact that, on the night of the murder, he combined alcohol and drugs with the 19 prescription drug Ambien. In each of those allegations, Petitioner essentially 20 argues that his Ambien, alcohol, and drug use negated his ability to form the 21 requisite intent to commit murder. Indeed, he argues that the impact of his 22 Ambien, alcohol, and drug use rendered him either voluntarily or involuntarily 23 intoxicated or even unconscious. Accordingly, Petitioner believes that counsel 24 25 7 Notably, Petitioner statements in his custodial interviews, if believed, did not 26 suggest that he intended to murder his wife. Instead, he maintained in those 27 interviews -- as he did when confessing to his daughter and his girlfriend -- that his wife’s death was accidental. Thus, the introduction of the custodial statements 28 could not have been more prejudicial than Petitioner’s statements to his daughter. 28 1 should have -- but failed to -- conduct an adequate investigation into the effects 2 of Petitioner’s Ambien, alcohol, and drug use. Had counsel done so, according to 3 Petitioner, he could have presented competent expert testimony on the subject and 4 pursued multiple viable defenses based on the impacts of Petitioner’s Ambien, 5 alcohol, and drug use. 6 Each of these allegations of attorney error is meritless. First, counsel, in 7 fact, presented an expert witness regarding the impacts of Ambien and alcohol 8 use. Specifically, Dr. Marvin Pietruszka, a forensic toxicologist and pathologist, 9 testified that Ambien use could create a significant confused state in which the 10 user might not be aware of his or her surroundings and might have a problem with 11 alertness. Dr. Pietruszka further testified that Ambien use could result in 12 drowsiness, light-headedness, fatigue, delusion, hallucination, tremors, and 13 irritability. What is more, Dr. Pietruszka explained that combining Ambien and 14 alcohol could aggravate these side effects and could cause the user to become 15 irrational, experience memory loss, or develop delusions, such as seeing or 16 hearing things that did not exist. 17 Second, there is no reasonable likelihood that the jury would have accepted 18 an argument that Petitioner was voluntarily or involuntarily intoxicated, or that he 19 was unconscious, when he killed his wife. Indeed, the only evidence supporting 20 such a theory was Petitioner’s own self-serving pre-trial custodial statements in 21 which he claimed to have taken Ambien before he accidentally killed his wife. 22 But even in those statements, Petitioner claimed to know what he was doing -- 23 namely, he was, as he claimed to have done twice in the past, binding his wife 24 with tape so that she would stop badgering him. In other words, his own 25 statements betray any argument that he was unaware of his actions. Further, there 26 is little reason to believe that the jury credited any exculpatory aspect of 27 Petitioner’s self-serving pre-trial statements in light of the evidence indicating 28 that he murdered his wife. According to the testimony at trial, Petitioner had 29 1 abused his wife in the past and, indeed, had choked her so hard that he left red 2 marks on her neck. Furthermore, on the night on which the murder occurred, 3 Petitioner stated to a friend that he thought his wife was stealing from him and 4 that he would “kill that bitch.” What is more, he told police the reason that he 5 killed his wife -- namely, because he had caught her stealing money from the 6 restaurant. This discovery, according to Petitioner’s pre-trial statement, made 7 him “get violent” with her. And, before claiming that he accidentally killed his 8 wife, Petitioner continually lied to friends and police about his wife’s 9 whereabouts for months after her death. Furthermore, he enlisted his own 10 daughter to aid him in his deception. Specifically, he instructed her to send texts 11 purportedly from his wife to her friends stating that she needed time alone and 12 that she was relocating to another state. Petitioner also disposed of the victim’s 13 body so that it would never be -- and has never been -- recovered. Given the 14 extent and the prolonged nature of Petitioner’s deception, as well as his stated 15 motive for killing his wife, there is no reason to believe that the jury credited any 16 aspect of Petitioner’s custodial statements to the extent that those statements 17 suggested that he accidentally killed his wife. 18 Third, any defense based on intoxication or unconsciousness was 19 irreconcilable with Petitioner’s pre-trial statements and with his actions after the 20 murder. Petitioner essentially told police that he decided to bind his wife, as he 21 evidently had done in the past, in order to stop her from bothering him and to 22 allow him to go to sleep. He also explained that, in doing so, he did not intend to 23 kill her and that he panicked when he realized that she had died. In relaying this 24 story, Petitioner stated exactly what he did and why he supposedly did it.8 In 25 26 8 This account comported with the account that Petitioner gave to his daughter 27 about how his wife had died. In both accounts, Petitioner claimed to have moved a large bureau in front of his bedroom door to keep his wife out of the room. 28 (continued...) 30 1 other words, his actions were not those of someone who was either unconscious 2 or too intoxicated to know what he was doing. Moreover, after the murder, he 3 disposed of his wife’s body and engaged in a months-long elaborate scheme to 4 convince his wife’s friends that she was alive. And, when he believed that police 5 were going to arrest him for his wife’s murder, he not only fled, but attempted 6 suicide by jumping off a cliff. Given these facts, there is no reasonable likelihood 7 that the jury would have reached a more favorable verdict to Petitioner than the 8 one it actually reached if counsel had pursued the proposed defenses or presented 9 testimony from an additional forensic expert regarding Petitioner’s mental sate. 10 Petitioner, however, suggests that the jury likely would have concluded that 11 he was incapable of understanding his actions on the night of the murder (or that 12 he accidentally killed his wife) if counsel had not prevented Petitioner from 13 testifying. This argument is also meritless. When counsel informed the trial 14 court that Petitioner would not be testifying, the trial court questioned Petitioner 15 about his decision not to testify. In doing so, the trial court unequivocally stated 16 that the decision to testify or not was Petitioner’s, and Petitioner’s alone. The 17 trial court also asked Petitioner whether he wished to testify, and Petitioner 18 answered that he did not wish to do so. Based on this record, it is clear that 19 counsel did not prevent Petitioner from testifying. Rather, Petitioner, himself, 20 elected not to testify. 21 To the extent that Petitioner disagrees with counsel’s advice not to testify, 22 that disagreement cannot justify habeas relief because it involves counsel’s trial 23 tactics. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough 24 investigation of law and facts relevant to plausible options are virtually 25 unchallengeable.”); Silva v. Woodford, 279 F.3d 825, 844 (9th Cir. 2002) (noting 26 8 (...continued) When that proved unsuccessful, he purportedly bound her with tape because she 28 would not let him sleep. 27 31 1 United States Supreme Court precedent dictates that counsel commits no error 2 when counsel makes informed strategic decision) (citing Burger v. Kemp, 483 3 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987)); see also Carter v. Lee, 283 4 F.3d 240, 249 (4th Cir. 2002) (“[T]he advice provided by a criminal defense 5 lawyer on whether his client should testify is ‘a paradigm of the type of tactical 6 decision that cannot be challenged as evidence of ineffective assistance.’”); 7 United States v. Dyer, 784 F.2d 812, 817 (7th Cir. 1986) (decision whether 8 defendant should testify is a “tactical choice of trial strategy” and is not subject to 9 review). 10 Moreover, counsel’s decision to advise Petitioner against testifying was 11 sound under the circumstances. Had Petitioner testified that he did not 12 understand his actions due to intoxication or unconsciousness, he would have 13 been impeached with his own pre-trial statements to police, which showed that, in 14 fact, he knew exactly what he was doing and why he did it. Testifying also would 15 have allowed the prosecutor to question Petitioner about his criminal record, 16 which included two convictions for drug trafficking. What is more, if Petitioner 17 had testified, he would have been forced to explain how he could have began a 18 sexual relationship with a nineteen-year-old co-worker only two weeks after 19 having purportedly killed his wife by accident. Indeed, rather than strengthen his 20 defense, Petitioner’s testimony in all likelihood would have weakened it and 21 could, in fact, have resulted in a conviction for first degree murder. Accordingly, 22 counsel’s advice that Petitioner not testify was sound. 23 3. 24 Available Percipient Witnesses In his next allegation of attorney error, Petitioner contends that counsel 25 erred in failing to call several available percipient witnesses who were willing to 26 /// 27 /// 28 /// 32 1 testify on Petitioner’s behalf.9 Specifically, Petitioner faults counsel for failing to 2 call Jose Mauro, Sandra Viens, Tim Gibbons, David Papin, and Charlie Negrete 3 as witnesses. Each of the proposed witnesses, according to Petitioner, would 4 have testified in a manner that would have undermined the evidence that the 5 prosecutor presented to show Petitioner’s guilt. 6 This claim fails because, at bottom, it amounts to a challenge to counsel’s 7 strategic decision against calling the proposed witnesses to testify. To be sure, 8 counsel was aware of each of the proposed witnesses, as the record shows that the 9 defense investigator interviewed each of the proposed witnesses. (See, e.g., Pet. 10 Attach. 4 at 2-3; id. at 37; id., Attach. 6 at 56-58.) Furthermore, the trial 11 transcript shows that counsel and Petitioner disagreed about which witnesses to 12 call. For example, during a hearing on Petitioner’s request to have substitute 13 counsel appointed, Petitioner informed the trial court that he wanted to call 14 certain witnesses to testify, but trial counsel was “adverse” to calling them. 15 Given this record, it is clear that counsel was aware of the proposed witnesses, 16 but elected not to call any of them for strategic reasons. Because counsel made 17 an informed and strategic decision against calling the proposed witnesses, that 18 decision cannot be second-guessed on habeas review. Strickland, 466 U.S. at 19 690; Silva, 279 F.3d at 844 (supra). 20 Moreover, even if the Court were inclined to second-guess counsel’s 21 strategic decision against calling the proposed witnesses, Petitioner could not 22 make out a successful ineffective assistance of counsel claim based on counsel’s 23 decision. First, Petitioner can show no prejudice with respect to counsel’s failure 24 to call Jose Mauro as a witness. Petitioner contends that Mauro’s testimony 25 would have shown that Petitioner did not dispose of his wife’s body by boiling 26 27 9 Petitioner also faults counsel for failing to call Petitioner to testify on his own 28 behalf. As explained above, that claim is meritless. (See supra.) 33 1 her over a four-day period at his restaurant. Mauro, an employee at Petitioner’s 2 restaurant, would have testified that he never noticed the 55-gallon vat in which 3 Petitioner claimed to have boiled his wife. This testimony, however, unlikely 4 would have impacted the jury’s verdict because trial counsel introduced 5 photographic evidence of the restaurant to show the supposed implausibility of 6 Petitioner being able to boil his wife’s body in a 55-gallon vat without any 7 employee or customer noticing. And, even if the jury would have found Mauro’s 8 testimony useful to undercut Petitioner’s pre-trial statement about boiling his 9 wife’s body, that testimony would not have changed the undisputed fact that 10 Petitioner successfully disposed of his wife’s body after killing her. Although 11 Mauro’s testimony possibly could have called into question the manner in which 12 Petitioner disposed of the body, it would not have had any impact on the fact that 13 Petitioner indisputedly did so in a manner that prevented his wife’s body from 14 ever being found.10 15 Second, Petitioner can show no prejudice from the fact that his mother, 16 Sandra Viens, did not testify. Petitioner contends that Sandra’s testimony would 17 have undercut the prosecution’s theory that the murder was financially motivated 18 because Sandra, not Petitioner, owned the restaurant from which the victim was 19 allegedly stealing money.11 This contention is meritless because, by Petitioner’s 20 21 10 Mauro also would have testified that he never saw Petitioner with a bandaged 22 hand or a gash on his forehead after the victim was killed. This testimony unlikely 23 would have impacted the jury’s verdict because there is no question that Petitioner killed his wife and that he disposed of her body. Furthermore, as explained 24 above, his actions after his wife’s death indicate a consciousness of guilt. 25 Consequently, Mauro’s proposed testimony that Petitioner did not have a bandaged hand or a gash on his forehead, even if believed by the jury, was 26 unlikely to lead to jury to conclude that the killing was accidental. 27 11 Petitioner also suggests that Sandra’s testimony also could have shown that 28 (continued...) 34 1 own admission, he “got violent” because he had caught his wife stealing from the 2 restaurant. Furthermore, on the night of the murder, Petitioner stated to a friend 3 that “[t]hat bitch is stealing from me, and nobody steals from me, and I will kill 4 that bitch.” And, even after murdering his wife, Petitioner told one of his wife’s 5 closest friends that he believed that his wife had been taking money from the 6 business for some time and, furthermore, requested that the friend review the 7 restaurant’s receipts. Given this evidence, Sandra’s testimony would not have 8 undermined the prosecution’s theory of the case. Bolstering this conclusion is the 9 fact that Sandra was Petitioner’s mother and, as such, would have been subject to 10 a credibility attack on that basis. See Romero v. Tansy, 46 F.3d 1024, 1030 (10th 11 Cir. 1995) (testimony by defendant’s family members is of “significantly less 12 exculpatory value than the testimony of an objective witness”); see also Bergman 13 v. Tansy, 65 F.3d 1372, 1380 (7th Cir. 1995) (counsel was not ineffective for 14 failing to call family members who would have easily been impeached for bias). 15 Third, Petitioner suffered no prejudice from counsel’s decision against 16 calling Tim Gibbons as a witness. Petitioner contends that Gibbons could have 17 testified that he saw Petitioner’s wife hours before she was killed and that, 18 contrary to Stagnitto’s testimony, she was not crying, distraught, or hysterical. 19 That testimony, however, was unlikely to have had any impact on the jury’s 20 verdict for several reasons. The fact that Gibbons was willing to testify that 21 Petitioner’s wife appeared, for all intents and purposes, normal and “causal” only 22 undercuts Petitioner’s claim that she was out of control when she arrived home a 23 24 25 26 27 28 11 (...continued) Petitioner had access to Ambien, but was unaware of its side effects, and that there was no room in the restaurant’s kitchen for Petitioner to boil his wife in a 55gallon vat without being noticed. But as explained above, testimony on either of these points would not have impacted the jury’s verdict because Petitioner, by his own admission, was aware of his actions and because, regardless of how he did so, Petitioner disposed of his wife’s body after killing her. 35 1 short time later. And, even if the jury accepted Gibbons’s account of the victim’s 2 demeanor over that of Stagnitto, the jury in all likelihood would have reached the 3 same verdict because Petitioner repeatedly admitted that he killed his wife and 4 nothing in Gibbons’s declaration suggests that her death was accidental. 5 Furthermore, as discussed above, Petitioner’s prolonged, elaborate efforts to 6 cover-up his wife’s murder evidenced a consciousness of guilt. 7 Fourth, Petitioner can show neither prejudice nor deficient performance 8 with respect to counsel’s decision against calling David Papin, the victim’s 9 brother, to testify.12 According to Petitioner, Papin would have testified that he 10 did not believe that Petitioner would harm his wife. But any testimony regarding 11 Papin’s beliefs as to Petitioner’s guilt would have been inadmissible because, 12 under California law, “[a] witness may not express an opinion on a defendant’s 13 guilt.” People v. Coffman, 34 Cal. 4th 1, 77, 7 Cal. Rptr. 3d 710, 196 P.3d 14 30(2011). Moreover, although Papin purportedly would have testified that the 15 victim abused drugs and alcohol, that testimony would have been cumulative of 16 other testimony. More importantly, counsel may have concluded that Papin’s 17 testimony might actually have been detrimental to Petitioner’s defense. Indeed, 18 the benefit -- if any -- of Papin’s testimony may have been overshadowed by the 19 fact that he described Petitioner as a “control freak” and by the fact that he 20 characterized Petitioner and his wife’s relationship as a “time bomb.” That 21 testimony could have made the jury more inclined than it already was to conclude 22 that the murder was intentional. Accordingly, Petitioner cannot show that the 23 /// 24 12 This aspect of Petitioner’s claim fails for lack of evidence because Petitioner provides nothing in the form of a declaration or affidavit from Papin stating that 26 Papin was willing to testify or identifying the facts to which he would have 27 testified. See Dows, 211 F.3d at 486 (supra). Instead, Petitioner relies on a memorandum created by a defense investigator summarizing a purported interview 28 between the investigator and Papin. 25 36 1 decision against calling Papin to testify was unreasonable or that, if it was, 2 Petitioner suffered any prejudice. 3 In short, none of the proposed testimony cited by Petitioner likely would 4 have caused the jury to believe that the murder was unintentional. Moreover, 5 Petitioner’s statements before the murder and his actions after the murder 6 undermine any suggestion that the murder was anything but intentional. 7 Accordingly, Petitioner cannot show that, but for counsel’s failure to introduce 8 the proposed testimony, the jury would have reached a verdict more favorable to 9 Petitioner than the one it actually reached. 10 11 4. Examination of Witnesses In his next allegation of attorney error, Petitioner contends that counsel 12 failed to adequately examine three witnesses. First, he asserts that counsel’s 13 questioning of Barbara Dryer was inadequate because Dyer was willing to testify 14 that she gave Petitioner several Ambien pills without alerting him to the side 15 effects of the drug. Presumably, Petitioner believes that Dyer’s proposed 16 testimony would have shown that he did not intend to kill the victim because the 17 effects of taking the Ambien given to him by Dyer rendered him either 18 involuntarily intoxicated or unconscious. 19 Second, Petitioner faults counsel for counsel’s allegedly deficient cross- 20 examination of Kathy Galvan, the woman with whom Petitioner become 21 romantically involved two weeks after killing his wife. Specifically, Petitioner 22 maintains that counsel should have questioned Galvan about whether she noticed 23 a 55-gallon vat at Petitioner’s restaurant -- the vat in which he allegedly boiled 24 his wife’s body for four days. According to a declaration that Petitioner 25 submitted in connection with his Petition, Galvan would have testified that she 26 saw no such vat and that, given the space constraints on the restaurant, both the 27 restaurant’s employees and its customers would have noticed if Petitioner had 28 used such a large vat. Petitioner also notes that Galvan was willing to testify that, 37 1 contrary to the testimony of a prosecution witness, Petitioner did not have either a 2 gash on his forehead or a bandage on his hand after killing his wife. In addition, 3 Petitioner asserts that Galvan could have testified that Petitioner told her that he 4 was taking Ambien and using drugs and alcohol on the night that he killed his 5 wife. Furthermore, Petitioner faults counsel for failing to question Galvan about 6 the statements Petitioner made to her about his wife’s death. In particular, Galvan 7 could have testified that Petitioner told her that he accidentally killed his wife and 8 that he never placed tape over his wife’s nose, nor did he in any way obstruct her 9 breathing. 10 Finally, Petitioner contends that counsel failed to adequately cross- 11 examination Petitioner’s daughter, Jacqueline Viens. According to a declaration 12 that Petitioner has submitted, Jacqueline was willing to testify that Petitioner’s 13 pre-trial statement to her that his wife’s body would never be found was taken out 14 of context. In truth, according to the declaration, Petitioner stated that his wife’s 15 body would never be found because too much time had elapsed from the date on 16 which she was killed. Jacqueline further declares that Petitioner told her that he 17 had been taking Ambien on the night that he killed his wife and that it impacted 18 his judgment and behavior. In addition, Jacqueline was willing to testify that the 19 victim was a regular drug user and that she had no fear of Petitioner. Jacqueline 20 was also willing to testify that Petitioner had told her that, on the night that he 21 killed his wife, he never covered her nose with tape and that he steadfastly 22 maintained that his wife’s death was accidental. 23 None of these allegations of attorney error warrants relief. First, counsel 24 could not have performed deficiently in failing to question Dryer about whether 25 she gave Petitioner Ambien pills because, in fact, counsel attempted to question 26 Dryer on that issue. Dryer, however, invoked her Fifth Amendment right against 27 self-incrimination. Although Petitioner presumably faults counsel for failing to 28 push Dryer to waive her right against self-incrimination, there is no evidence 38 1 suggesting that, in fact, Dryer would have done so at counsel’s urging. 2 Regardless, as explained above, any defense theory based on Petitioner’s inability 3 to understand the nature of his actions due to his Ambien use had no chance of 4 success in light of Petitioner’s repeated claims that he knew what he was doing, 5 and why, when he purportedly decided to bind his wife in duct tape. 6 Second, assuming error, Petitioner suffered no prejudice from counsel’s 7 purportedly inadequate examination of Galvan. Galvan’s proposed testimony 8 pertaining to the 55-gallon vat -- or lack thereof -- at the restaurant was unlikely 9 to have impacted the jury’s verdict because, as explained above, trial counsel 10 presented evidence to undermine Petitioner’s pre-trial statement about boiling his 11 wife’s body at the restaurant. Further, Galvan’s proposed testimony, like that of 12 Mauro (supra), would not have changed the undisputed fact that Petitioner 13 disposed of his wife’s body after killing her. Galvan’s proposed testimony that 14 she did not notice any injuries to Petitioner’s hand and forehead, likewise, was 15 unlikely to have had any impact on the jury’s verdict in light of Petitioner’s pre- 16 trial statement that he wanted to kill his wife, his elaborate actions after the 17 murder to cover up his wife’s death, and the undisputed facts that he killed his 18 wife and disposed of her body. As for Galvan’s proposed testimony regarding 19 Petitioner’s Ambien use, that testimony would not have had any impact at trial 20 because Petitioner’s repeated pre-trial confessions show that, on the night of the 21 murder, he was aware of his actions.13 And, given the fact that Petitioner engaged 22 in a months-long scheme of deception after his wife’s murder, there is little 23 reason to believe that the jury would have credited his post-murder statements 24 /// 25 /// 26 13 The Court also notes that Petitioner’s pre-trial statement to police, which was played to the jury, included the supposed fact that Petitioner had taken Ambien on 28 the night that he killed his wife. 27 39 1 about the circumstances surrounding his wife’s death to the extent that those 2 statements in any way exonerated him.14 3 Finally, assuming error, Petitioner suffered no prejudice from counsel’s 4 purportedly inadequate examination of Petitioner’s daughter Jacqueline. 5 Jacqueline’s declaration shows that she was willing to testify to facts that, by and 6 large, were either cumulative of other evidence or unlikely to have altered the 7 jury’s verdict. For example, she states that she was willing to testify about the 8 victim’s drug use and Petitioner’s purported use of Ambien on the night of the 9 murder. But evidence was presented on the victim’s drug use, and, as explained 10 above, testimony regarding Petitioner’s Ambien use would not have impacted the 11 jury’s verdict. (Supra.) 12 Moreover, Jacqueline’s proposed testimony about the details of Petitioner’s 13 account of the murder was unlikely to have impacted the jury’s verdict. At 14 bottom, Petitioner appears to believe that Jacqueline’s testimony that Petitioner 15 never admitted to covering, or obstructing, his wife’s nose with tape would have 16 bolstered his claim that her death was accidental. But that belief is unfounded 17 because Jacqueline testified that Petitioner told her that he accidentally killed his 18 wife by binding her with duct tape. Petitioner also provided his version of the 19 details of the victim’s death to police. In both accounts, Petitioner claimed to 20 have put duct tape over the victim’s mouth, not intending to kill her, but to quiet 21 her. In other words, the jury understood that, time and time again, Petitioner 22 claimed that he did not intend to murder his wife. Accordingly, there is no reason 23 to conclude that Jacqueline’s proposed testimony would have made the jury any 24 14 For this reason, there is also no merit to Petitioner’s claim that counsel erred in failing to question Galvan about Petitioner’s pre-trial description of the events 26 surrounding his wife’s death. Moreover, the Court notes that Galvan’s proposed 27 account of Petitioners’s pre-trial statements was not materially different from Jacqueline’s account of Petitioner’s pre-trial statements or from Petitioner’s pre28 trial statement to police. 25 40 1 more or less likely than it already was to accept Petitioner’s claim that he 2 accidentally killed his wife. 3 There is also no reason to believe that Jacqueline’s proposed testimony 4 regarding Petitioner’s statement about his wife’s body not being found would 5 have had any impact on the jury’s verdict. Any testimony offered by Jacqueline 6 suggesting that Petitioner unintentionally killed his wife necessarily was suspect 7 because Jacqueline was Petitioner’s daughter and because she aided Petitioner in 8 covering up the fact that he killed his wife. See Romero, 46 F.3d at 1030; 9 Bergman, 65 F.3d at 1380 (supra). Regardless, even if Jacqueline would have 10 testified that Petitioner was referring to the amount of time that had passed since 11 his wife’s death when stating that her body never would be found, the fact 12 remains that Petitioner -- and Petitioner alone -- killed his wife and disposed of 13 her body in one way or another. Thus, Jacqueline’s proposed testimony was 14 unlikely to have benefitted Petitioner in any meaningful way. 15 16 In sum, none of Petitioner’s allegations of attorney error warrant habeas relief.15 17 B. 18 In his second claim for relief, Petitioner contends that the prosecution 19 failed to present sufficient evidence to prove that he harbored the requisite malice 20 to support a second degree murder conviction. According to Petitioner, the 21 prosecution was factually bound by its presentation of his custodial statements to 22 police. Petitioner notes that, in those statements, which were admitted over his 23 objections, he stated that he did not intend to kill his wife. Moreover, Petitioner Sufficiency of the Evidence 24 15 Petitioner also contends that the state courts erred in failing to conduct an evidentiary hearing as to his allegations of attorney error. This contention is 26 meritless, as the existing record leaves no doubt that Petitioner suffered no 27 cognizable prejudice from any of his allegations of attorney error. See Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012) (evidentiary hearing not required 28 where existing record shows that habeas relief is unwarranted). 25 41 1 notes that no evidence was presented to contradict his description of how his wife 2 died. Accordingly, Petitioner believes that the prosecution could not argue that 3 his custodial statements were false. The California Court of Appeal rejected this 4 claim on its merits. As explained below, the court of appeal did not commit 5 constitutional error in doing so. 6 Habeas relief is unavailable on a sufficiency of the evidence challenge 7 unless “no rational trier of fact could have agreed with the jury.” Cavasos v. 8 Smith, __ U.S. __, 132 S. Ct. 2, 181 L. Ed. 2d 311 (2011) (per curiam); Jackson 9 v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). All 10 evidence must be considered in the light most favorable to the prosecution. 11 Jackson, 443 U.S. at 319. Accordingly, if the facts support conflicting inferences, 12 reviewing courts “must presume – even if it does not affirmatively appear in the 13 record – that the trier of fact resolved any such conflicts in favor of the 14 prosecution, and must defer to that resolution.” Id. at 326; Bruce v. Terhune, 376 15 F.3d 950, 957 (9th Cir. 2004) (per curiam); Turner v. Calderon, 281 F.3d 851, 16 882 (9th Cir. 2002). Furthermore, under AEDPA, federal courts must “apply the 17 standards of Jackson with an additional layer of deference.” Juan H. v. Allen, 18 408 F.3d 1262, 1274 (9th Cir. 2005). 19 Furthermore, circumstantial evidence and inferences drawn from it may be 20 sufficient to sustain a conviction. See Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 21 2000) (finding sufficient evidence for murder conviction where “evidence was 22 almost entirely circumstantial and relatively weak”). The reviewing court must 23 respect the exclusive province of the factfinder to determine the credibility of 24 witnesses, resolve evidentiary conflicts, and draw reasonable inferences from 25 proven facts. See United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987). 26 The jury convicted Petitioner of second degree murder. In California, 27 murder is the unlawful killing of a human being “with malice aforethought.” 28 CAL. PENAL CODE § 187(a). The malice necessary to support a murder charge 42 1 may be express or implied. CAL. PENAL CODE § 188. “It is express when there is 2 manifested a deliberate intention unlawfully to take away the life of a fellow 3 creature.” (Id.) It is implied when an unprovoked killing “results from an 4 intentional act, the natural consequences of which are dangerous to human life, 5 and the act is deliberately performed with knowledge of the danger to, and with 6 conscious disregard for, human life.” People v. Cook, 39 Cal. 4th 566, 596, 47 7 Cal. Rptr. 3d 22, 139 P.3d 492 (2006). 8 Here, there was ample evidence supporting the jury’s verdict. Indeed, on 9 the very night on which he killed his wife, Petitioner announced to a friend that 10 he was going to kill his wife because he believed that she was stealing money 11 from the restaurant that he operated. Although Petitioner notes that, at the time, 12 his friend did not take Petitioner’s statements seriously, the jury reasonably could 13 have inferred otherwise, considering that Petitioner, in fact, killed his wife later 14 that night. What is more, testimony established that Petitioner had violently 15 abused his wife in the months leading up to the murder. Indeed, Petitioner tried 16 to choke his wife, so much so that he left red marks on her neck. And, when she 17 was asked about the incident, the victim confided to a friend that it was not the 18 first time that Petitioner had hurt her. Approximately one month before the 19 murder, the victim locked herself in a bathroom because she feared Petitioner was 20 going to beat her. A friend who called the victim while the latter was locked in 21 the bathroom testified that she could hear Petitioner yelling and pounding on the 22 door. 23 Furthermore, Petitioner’s actions after the murder evidence a consciousness 24 of guilt. After killing his wife, Petitioner disposed of her body. Although 25 Petitioner maintains that he could not have, as he told police, boiled her body in 26 his restaurant, that fact is inconsequential because, one way or another, he 27 disposed of her body in a manner that prevented her body from ever being found. 28 Two days after the murder, when asked about his wife, Petitioner replied, “Good 43 1 riddance to her.” He also devised an elaborate scheme to cover up his wife’s 2 death. Indeed, he misled his friends and family and, later, lied to police about his 3 wife’s disappearance. What is more, within two weeks of killing his wife, 4 Petitioner began a romantic relationship with a nineteen-year-old co-worker, who 5 shortly thereafter moved in with Petitioner. And, when confronted by the fact 6 that police believed that he had killed his wife, he fled and attempted suicide by 7 jumping off a cliff. Having considered those actions, coupled with the evidence 8 of Petitioner’s stated motive to kill his wife, the jury reasonably could have found 9 that, in fact, he intentionally murdered his wife. 10 Finally, there is no merit to Petitioner’s argument that, under California 11 law, the prosecution was bound by the facts to which Petitioner admitted in his 12 custodial interviews. As the California Court of Appeal noted in rejecting this 13 argument, California law permitted the prosecutor to impeach Petitioner’s 14 custodial statements because there was other competent and substantial evidence 15 establishing Petitioner’s guilt. This Court is bound by the state court of appeal’s 16 interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 17 163 L. Ed. 2d 407 (2005) (per curiam) (stating that “a state court’s interpretation 18 of state law, including one announced on direct appeal of the challenged 19 conviction, binds a federal court sitting in habeas corpus”). Furthermore, as the 20 court of appeal noted, Petitioner, himself, was responsible for the lack of direct 21 evidence showing that the murder was intentional. Indeed, Petitioner disposed of 22 the victim’s body so that no testing of any kind could be performed on the body.16 23 24 25 26 27 28 16 Petitioner argues that there was evidence adduced at trial showing that he lacked the requisite malice aforethought to kill his wife. For example, he notes that he told police that he was using Ambien and drugs on the night in question. He also notes that he told police that he did not intend to kill his wife. Furthermore, he points to testimony suggesting that, despite their stormy relationship, he and his wife were in love. At bottom, however, Petitioner’s (continued...) 44 1 In sum, the court of appeal reasonably concluded that there was sufficient 2 evidence to show that the murder was intentional and that Petitioner harbored the 3 requisite malice to commit second degree murder. 4 C. 5 In his next claim for relief, Petitioner contends that the trial court violated 6 his right to due process and a fair trial by erroneously instructing the jury on the 7 concept of provocation as it relates to the crime of voluntary manslaughter. 8 9 Jury Instruction on Provocation The following background is relevant to this claim for relief. At trial, the parties agreed that, in addition to being instructed on the crimes of first and 10 second degree murder, the jury would be instructed on the lesser included offense 11 of voluntary manslaughter. Under California law, voluntary manslaughter is the 12 “unlawful killing of a human being without malice . . . upon a sudden quarrel or 13 heat of passion.” Cal. Penal Code § 192(a). A conviction for voluntary 14 manslaughter is appropriate if the victim has provoked the defendant in a manner 15 causing “‘the reason of the accused [to be] obscured or disturbed by passion to 16 such an extent as would cause the ordinarily reasonable person of average 17 disposition to act rashly and without deliberation and reflection, and from such 18 passion rather than from judgment.’” People v. Barton, 12 Cal. 4th 186, 201, 47 19 Cal. Rptr. 2d 569, 906 P.2d 531 (1995). 20 /// 21 22 16 23 24 25 26 27 28 (...continued) argument is nothing more than an invitation to re-weigh the evidence at trial and intrude upon the jury’s exclusive province to determine whether or not Petitioner acted with the requisite malice aforethought to murder his wife. Although the evidence might have supported the inferences advanced by Petitioner, it also supported the reasonable inference that Petitioner intentionally killed his wife. Because the evidence at trial supported that conclusion, Petitioner cannot show that the prosecutor failed to introduce sufficient evidence to support the jury’s verdict. 45 1 Over Petitioner’s objection, the trial court instructed the jury as follows 2 with respect to the concept of provocation: “Words or gestures, no matter how 3 grievous or insulting, are not sufficient provocation to reduce an intentional 4 homicide to manslaughter. Name calling, alone, even if intimidating, is not 5 sufficient provocation to reduce an intentional homicide to manslaughter.” 6 (Lodged Doc. No. 7 at 11.) 7 According to Petitioner, that instruction was erroneous because, under 8 California law, words and gestures can provide the requisite provocation to 9 reduce murder to manslaughter. Moreover, Petitioner maintains that the 10 instruction effectively directed the jury to find that the there was no provocation 11 underlying the murder of which Petitioner was accused. 12 The California Court of Appeal rejected this claim on its merits. In doing 13 so, the court of appeal acknowledged that the challenged instruction misstated the 14 law on provocation because it was overbroad. According to the court of appeal, 15 there may be narrow circumstances where verbal conduct can constitute legally 16 adequate provocation for voluntary manslaughter. The court of appeal explained 17 that, generally, those narrow circumstances were limited to repeated sexual taunts 18 or admissions of infidelity by an unfaithful spouse. By contrast, according to 19 court of appeal, “adequate provocation for voluntary manslaughter cannot be 20 shown ‘where the act that allegedly provoked the killing was no more than 21 taunting words, a technical battery, or slight touching.’” (Id. at 8.) 22 Notwithstanding the fact that the challenged instruction was overbroad, the 23 court of appeal concluded that Petitioner suffered no prejudice because the 24 victim’s alleged conduct was insufficient to constitute verbal provocation as a 25 matter of law. In so concluding, the court of appeal reviewed Petitioner’s pre- 26 trial accounts of the victim’s actions before Petitioner purportedly bound her with 27 duct tape. Those accounts, according to court of appeal, showed that the victim, 28 at most, was “raising hell outside the door” and then “calling [Petitioner] all kinds 46 1 of mean names and stuff” once she was in the room with Petitioner. (Id. at 9-10.) 2 The court of appeal reasoned that the victim’s purported actions could not have 3 “rise[n] to the level of verbal provocation required for voluntary manslaughter or 4 excusable homicide,” and, thus, Petitioner suffered no prejudice as a result of the 5 challenged instruction. (Id. at 10.) Specifically, the court of appeal stated: 6 Although verbal provocation in the abstract may be 7 sufficient to reduce an intentional homicide from murder 8 to manslaughter, there was no evidence in this case that 9 [the victim] said any words or made any gestures that 10 could lead a reasonable jury to find that [Petitioner] 11 killed her in a heat of passion based on adequate 12 provocation. Therefore, the special instruction did not 13 remove from the jury’s consideration any evidence of 14 words or gestures by [the victim] that could have 15 supported a voluntary manslaughter conviction or an 16 acquittal based on excusable homicide. Under these 17 circumstances, the error in giving the instruction did not 18 contribute to the jury’s verdict, nor is it reasonably 19 probable that [Petitioner] would have obtained a 20 favorable result if the instruction had not been given. 21 (Id.) Consequently, the court of appeal rejected Petitioner’s instructional error 22 claim. As explained below, the court of appeal did not commit constitutional 23 error in so doing. 24 Where a habeas claim rests on an alleged constitutional error arising from a 25 jury instruction, the question is whether the alleged instructional error “by itself 26 so infected the entire trial that the resulting conviction violates due process.” 27 Estelle v. McGuire, 502 U.S. 62, 70-71, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) 28 (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 47 1 (1973)). The challenged instruction “may not be judged in artificial isolation, but 2 must be viewed in the context of the overall charge.” Cupp, 414 U.S. at 146-147. 3 “If the charge as a whole is ambiguous, the question is whether there is a 4 reasonable likelihood that the jury has applied the challenged instruction in a way 5 that violates the Constitution.” Middleton v. McNeil, 541 U.S. 433, 437, 124 S. 6 Ct. 1830, 158 L. Ed. 2d 701 (2004) (per curiam) (citations and internal quotation 7 marks omitted). Moreover, even if instructional error is found to rise to the level 8 of a constitutional violation under this standard, federal habeas relief is 9 unavailable unless “the error, in the whole context of the particular case, had a 10 substantial and injurious effect or influence on the jury’s verdict.” Calderon v. 11 Coleman, 525 U.S. 141, 147, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998) (citing 12 Brecht, 507 U.S. at 637). 13 Here, the court of appeal reasonably rejected Petitioner’s challenge to the 14 provocation instruction. First, as the court of appeal’s opinion makes clear, 15 nothing that the victim purportedly said or did before Petitioner allegedly bound 16 her with duct tape constituted sufficient provocation under California law to 17 support a finding that that Petitioner killed her in the heat of passion. The court 18 of appeal’s interpretation of California law is binding on this Court. See 19 Bradshaw, 546 U.S. at 76 (supra). 20 Second, even assuming that the victim’s actions could have supported a 21 finding of provocation, there is no reason to believe that the jury, in fact, would 22 have found that Petitioner committed voluntary manslaughter, as opposed to 23 second degree murder, if the trial court had properly instructed the jury on 24 provocation. Because the court of appeal assumed that error occurred but 25 rejected the claim on harmlessness grounds, this claim effectively has become one 26 asserting that the court of appeal’s rejection itself was contrary to, or an 27 unreasonable application of, the Supreme Court’s harmless-error doctrine. 28 /// 48 1 On direct review, reversal is required if the prosecution fails to show that 2 the error “was harmless beyond a reasonable doubt.” Chapman v. California, 386 3 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The Chapman standard, 4 however, is less forgiving to trial errors than the harmless error standard 5 applicable on federal habeas review. Larson v. Palmateer, 515 F.3d 1057, 1064 6 (9th Cir. 2008) (“Review for harmless error under [the harmless error standard 7 applicable on federal habeas review] is ‘more forgiving’ to state court errors than 8 the harmless error standard that the Supreme Court applies on its direct review of 9 state court convictions.”). On federal habeas review, a constitutional trial error 10 justifies habeas relief only if the error had a substantial and injurious impact in 11 determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. 12 Ct. 1710, 123 L. Ed. 2d 353 (1993); Merolillo v. Yates, 663 F.3d 444, 455 (9th 13 Cir. 2011) (holding that Brecht test should be applied regardless of whether state 14 court found error harmless under state’s harmless error test). 15 Under AEDPA, reviewing courts “accord deference to a state court’s 16 harmlessness determination.” Garcia v. Long, 808 F.3d 771, 781 (9th Cir. 2015). 17 Nevertheless, “[b]ecause it is more stringent, the Brecht test ‘subsumes’ the 18 AEDPA/Chapman standard for review of a state court determination of the 19 harmlessness of a constitutional violation.” Mays v. Clark, 807 F.3d 968, 980 20 (9th Cir. 2015) (citing Fry v. Pliler, 551 U.S. 112, 120, 127 S. Ct. 2321, 168 L. 21 Ed. 2d 16 (2007)). “A determination that the error resulted in ‘actual prejudice’ 22 [under Brecht] necessarily means that the state court’s harmlessness 23 determination was not merely incorrect, but objectively unreasonable.” Id. 24 (citations omitted). As such, “[a] separate AEDPA/Chapman determination is not 25 required.” Id. Notwithstanding that fact, reviewing courts apply Brecht “with 26 due consideration of the state court’s reasons for concluding that the error was 27 harmless beyond a reasonable doubt.” Garcia, 808 F.3d at 771. 28 /// 49 1 Here, the court of appeal reasonably concluded that Petitioner suffered no 2 prejudice from any infirmity in the challenged provocation instruction. At most, 3 the victim “raised hell” when Petitioner refused to unlock his bedroom door and, 4 thereafter, insulted him once he unlocked the door. No reasonable juror would 5 conclude that such actions would cause an ordinarily reasonable person of 6 average disposition to rashly and without deliberation and reflection take the 7 actions that Petitioner claims to have taken. Indeed, in response to being insulted, 8 Petitioner claimed to have bound the victim’s arms, legs, and mouth with tape and 9 left her unattended for hours. And, Petitioner’s repeated pre-trial statements 10 betray any argument that he killed his wife in the heat of passion. Indeed, he 11 consistently maintained that he bound his wife with duct tape so that she would 12 leave him alone. 13 Moreover, in order to accept Petitioner’s voluntary manslaughter theory, 14 the jury would have had to have believed Petitioner’s account of his wife’s 15 actions. That premise is highly unlikely considering that, for months after he 16 killed his wife, Petitioner went to great lengths to lie to anyone who asked him 17 about his wife’s disappearance. Given this fact, there is little reason to believe 18 that the jury would have credited Petitioner’s story to the extent that it suggested 19 that his wife provoked his purported response. 20 Finally, Petitioner’s voluntary manslaughter theory was unlikely to succeed 21 given the weight of the evidence showing that Petitioner murdered his wife. 22 Indeed, only hours before killing his wife, Petitioner had threatened to kill her 23 because he believed that she was stealing from the restaurant that he operated. 24 Petitioner’s actions after the murder also render it highly unlikely that the jury 25 believed Petitioner’s pre-trial accounts of the events leading to his wife’s death, at 26 least to the extent that those accounts suggested that Petitioner did not act with 27 malice aforethought. After all, Petitioner repeatedly lied about his wife’s 28 whereabouts, disposed of her body, sent fake text messages to her friends to 50 1 convince them that she was alive, initiated a sexual relationship with another 2 woman within two weeks of killing his wife, and ultimately fled from authorities 3 and attempted suicide when confronted by police. Given the overwhelming 4 weight of this evidence, it is doubtful that the jury would have believed that 5 Petitioner acted in the heat of passion when he killed his wife -- let alone that her 6 act of insulting him was sufficiently provocative to cause him to take the actions 7 that he claimed to have taken. 8 9 In short, the court of appeal reasonably concluded that Petitioner suffered no prejudice from the trial court’s erroneous provocation instruction. 10 Accordingly, the court of appeal’s rejection of this claim was neither an 11 unreasonable application of, nor contrary to, clearly established federal law as 12 determined by the Supreme Court. 13 D. 14 In his final claim for relief, Petitioner contends that the trial court deprived Involuntary Manslaughter 15 him of his right to due process and a fair trial by refusing to instruct the jury on 16 involuntary manslaughter, a lesser included offense to the crime of second degree 17 murder. According to Petitioner, an involuntary manslaughter instruction was 18 warranted because California permits an individual to be found guilty of 19 involuntary manslaughter if the individual kills another without malice during the 20 commission of a non-inherently dangerous felony. Citing this law, Petitioner 21 maintains that the facts of his case supported an involuntary manslaughter 22 conviction because, based on his pre-trial statements, he accidentally killed his 23 wife while committing false imprisonment. Petitioner maintains that false 24 imprisonment is not an inherently dangerous felony. As such, he believes that, 25 under California law, he was entitled to an involuntary manslaughter instruction. 26 This claim fails for several reasons. First, it is not cognizable on habeas 27 review. “Under the law of [the Ninth Circuit], the failure of a state trial court to 28 instruct on lesser included offenses in a non-capital case does not present a 51 1 federal constitutional question.” Windham v. Merkle, 163 F.3d 1092, 1106 (9th 2 Cir. 1998); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). Accordingly, 3 Petitioner cannot obtain habeas relief on either of these claims. 4 Second, even if the claims were cognizable, they nevertheless would fail. 5 The United States Supreme Court has never held that a trial court’s failure to 6 instruct on a lesser included offense in a non-capital case violates due process of 7 law. Rather, the Supreme Court has held only that a defendant has a 8 constitutional right to have the jury instructed on lesser included offenses in 9 capital cases. Beck v. Alabama, 447 U.S. 625, 638, 100 S. Ct. 2382, 65 L. Ed. 2d 10 392 (1980). In so holding, the Supreme Court expressly declined to state whether 11 that right extended to non-capital cases. Id. at 638 n.14; see also Gilmore v. 12 Taylor, 508 U.S. 333, 361-62, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) 13 (Blackmun, J., dissenting) (observing that Beck left open question of whether due 14 process entitles criminal defendants in non-capital cases to have jury instructed 15 on lesser included offenses). Therefore, the state court decision cannot be said to 16 be contrary to, or an unreasonable application of, federal law as decided by the 17 Supreme Court. See Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. 18 Ed. 2d 482 (2006) (where Supreme Court precedent gives no clear answer to 19 question presented, “it cannot be said that the state court ‘unreasonab[ly] 20 appli[ed] clearly established Federal law’”). 21 Finally, Petitioner’s challenge to the trial court’s refusal to instruct the jury 22 on involuntary manslaughter fails because, as the court of appeal explained, 23 Petitioner had no right under California law to the proposed instruction. 24 Petitioner maintains that he was entitled to an involuntary manslaughter 25 instruction because his pre-trial statements, if believed, showed that the victim 26 died while Petitioner was committing the crime of false imprisonment, which is 27 not an inherently dangerous felony. But, as the court of appeal explained, “in 28 deciding whether an involuntary manslaughter instruction was warranted in this 52 1 case, the relevant inquiry is not whether [Petitioner’s] predicate felony of false 2 imprisonment was dangerous in the abstract, but whether it was dangerous under 3 the circumstances of its commission.” (Lodged Doc. No. 7 at 11.) Because, 4 according to the court of appeal, Petitioner’s false imprisonment of his wife was 5 dangerous under the circumstances of its commission, Petitioner was not entitled 6 to an involuntary manslaughter instruction under California law. This Court is 7 bound by the court of appeal’s interpretation of California law. See Bradshaw, 8 546 U.S. at 76 (supra). 9 For the foregoing reasons, Petitioner is not entitled to habeas relief with 10 respect to his challenge to the trial court’s refusal to instruct the jury on 11 involuntary manslaughter. 12 13 14 VII. ORDER The Magistrate Judge, therefore, orders that judgment be entered denying the Petition on the merits with prejudice. 15 16 DATED: January 31, 2016 17 18 /S/ FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 53

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