Taylor v. Pfeiffer

Filing 34

FINDINGS and RECOMMENDATION Recommending Denial of 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Stanley A. Boone on 2/15/19. Referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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REGINALD WALTER TAYLOR, JR.,

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Case No. 1:17-cv-01699-LJO-SAB-HC

Petitioner,

FINDINGS AND RECOMMENDATION
RECOMMENDING DENIAL OF PETITION
FOR WRIT OF HABEAS CORPUS

v.

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C. PFEIFFER,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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17 pursuant to 28 U.S.C. § 2254.
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I.

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BACKGROUND
On July 23, 2013, Petitioner was convicted by a jury in the Fresno County Superior Court

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21 of: attempted premeditated murder (count 1); two counts of assault with a firearm (counts 2, 3);
22 and being a felon in possession of a firearm (count 4). Petitioner was sentenced to life with the
23 possibility of parole on count 1 plus twenty-five years to life for personally inflicting great
24 bodily injury, a concurrent term of eight years for count 3, and a concurrent term of six years for
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25 count 4. The eight-year term on count 2 was stayed. (LD 1). On August 31, 2015, the California

26 Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Taylor, No. F067854,
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“LD” refers to the documents lodged by Respondent on March 9 and October 22, 2018. (ECF Nos. 14, 16, 32). LD

28 page numbers refer to the page numbers located at the bottom of the page.
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1 2015 WL 5121899, at *5 (Cal. Ct. App. Aug. 31, 2015), as modified on denial of reh’g (Sept. 16,
2 2015). On November 10, 2015, the California Supreme Court denied the petition for review.
3 (LDs 4, 5). Thereafter, Petitioner filed nine state post-conviction collateral challenges. (LDs 6, 8,
4 10, 12, 14, 16, 18, 20, 22).
On December 10, 2017, Petitioner constructively filed the instant federal petition for writ

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6 of habeas corpus. In the petition, Petitioner raises the following claims for relief: (1) ineffective
7 assistance of counsel; and (2) invalidity of Petitioner’s conviction under California Penal Code
8 section 12022.53(d) in light of Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF No. 1).
9 On January 8, 2018, Petitioner filed a motion for stay and abeyance. (ECF No. 10). On February
10 27, 2018, Respondent filed a motion to dismiss the petition as untimely and opposition to the
11 motion for stay. (ECF No. 12). On August 23, 2018, the Court denied as moot Petitioner’s
12 motion for stay and abeyance and denied Respondent’s motion to dismiss without prejudice to
13 renewing the motion after the Court rules on the merits of the petition. (ECF No. 28).
14 Respondent filed an answer, and Petitioner filed a traverse. (ECF Nos. 31, 33).
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II.

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STATEMENT OF FACTS2

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On March 13, 2013, Sarah Diaz was working as the manager of the All American
Sports Fan store in Manchester Mall in Fresno. From the sports store, a person
can see the barber shop called Colima’s Fade Shop. About 7:30 p.m., two people
entered the sports store: Abel Price, a thin man wearing a blue shirt, and
defendant who was wearing dark jeans and a white T-shirt. A video showing Price
and defendant inside the sports store was shown to the jury.

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After defendant and Price left the sports store, a fight broke out in the mall
between Price and one of the barbers, Ronnie Moore. Defendant also was
involved in the fight with Moore. Defendant ran off before Price and Moore
stopped fighting. As he left, defendant stated, “I’m gonna kill this mother fucker.”
When the fight ended, Price left with a woman who had been yelling at Moore
during the fight.

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Someone had summoned the mall security guards and they arrived and spoke with
Moore and individuals who had witnessed the fight. As Diaz was walking back to
her store after being interviewed, she saw someone running toward the barber
shop. The person was wearing dark jeans and a white T-shirt. Diaz identified the
person as defendant.

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The Court relies on the California Court of Appeal’s August 31, 2015 opinion for this summary of the facts of the

28 crime. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009).
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Diaz feared for Moore’s safety and saw Moore duck into the barber shop
bathroom. Diaz saw defendant lift up his arm. Defendant held a large, black
handgun in his right hand. Defendant aimed in the direction of Moore as Moore
ducked into the barber shop’s bathroom. After firing the shots, defendant ran
toward a mall exit. Moore explained that he had a daughter with Trenice Williams
and Williams was the one who was yelling at him during the altercation in the
mall. Williams had demanded to speak with Moore immediately, even though
Moore was busy with a client. Moore refused to identify defendant as the
individual in the white T-shirt out of fear someone else would be harmed. The
other barber also felt intimidated.

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Moore testified that the man in the white T-shirt punched him; the man in the blue
shirt joined the fight. As the fight ensued, the man in the white T-shirt left the
area. Someone announced they were calling the authorities and Moore let go of
the man in the blue shirt. Shortly thereafter, Moore heard someone say that
somebody was coming back and Moore ran to the bathroom.

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Rafiola Binger was at the barber shop so her son could get a haircut from Moore.
Binger heard Williams and Moore arguing and saw the altercation break out into a
physical fight. Binger identified defendant as one of the two men confronting
Moore. Later, defendant returned to the barber shop and started shooting. Shots
were fired into the bathroom. Binger was hit in the back; she heard the shots and
felt burning and pain to her spine. Four bullet holes were found in the wall at the
back of the barber shop, near the bathroom door.

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Binger was hospitalized for over a month following surgery on her back. The
parties stipulated that Binger was struck in the lower back by a bullet and the
injury necessitated surgery. The injury resulted in the paralysis of Binger’s lower
extremities and satisfied the great bodily injury enhancement.
Law enforcement tracked defendant and Price to Eureka, California. Defendant
and Price were arrested in Eureka on March 22, 2013.

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18 Taylor, 2015 WL 5121899, at *1–2.
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III.

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STANDARD OF REVIEW

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Relief by way of a petition for writ of habeas corpus extends to a person in custody

22 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
23 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,
24 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed
25 by the U.S. Constitution. The challenged convictions arise out of the Fresno County Superior
26 Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d).
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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

28 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

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1 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
2 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is
3 therefore governed by its provisions.
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Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred

5 unless a petitioner can show that the state court’s adjudication of his claim:
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

10 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Lockyer v. Andrade, 538
11 U.S. 63, 70–71 (2003); Williams, 529 U.S. at 413.
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As a threshold matter, this Court must “first decide what constitutes ‘clearly established

13 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71
14 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this
15 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as
16 of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words,
17 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles
18 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition,
19 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal
20 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in
21 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of
22 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v.
23 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v.
24 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an
25 end and the Court must defer to the state court’s decision. Musladin, 549 U.S. 70; Wright, 552
26 U.S. at 126; Moses, 555 F.3d at 760.
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If the Court determines there is governing clearly established Federal law, the Court must

28 then consider whether the state court’s decision was “contrary to, or involved an unreasonable

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1 application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C.
2 § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the
3 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
4 of law or if the state court decides a case differently than [the] Court has on a set of materially
5 indistinguishable facts.” Williams, 529 U.S. at 412–13; see also Lockyer, 538 U.S. at 72. “The
6 word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character
7 or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster’s Third New
8 International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to
9 [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the
10 governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to”
11 clearly established Supreme Court precedent, the state decision is reviewed under the pre12 AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).
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“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if

14 the state court identifies the correct governing legal principle from [the] Court’s decisions but
15 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.
16 “[A] federal court may not issue the writ simply because the court concludes in its independent
17 judgment that the relevant state court decision applied clearly established federal law erroneously
18 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer,
19 538 U.S. at 75–76. The writ may issue only “where there is no possibility fair minded jurists
20 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.”
21 Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the
22 correctness of the state court’s decision, the decision cannot be considered unreasonable. Id. If
23 the Court determines that the state court decision is objectively unreasonable, and the error is not
24 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious
25 effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
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The Court looks to the last reasoned state court decision as the basis for the state court

27 judgment. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Stanley v. Cullen, 633 F.3d 852, 859
28 (9th Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the

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1 reasoning from a previous state court decision, this Court may consider both decisions to
2 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.
3 2007) (en banc). “When a federal claim has been presented to a state court and the state court has
4 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the
5 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at
6 99. This presumption may be overcome by a showing “there is reason to think some other
7 explanation for the state court’s decision is more likely.” Id. at 99–100 (citing Ylst v.
8 Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state courts reach a decision on the merits but there is no reasoned decision, a

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10 federal habeas court independently reviews the record to determine whether habeas corpus relief
11 is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853
12 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional
13 issue, but rather, the only method by which we can determine whether a silent state court
14 decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot
15 analyze just what the state court did when it issued a summary denial, the federal court must
16 review the state court record to determine whether there was any “reasonable basis for the state
17 court to deny relief.” Richter, 562 U.S. at 98. This Court “must determine what arguments or
18 theories ... could have supported, the state court’s decision; and then it must ask whether it is
19 possible fairminded jurists could disagree that those arguments or theories are inconsistent with
20 the holding in a prior decision of [the Supreme] Court.” Id. at 102.
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IV.

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REVIEW OF CLAIMS

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A. Ineffective Assistance of Counsel

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In his first and third claims for relief, Petitioner asserts ineffective assistance of counsel

25 for failure to request pinpoint instructions regarding provocation and for inadequate investigation
26 into Petitioner’s mental health. (ECF No. 1 at 5–11, 14–16).3 Respondent argues the state courts’
27 rejection of these claims was reasonable. (ECF No. 31 at 12, 18).
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Page numbers refer to the ECF page numbers stamped at the top of the page.

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1. Strickland Legal Standard

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The clearly established federal law governing ineffective assistance of counsel claims is

3 Strickland v. Washington, 466 U.S. 668 (1984). In a petition for writ of habeas corpus alleging
4 ineffective assistance of counsel, the court must consider two factors. Strickland, 466 U.S. at
5 687. First, the petitioner must show that counsel’s performance was deficient, requiring a
6 showing that counsel made errors so serious that he or she was not functioning as the “counsel”
7 guaranteed by the Sixth Amendment. Id. at 687. The petitioner must show that counsel’s
8 representation fell below an objective standard of reasonableness, and must identify counsel’s
9 alleged acts or omissions that were not the result of reasonable professional judgment
10 considering the circumstances. Richter, 562 U.S. at 105 (“The question is whether an attorney’s
11 representation amounted to incompetence under ‘prevailing professional norms,’ not whether it
12 deviated from best practices or most common custom.” (citing Strickland, 466 U.S. at 690)).
13 Judicial scrutiny of counsel’s performance is highly deferential. A court indulges a strong
14 presumption that counsel’s conduct falls within the wide range of reasonable professional
15 assistance. Strickland, 466 U.S. at 687. A reviewing court should make every effort “to eliminate
16 the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
17 conduct, and to evaluate the conduct from counsel’s perspective at that time.” Id. at 689.
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Second, the petitioner must show that there is a reasonable probability that, but for

19 counsel’s unprofessional errors, the result would have been different. It is not enough “to show
20 that the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466
21 U.S. at 693. “A reasonable probability is a probability sufficient to undermine confidence in the
22 outcome.” Id. at 694. A court “asks whether it is ‘reasonable likely’ the result would have been
23 different. . . . The likelihood of a different result must be substantial, not just conceivable.”
24 Richter, 562 U.S. at 111–12 (citing Strickland, 466 U.S. at 696, 693). A reviewing court may
25 review the prejudice prong first. See Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002).
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When § 2254(d) applies, “[t]he pivotal question is whether the state court’s application of

27 the Strickland standard was unreasonable. This is different from asking whether defense
28 counsel’s performance fell below Strickland’s standard.” Richter, 562 U.S. at 101. Moreover,

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1 because Strickland articulates “a general standard, a state court has even more latitude to
2 reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance,
3 556 U.S. 111, 123 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “The
4 standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two
5 apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citations omitted). Thus, “for
6 claims of ineffective assistance of counsel . . . AEDPA review must be ‘doubly deferential’ in
7 order to afford ‘both the state court and the defense attorney the benefit of the doubt.’” Woods v.
8 Donald, 135 S. Ct. 1372, 1376 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)). When
9 this “doubly deferential” judicial review applies, the inquiry is “whether there is any reasonable
10 argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105.
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2. Failure to Request Pinpoint Instructions

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In his first claim for relief, Petitioner asserts that his trial counsel was ineffective for

13 failing to request pinpoint instructions that directed the jury to consider provocation in
14 determining whether Petitioner attempted to kill with deliberation and premeditation. (ECF No. 1
15 at 5–11). This claim was raised on direct appeal to the California Court of Appeal, Fifth
16 Appellate District, which denied the claim in a reasoned opinion. The California Supreme Court
17 summarily denied Petitioner’s petition for review. As federal courts review the last reasoned
18 state court opinion, the Court will “look through” the California Supreme Court’s summary
19 denial and examine the decision of the California Court of Appeal. See Wilson, 138 S. Ct at
20 1192.
In denying Petitioner’s ineffective assistance of counsel claim for failure to request

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22 pinpoint instructions, the California Court of Appeal stated:
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Defendant contends he received ineffective assistance of counsel because defense
counsel failed to request a modified version of CALCRIM No. 522 (Provocation:
Effect on Degree of Murder).4 He also asserts defense counsel’s closing argument
exacerbated the problem. We disagree.

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Defendant asserts the jury should have been instructed that: “Provocation may reduce an attempted premeditated
murder to only attempted murder. The weight and significance of the provocation, if any, are for you to decide. [¶] If
you conclude that the defendant committed an attempted murder but was provoked, consider the provocation in
deciding whether the crime was premeditated attempted murder or simply attempted murder, even if the provocation
is not sufficient to reduce the offense to attempted manslaughter.”
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Factual Summary
A jury instruction conference was held in chambers. The next morning, the trial
court convened in open court outside the presence of the jury. At that time, the
trial court stated the proposed instructions in their final wording had been shared
with counsel. Defense counsel was asked if he had reviewed the proposed
instructions, to which counsel responded “Yes.” The trial court then asked
defense counsel if he had any objection to any of the instructions or their wording
as proposed, to which counsel responded “No.” The trial court then asked defense
counsel if there were “[a]ny instructions you are asking the court to give, [defense
counsel], that the court is not proposing to give?” Defense counsel responded,
“No, there is not, Your Honor.”
In closing argument, defense counsel argued there was insufficient evidence the
person wearing the white T-shirt was defendant; and no “proof beyond a
reasonable doubt” that defendant acted with premeditation. Defense counsel
argued the evidence established attempted manslaughter, not attempted murder, in
that it was the result of a “sudden quarrel or heat of passion” and the result of
provocation. Defense counsel argued the shooting was the result of provocation—
the fight with Moore—and the shooter acted out of “rage” and “wasn’t thinking
clearly.” Defense counsel pointed out that the exchange with Moore was more
than “calling each other names,” it also included a number of punches landed by
Moore on defendant. Defense counsel argued an “average person under those
circumstances” would be “provoked.”
Analysis
An instruction on provocation for second degree murder is a pinpoint instruction
that need not be given sua sponte by the trial court. (People v. Hernandez (2010)
183 Cal.App.4th 1327, 1333; People v. Rogers (2006) 39 Cal.4th 826, 880
[discussing CALJIC No. 873's provocation instruction].) In order to establish
ineffective assistance of counsel from the failure to request this instruction,
defendant must demonstrate a reasonable probability that, but for the failure to
request this instruction, the outcome would have been different. (Strickland v.
Washington (1984) 466 U.S. 668, 691–694, 697–698.) That probability must be
sufficient to undermine confidence in the verdict. (People v. Ledesma (1987) 43
Cal.3d 171, 216–218.) Defendant has failed to demonstrate the outcome would
have been different had the instruction been given.

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The decision about what jury instructions to request is inherently a tactical
decision to be made by counsel. (People v. Padilla (2002) 98 Cal.App.4th 127,
136.) Tactical decisions must be viewed based upon facts at the time, not in
hindsight, and rarely warrant a reversal. (People v. Hinton (2006) 37 Cal.4th 839,
876.)

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The jury received numerous instructions relating to count 1. Among the
instructions given was CALCRIM No. 601, informing the jury they had to
determine if the attempt was made deliberately and with premeditation and
defining those terms for the jury. That instruction also informed the jury the
People had to prove premeditation and deliberation beyond a reasonable doubt.

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In addition, the jury was instructed with CALCRIM No. 664, which informed
them that acting pursuant to a sudden quarrel or heat of passion reduced the
attempted killing to attempted voluntary manslaughter and that the concept of
provocation was a factor in determining whether the action was the result of heat
of passion or sudden quarrel. This instruction informed the jury that if defendant
was provoked, the jury was to determine if the provocation was sufficient; in

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other words, whether a person of average disposition in the same situation would
have reacted from passion rather than judgment.

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The sufficiency of the provocation is judged objectively; a defendant is not
allowed to set up his own standard of conduct. (People v. Steele (2002) 27 Cal.4th
1230, 1254.) If the provocation is inadequate to reduce the offense to attempted
voluntary manslaughter, it may be considered by the jury in determining whether
a defendant acted with premeditation and deliberation. (Id. at p. 1255.)

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When viewing the entire set of instructions given to the jury, it is apparent the
instructions given adequately and fully instructed the jury on defendant’s theory;
that he was provoked into acting rashly in the heat of passion. (People v. Holt
(1997) 15 Cal.4th 619, 677.) The jury, however, reasonably could have, and did,
reach a conclusion contrary to that urged by the defense.

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Here, one witness estimated the time lapse from when defendant ran out of the
barber shop to when gunshots were heard as two or three minutes. The
overwhelming majority of the evidence, however, establishes that a much longer
time period elapsed before gunshots were heard. After defendant left, the fight
between Moore and Price continued. Price and Williams then left the area. The
mall security guards arrived and interviewed Moore and other witnesses to the
fight. These interviews were over before Diaz observed defendant running toward
the barber shop and shots being fired.

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Defendant had to leave the barber shop, retrieve a gun, and return to the barber
shop; a process that by most witnesses’ accounts had to have taken much more
than two or three minutes.5 The length of time that elapsed was sufficient for any
passion induced by the provocation to have waned. (People v. Wickersham (1982)
32 Cal.3d 307, 327, overruled on other grounds in People v. Barton (1995) 12
Cal.4th 186, 200.)

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The issue of provocation is only relevant to the extent it “ ‘bears on the question’
whether defendant premeditated and deliberated.” (People v. Rogers, supra, 39
Cal.4th at p. 878.) In convicting defendant, the jury necessarily rejected
defendant's defense that he acted reasonably and in the heat of passion and found
that the People had proved deliberation and premeditation beyond a reasonable
doubt.

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There was no ineffective assistance of counsel in failing to request CALCRIM
No. 522 and defendant was not prejudiced.

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22 Taylor, 2015 WL 5121899, at *2–4 (footnotes in original).
Petitioner contends that counsel should have requested that the trial court give the

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24 following modified version of CALCRIM No. 522:
Provocation may reduce an attempted premeditated murder to only attempted
murder. The weight and significance of the provocation, if any, are for you to
decide.

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Moreover, we are not convinced that a person of “average disposition, in the same situation” would have left the

28 barber shop only to return with a gun and attempt to kill someone.
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If you conclude that the defendant committed an attempted murder but was
provoked, consider the provocation in deciding whether the crime was
premeditated attempted murder or simply attempted murder, even if the
provocation is not sufficient to reduce the offense to attempted manslaughter.

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4 (LD 4 at 10; ECF No. 1 at 8). Petitioner also contends that counsel should have requested that the
5 trial court give the following modified version of CALJIC No. 8.73:
If the evidence establishes that there was provocation which played a part in
inducing an unlawful attempted killing of a human being, but the provocation was
not sufficient to reduce the attempted homicide to attempted manslaughter, you
should consider the provocation for the bearing it may have on whether the
defendant attempted to kill with or without deliberation and premeditation.

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9 (LD 4 at 11; ECF No. 1 at 8).
However, even without these modified pinpoint instructions, the jury was instructed on

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11 deliberation and premeditation as follows:
If you find the defendant guilty of attempted murder under Count One you must
then decide whether the People have proved the additional allegation that the
attempted murder was done willfully and with deliberation and premeditation.

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The defendant acted willfully if he intended to kill when he acted. The defendant
deliberated if he carefully weighed the considerations for and against his choice
and knowing the consequences decided to kill. The defendant premeditated if he
decided to kill before acting.

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The length of time that a person spends considering whether to kill does not alone
determine whether the attempted killing is deliberate and premeditated. The
amount of time required for deliberation and premeditation may vary from person
to person and according to the circumstances. A decision to kill made rashly,
impulsively and without careful consideration of the choice and its consequences
is not deliberate and premeditated. On the other hand, a cold calculated decision
to kill can be reached quickly. The test is the extent of the reflection not the length
of time.

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The people have the burden of proving this allegation beyond a reasonable doubt.
If the People have not met this burden, then you must find that this allegation has
not been proved.

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23 (5 RT 1413–14; 1 CT 269).

The Court “must indulge a strong presumption that counsel’s conduct falls within the

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25 wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, and Petitioner has
26 not overcome the presumption that counsel reasonably concluded the given instructions correctly
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“RT” refers to the Reporter’s Transcript on Appeal lodged by Respondent on October 22, 2018. (ECF No. 32).
“CT” refers to the Clerk’s Transcript on Appeal lodged by Respondent on October 22, 2018. (ECF No. 32).

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1 and adequately addressed provocation and its impact on whether Petitioner premediated and
2 deliberated. Moreover, Petitioner has not established “there is a reasonable probability that . . .
3 the result of the proceeding would have been different,” Strickland, 466 U.S. at 694, if trial
4 counsel had requested modified versions of CALCRIM No. 522 and CALJIC No. 8.73. Defense
5 counsel emphasized the issue for the jury in closing argument, focusing almost exclusively on
6 the argument that “most importantly . . . there’s not proof beyond a reasonable doubt that Mr.
7 Taylor acted with premeditation, acted deliberately with malice because there was provocation.”
8 (5 RT 1383).
9

Based on the foregoing, under AEDPA’s “doubly deferential” review, Donald, 135 S. Ct.

10 at 1376, the California Court of Appeal’s decision rejecting the ineffective assistance of counsel
11 claim for failure to request modified versions of CALCRIM No. 522 and CALJIC No. 8.73 was
12 not contrary to, or an unreasonable application of, clearly established federal law, nor was it
13 based on an unreasonable determination of fact. The decision was not “so lacking in justification
14 that there was an error well understood and comprehended in existing law beyond any possibility
15 for fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to
16 habeas relief based on his first claim, and it should be denied.
17

3. Inadequate Investigation

18

In his second claim for relief, Petitioner asserts that trial counsel was ineffective for

19 inadequate investigation into Petitioner’s mental health. (ECF No. 1 at 14–16). This claim was
20 raised in state habeas petitions filed in the Fresno County Superior Court, California Court of
21 Appeal, and the California Supreme Court. (LDs 8, 12, 14). The Fresno County Superior Court
22 denied the claim in a reasoned opinion. (LD 9). The California Court of Appeal and the
23 California Supreme Court summarily denied the petitions. (LDs 13, 15). As federal courts review
24 the last reasoned state court opinion, the Court will “look through” the California Supreme
25 Court’s summary denial and examine the decision of the Fresno County Superior Court. See
26 Wilson, 138 S. Ct. at 1192.
27

In denying Petitioner’s ineffective assistance of counsel claim for inadequate

28 investigation into Petitioner’s mental health, the Fresno County Superior Court stated:

12

1
2
3
4

Petitioner contends that he received ineffective assistance of counsel when his
attorney failed to conduct an investigation into his history of mental illness prior
to trial. In support of this contention, Petitioner argues that the jury may have
been persuaded that he had been acting ‘under the influence of extreme emotional
disturbance,’ when he committed his offenses and that he had not formed the
requisite intent to commit the offenses for which he was convicted had his
attorney ensured that Petitioner was evaluated by a psychiatrist prior to trial.

5
...
6
7
8
9
10
11
12

Finally, the Court notes that in order to demonstrate ineffective assistance of
counsel, Petitioner must allege facts showing that (1) his counsel’s representation
fell below an objective standard of reasonableness, and (2) that his defense
suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668,
690–92.)
Generally [ ... ] prejudice must be affirmatively proved. [Citation.] “It is
not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding .... The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence
in the outcome.” [Citations.]

13
(People v. Ledesma, supra, 43 Cal. 3d 171, 217–218.)
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15
16
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20
21
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23

In reviewing a claim of ineffective assistance of counsel, “a court need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. The
object of an ineffectiveness claim is not to grade counsel’s performance. If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”
(Strickland v. Washington, supra, 466 U.S. 668, 697; see also In re Cox (2003) 30
Cal.4th 974, 1019–20 [stating that a court may dispose of an ineffective assistance
of counsel claim if the petitioner has not demonstrated sufficient prejudice
without deciding if counsel’s performance was deficient].)
In the present case, the Court notes that the Fifth District Court of Appeal found
that significant evidence was presented at trial that Petitioner had the requisite
intent to commit premediated attempted murder.
Here, one witness estimated the time lapse from when defendant ran out of
the barber shop to when gun shots were heard as two or three minutes. The
overwhelming majority of the evidence, however, establishes that a much
longer time period elapsed before gunshots were heard. [ ... ]

24
25
26
27

Defendant had to leave the barber shop, retrieve a gun, and return to the
barber shop; a process that by most witnesses’ accounts had to have taken
much more than two or three minutes. The length of time that elapsed was
sufficient for any passion induced by the provocation to have waned.
(People v. Wickersham (1982) 32 Cal.3d 307, 327, overruled on other
grounds in People v. Barton (1995) 12 Cal.4th 186, 200.)

28

13

The issue of provocation is only relevant to the extent it bears on the
question of whether defendant premeditated and deliberated.” (People v.
Rogers, supra, 39 Cal.4th at p. 878.) In convicting the defendant, the jury
necessarily rejected defendant’s defense that he acted reasonably and in
the heat of passion and found that the People had proved deliberation and
premeditation beyond a reasonable doubt.

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2
3
4
5
6
7
8
9
10
11
12

(People v. Reginald Walter Taylor, Jr. (F067854, Sept. 17, 2015) [nonpub. opn.]
at p. 8.)
While Petitioner contends that a “reasonable defense lawyer at the time of trial in
the defendant’s case might have doubted a [d]iminished capacity argument was a
clear winner,” but that no “‘reasonable lawyer’ could have found it to be so weak,
as to be not worth raising”, the Court notes that great deference must be afforded
to the tactical decisions of trial counsel. (In re Fields (1990) 51 Cal.3d 1063,
1069–1070.) As Petitioner has failed to demonstrate a reasonable probability that
the result of his trial would have been more favorable had his attorney
investigated his history of mental illness or had Petitioner evaluated by a
psychiatrist prior to trial, the Court finds that he has failed to demonstrate that he
received ineffective assistance of counsel. (See In re Cox (2003) 30 Cal.4th 974,
1019–20 [stating that a court may dispose of an ineffective assistance of counsel
claim if petitioner has not demonstrated sufficient prejudice without deciding if
counsel’s performance was deficient.)

13 (LD 9 at 1–5).
14

At the time of Petitioner’s offense, the diminished capacity defense had been abolished in

15 California and thus, “to present a viable mental state defense, counsel would have had to show
16 that because of his mental illness . . . [Petitioner] did not in fact form the intent” required to
17 commit premeditated attempted murder. Sully v. Ayers, 725 F.3d 1057, 1070 (9th Cir. 2013)
18 (internal quotation marks and citation omitted). Petitioner submitted evidence to the state courts
19 that while in custody in 2003 he was referred for further mental health evaluation but was
20 ultimately found to not meet the criteria for inclusion in the mental health treatment population.
21 (LD 8, Ex. A; ECF No. 1 at 43, 54). While in custody in 2011, Petitioner was determined to meet
22 the inclusion criteria for mental health services, and progress notes indicate that Petitioner was
23 on medication, had a past risk of assaultive behavior, and had a history of depressive symptoms.
24 (LD 8, Ex. B; ECF No. 1 at 47). The proffered evidence was far removed in time from the date
25 of the offense. Petitioner argues that he had “one of his blackouts associated with a condition he
26 suffers from and was suffering from at the time of the incident on March 13, 2013.” (ECF No. 1
27 at 14). However, the submitted evidence did not indicate that Petitioner suffered from blackouts
28 and did not otherwise demonstrate the impact of Petitioner’s history of depressive symptoms and

14

1 anger problems on whether Petitioner actually formed the requisite mental state for premeditated
2 attempted murder on March 13, 2013. See Sully, 725 F.3d at 1070 (finding state court was not
3 unreasonable in concluding no prejudice stemmed from counsel’s failure to investigate mental
4 state because while petitioner “proffered evidence showing that he was generally consuming
5 large quantities of cocaine and suffering various psychotic symptoms around the time of the
6 murders, none of the evidence relates to the impact of his cocaine usage or psychotic symptoms
7 on specific instances of murder”).
8

Based on the foregoing, the superior court was not objectively unreasonable in

9 concluding that Petitioner failed to demonstrate “there is a reasonable probability that . . . the
10 result of the proceeding would have been different,” Strickland, 466 U.S. at 694, if counsel had
11 investigated Petitioner’s mental health history. The superior court’s determination was not
12 contrary to, or an unreasonable application of, clearly established federal law, nor was it based
13 on an unreasonable determination of fact. The decision was not “so lacking in justification that
14 there was an error well understood and comprehended in existing law beyond any possibility for
15 fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to
16 habeas relief based on his third claim, and it should be denied.
17

B. Johnson Claim

18

In his second claim for relief, Petitioner asserts that his conviction under California Penal

19 Code section 12022.53(d) is invalid because section 12022.53(d) is unconstitutionally vague
20 under Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF No. 1 at 13). Respondent argues
21 the state court’s rejection of this claim was reasonable. (ECF No. 31 at 16).
22

This claim was raised in state habeas petitions filed in the Fresno County Superior Court

23 and the California Supreme Court. (LDs 16, 22). The Fresno County Superior Court denied the
24 claim in a reasoned opinion. (LD 17). The California Supreme Court summarily denied the
25 petition. (LD 23). As federal courts review the last reasoned state court opinion, the Court will
26 “look through” the California Supreme Court’s summary denial and examine the decision of the
27 Fresno County Superior Court. See Wilson, 138 S. Ct. at 1192.
28 ///

15

1

In denying Petitioner’s challenge to his conviction based on Johnson, the Fresno County

2 Superior Court stated:
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4
5
6
7
8
9
10
11
12
13
14
15

First, Petitioner maintains that his conviction for premediated attempted murder
and his sentence enhancement for causing great bodily harm as the result of his
personal use of a firearm (Pen. Code, § 12022.53, subd. (d)) are invalid as the
result of the United States Supreme Court’s decision in Johnson v. United States
(2015) 576 U.S. ___ [135 S.Ct. 2551, 192 L.Ed.2d 569 [“Johnson”]].
However, the Court finds that nothing in the United States Supreme Court’s
decision in Johnson undermines the validity of Petitioner’s convictions and/or
sentences. In Johnson, the United States Supreme Court determined that the
residual clause of the Armed-Career Criminal Act (“ACCA”) was
unconstitutionally vague because it required an assessment of whether the
“hypothetical, ordinary” commission of a prior felony involved “conduct that
presents a serious potential risk of physical injury to another.” Based on its
determination that “the indeterminacy of the wide-ranging inquiry required by the
residual clause both denies fair notice to defendants and invites arbitrary
enforcement by judges,” the Supreme Court found that increasing a defendant’s
sentence under the ACCA as a result of such a determination resulted in the denial
of due process of law. (Johnson v. United States (2015) 576 U.S. ___ [135 S.Ct.
2551, 192 L.Ed.2d 569] at p. 2557.) In the present case, Petitioner has failed to
present any facts or evidence that would support the conclusion that the United
States Supreme Court’s decision in Johnson undermines the validity of his
convictions and/or sentences in any way. (People v. Duvall (1995) 9 Cal.4th 464,
474.) Petitioner was neither convicted nor sentenced under the ACCA.
Consequently, the Court finds that Petitioner has failed to state a prima facie case
for habeas corpus relief with respect to his first contention.

16 (LD 17 at 1–2).
17

“The Armed Career Criminal Act [ACCA] requires a federal sentencing judge to impose

18 upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison
19 term. The judge is to impose that special sentence if the offender also has three prior convictions
20 for certain violent or drug-related” felonies. United States v. Stitt, 139 S. Ct. 399, 403 (2018)
21 (citing 18 U.S.C. § 924(e)). The ACCA’s definition of “violent felony” includes “any crime
22 punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or
23 extortion, involves use of explosives, or otherwise involves conduct that presents a serious
24 potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The “otherwise
25 involves conduct that presents a serious potential risk of physical injury to another” language of
26 the definition is known as the ACCA’s residual clause, which the Supreme Court has struck
27 down as “unconstitutionally vague.” Johnson, 135 S. Ct. at 2555–57.
28 ///

16

1

As noted by the state court, Petitioner was not sentenced under the ACCA. Moreover, the

2 unconstitutionally vague language of the ACCA’s residual clause is not mirrored in California
3 Penal Code section 12022.53(d), which provides:
4
5
6
7

Notwithstanding any other provision of law, any person who, in the commission
of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of
Section 26100, personally and intentionally discharges a firearm and proximately
causes great bodily injury, as defined in Section 12022.7, or death, to any person
other than an accomplice, shall be punished by an additional and consecutive term
of imprisonment in the state prison for 25 years to life.

8 Cal. Penal Code § 12022.53(d). The government violates due process “by taking away
9 someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary
10 people fair notice of the conduct it punishes, or so standardless that it invites arbitrary
11 enforcement.” Johnson, 135 S. Ct. at 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357–58
12 (1983)). As section 12022.53(d) is far more specific than and does not contain substantially
13 similar language to the ACCA’s unconstitutionally vague residual clause, the superior court’s
14 rejection of the Johnson claim was not contrary to, or an unreasonable application of, clearly
15 established federal law, nor was it based on an unreasonable determination of fact. The decision
16 was not “so lacking in justification that there was an error well understood and comprehended in
17 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
18 Accordingly, Petitioner is not entitled to habeas relief based on Johnson, and his second claim
19 should be denied.
20

V.

21

RECOMMENDATION

22

Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for

23 writ of habeas corpus be DENIED.
24

This Findings and Recommendation is submitted to the assigned United States District

25 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
26 Rules of Practice for the United States District Court, Eastern District of California. Within
27 THIRTY (30) days after service of the Findings and Recommendation, any party may file
28 written objections with the court and serve a copy on all parties. Such a document should be

17

1 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the
2 objections shall be served and filed within fourteen (14) days after service of the objections. The
3 assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
4 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may
5 waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839
6 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
7
8

IT IS SO ORDERED.

9 Dated:

February 15, 2019
UNITED STATES MAGISTRATE JUDGE

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