Hampton v. Biter

Filing 23

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 3/29/2013 DENYING Petition for Writ of Habeas, DENYING Request for an Evidentiary Hearing and DENYING Request for Appointment of Counsel. It is further ORDERED that the Court DECLINES to issue a Certificate of Appealability. CASE CLOSED. (Donati, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JONATHON ANDREW HAMPTON,
No. 2:12-cv-00946-JKS
Petitioner,
MEMORANDUM DECISION
vs.
M. BITER, Warden
Respondent.

I. BACKGROUND/PRIOR PROCEEDINGS
Jonathon Andrew Hampton, a state prisoner appearing pro se, filed a Petition for Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Hampton was charged with the
drug-related murder of Jonathan Giurbino. A jury acquitted Hampton of first-degree murder but
found him guilty of second-degree murder. The jury found true the allegation that Hampton used
a firearm in the commission of the offense but found untrue the allegations that Hampton had
personally and intentionally discharged a firearm in the commission of the offense and had
personally and intentionally discharged a firearm causing great bodily injury or death in the
commission of the offense. The trial court sentenced Hampton to state prison for a term of 15
years to life, enhanced by a determinate term of 10 years for the gun use enhancement. Hampton
is currently in the custody of the California Department of Corrections and Rehabilitation and is
incarcerated at Kern Valley State Prison.

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II. GROUNDS RAISED
In his petition filed with this Court, Hampton claims as follows: (1) the trial court failed
to sua sponte instruct the jury that the defense of self-defense lies for a person who resists a
forcible and atrocious crime such as robbery; (2) the court of appeal erred in denying his Petition
for Writ of Habeas Corpus because it denied it on the same day it was received and also
summarily denied the petition in violation of the California Rules of Court and California case
law; (3) the trial court erred in denying his motion for a new trial; and (4) the cumulative effect
of these errors violated his Fifth, Sixth and Fourteenth Amendment rights.
Respondent answered, and Hampton has responded. Respondent does not raise any
affirmative defenses. Hampton is also requesting the appointment of counsel and an evidentiary
hearing.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,” §
2254(d)(2). A state-court decision is “contrary” to federal law “if the state court applies a rule
that contradicts the governing law set forth” in controlling Supreme Court authority or “if the
state court confronts a set of facts that are materially indistinguishable from a decision” of the
Supreme Court but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362,
405-06 (2000).
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The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Williams, 529 U.S. at 412. The holding must also be intended to
be binding upon the states; that is, the decision must be based upon constitutional grounds, not
on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3,
10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review
are lacking, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established
Federal law.’” Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted). In applying these
standards in habeas review, this Court reviews this “last reasoned decision” by the state court.
Robinson v. Ignacio, 360 F.3 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911,
918 (9th Cir. 2002)). Under AEDPA, the state court’s findings of fact are presumed to be correct
unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state court is not required to give reasons before its decision can be deemed to be
“adjudicated on the merits.” Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). When there
is no reasoned state-court decision denying an issue presented to the state, “it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or state
law procedural principles to the contrary.” Id. (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
However, “[t]he presumption may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991)). Where the presumption applies, this Court must perform an
independent review of the record to ascertain whether the state-court decision was “objectively
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unreasonable.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citation omitted). In
conducting an independent review of the record, this Court presumes that the relevant state-court
decision rested on federal grounds. See Coleman v. Thompson, 501 U.S. 722, 740 (1991).
Moreover, this Court gives that presumed decision the same deference as a reasoned decision.
Richter, 131 S. Ct. at 784-85. The scope of this review is for clear error of the state-court ruling
on the petition. Delgado v. Lewis (Delgado II), 223 F.3d 976, 982 (9th Cir. 2000). “[A]lthough
we independently review the record, we still defer to the state court’s ultimate decision.” Pirtle
v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
IV. DISCUSSION
A. Evidentiary Hearing
Although state prisoners may sometimes submit new evidence in federal court,
“AEDPA’s statutory scheme is designed to strongly discourage them from doing so.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1401 (2011). Provisions like 28 U.S.C. §§ 2254(d)(1) and (e)(2)
ensure that “[f]ederal courts sitting in habeas are not an alternative forum for trying facts and
issues which a prisoner made insufficient effort to pursue in state proceedings.” Id. (citing
Williams, 529 U.S. 437).
Accordingly, a federal habeas proceeding is decided on the complete state-court record,
and a federal evidentiary hearing is required only if the trier of fact in the state proceeding has not
developed the relevant facts after a full hearing. Pinholster, 131 S. Ct. at 1398-99. Hampton did
not request an evidentiary hearing in his petition for habeas corpus relief in the superior court or
the court of appeal. However, in his petition for habeas relief in the California Supreme Court,
Hampton included just immediately below the space for the case number “Evidentiary Hearing
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Requested.” Hampton similarly requested an evidentiary hearing in the caption of his First
Amended Petition filed with this Court. In this Court, as was the case in the state court,
Hampton does not identify what evidence or testimony is to be proffered at an evidentiary
hearing. Nor did Hampton identify any contested factual issue that would have required the
California courts to hold an evidentiary hearing to resolve. Thus, it cannot be said on the record
that the state court precluded him from developing the factual basis for his claim. Because
Hampton has not identified any factual conflict that would require this Court to hold an
evidentiary hearing to resolve, his request for an evidentiary hearing will be denied.
B. Motion to Appoint Counsel
In the caption of his petition filed with this Court, Hampton requests the appointment of
counsel. There is no constitutional right to counsel in federal habeas proceedings. See, e.g.,
Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment of counsel is not required
in a habeas corpus proceeding in the absence of an order granting discovery or an evidentiary
hearing. Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rules 6(a), 8(c) (2012).
This Court may appoint counsel under the Criminal Justice Act in this case if the court
determines that the interests of justice so require. 28 U.S.C. § 2254(h); 18 U.S.C. §
3006A(a)(2)(B); see Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (“In deciding whether
to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of
success on the merits as well as the ability of the petitioner to articulate his claims pro se in light
of the complexity of the legal issues involved.”). Hampton’s claims are without merit and he
was able to sufficiently articulate his claims in state court as well as in his petition filed with this
Court. Additionally, because the pleadings have been completed, appointment of counsel is
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unnecessary at this time. Accordingly, Hampton’s request for the appointment of counsel will be
denied.
C. Merits
Claim One: failure to sua sponte instruct the jury that self-defense lies for a person who
resists a forcible and atrocious crime
Hampton argues that the trial court erred in failing to sua sponte instruct the jury on the
optional portion of CALCRIM No. 505 which provides that a defendant acted in lawful selfdefense if he reasonably believed that he was in imminent danger of being the victim of a
“forcible and atrocious crime.” Hampton argues that under California case law, a trial court is
obligated to instruct a jury on an affirmative defense where it appears that the defendant is
relying on the defense, or if there is substantial evidence to support the defense and it is not
inconsistent with the defense’s theory of the case. Hampton contends that the defense proceeded
on a theory of self-defense, and that because he testified that Giurbino robbed him at gunpoint,
“the evidence more than amply supported either self-defense predicated on resistance to the
imminent threat of death or great bodily injury or on resistance to the imminent threat of
robbery.” Hampton therefore argues that the court’s failure to sua sponte instruct on self-defense
in resistance to a forcible and atrocious crime violated his right to present a defense, to a fair
trial, to a jury trial, and due process of law pursuant to the Fifth, Sixth, and Fourteenth
Amendments.
The California Court of Appeal rejected Hampton’s claim, holding that the defense did
not rely on the theory of self-defense based on resistance to the crime of robbery, the evidence
was not sufficient to support that theory of self-defense, and that even if the trial court had

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instructed the jury regarding self-defense based on resistance to a robbery, the jury would have
rejected it because there was no evidentiary basis for the jury to distinguish between self-defense
based on resistance to the crime of robbery and self-defense based on the imminent danger of
being killed or suffering great bodily injury. People v. Hampton, C061681, 2010 WL 4201741,
at *5 (Cal. Ct. App. Oct. 26, 2010). The California Supreme Court denied review without
comment.
In arguing that the evidence supported sua sponte jury instructions on self-defense
predicated on the resistance to robbery, Hampton is impermissibly asking this Court to
reexamine the court of appeal’s interpretation and application of state law. It is a fundamental
precept of dual federalism that the states possess primary authority for defining and enforcing the
criminal law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot
reexamine a state court’s interpretation and application of state law). “[A] state court’s
interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76
(2005). A determination of state law by a state intermediate appellate court is also binding in a
federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629-30 & n.3 (1988) (noting state
appellate court’s determination of state law is binding and must be given deference).
Here, the court of appeal identified the applicable state law governing the standard for
issuing sua sponte jury instructions and applied the law to the facts of the case, finding that
Hampton was not relying on the defense and the evidence did not support the theory that
Hampton killed Giurbino in fear of imminent danger of a robbery. Under AEDPA, the court of
appeal’s findings of fact are presumed to be correct unless Hampton rebuts this presumption by
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clear and convincing evidence, a burden Hampton has failed to carry. 28 U.S.C. § 2254(e)(1);
see also Miller-El, 537 U.S. at 340. Hampton’s argument that the alleged error amounts to a
constitutional violation is merely an impermissible attempt to “transform a state law issue into a
federal one merely by asserting a due process violation.” Langford v. Day, 110 F.3d 1380, 1389
(9th Cir. 1996).
Claim Two: the court of appeal erred by denying his petition on the same day it was
received and without comment
Hampton argues that this Court is required to independently review the record to assess
the reasonableness of the court of appeal’s denial of relief where the court denied Hampton’s
petition on the same day it was stamped and received and the court’s order fails to state any
reasons for denying Hampton relief. Hampton argues that the court was required to explain its
decision pursuant to the California Rules of Court and California case law.
Hampton is not entitled to relief on this claim because he fails to allege that he is in
custody in violation of the federal Constitution or laws or treaties of the United States. 28 U.S.C.
§ 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (“In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United
States.”) (citations omitted). Rather, Hampton is alleging that the court of appeal’s denial of his
petition violated state law as set forth in the California Rules of Court and California case law,
and “federal habeas corpus relief does not lie for errors of state law.” Estelle, 502 U.S. at 67.
Moreover, the U.S. Supreme Court has held that federal habeas review does not require that there
be an opinion from the state court explaining the state court’s reasoning. Richter, 131 S. Ct. at

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784.1
Claim Three: the trial court erred in denying his motion for a new trial
Hampton argues that the trial court’s denial of his motion for a new trial denied him due
process of law. Hampton appears to argue that because he testified that he did not consciously
think of shooting Giurdino, the evidence was insufficient to find that he acted with express or
implied malice.
Hampton filed a Petition for Writ of Habeas Corpus in the superior court alleging that
the trial court erroneously denied his motion for a new trial, and also that appellate counsel was
ineffective for failing to raise this issue in his appeal. The superior court held that Hampton’s
claim that the trial court erred in denying his motion for a new trial should have been raised on
direct appeal and was accordingly barred by In Re Dixon, 41 Cal. 2d 756, 759 (1953), and In Re
Harris, 5 Cal. 4th 813, 828 (1993). In re Hampton, No. 11F06604, at 1 (Cal. Super. Ct. Dec. 1,
2011). However, as Hampton alleged that his appellate counsel was ineffective for failing to
raise this claim and ineffective assistance of counsel claims are not generally barred by In Re
Dixon and In Re Harris, the superior court addressed the substance of his claim as part of his
ineffective assistance of counsel claim. Id. at 1-2. The superior court held that Hampton could
not establish that his appellate counsel could have successfully raised the superior court’s denial
of his motion for a new trial on appeal. Id. at 2. The court held that the jury was not required to
believe Hampton’s version of the events, and that the prosecution had presented evidence by
which a jury could infer that Hampton had the implied malice required to convict him of second1

In any event, the file stamp marks indicate that Hampton’s Petition for Writ of Habeas
Corpus was filed with the California Court of Appeal on January 12, 2012, and the order denying
Hampton relief was entered on January 19, 2012.
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degree murder. Id. at 2.
Hampton subsequently raised this issue in his Petitions for Writ of Habeas Corpus filed
with the California Court of Appeal and the California Supreme Court, arguing that the trial court
erred in denying his motion for a new trial because there was insufficient evidence to sustain the
verdict. Both courts denied his petition without comment. Neither court held that Hampton’s
claim was barred because he failed to raise it on direct appeal. Respondent notes that the
superior court found a partial bar but does not raise procedural bar as an affirmative defense and
instead claims that Hampton should be denied relief on the merits of his claim. Thus, this Court
may reach the merits of Hampton’s claim that the trial court erred in denying his motion for a
new trial because there was insufficient evidence to support the verdict. See Vang v. Nevada,
329 F.3d 1069, 1073 (9th Cir. 2003).
As articulated by the United States Supreme Court in Jackson v. Virginia, the
constitutional standard for sufficiency of the evidence is whether, “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979). This
Court must therefore determine whether the superior court unreasonably applied Jackson when
reaching the merits of Hampton’s claim within the context of his ineffective assistance of counsel
claim. In making this determination, this Court may not usurp the role of the finder of fact by
considering how it would have resolved conflicts in testimony, weighed the evidence, or made
inferences. Jackson, 443 U.S. at 319. Rather, when “faced with a record of historical facts that
supports conflicting inferences,” this Court “must presume–even if it does not affirmatively
appear in the record–that the trier of fact resolved any such conflicts in favor of the prosecution,
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and defer to that resolution.” Id. at 326.
In this case, the superior court did not unreasonably apply Jackson. Rather, the court
resolved any conflict in the evidence in favor of the prosecution. The court noted that the
prosecution presented evidence by which a jury could infer that the circumstances surrounding
the shooting furnished the implied malice required to convict Hampton of second-degree murder.
Among other things, Hampton testified that he was a drug dealer and that he had taken the victim
for a ride to sell him some drugs. Hampton admitted that he lied to police in his statements to
them subsequent to the shooting. Hampton attempted to prevent his girlfriend from testifying at
trial, fled the scene rather than assist the victim, got rid of the murder weapon and attempted to
destroy physical evidence of the crime. As the superior court noted, the jury was not required to
believe Hampton’s account of the events and could have found that Hampton acted with the
requisite malice. The record does not compel the conclusion that no rational trier of fact could
have found proof of malice aforethought, especially considering the double deference owed
under Jackson and AEDPA. Accordingly, Hampton is not eligible for relief on this claim.
Claim Four: cumulative error
Hampton lastly argues that the combined effect of the foregoing errors amounted to a
violation of his Fifth, Sixth and Fourteenth Amendment rights.
Hampton raised this issue in his Petition for Writ of Habeas Corpus filed with the
California Supreme Court, which denied his petition without comment. This Court must
therefore presume that the California Supreme Court adjudicated this claim on the merits and
Hampton’s burden “still must be met by showing there was no reasonable basis for the state court
to deny relief.” Richter, 131 S. Ct. at 784-85.

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The Supreme Court has clearly established that the combined effect of multiple trial court
errors violates due process where it renders the resulting criminal trial fundamentally unfair.
Chambers, 410 U.S. at 298, 302-03 (combined effect of individual errors “denied [Chambers] a
trial in accord with traditional and fundamental standards of due process” and “deprived
Chambers of a fair trial”). The cumulative effect of multiple errors can violate due process even
where no single error rises to the level of a constitutional violation or would independently
warrant reversal. Id. at 290 n.3.
Under traditional due process principles, cumulative error warrants habeas relief only
where the errors have “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Such “infection”
occurs where the combined effect of the errors had a “substantial and injurious effect or influence
on the jury’s verdict.” Brecht, 507 U.S. 619, 637 (2006) (internal quotations omitted). In other
words, where the combined effect of individually harmless errors renders a criminal defense “far
less persuasive than it might [otherwise] have been,” the resulting conviction violates due
process. See Chambers, 410 U.S. at 294.
Hampton does not allege any claims which amounted to error. Accordingly, there is
nothing to accumulate to a level of a constitutional violation, and the California Supreme Court
did not unreasonably deny him relief on this claim. See Mancuso v. Olivarez, 292 F.3d 939, 957
(9th Cir. 2002).
V. CONCLUSION AND ORDER
Hampton is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
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IT IS FURTHER ORDERED THAT Hampton’s request for an evidentiary hearing is
DENIED.
IT IS FURTHER ORDERED THAT Hampton’s request for the appointment of
counsel is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: March 29, 2013.

/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

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