Haynie v. Biter

Filing 29

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 06/05/15 ORDERING the findings and recommendations issued on 4/10/15 24 are withdrawn. Petitioner's motion to reissue and rehear Amended Habeas Petition 25 is granted. Petitioner's 05/04/15 motion for extension of time to file objections to the 4/10/15 findings and recommendations 26 is denied as unnecessary. Petitioner's motion for default judgment 22 is denied. Also, RECOMMENDING that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONELL THOMAS HAYNIE,

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No. 2:13-cv-1876 TLN DAD P

Petitioner,
v.

AMENDED ORDER AND

MARTIN BITER, Warden,

FINDINGS AND RECOMMENDATIONS

Respondent.

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On April 10, 2015, the undersigned issued an order denying petitioner’s motion for default

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judgment and findings and recommendations recommending that his application for a writ of

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habeas corpus be denied. (Dkt. No. 24.) Thereafter, on April 27, 2015, petitioner filed a motion

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requesting the court “to Reissue and Re-Hear Amended Habeas Petition.” (Dkt. No. 25.) Therein,

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petitioner points out that on July 25, 2014, he filed a document with this court entitled “Notice:

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Motion to Lift Habeas.” (See Dkt. No. 13.) Petitioner points out that attached to that filing was a

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second amended petition for federal habeas relief which updated the claims contained in his

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earlier filed first amended habeas petition of February 21, 2014. In the court’s April 10, 2015

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findings and recommendations, the undersigned addressed the claims as presented in petitioner’s

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first amended petition. In his motion to “reissue and rehear,” petitioner requests that the court

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instead address the second amended habeas petition included as part of his July 25, 2014 filing.

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Good cause appearing, petitioner’s request will be granted. The court vacates the order and
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findings and recommendations issued on April 10, 2015, and hereby issues the following

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amended order and findings and recommendations addressing petitioner’s second amended

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petition.

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

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pursuant to 28 U.S.C. § 2254 that was filed in this court on July 25, 2014 (ECF No. 13). Therein,

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petitioner challenges a judgment of conviction entered against him on August 30, 2010, in the

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Sacramento County Superior Court on one count of kidnapping.1 He seeks federal habeas relief

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on the grounds that: (1) his trial counsel rendered ineffective assistance; and (2) the decision of

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the California Court of Appeal rejecting one of his arguments on appeal was “arbitrary,” in

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violation of his right to due process. Upon careful consideration of the record and the applicable

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law, the undersigned will recommend that petitioner’s application for habeas corpus relief be

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denied.

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I. Background
In its unpublished memorandum and opinion affirming petitioner’s judgment of

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conviction on appeal, the California Court of Appeal for the Third Appellate District provided the

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following factual summary:

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A jury found defendant Donell Thomas Haynie guilty of false
imprisonment (Penal Code,FN1 § 236; count 4), simple assault as a
lesser included offense to assault with a deadly weapon by means
likely to produce great bodily injury (§ 240; count 5), possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a); count
6), and kidnapping (§ 207, subd. (a); count 7). The jury found
defendant not guilty of oral copulation by force (§ 288a, subd.
(c)(2); count 1), two counts of rape by force (§ 261, subd. (a)(2);
counts 2 and 3), and pandering (§ 266i, subd. (a)(1); count 8). In a
bifurcated proceeding, the trial court found true allegations
defendant had two serious felony convictions within the meaning of
section 667, subdivision (a), which also qualified as “strikes” under
the three strikes law (§§ 667, subd. (b)-(i); 1170.12). Defendant
was sentenced to 85 years to life in prison, consisting of three terms
of 25 years to life for counts 4, 6, and 7, plus 5 years for each of his
serious felony convictions.FN2

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Petitioner was also convicted of simple assault, as a lesser included offense to assault with a
deadly weapon, and possession of methamphetamine, along with kidnapping, and with a finding
that he had suffered two prior “strike” convictions pursuant to California’s Three Strikes Law.
However, in his federal habeas petition before this court he challenges only his kidnapping
conviction. (ECF No. 9 at 4, 5.)
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FN1. Further undesignated statutory references are to the Penal
Code.

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FN2. As for the assault (count 5), the trial court indicated that it
was “not going to in light of the sentence order any additional time
even though probation is suggesting otherwise.”

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Defendant appeals, contending his kidnapping conviction must be
reversed because the trial court did not instruct the jury on the
lesser included offense of false imprisonment, and his conviction
for false imprisonment must be reversed because the People cannot
establish beyond a reasonable doubt that the kidnapping and false
imprisonment convictions are not based on the same act. We shall
conclude that defendant is barred under the doctrine of invited error
from challenging the trial court’s failure to instruct the jury on false
imprisonment as a lesser included offense to kidnapping, and that it
is impossible to determine whether the same act forms the basis for
both his kidnapping and false imprisonment convictions.
Accordingly, we shall reverse defendant’s conviction for false
imprisonment (count 4), affirm the judgment in all other respects,
and remand the cause with directions.FN3
FN3. Because we shall reverse his conviction on count 4, we need
not consider defendant’s claims of sentencing error as to that count.

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FACTUAL AND PROCEDURAL BACKGROUND
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The Prosecution
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At approximately 10:30 p.m. on August 12, 2009, G.A. met her
cousin and some friends at a bar in Sacramento. Sometime later,
the group was joined by a friend of G.’s cousin and defendant. G.
had never seen defendant before that night. After the bar closed,
she left with her cousin’s friend and defendant in defendant’s car.
After dropping off her cousin’s friend, G. and defendant went to
defendant’s apartment for a swim. When they finished swimming,
they returned to defendant’s apartment, and defendant gave G.
some dry clothes. G. asked defendant for a ride home. Defendant
said he had lent his car to his cousin, and G. fell asleep on
defendant’s bed.

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G. woke up around 6:00 a.m. and asked defendant if his cousin had
returned. Defendant said “no,” and G. fell back to sleep. She woke
up about 9:00 a.m. when she “felt” defendant come into the
bedroom. Defendant lay down on the bed and tried to touch her.
She told him to get his hand off her, and defendant responded that
“he was going to fuck [her] up.” When G. reached for her cellular
telephone, defendant attempted to take it by wrestling with and
choking her. He then dragged her into the bathroom, told her take
off all her clothes, and said that he was going to sell her to a pimp.
Thereafter, defendant prevented her from leaving the bathroom.
Defendant eventually let G. out of the bathroom and told her to take
some blue Ecstasy pills. When she refused, he told her she either
had to take the pills or give him a “blow job.” When she refused to
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take the pills, defendant dragged her back into the bathroom and
forced her to perform oral sex on him while he held a screwdriver
to her body. Thereafter, he fondled her breasts and forced her to
have sexual intercourse with him.

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When defendant left the bathroom, G. ran out the front door and
down the stairs leading to the apartment. Defendant followed her
and dragged her back to his apartment by her hair while repeatedly
threatening to kill her. A neighbor who observed the altercation
called 911.

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Once inside the apartment, defendant told G. to take a shower and
said he would kill her if the police came. When she finished
showering, defendant duct taped her hands, feet, and mouth. Five
or ten minutes later, the police knocked at the door. Defendant
removed the duct tape, flushed it down the toilet, and threw the roll
of tape into a laundry basket. Defendant apologized and told G. to
tell the police that it was his cousin and his cousin’s girlfriend who
had been fighting outside the apartment. When the police entered
the apartment, G. initially told them defendant’s cousin and his
cousin’s girlfriend had been fighting outside the apartment. After
defendant was taken out of the room, G. told the police what
actually had happened and pointed out the duct tape in the toilet and
the laundry basket.

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G. was taken to the hospital. She had visible bruising and abrasions
on her body and adhesive and sliver flecks consistent with duct tape
on her body. She also had redness and an abrasion “in the area
posterior to the vagina.”

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II.

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Christopher Reed was living with defendant at the time of the
incident and sat in the Jacuzzi while defendant and G. swam in the
pool. Defendant and G. were talking, hugging, and kissing in the
pool; and when they returned to the apartment, they appeared
affectionate toward each other. Reed heard them talking and
laughing in the bedroom before he fell asleep. At approximately
6:00 a.m., defendant asked Reed to take his mother to work. When
Reed returned, defendant asked him to take his brothers to school.
Reed returned about 20 minutes later but left again to pick up some
money from his estranged wife. Reed did not see G. that morning.

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The Defense

At approximately 9:30 a.m. on August 13, 2009, defendant’s
neighbor visited defendant’s apartment for about five minutes. G.
was lying on the couch and did not appear to be in any distress.

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Defendant testified that on the night in question, G. left the bar with
him and a couple of other men. Defendant invited her to go
swimming, and she accepted. G. jumped into the pool wearing her
dress, but later removed it and was wearing only her panties. He
and G. kissed in the pool, and he penetrated her vagina with his
finger. When they returned to defendant’s apartment, defendant
showed G. the bathroom and gave her a toothbrush and a dry shirt
to put on. While defendant was talking to Reed in the living room,
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G. left the bathroom and went into defendant’s bedroom.
Defendant joined her there, and they had sexual intercourse. When
they were finished, defendant left the bedroom and fell asleep on
the couch. Around 6:00 a.m., he asked Reed to drive his mother to
work. Reed agreed and returned about 20 minutes later. Defendant
then asked Reed to drive his brothers to school, and Reed agreed.
When Reed returned, Reed asked defendant if he could borrow his
car. Defendant agreed and walked with Reed outside to the car.
Defendant was gone about 15 minutes. When he returned, G. was
laying on the couch. The two talked, and defendant began
wondering where he had left his money. When he was unable to
find it, he began questioning G. about the money. She did not
appreciate being questioned and refused to show him her wallet.
When defendant left the room, G. ran out the front door and down
the stairs. Defendant chased after her, and the two scuffled as she
screamed for help. Defendant may have pulled her hair a couple of
times and choked her, but he denied dragging her by her hair or
stomping on her. Eventually, he picked her up and carried her to
the base of the stairs leading to his apartment. When two
acquaintances walked by, defendant told them, “[T]his bitch stole
my money,” and they helped him look for G.’s wallet. Defendant
followed G. to the apartment and suggested she take a shower
because her feet were bleeding. While defendant was not going to
let her go until he got his money, he denied duct taping her.

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When defendant told G. the police were there, she told him not to
answer the door and maybe they would go away. At that point,
defendant told her to tell the police that it was his cousin and his
cousin’s wife who were fighting.
People v. Haynie, No. C066352, 2013 WL 518616, at *1 -3 (Cal. App. 3 Dist. Feb. 13, 2013)
On March 3, 2013, petitioner filed a petition for rehearing in the California Supreme

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Court. (Resp’t’s Lod. Doc. 10.) On March 7, 2013, that petition was summarily denied. (Id.)

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On September 6, 2013, petitioner filed a motion to recall the remittitur. (Resp’t’s Lod. Doc. 10a.)

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The California Supreme Court summarily denied that motion on September 12, 2013. (Id.) On

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March 25, 2013, petitioner filed a petition for review in the California Supreme Court. (Resp’t’s

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Lod. Doc. 11.) The Supreme Court denied that petition on May 1, 2013. (Id.)

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Petitioner subsequently filed a petition for writ of habeas corpus in the Sacramento

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County Superior Court, claiming that his trial counsel had rendered ineffective assistance in

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asking the trial court not to instruct the jury on false imprisonment as a lesser included offense to

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kidnapping, and that his appellate counsel had rendered ineffective assistance in failing to raise a

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claim of ineffective assistance of trial counsel on appeal. (Resp’t’s Lod. Doc. 12.) On October

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21, 2013, the Sacramento County Superior Court denied that petition in a reasoned decision
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addressing the merits of petitioner’s claims. (Id.) On November 18, 2013, petitioner filed a pro

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se petition for writ of habeas corpus in the California Court of Appeal. (Id.) Liberally construed,

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that petition raised the same two claims that petitioner raised in his habeas petition filed in the

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Sacramento County Superior Court. (Id.) On November 21, 2013, that petition was summarily

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denied by the California Court of Appeal. (Id.)

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On January 8, 2014, petitioner filed a petition for writ of habeas corpus in the California

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Supreme Court, raising the same two claims. (Resp’t’s Lod. Doc. 13.) On March 25, 2014, the

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Supreme Court directed respondent to file an informal response to this petition and granted

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petitioner time to file a reply. (Id.) Respondent filed an informal response on April 15, 2014.

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(Resp’t’s Lod. Doc. 14.) Petitioner filed a reply on May 9, 2014. (Resp’t’s Lod. Doc. 15.) On

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June 25, 2014, the California Supreme Court summarily denied petitioner’s application for a writ

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of habeas corpus. (Resp’t’s Lod. Doc. 13.)

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II. Standards of Review Applicable to Habeas Corpus Claims

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An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

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application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

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U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:

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An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
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

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(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.

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For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings

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of the United States Supreme Court at the time of the last reasoned state court decision.

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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.

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___, ___, 132 S. Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing

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Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in

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determining what law is clearly established and whether a state court applied that law

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unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.

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2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of

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Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not

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announced.” Marshall v. Rodgers, ___ U.S. ___, ___, 133 S. Ct. 1446, 1450 (2013) (citing

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Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012)). Nor may it be used to “determine whether a

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particular rule of law is so widely accepted among the Federal Circuits that it would, if presented

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to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have

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diverged in their treatment of an issue, it cannot be said that there is “clearly established Federal

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law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

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A state court decision is “contrary to” clearly established federal law if it applies a rule

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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

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Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

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writ if the state court identifies the correct governing legal principle from the Supreme Court’s

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decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 2 Lockyer v.

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Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002

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(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that

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court concludes in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly. Rather, that application must also be

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Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
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unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473

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(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent

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review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).

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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

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Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

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Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented in federal court was so

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lacking in justification that there was an error well understood and comprehended in existing law

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beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

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527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §

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2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering

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de novo the constitutional issues raised.”).

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The court looks to the last reasoned state court decision as the basis for the state court

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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

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If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

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previous state court decision, this court may consider both decisions to ascertain the reasoning of

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the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a

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federal claim has been presented to a state court and the state court has denied relief, it may be

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presumed that the state court adjudicated the claim on the merits in the absence of any indication

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or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption

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may be overcome by a showing “there is reason to think some other explanation for the state

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court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803

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(1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims but

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does not expressly address a federal claim, a federal habeas court must presume, subject to
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rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,

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___, 133 S. Ct. 1088, 1091 (2013).

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Where the state court reaches a decision on the merits but provides no reasoning to

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support its conclusion, a federal habeas court independently reviews the record to determine

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whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

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Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

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review of the constitutional issue, but rather, the only method by which we can determine whether

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a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

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reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

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reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.
A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

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Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze

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just what the state court did when it issued a summary denial, the federal court must review the

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state court record to determine whether there was any “reasonable basis for the state court to deny

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relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories ... could

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have supported, the state court's decision; and then it must ask whether it is possible fairminded

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jurists could disagree that those arguments or theories are inconsistent with the holding in a prior

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decision of [the Supreme] Court.” Id. at 786. The petitioner bears “the burden to demonstrate

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that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d

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925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

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When it is clear, however, that a state court has not reached the merits of a petitioner’s

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claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

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habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

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F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

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III. Petitioner’s Claims

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A. Exhaustion of State Remedies

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In his first ground for federal habeas relief, petitioner claims that his trial counsel rendered

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him ineffective assistance in failing to request that the trial court instruct the jury at his trial on
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false imprisonment as a lesser included offense to the kidnapping charge. (ECF No. 13 at 6.) In

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his second ground for relief, petitioner claims that the state appellate court’s rejection of his

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argument on appeal that the trial court erred in failing to instruct the jury on false imprisonment

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as a lesser included offense to the kidnapping charge was “arbitrary” and therefore violated his

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“liberty interest” protected by the Due Process Clause. (Id.) In opposition, respondent argues

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that neither of these two claims has been exhausted in state court and that they should be rejected

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on that basis. (ECF No. 20 at 10-12.)

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The exhaustion of available state remedies is a prerequisite to a federal court's

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consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy,

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455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion requirement by

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providing the highest state court with a full and fair opportunity to consider all claims before

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presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

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Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). However, a federal court considering a habeas

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petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is

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not “colorable.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). See also 28 U.S.C. §

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2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

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notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

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State”). For the reasons explained below, the undersigned need not address whether petitioner

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has properly exhausted his claims because it is perfectly clear that petitioner has not raised even

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colorable claims for federal habeas relief.

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B. Ineffective Assistance of Trial Counsel

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As set forth above, petitioner’s first claim for federal habeas relief is that his trial counsel

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rendered ineffective assistance in failing to request that the trial court instruct the jury on false

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imprisonment as a lesser included offense to the kidnapping charge. (ECF No. 13 at 6.) That

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claim is clearly not colorable and the undersigned recommends that it be rejected.

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1. Background
On appeal in state court petitioner claimed that the trial court erred in failing to instruct his
jury on false imprisonment as a lesser included offense to the kidnapping charged in count 7 of
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the information. The California Court of Appeal concluded that petitioner had waived this claim

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pursuant to the doctrine of “invited error” by failing to request the jury instruction. In so ruling,

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the state appellate court reasoned as follows:

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DISCUSSION

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I.

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Defendant Is Barred Under the Doctrine of Invited Error From
Challenging the Trial Court’s Failure to Instruct the Jury on False
Imprisonment as a Lesser Included Offense to Kidnapping

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Defendant contends that the trial court committed reversible error
by honoring his request not to instruct the jury on false
imprisonment as a lesser included offense of kidnapping. As we
shall explain, he is barred from raising this claim on appeal.
After the parties and the trial court finished discussing the requested
jury instructions, the trial court sought to confirm that the parties
were not requesting the jury be instructed on any lesser included
offenses except as to count 5, assault with a deadly weapon by
means likely to produce great bodily injury. The parties responded
in the affirmative.
The following court day, the trial court again raised the issue of
lesser included offenses. In particular, the court indicated that it
thought the jury should be instructed on false imprisonment as a
lesser included offense to kidnapping (count 7).

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“THE COURT: . . . [¶] . . . [W]e have had some dialogue by e-mail
back and forth about the instructions and my thinking about a lesser
false imprisonment [instruction] as to Count 7, the kidnap charge.
[¶] The reason I think that is because we already had a discussion
about the different acts that potentially had constituted a 236 [false
imprisonment] as charged.

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“[PROSECUTOR]: Correct.

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“THE COURT: And then the reason why I think that we need to
give a lesser to 236 [false imprisonment] on the kidnap is the jury
could find that [defendant] did not commit a kidnap for the conduct
that occurred outside, and thus find him guilty of false
imprisonment in the lesser-included offense.

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“[PROSECUTOR]: Basically if they found it was not a substantial
distance but the other element [sic] were satisfied.
“THE COURT: Yes. That he detained her against her will, so that
they could find him guilty of that. And I think the People are - I
still, unless the defense is going to demand that I not give a lesser [¶] I don't know if - I didn’t ask [defense counsel] about this yet
because we just got together this morning. [¶] Do you have any
11

1
2
3
4
5
6
7
8
9
10

position about the giving of a lesser on Count 4. I'm sorry. On
count 7, the kidnap?
“[DEFENSE COUNSEL]: Submitted your Honor, No.
“THE COURT: You do or don’t want to give one? If you don’t
want to give one then I won’t give a lesser. But I’ll have to give - I
think it is wise to make the election.
“[¶] ... [¶]
“[DEFENSE COUNSEL]: We are not requesting it, your Honor.
“THE COURT: Are you specifically asking me not to give the
lesser then of false imprisonment?
“[DEFENSE COUNSEL]: Are you indicating that he is still
charged with the false imprisonment?

12

“THE COURT: He is charged with false imprisonment in Count 4.
He is charged with the kidnap in Count 7, and so they could find
him not guilty of a kidnap but find him guilty of a lesser false
imprisonment to the kidnap.

13

“[DEFENSE COUNSEL]: Can I explain to him what’s happening?

14

“THE COURT: Yes.

15

“[DEFENSE COUNSEL]: We are asking that it not be read.

16

“[¶] ... [¶]

17

“[DEFENSE COUNSEL]: Unless my client is requesting if there is
a lesser on Count 4 [false imprisonment], then you add the lesser on
Count 7 [kidnap].

11

18
19
20
21
22
23

“THE COURT: I don’t know what the lesser would be on a Count 4
[false imprisonment]. What lesser are you asking for? 236?
“[PROSECUTOR]: I don’t believe there is one.
“[DEFENSE COUNSEL]: I don’t believe there is one either. I just
- [¶] . . . And my concern is the confusion if - this is a life case
anyway, and if he is already charged with [false imprisonment] in
Count 4, I don’t think it would be necessary or useful to the defense
to have the lesser in Count 7.”

24
25
26
27

Defendant contends the trial court committed reversible error by
failing to instruct the jury on false imprisonment as a lesser
included offense to kidnapping because the jury was left with an
“‘unwarranted all-or-nothing choice’ between a conviction for
kidnapping and acquittal.” The People respond that under the
invited error doctrine, defendant may not raise this issue on appeal
because “[f]rom [defense counsel’s] remarks, it is apparent that

28
12

1

[she] was pursuing a deliberate all-or-nothing strategy in the hopes
of securing an acquittal on the kidnapping charge.”

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

False imprisonment is a lesser included offense of the crime of
kidnapping. (People v. Magana (1991) 230 Cal.App.3d 1117,
1120–1121.) In criminal cases, the trial court must instruct on
lesser included offenses “if there is substantial evidence the
defendant is guilty of the lesser offense, but not the charged
offense.” (People v. Moye (2009) 47 Cal.4th 537, 556.) “‘“[A]
defendant[, however,] may not invoke a trial court’s failure to
instruct on a lesser included offense as a basis on which to reverse a
conviction when, for tactical reasons, the defendant persuades a
trial court not to instruct on a lesser included offense supported by
the evidence. [Citations.] In that situation, the doctrine of invited
error bars the defendant from challenging on appeal the trial court's
failure to give the instruction.”’ [Citations.]” (People v. Beames
(2007) 40 Cal.4th 907, 927.)
Here, the record clearly reflects that defendant and his counsel
expressed a deliberate tactical purpose in resisting an instruction on
false imprisonment as a lesser included offense of kidnapping, the
very instruction he now complains should have been given. As the
trial court mentioned, there were two potential false imprisonments
in this case - one outside the apartment and one inside. Rather than
run the risk of the jury finding defendant guilty of two counts of
false imprisonment, defendant and his counsel elected to forego an
instruction on the lesser included offense of false imprisonment as
to the kidnapping offense, hoping the jury would find him not
guilty of kidnapping and guilty of, at most, one count of false
imprisonment. Unfortunately for them, things did not go as they
had hoped, and the jury found defendant guilty of kidnapping and
false imprisonment. Having made the tactical decision to take an
all-or-nothing approach on count 7, the kidnapping offense, we find
that any error was invited, and that defendant therefore is barred
from invoking such error as a basis for reversing his conviction.
Haynie, 2013 WL 518616, at *3-4.
After the California Court of Appeal rejected petitioner’s argument of trial court

21

instructional error, petitioner filed a petition for a writ of habeas corpus in the Sacramento County

22

Superior Court. Therein, he claimed that his trial counsel rendered ineffective assistance in

23

refusing a jury instruction on the lesser included offense to the kidnapping charge, and also

24

claimed that his appellate counsel rendered ineffective assistance in failing to raise the argument

25

of the ineffective assistance of trial counsel on appeal. (Resp’t’s Lod. Doc. 12.) The Sacramento

26

County Superior Court denied relief on both claims, reasoning as follows:

27

Petitioner claims that his trial counsel rendered him ineffective
assistance of counsel in failing to request the court to give a lesser

28
13

1

included instruction on kidnapping, and that appellate counsel was
ineffective in failing to raise the issue on appeal.

2
3
4
5
6
7
8
9
10

Petitioner admits that the trial court had indicated that it thought the
jury should be instructed on false imprisonment as a lesser included
offense to kidnapping because the evidence was susceptible of a
finding that the distance of asportation was not substantial enough
to constitute kidnapping, and the prosecution agreed, but that it was
petitioner’s own defense counsel who did not want the instruction
and told the court that counsel was not asking for the instruction.
Petitioner claims that trial counsel erroneously advised petitioner to
decline the lesser included offense instruction, which made it an allor-nothing choice on the count for the jury. He claims there was a
substantial evidentiary basis for acquittal on kidnapping and guilt
on the lesser included false imprisonment, due to the asportation
issue, and that but for counsel’s error it is reasonably probable that
a different result would have ensued. He further claims that had he
only been convicted of false imprisonment on the charge, he would
now be eligible for Penal Code § 1170.126 recall of sentence and
resentencing.

11
12
13
14

On appeal, appellate counsel did raise the issue of whether the trial
court erred in honoring the defense’s request to not instruct the jury
on false imprisonment as a lesser-included offense to kidnapping,
because that left the jury with an all-or-nothing choice between
conviction for kidnapping and acquittal. The Third District Court
of Appeal found that petitioner was estopped from raising this
claim on appeal[.]

15
***
16
17
18
19
20
21
22
23
24
25
26
27
28

Petitioner’s appellate counsel did not specifically raise an
ineffective assistance of trial counsel claim on the appeal, but it
would appear that had the issue been raised it would have been
rejected, as the Third District clearly found that trial counsel’s
choice had been a tactical one that counsel hoped would lead to an
acquittal on the kidnapping charge. The Third District also quoted
prior case that indicates that trial counsel may make a tactical
choice not to want a lesser included instruction given, and that
when counsel does so the defendant is barred from raising the claim
on appeal. It would appear that this means such a tactical choice by
counsel may be an informed tactical choice within the range of
reasonable competence, which does not deprive a criminal
defendant of effective assistance of counsel (see Strickland v.
Washington, (1984) 466 U.S. 668; People v. Pope, (1979) 23
Cal.3d 412). Nor would it appear in the instant case that the tactical
choice of counsel was unreasonable. Petitioner was charged in
Count 7 with kidnapping and in Count 4 with false imprisonment.
There was one instance in which the evidence showed kidnapping,
that had the asportation issue; there were different acts shown,
however, by the evidence, that constituted only false imprisonment.
The People had chosen not to elect which act it sought the
conviction for, for Count 4. As such, the jury could have rejected
false imprisonment on the different acts and then been faced with
the issue of whether the kidnapping lacked asportation and thus
14

1
2
3

should result in an acquittal of the kidnapping but a conviction on
the false imprisonment. As such, Count 4 acted as a lesser included
offense instruction for Count 7, and counsel saw no need to
separately instruct on a lesser included offense for Count 7. That
was not unreasonable, and in any event prejudice is not shown in
this situation.

4
5
6
7

(Resp’t’s Lod. Doc. 13.)
2. Petitioner’s Arguments
Petitioner argues that his trial counsel’s waiver of the lesser included offense jury

8

instruction offered by the trial judge was not based on a tactical decision because counsel failed to

9

conduct sufficient investigation before making the decision to waive the instruction. (ECF No. 13

10

at 11.) Petitioner states that his counsel was not even aware that the trial judge would be willing

11

to give a lesser included offense instruction on count 7 until the trial judge brought up the matter

12

and essentially forced counsel to make an immediate decision. (Id.) According to petitioner, trial

13

counsel’s decision to waive the instruction was made “on the spot” and without sufficient

14

investigation. (Id. at 11-12.) He argues this “on the spot” decision “was neither tactical or

15

strategic.” (Id. at 11.) Petitioner asks, “How, then, did defense counsel in the brief discussion

16

with the court make a professionally reasonable decision when she did not even have sufficient

17

information to make an informed decision?” (Id. at 12.) Petitioner argues that if his trial counsel

18

had taken more time to research her decision, she “would have requested the instruction on count

19

7, as she had requested the lesser included offense on count 5.” (Id. at 11.)

20

Petitioner contends that trial counsel’s “on the spot” decision was “the result of an

21

incompetent counsel who was in no position to make any critical decisions in the matter because

22

she was not familiar with the laws and facts surrounding petitioner’s defense.” (Id.) Petitioner

23

argues, “any reasonable competent attorney in that situation would have immediately called a

24

“Time Out” and realized that pursuing an investigation was necessary to making an informed

25

choice among possible defenses, especially in a situation where the trial court was willing to give

26

a lesser offense because the evidence was not substantial enough to constitute the greater

27

offense.” (Id. at 12-13.) In support of his arguments in this regard, petitioner cites the decision in

28

United States v. Span, 75 F.3d 1383 (9th Cir. 1996). In Span, the Ninth Circuit Court of Appeals
15

1

held that trial counsel’s performance may be constitutionally deficient if counsel fails to request

2

appropriate jury instructions, including lesser included offense instructions. The court cautioned

3

that labeling such a choice “trial strategy” does not “automatically immunize an attorney's

4

performance from Sixth Amendment challenges.” Id. at 1389. Rather, trial counsel's

5

performance is constitutionally deficient if “[c]ounsel’s errors with the jury instructions were not

6

a strategic decision to forego one defense in favor of another” but, instead, “the result of a

7

misunderstanding of the law.” Id. at 1390.
Petitioner claims that he suffered prejudice as a result of his trial counsel’s error in failing

8
9

to request the lesser included offense jury instruction. (ECF No. 13 at 14.) He argues that the

10

lesser included offense instruction with regard to the kidnapping count against him was “critical

11

and necessary” to his defense because it was possible the jury in his case could have found he

12

committed false imprisonment, and not kidnapping, with respect to the events that occurred

13

outside his apartment. (Id.) Petitioner notes that, unlike kidnapping, “false imprisonment does

14

not include the element of asportation,” and he points out that “the trial court itself recognized

15

that the evidence was susceptible of a finding that the distance of asportation from outside to

16

inside the apartment was not substantial enough to constitute the crime of kidnapping.” (Id.)
Petitioner also notes that the jury acquitted him of “all the crimes that depended solely on

17
18

the victim’s testimony which means that petitioner was acquitted of all crimes that took place

19

inside the apartment before the victim fled.” (Id. at 15.) Petitioner speculates that had the jurors

20

at his trial received the lesser included offense instruction as to Count 7, they probably would

21

have found that the “asportation” required for a kidnapping conviction was not proven because

22

there was no risk of harm to the victim in moving her from outside the apartment to inside the

23

apartment. (Id.) Petitioner concludes that “there was a substantial evidentiary basis for an

24

acquittal on the kidnapping charge in favor of a lesser included offense of false imprisonment.”

25

(Id.)

26

In support of this claim of ineffective assistance of trial counsel, petitioner has filed his

27

own declaration under penalty of perjury, in which he declares, in pertinent part, as follows: (1)

28

prior to the jury instruction conference held in open court and described by the California Court
16

1

of Appeal, his trial counsel had never spoken to him about lesser included offense jury

2

instructions with respect to count 7; (2) when his trial counsel finally did discuss the issue with

3

him during a recess, she told him that “she was not going to ask for the instruction to be read,”

4

and then stated ‘I believe the court has to give it to us anyway;” (3) trial counsel did not ask

5

petitioner whether or not he wanted a lesser included offense jury instruction given with respect

6

to the charge against him in count 7; (4) trial counsel also did not ask him whether he wanted a

7

lesser included offense jury instruction given on count 7 if the court gave a lesser included

8

offense jury instruction with respect to the charge in count 4; (5) if petitioner had been asked, he

9

would have requested “the lesser included offense instruction on any count the court was willing

10

to give;” and (6) trial counsel did not advise him of the possible consequences of waiving the

11

lesser included offense jury instruction on count 7. (Id. at 22.) Petitioner states that his trial

12

counsel never advised him “that it would be her plan to pursue a tactical decision on the

13

kidnapping offense.” (Id. at 13.)

14

3. Applicable Law

15

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

16

that set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To

17

succeed on a Strickland claim, a defendant must show that (1) his counsel’s performance was

18

deficient and that (2) the “deficient performance prejudiced the defense.” Id. at 687. Counsel is

19

constitutionally deficient if his or her representation “fell below an objective standard of

20

reasonableness” such that it was outside “the range of competence demanded of attorneys in

21

criminal cases.” Id. at 687–88 (internal quotation marks omitted). “Counsel’s errors must be ‘so

22

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Richter, 562

23

U.S. at 114 (quoting Strickland, 466 U.S. at 687). Reasonable tactical decisions, including

24

decisions with regard to the presentation of the case, are “virtually unchallengeable.” Strickland,

25

466 U.S. at 687-90. However, defense counsel has a “duty to make reasonable investigations or

26

to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466

27

U.S. at 691. Counsel must, “at a minimum, conduct a reasonable investigation enabling him to

28

make informed decisions about how best to represent his client.” Hendricks v. Calderon, 70 F.3d
17

1

1032, 1035 (9th Cir. 1995) (quoting Sanders, 21 F.3d at 1456 (internal citation and quotations

2

omitted).

3

A reviewing court is required to make every effort “to eliminate the distorting effects of

4

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

5

conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 669. See also Richter,

6

131 S. Ct. at 789 (same). Reviewing courts must “indulge a strong presumption that counsel’s

7

conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S.

8

at 689. There is in addition a strong presumption that counsel “exercised acceptable professional

9

judgment in all significant decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990)

10

(citing Strickland, 466 U.S. at 689). This presumption of reasonableness means that the court

11

must “give the attorneys the benefit of the doubt,” and must also “affirmatively entertain the

12

range of possible reasons [defense] counsel may have had for proceeding as they did.” Cullen v.

13

Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388, 1407 (2011) (internal quotation marks and

14

alterations omitted). The Ninth Circuit has observed:

15
16
17
18
19
20
21
22
23
24
25
26

[AEDPA] limits our authority to grant a federal writ by establishing
two “highly deferential” standards. Premo v. Moore, ––– U.S. –––
–, 131 S. Ct. 733, 740, 178 L.Ed.2d 649 (2011). “The pivotal
question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, ––– U.S. ––––, 131 S. Ct. 770, 785, 178
L.Ed.2d 624 (2011). Thus, a state court’s determination that a
claim lacks merit bars federal habeas relief so long as ‘fairminded
jurists could disagree’ on the state court’s decision. Yarborough v.
Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 158 L.Ed.2d 938
(2004). Moreover, to grant a habeas petition under § 2254(d)(2), a
state court’s factual findings must be ‘clearly erroneous,’ not just
merely debatable. Torres v. Prunty, 223 F.3d 1103, 1107–08 (9th
Cir. 2000). These stringent standards ‘guard against extreme
malfunctions in the state criminal justice systems, not as a
substitute for ordinary error correction through appeal.’ Richter, ––
– U.S. ––––, 131 S. Ct. at 786 (internal quotation marks omitted).
Griffin v. Harrington, 727 F.3d 940, 945 (9th Cir. 2013).
“The standards created by Strickland and § 2254(d) are both “highly deferential,” and

27

when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citations

28

omitted). Thus, in federal habeas proceedings involving “claims of ineffective assistance of
18

1

counsel, . . . AEDPA review must be “‘“doubly deferential”’” in order to afford “both the state

2

court and the defense attorney the benefit of the doubt.” Woods v. Daniel, ___U.S.___, ___,

3

2015 WL 1400852, at *3 (U.S. Mar. 30, 2105) (quoting Burt v. Titlow, 571 U.S. ___, ___, 134 S.

4

Ct. 10, 13 (2013)). As the Ninth Circuit has recently acknowledged:
“The question,” therefore, “is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.”
Harrington v. Richter, 131 S. Ct. 770, 788 (2011). Even where this
court believes the state court decision was “wrong,” that result must
be upheld if “fairminded jurists could disagree on [its] correctness.”
Id. at 786.

5
6
7
8
9

Camp v. Nevins, ___F.3d___, ___, 2015 WL 1347350, at * 4 (9th Cir. Mar. 26, 2015).

10
11
12
13

With these demanding standards in mind, the undersigned turns to address petitioner’s
claims.
4. Analysis
At his trial petitioner testified that G. went to his apartment voluntarily and had

14

consensual sex with him. This testimony was supported by another witness who recounted

15

observing petitioner and G. “talking, hugging, and kissing” in the swimming pool prior to going

16

into petitioner’s apartment. This same witness testified that petitioner and G. appeared

17

affectionate toward each other when they returned to the apartment, and that they were

18

subsequently talking and laughing in the bedroom of petitioner’s apartment. Petitioner further

19

testified at his trial that G. later stole his wallet and left the apartment after they had an argument

20

about it. Although he agreed there was a physical altercation between them outside the apartment

21

related to his attempts to get his wallet back from G., he denied hitting, dragging, or kicking G, or

22

forcing her back into his apartment. (Reporter’s Transcript on Appeal at 452-58, 483-84.)

23

Petitioner explained that he believed his behavior was justified because he thought G. had stolen

24

his wallet and he didn’t want her to leave with it. (Id. at 452-58, 479-80)

25

In light of petitioner’s extensive testimony at trial supporting his defense that no

26

kidnapping occurred and the trial testimony of another witness presented by the defense that

27

petitioner and G. appeared to be on very good terms before the fight outside the apartment

28

occurred, it is reasonable to conclude that petitioner’s trial counsel made a tactical decision to
19

1

give the jury an all-or-nothing choice on the kidnapping charge based on the expectation that

2

petitioner would be acquitted of that charge. While some lawyers may have chosen to request the

3

lesser included offense jury instruction, the decision by petitioner’s trial counsel to employ a

4

different tactic was not unreasonable under the facts of this case. Petitioner himself concedes that

5

there was a substantial evidentiary basis for an acquittal on the kidnapping charge against him.

6

Nor was it unreasonable for petitioner’s trial counsel to be concerned that giving the jury two

7

instructions on false imprisonment might result in two convictions for false imprisonment instead

8

of an acquittal on the kidnapping charge and a conviction on only one count of false

9

imprisonment.

10

The Ninth Circuit Court of Appeals has opined that when trial counsel makes a “difficult

11

but thoughtful tactical decision,” a reviewing court must presume that counsel’s conduct was

12

“within the range of competency.” Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir. 1988). Of

13

course, the defense “need not request instructions inconsistent with its trial theory.” Butcher v.

14

Marquez, 758 F.2d 373, 377 (9th Cir. 1985) (concluding that counsel was not ineffective for

15

choosing to forego a voluntary manslaughter jury instruction when the defense theory was that

16

defendant did not commit the charged act, not that he committed it under provocation). As the

17

Ninth Circuit stated under somewhat similar circumstances to those presented here:

18

It is true that counsel did not offer a negligent homicide instruction
and that he objected to the mitigated deliberate homicide
instruction. The record discloses that counsel did so not out of
ignorance of the law but as the result of a tactical decision that the
jury should be forced to the choice of finding Bashor guilty of
deliberate homicide or acquitting him outright. With the benefit of
hindsight we know that this strategy was incorrect; however, it did
not constitute ineffective assistance of counsel. United States v.
Stern, 519 F.2d 521, 524–25 (9th Cir.), cert. denied, 423 U.S. 1033,
96 S. Ct. 565, 46 L.Ed.2d 407 (1975), (reasoned tactical decisions
are not faulted, even if in retrospect better tactics were available).

19
20
21
22
23
24

Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). See also Doucet v. Swarthout, No. 2:12-

25

cv-0031 GEB KJN P, 2014 WL 1884218, at *9-10 (E.D. Cal. May 12, 2014) (no ineffective

26

assistance where counsel specifically requested that the jury not be instructed on attempted

27

voluntary manslaughter, and that despite evidence in the record supporting the instruction on the

28

lesser included offense, counsel stated in open court that he made this decision in consultation
20

1

with petitioner in light of the chosen alternate theory of defense); Carrillo v. Hernandez, No. CV

2

08-5616-ODW(CW), 2014 WL 103109, at *18 (C.D. Cal. Jan. 8, 2014) (no ineffective assistance

3

in not requesting a lesser included instruction that was arguably inconsistent with the defense

4

theory presented at trial). Under the governing legal standards, the decision by petitioner’s trial

5

counsel to decline the lesser included offense jury instruction was “not outside the range of

6

competence demanded of attorneys in criminal cases.” Strickland, 466 U.S. at 687-88.

7

As explained above, petitioner suggests that his trial counsel merely decided on the spur

8

of the moment, and only after the trial judge raised the issue, to decline the lesser included

9

offense jury instruction. He argues this implies that his counsel had not conducted adequate

10

“investigation” into the issue before making that decision. Petitioner offers no support for this

11

conclusory allegation, and it is therefore insufficient to support his claim for relief based upon

12

alleged ineffective assistance of counsel. Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995);

13

James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)) (“‘[c]onclusory allegations which are not

14

supported by a statement of specific facts do not warrant habeas relief’”). Rather, it is entirely

15

possible that trial counsel made her decision based on previous investigation into the choice of

16

defense strategy. The fact that defense counsel did not request additional time to consider the

17

lesser included jury instruction is not evidence that her representation was deficient.

18

Petitioner declares that he would have requested the lesser included offense instruction if

19

he had been consulted by his counsel.3 This argument also does not support petitioner’s claim for

20

federal habeas relief. Even if petitioner’s trial counsel did not consult with petitioner regarding

21

whether to request or reject a lesser included offense instruction, counsel cannot be said to have

22
23
24

3

It is not at all clear that petitioner was not consulted regarding the decision to reject a lesser
included instruction. Indeed, the record before the court includes the following exchange
between petitioner’s trial counsel and the court:

25

“[DEFENSE COUNSEL]: Can I explain to him what’s happening?

26

“THE COURT: Yes.

27

“[DEFENSE COUNSEL]: We are asking that it not be read.

28

Haynie, 2013 WL 518616, at *3-4.
21

1

rendered ineffective assistance by failing to obtain petitioner’s permission to decline the

2

instruction or to determine the overall defense strategy. This is because “[t]he appointed counsel

3

manages the lawsuit and has the final say in all but a few matters of trial strategy.” Faretta v.

4

California, 422 U.S. 806, 812 (1975). Further, “a lawyer may properly make a tactical

5

determination of how to run a trial in the face of his client’s incomprehension or even explicit

6

disapproval.” Brookhart v. Janis, 384 U.S. 1, 8 (1966). See also Raley v. Ylst, 470 F.3d 792, 799

7

(9th Cir.2006) (“A disagreement with counsel’s tactical decisions does not provide the basis for

8

declaring that the representation was constitutionally deficient.”); United States v. Corona-Garcia,

9

210 F.3d 973, 977, n. 2 (9th Cir. 2000) (“Even if we were to conclude that the conflict with

10

respect to trial tactics was severe, however, we would still be disinclined to reverse on that

11

ground because trial tactics are clearly within the realm of powers committed to the discretion of

12

defense counsel in any event.”); United States v. Wadsworth, 830 F. 2d 1500, 1509 (9th Cir.

13

1987) (“It is equally clear that appointed counsel, and not his client, is in charge of the choice of

14

trial tactics and the theory of defense”); Rhay v. Browder, 342 F.2d 345, 349 (9th Cir. 1965)

15

(“[C]ounsel is the manager of the lawsuit; this is of the essence of the adversary system of which

16

we are so proud. In the nature of things he must be, because he knows how to do the job and the

17

defendant does not. That is why counsel must be there.”) Here, trial counsel’s apparent belief that

18

the evidence on the kidnapping charge against petitioner might lead to a not guilty verdict on that

19

count was reasonable, regardless of whether she discussed this issue with petitioner.

20

In rejecting petitioner’s argument on appeal that the trial court had erred in failing to give

21

the lesser included instruction, the California Court of Appeal determined that trial counsel’s

22

decision not to request a lesser-included offense instruction was based on a tactical decision to

23

proceed with an all-or-nothing defense to the kidnapping charge. In rejecting petitioner’s

24

subsequently presented ineffective assistance of counsel claim, the Sacramento County Superior

25

Court agreed with that conclusion, and further found that trial counsel’s tactical choice was a

26

reasonable one under the circumstances of petitioner’s case. The Sacramento County Superior

27

Court’s decision in this regard is clearly not “so lacking in justification that there was an error

28

well understood and comprehended in existing law beyond any possibility for fairminded
22

1

disagreement.” Richter, 562 U.S. at 103. Accordingly, petitioner is not entitled to federal habeas

2

relief with respect to his claim that he received ineffective assistance from his trial counsel.

3

C. Violation of Due Process

4

In the introductory page to his Amended Petition filed on July 25, 2014, petitioner states

5

that he “only raises a single claim of ineffective assistance of trial counsel.” (ECF No. 13 at 1.)

6

However, the amended petition attached thereto also includes a claim that “the state court

7

arbitrarily deprived petitioner due process of law guaranteed by the 14th Amendment to the

8

United States Constitution.” (ECF No. 13 at 6.) In an abundance of caution, the undersigned will

9

also address this claim that petitioner’s right to due process was violated.

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Petitioner argues that the decision of the California Court of Appeal rejecting his

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argument that the trial court erred in failing to give the lesser included offense jury instruction

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violated its own prior decision in People v. Golde, 163 Cal.App.4th 101 (2008). He contends that

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this erroneous ruling by the Court of Appeal also violated his Fourteenth Amendment “liberty

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interest” in being “protected from having the state arbitrarily deny him relief.” (Id. at 20.)

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Petitioner argues that, under state law, the trial court had a sua sponte duty to instruct the jury on

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all lesser included offenses supported by the evidence introduced at trial and that the trial court’s

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failure to do so in this case violated state law. (Id. at 20-21.) Furthermore, petitioner argues that

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his state created right to a lesser included offense jury instruction was arbitrarily abrogated by the

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California Court of Appeal’s erroneous holding that his claim of trial court error was waived

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under the doctrine of invited error. 4

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4

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In People v. Breverman, 19 Cal.4th 142, 154-55 (1998), the California Supreme Court held
that a trial court’s obligation to instruct the jury sua sponte on lesser included offenses supported
by the evidence exists even when as a matter of trial tactics a defendant not only fails to request
the instruction but expressly objects to its being given. In Golde, the California Court of Appeal
for the Third Appellate District, relying on the Breverman decision, found that the trial court in
that case had a duty to instruct on all lesser included offenses supported by the evidence and erred
in leaving it up to the defendant to make that decision. The court in Golde concluded, however,
that the lesser included offense in that case was not supported by the evidence and, therefore, a
jury instruction on that offense need not have been given. Golde, 163 Cal. App.4th at 115-16.
The court also held that, in the context of that case, the law concerning invited error is
“inapposite.” Id. at 116. In People v. Beames, 40 Cal.4th 907, 926 (2007), however, the
California Supreme Court rejected the defendant’s argument that the trial court’s failure to
instruct the jury on a lesser included offense violated his federal constitutional rights because any
error by the trial court in this regard was “both invited and harmless.” See also Bortis v.
Swarthout, No. 2:11-cv-3186-KJM-EFB P, 2013 WL 4012833, at * 11 (E.D. Cal. Aug. 6, 2013).
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In essence, although petitioner places a “due process violation” label on this claim, he is

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actually arguing that the decision of the California Court of Appeal was an erroneous application

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of California law. As noted above, federal habeas relief is not available for alleged error in the

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application of state law, and habeas corpus cannot be utilized in federal court to try state issues de

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novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972); see also Wilson, 562 U.S. at 16;

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Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“[W]e have repeatedly held that ‘it is not

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the province of a federal habeas court to reexamine state-court determinations on state-law

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questions.’”); Wood v. Ryan, 693 F.3d 1104, 1115 (9th Cir. 2012). Accordingly, questions of

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whether the trial court violated state law in failing to give the lesser-included offense jury

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instruction and/or whether the appellate court’s decision addressing that issue was erroneous

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under state law are not properly presented to this federal habeas court.
A habeas petitioner may not “transform a state-law issue into a federal one” merely by

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asserting a violation of the federal constitution. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.

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1997). Rather, petitioner must show that the decision of the state courts somehow “violated the

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Constitution, laws, or treaties of the United States.” Little v. Crawford, 449 F.3d 1075, 1083 (9th

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Cir. 2006) (quoting Estelle, 502 U.S. at 68). Petitioner has failed to make this showing.

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The Fourteenth Amendment Due Process Clause applies when government action

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deprives a person of life, liberty or property. U.S. Const., Amend. IV. “The Supreme Court has

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‘repeatedly held that state statutes may create liberty interests that are entitled to the procedural

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protections of the Due Process Clause of the Fourteenth Amendment.’” Carlo v. City of Chino,

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105 F.3d 493, 497 (9th Cir. 1997) (quoting Vitek v. Jones, 445 U.S. 480, 488 (1980)). Here,

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petitioner has not cited any case establishing that he has a state created liberty interest in having

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his jury in a state criminal prosecution instructed on a lesser included offense.5 It is correct that

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the United States Supreme Court has held that the failure to instruct on a lesser included offense

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in a capital case constitutes constitutional error if there was evidence to support the giving of the

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instruction. Beck v. Alabama, 447 U.S. 625, 638 (1980). The Supreme Court has not decided,

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Let alone that such an instruction must be given over defense counsel’s objection.
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however, whether this rationale extends to non-capital cases. The Ninth Circuit, like several other

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federal circuits, has declined to find constitutional error arising from the failure to instruct on a

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lesser included offense in a non-capital case. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir.

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2000); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (“[T]he failure of a state trial

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court to instruct on lesser included offenses in a non-capital case does not present a federal

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constitutional question”); Bashor, 730 F.2d at 1240 (“[T]he failure of a state court to instruct on a

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lesser offense [in a non-capital case] fails to present a federal constitutional question and will not

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be considered in a federal habeas corpus proceeding.”); James v. Reese, 546 F.2d 325, 327 (9th

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Cir. 1976) (“Failure of a state court to instruct on a lesser offense fails to present a federal

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constitutional question and will not be considered in a federal habeas corpus proceeding”); see

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also United States v. Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009) (“In the context of a

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habeas corpus review of a state court conviction, we have stated that there is no clearly

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established federal constitutional right to lesser included instructions in non-capital cases. . . .

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On direct review, we have not resolved whether there is a Constitutional right to a lesser-included

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instruction in noncapital cases.”)

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In the absence of a liberty interest, the fact that a state court decision may arguably appear

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to contravene state law does not make that decision “arbitrary,” in violation of the federal due

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process clause. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442

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U.S. 1 (1979). Moreover, to find a constitutional right to a lesser-included offense instruction

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here would require the application of a new rule of law in the context of a federal habeas petition,

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something the court cannot do under the holding in Teague v. Lane, 489 U.S. 28 (1989). See

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Solis, 219 F.3d at 929 (habeas relief for failure to instruct on lesser included offense in non-

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capital case barred by Teague because it would require the application of a new constitutional

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rule); Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995), overruled on other grounds by Tolbert

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v. Page, 182 F.3d 677 (9th Cir. 1999) (en banc) (same).

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For all of these reasons, petitioner is not entitled to federal habeas relief with respect to his

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claim that his right to due process was violated by the California Court of Appeal’s rejection of

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his instructional error argument on appeal.
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IV. Motion for Default Judgment
On October 14, 2014, petitioner filed a motion entitled “Objection to the Delay in Time

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Constraints.” (ECF No. 22.) Therein, petitioner argues that this court should grant his habeas

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petition because of respondent’s failure to file a timely answer to his petition. The court will

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construe petitioner’s filing as a motion for default judgment.

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A default judgment is unavailable in a habeas action. See Gordon v. Duran, 895 F.2d 610,

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612 (9th Cir. 1990). In any event, respondent was never in default, nor was respondent’s answer

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untimely. A review of the court docket reflects that on August 1, 2014, respondent was ordered

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to file a response to petitioner’s February 21, 2014 amended petition for writ of habeas corpus

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within sixty days. (ECF No. 14.) Respondent filed a timely answer on September 30, 2014, as

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ordered. (ECF No. 20.) Accordingly, petitioner’s motion for default judgment will be denied.

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V. Motion to Reissue and Rehear Amended Habeas Petition

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As noted at the outset of this amended order and findings and recommendations, on April

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27, 2015, petitioner filed a document entitled “Motion: to Reissue and Rehear Amended Habeas

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Petition.” Therein, petitioner requests that the court address the habeas petition included as part

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of his July 25, 2014 filing. Petitioner’s request has been granted and above the undersigned has

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addressed his habeas petition included as part of his July 25, 2014 filing.

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VI. Motion for Extension of Time

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On May 4, 2015, petitioner filed a motion for extension of time to file objections to the

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undersigned’s April 10, 2015 findings and recommendations. In light of the fact that those

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findings and recommendations have now been vacated, petitioner’s request for extension of time

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is unnecessary and will be denied on that basis. Petitioner may file objections to these amended

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findings and recommendations within fourteen days from the date of service.

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VII. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations issued on April 10, 2015, are withdrawn;

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2. Petitioner’s Motion to Reissue and Rehear Amended Habeas Petition (ECF No. 25) is

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granted;
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3. Petitioner’s May 4, 2015 motion for extension of time to file objections to the April 10,
2015 findings and recommendations is denied as unnecessary; and

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4. Petitioner’s motion for default judgment (ECF No. 22) is denied;

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IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas

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corpus be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991). In his objections petitioner may address whether a certificate of appealability should issue

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in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

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enters a final order adverse to the applicant).

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Dated: June 5, 2015

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