Schmitz v. Lizarraga
Filing
26
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 05/13/16 ORDERING that the 15 Amended Petition for Writ of Habeas Corpus is DENIED; all other requests for relief are DENIED; Court DECLINES to issue COA. CASE CLOSED (Benson, A)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WILLIAM THOMAS SCHMITZ,
No. 2:14-cv-00659-JKS
Petitioner,
MEMORANDUM DECISION
vs.
JOE A. LIZARRAGA, Warden, Mule
Creek State Prison,
Respondent.
William Thomas Schmitz, a state prisoner represented by counsel, filed a Petition for a
Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Schmitz is in the custody
of the California Department of Corrections and incarcerated at Mule Creek State Prison.
Respondent has answered, and Schmitz has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On November 23, 2005, Schmitz was charged with murder (count 1), possession of
methamphetamine for sale (count 2), and possession of marijuana for sale (count 3). The
information further alleged as to count 1 that Schmitz personally and intentionally discharged a
firearm. Schmitz pled not guilty to all counts and denied the enhancement. On direct appeal of
his conviction, the California Court of Appeal laid out the following facts underlying the charges
against Schmitz:
In May 2005, [Schmitz] and his on-again, off-again girlfriend, Jennifer, went to a
friend’s birthday party. The victim, Chad Keichler, also attended the party. Keichler saw
Jennifer and told her she looked good. Jennifer responded by telling Keichler that
[Schmitz] was her boyfriend, to which Keichler replied, “I don’t give a fuck about your
boyfriend.” Later during the party, Keichler made some vulgar remarks to Jennifer
which upset [Schmitz]. Keichler continued to make inappropriate remarks to other
partygoers, further upsetting [Schmitz] and prompting him to leave the party and wait for
Jennifer in the car. [Schmitz] later returned to the party and said something to Jennifer
about wanting to stab Keichler. Because [Schmitz] was “really angry,” Jennifer decided
it was time to go and she and [Schmitz] left the party.
In the weeks following the party, [Schmitz] continued to talk about the incident,
repeating the same story over and over again and telling Jennifer he did not like Keichler.
Sometime after the party, Keichler’s friend, Joseph, crossed paths with [Schmitz]
at a bar. When Joseph said he knew Keichler, [Schmitz] said, “I want to kill that
motherfucker when I see him.” Joseph did not take the threat seriously, but later told
Keichler what [Schmitz] said.
In October 2005, Keichler and some friends, including Allen W., were sitting at
the Normal Street Bar having a drink. [Schmitz] was also sitting at the bar. At some
point, Allen heard [Schmitz] say, “He’s nothing but a bitch.” Allen asked, “Excuse me?
You talking to me?” and [Schmitz] replied, “If I was talking to you, I think you’d know
it.” A few minutes later, [Schmitz] walked over to Keichler, who was sitting further
down the bar, and began an unfriendly “exchange of words” with him.
[Schmitz] and Keichler eventually walked outside the bar where the verbal
exchange continued. Anthony M. followed them outside, as did Allen a few minutes
later. Allen heard Keichler and Anthony arguing and “talking shit back and forth.”
Heather F., who was standing outside the bar with [Schmitz’s] roommate, noticed
[Schmitz], Keichler and Anthony in a heated conversation. Heather saw [Schmitz] say
something in Keichler’s ear and heard Keichler exclaim, “You’re going to shoot me,
mother–––––?” [Schmitz] left and Keichler, who was “extremely upset,” said, “I just got
my life threatened over a bunch of bullshit.” Soon thereafter, a Durango pulled up to the
corner and stopped. [Schmitz] got out, moved quickly to where Keichler was standing
and shot him underneath his jaw with a small revolver. [Schmitz] then ran back to the
Durango and sped away. Keichler was pronounced dead shortly after paramedics
arrived.
People v. Schmitz, No. C061054, 2012 WL 3871361, at *1-2 (Cal. Ct. App. Sept. 7, 2012).
Based on a placement report, the court placed Schmitz at Napa State Hospital. Over a
year later, upon reviewing a report from Napa State Hospital, the court found Schmitz competent
and reinstated criminal proceedings. Schmitz subsequently pled no contest to counts 2 and 3.
Schmitz then proceeded to trial before a jury on the murder charge (count 1). At the conclusion
of trial, the jury found him guilty of the lesser included charge of second-degree murder and also
found true the firearm allegations. The trial court sentenced Schmitz to an aggregate
indeterminate term of 40 years to life imprisonment.
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Through counsel, Schmitz appealed his conviction, arguing that: 1) the trial court
erroneously instructed the jury regarding his mental defect or disorder by failing to alert the jury
that it could consider evidence of his mental state on the issue of implied malice; 2) the trial
court erred by instructing the jury that the firearm enhancement was a general intent, rather than
specific intent, crime; 3) the jury returned an improper verdict as to the personal use of a firearm
allegation; 4) the trial court improperly denied his request to instruct the jury on imperfect selfdefense; and 5) the prosecution improperly questioned a defense expert regarding his
compensation. On September 7, 2012, the Court of Appeal issued a reasoned, unpublished
opinion affirming the judgment against Schmitz in its entirety. Schmitz, 2012 WL 3871361, at
*9. Again proceeding through counsel, Schmitz sought rehearing, which was summarily denied
on September 18, 2012. Schmitz also petitioned for review in the California Supreme Court,
which was likewise denied without comment on December 19, 2012. Schmitz also petitioned for
a writ of certiorari from the United States Supreme Court, which was denied on May 20, 2013.
Proceeding through new counsel, Schmitz additionally filed in the California Superior
Court a petition for a writ of habeas corpus, alleging that: 1) a juror held an impermissible bias
against the mentally ill and committed misconduct by arguing to the remainder of the jury that
the expert psychiatric testimony should be disregarded; 2) “some jurors” committed misconduct
by contending that the jury could disregard an instruction that bore information showing that it
had been submitted by the defense; 3) another juror committed misconduct by stopping the
foreperson from reporting the jury’s deadlock and insisting that the jury continue to deliberate;
and 4) trial counsel was ineffective for failing to move earlier for Schmitz to have a cyst in his
brain removed. The Superior Court denied the petition in a reasoned order issued on September
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5, 2013. Schmitz then raised the same claims in a counseled habeas petition to the California
Court of Appeal, which was denied without comment on March 6, 2014. He further raised the
claims in a petition for review to the California Supreme Court, which was summarily denied on
April 30, 2014.
While his petition for review was pending, Schmitz timely filed a counseled Petition for a
Writ of Habeas Corpus to this Court on March 11, 2014. Schmitz subsequently filed an
Amended Petition (Docket No. 15), which is now ripe for consideration before the undersigned
judge.
II. GROUNDS/CLAIMS
In his counseled Petition before this Court, Schmitz argues: 1) the trial court failed to
instruct the jury that Schmitz’s mental disease could negate implied as well as express malice;
2) the trial court erroneously denied his request for an imperfect self-defense instruction; 3) the
jury’s verdict did not support the intentional discharge of a firearm enhancement; 4) a juror held
an impermissible bias against the mentally ill and committed misconduct by urging other jurors
to disregard the defense’s psychiatric expert testimony; 5) some jurors committed misconduct by
stating that they could disregard the defense’s submitted instruction on voluntary manslaughter;
6) another juror committed misconduct by stopping the foreperson from reporting the jury’s
deadlock; 7) trial counsel was ineffective for failing to move earlier to have a cyst removed from
Schmitz’s brain; and 8) the existence of cumulative error warrants reversal of his conviction.
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
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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 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, 406 (2000).
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.” Id. 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).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., 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); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
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court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Here, the only decision on
Simmons’ collateral review claims was a summary denial by the California Supreme Court on
habeas review, which is an adjudication on the merits and entitled to deference. Harrington v.
Richter, 562 U.S. 86, 99 (2011). Under the 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); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
IV. DISCUSSION
A.
Instructional Errors (Grounds One and Two)
Schmitz first argues that the trial court made two errors with respect to jury instructions.
Because jury instructions in state trial are typically matters of state law, federal courts are bound
by a state appellate court’s determination that a jury instruction was not warranted under state
law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that the Supreme Court has
repeatedly held that “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.”); see
also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). An instructional error,
therefore, “does not alone raise a ground cognizable in a federal habeas proceeding.”
Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).
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A challenged instruction violates the federal constitution if there is a “reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380
(1990). The question is whether the instruction, when read in the context of the jury charges as a
whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471
U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary
that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);
Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the
law that jurors follow their instructions”); see Francis, 471 U.S. at 323-24 & n.9 (discussing the
subject in depth).
It is well-established that not only must the challenged instruction be erroneous but it
must violate some constitutional right, and it may not be judged in artificial isolation but must be
considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at
72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is
whether there is a reasonable likelihood that the jury applied the challenged instruction in a way
that violates the constitution and that the category of infractions that violate “fundamental
fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process clause has limited operation.” Id. Where the defect is the
failure to give an instruction, the burden is even heavier because an omitted or incomplete
instruction is less likely to be prejudicial than an instruction that misstates the law. See
Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
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1.
Malice Instruction
Schmitz first takes issue with the malice instruction given to the jury by arguing that it
failed to alert the jury that it could consider evidence of his mental state on the issue of implied
malice. The Court of Appeal described the following facts underlying this claim:
The defense presented at trial centered on [Schmitz’s] claimed mental defect or
disorder. Defense expert Dr. Joseph Chong–Sang Wu testified that [Schmitz] had a “golf
ball-sized cyst or lesion,” otherwise known as an arachnoid cyst, on the temporal lobe of
his brain. According to Dr. Wu, the arachnoid cyst eroded bones in [Schmitz’s] brain
and compressed his temporal lobe, causing damage to his brain. Dr. Wu opined that the
damage caused by the arachnoid cyst compromised [Schmitz’s] ability to control his
aggressive impulses.
The jury was instructed with the following modified versions of two pinpoint
instructions requested by [Schmitz]:
Pinpoint Instruction No. 3
“You have received evidence regarding a mental defect or mental disorder of the
defendant at the time of the commission of the crime charged in count one. You may
consider this evidence, separately or in combination with any evidence of the defendant’s
intoxication, for the purpose of determining whether or not the defendant actually
premeditated and deliberated and harbored malice aforethought which are elements of the
crime charged in count one.”
Pinpoint Instruction No. 4
“The prosecution must prove beyond a reasonable doubt that the defendant
committed the charged crime with the required intent and/or mental state. If, after
considering all the circumstances, including the arachnoid cyst and the resulting
symptoms suffered by defendant, you have a reasonable doubt about whether the
defendant formed the required intent to kill, you must find him not guilty of first or
second degree murder.”
Schmitz, 2012 WL 3871361, at *2.
The Court of Appeal first found that review of this claim was precluded by the invited
error rule:
[Schmitz] challenges the two instructions requested by defense counsel, who
discussed with the court the defense theory—that [Schmitz]“killed, but [did so] because
of his mental defect”—and argued the requested instructions properly included language
that, in the absence of malice aforethought, a finding of a general “intent to kill” is still
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required in order to find [Schmitz] guilty of voluntary manslaughter. [Schmitz] concedes
his attorney requested the instructions, and does not argue on appeal that counsel did so
due to ignorance or mistake. The record is clear that defense counsel had a deliberate
tactical purpose in requesting the disputed instructions. The error, if any, was invited by
[Schmitz].
Id. at *3.
The Court of Appeal also rejected the claim on its merits, concluding that, “ considering
the instructions as a whole, we find the jury was correctly instructed on the law”:
The jury was instructed, via the requested pinpoint instructions, to consider
evidence of [Schmitz’s] arachnoid cyst “for the purpose of determining whether or not
the defendant actually . . . harbored malice aforethought . . .,” and again “for the purpose
of determining whether or not the defendant actually premeditated and deliberated and
harbored malice aforethought which are elements of the crime charged in count one.”
(Italics added.)
The jury was also instructed regarding the difference between the two kinds of
malice aforethought: express and implied malice (CALCRIM Nos. 520, 521), and the
requirement that, in order to find [Schmitz] guilty of the specific intent crime of murder,
they had to find that he “not only intentionally commit[ted] the prohibited act, but [he did
so] with a specific intent and mental state.” (CALCRIM No. 252.) The jury was further
instructed with CALCRIM Nos. 521, 522 and 570 regarding the elements required to find
defendant guilty of first degree murder, second degree murder, and voluntary
manslaughter, as well as a modified version of CALCRIM No. 570 stating that, “Every
person who unlawfully kills another human being without malice aforethought but with
an intent to kill, is guilty of voluntary manslaughter. [¶] There is no malice aforethought
if the person did not harbor malice due to a mental disorder, mental defect or mental
disease or due to voluntary intoxication, or both. [¶] In order to prove voluntary
manslaughter, each of the following elements must be proved: [¶] 1. A human being was
killed; [¶] 2. The killing was unlawful; [¶] 3. The killing was done with the intent to kill.”
The court also instructed the jury that, “[w]hen a person commits an unlawful killing but
does not intend to kill and does not act with conscious disregard for human life, then the
crime is involuntary manslaughter . . . . ” (CALCRIM No. 580.) These instructions,
considered collectively, relate evidence of [Schmitz’s] arachnoid cyst to the element of
malice, both express and implied, and to the evidence necessary to convict [Schmitz] of
the charged crime.
[Schmitz] contends the jury was instructed to consider evidence of his arachnoid
cyst with respect to whether he “formed the intent to kill” despite the fact that implied
malice murder does not require an intent to kill. But this very issue was discussed at
trial, at which time defense counsel argued successfully that the requested instruction
include language requiring a finding of a general “intent to kill” even for the lesser
offense of voluntary manslaughter.
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We conclude defense counsel invited the error, if there was any. In any event, the
jury was properly instructed.
Id. at *3-4.
Respondent argues that Schmitz’s claim is procedurally barred because the Court of
Appeal found his claim precluded by the invited error doctrine. Federal courts “will not review a
question of federal law decided by a state court if the decision of that court rests on a state law
ground that is independent of the federal question and adequate to support the judgment.”
Coleman v. Thompson, 501 U.S. 722, 729 (1991). This Court may not reach the merits of
procedurally defaulted claims, that is, claims “in which the petitioner failed to follow applicable
state procedural rules in raising the claims.” Sawyer v. Whitley, 505 U.S. 333, 338 (1992). The
Ninth Circuit has recognized that where a state court applied the doctrine of invited error to bar a
claim, a federal habeas court may find the claim procedurally barred. See Leavitt v. Arave, 383
F.3d 809, 832-33 (9th Cir. 2004) (“There is no reason that we should treat the invited error rule
differently from other state procedural bars.”). In this case, Schmitz not only failed to object to
the jury instruction, but in fact requested it. Because the trial court issued the requested
instruction, Schmitz is not now entitled to claim that the issuance of the instruction was error.
Schmitz argues that the error was not invited by relying on California case law indicating
that a finding of invited error requires evidence that counsel had a tactical purpose in his or her
actions later asserted to be error. Because he claims that counsel could have no tactical reason
for allowing the alleged mistake, Schmitz asserts that the error was not invited and thus his claim
is not procedurally barred here. But state case law is insufficient to preserve review of the claim
here. Under federal law, a petitioner may show cause for a procedural default by establishing
constitutionally ineffective assistance of counsel. But attorney error short of constitutionally
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ineffective assistance of counsel does not constitute cause and will not excuse a procedural
default. See McCleskey v. Zant, 499 U.S. 467, 494 (1991).
Moreover, even if the claim were properly before this Court for its review, the Court
must deny it. For the reasons persuasively supplied by the Court of Appeal, Schmitz fails to
show that the challenged instruction was error. Schmitz thus cannot prevail on this instructional
error claim in any event.
2.
Imperfect Self-Defense Instruction
Schmitz also contends that the trial court erred when it denied his request to instruct the
jury on imperfect self-defense, which would have reduced his culpability to voluntary
manslaughter. As the Court of Appeal explained:
A trial court must instruct, sua sponte, “on all theories of a lesser included offense
which find substantial support in the evidence.” (People v. Breverman (1998) 19 Cal. 4th
142, 162.) However, where “ ‘there is no evidence that the offense was less than that
charged,’ ” there is no such duty to instruct. (People v. Barton, supra, 12 Cal. 4th at p.
196, fn. 5.)
“For killing to be in self-defense, the defendant must actually and reasonably
believe in the need to defend. [Citation.] If the belief subjectively exists but is
objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed
to have acted without malice and cannot be convicted of murder,’ but can be convicted of
manslaughter. [Citation.] To constitute ‘perfect self-defense,’ i.e., to exonerate the
person completely, the belief must also be objectively reasonable. [Citations.] . . . [F]or
either perfect or imperfect self-defense, the fear must be of imminent harm. ‘Fear of
future harm—no matter how great the fear and no matter how great the likelihood of the
harm—will not suffice. The defendant’s fear must be of imminent danger to life or great
bodily injury.’ [Citation.]” (People v. Humphrey (1996) 13 Cal. 4th 1073, 1082, fn. and
italics omitted.) All the surrounding circumstances, including prior assaults and threats,
may be considered in determining whether the accused perceived an imminent threat of
death or great bodily injury. (Id. at p. 1083; see also People v. Michaels (2002) 28 Cal.
4th 486, 530–531.) “[B]oth self-defense and defense of others, whether perfect or
imperfect, require an actual fear of imminent harm. [Citation.]” (People v. Butler (2009)
46 Cal. 4th 847, 868.)
“This definition of imminence reflects the great value our society places on
human life. The criminal law would not sentence to death a person such as the victim in
this case for a murder he merely threatened to commit, even if he had committed
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threatened murders many times in the past and had threatened to murder the defendant; it
follows that the criminal law will not even partially excuse a potential victim's slaying of
his attacker unless more than merely threats and a history of past assaults is involved.”
(People v. Aris (1989) 215 Cal. App. 3d 1178, 1189, overruled on another ground in
People v. Humphrey, supra, 13 Cal. 4th at p. 1089.)
Schmitz, 2012 WL 3871361, at *6-7.
The United States Supreme Court has held that the failure to instruct on a lesser included
offense in a capital case is constitutional error if there was evidence to support the instruction.
Beck v. Alabama, 447 U.S. 625, 638 (1980). The Supreme Court, however, has not decided
whether to extend this rationale to non-capital cases. The Ninth Circuit, like several other
federal circuits, has declined to extend Beck to find constitutional error arising from the failure to
instruct on a lesser included offense in a non-capital case. See Solis v. Garcia, 219 F.3d 922,
929 (9th Cir. 2000); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (“[T]he failure of
a state trial court to instruct on lesser included offenses in a non-capital case does not present a
federal constitutional question.”); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (“Failure of
a state court to instruct on a lesser offense fails to present a federal constitutional question and
will not be considered in a federal habeas corpus proceeding.”). Accordingly, the decision of the
California courts denying Schmitz relief as to this claim was not contrary to United States
Supreme Court authority as set forth in Beck.
Nevertheless, the Ninth Circuit has recognized that “the refusal by a court to instruct a
jury on lesser included offenses, when those offenses are consistent with defendant’s theory of
the case, may constitute a cognizable habeas claim” under clearly established United States
Supreme Court precedent. Solis, 219 F.3d at 929. Although Schmitz argues here that there was
evidence supporting a voluntary manslaughter instruction, as the Court of Appeal reasonably
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concluded based on its review of the record, the evidence presented at trial simply did not
support a defense that Schmitz committed the offense out of provocation or heat of passion:
Here, the evidence was not sufficient to support giving an instruction on
imperfect self-defense. [Schmitz] argues Keichler’s “threatening words and attitude”
were sufficient to trigger his response of imperfect self-defense. As “ample evidence of a
threat of imminent attack from Chad Keichler,” [Schmitz] states that “Keichler was
drunk, loud and threatening at a party months prior to the homicide”; Keichler had a
blood alcohol level of 0.36 percent and had cocaine in his system at the time of his death;
Keichler had a prior conviction for “assault as a felony hate crime”; [Schmitz] and
Keichler exchanged “angry words” in the bar prior to the shooting; the verbal
confrontation between [Schmitz] and Keichler continued as they both exited the bar;
“people in the crowd” pleaded with Keichler to leave; once in the street, Keichler “raised
his voice”; Keichler and Anthony M. “addressed each other in loud, ‘macho’ or ‘tough
guy’ talk” outside the bar; Keichler said, “I could fight all you guys”; and when the
bartender intervened and tried to escort Keichler from the scene, Keichler “continued to
yell at the crowd.”
Neither the evidence offered, nor the record, demonstrate that [Schmitz] shot and
killed Keichler in response to a subjective fear of imminent harm. Instead, the evidence
shows that Keichler angered [Schmitz] at a party months before the shooting, and that
[Schmitz] repeatedly talked about those events as his anger continued to fester until that
fateful day when he and Keichler once again found themselves in the same bar.
[Schmitz] asserts “there was a distinct possibility of a physical attack by
Keichler.” The record does not bear that out. While Keichler was intoxicated and had
cocaine in his system at the time of the shooting, at most he exchanged angry words with
defendant inside and outside the bar, yelled at Anthony and the gathering crowd, and
boasted that he could “fight all you guys.” Heather testified that although Keichler was
“getting in [Schmitz’s] face,” there was “no shoving” and no physical contact between
Keichler and [Schmitz] or anyone during the argument that preceded the shooting.
[Schmitz] provides no evidence that Keichler verbally or physically threatened him.
While [Schmitz] characterizes Keichler’s vulgar remarks to Jennifer at the party
months prior to the shooting as “loud and threatening,” it was [Schmitz] who became
angry and said he wanted to stab Keichler at the party, and who later told Joseph he
wanted to “kill that motherfucker.” On the day of the shooting, it was [Schmitz] who
was the instigator, telling a friend that Keichler was “nothing but a bitch” and then
approaching Keichler and initiating a heated verbal exchange. Once the argument moved
outside the bar, it was [Schmitz] who quietly said something close to Keichler’s ear,
causing Keichler to respond, “You’re going to shoot me, mother––––?” and exclaim, “I
just got my life threatened over a bunch of bullshit.” It was [Schmitz] who, after leaving
the bar, returned and shot Keichler in the neck. [Schmitz] notes Keichler’s prior
conviction for “a felony hate crime,” but does not claim to have known about it prior to
the shooting, nor does he claim Keichler ever actually threatened to hurt or kill him.
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After the shooting, [Schmitz] told Jennifer he “shot that motherfucker,” but gave no
indication whatsoever that he did so out of fear of imminent danger.
In the absence of any evidence that [Schmitz] actually feared imminent harm,
reasonable or otherwise, the trial court had no duty to instruct on the theory of imperfect
self-defense. There was no instructional error.
Schmitz, 2012 WL 3871361, at *7-8.
The state court’s conclusion that there was no substantial evidence to support an
imperfect self-defense instruction was a reasonable one. Schmitz argues here that the Court of
Appeal failed to consider his mental defect in determining whether he held a subjective belief
that he faced imminent harm. Under California law, “substantial evidence” is defined as
evidence that “a reasonable jury could find persuasive,” which is distinct from any evidence.
People v. Breverman, 960 P.2d 1094, 1106 (Cal. 1998). Even if this Court were to find
Schmitz’s statement that his mental defect sufficed as “substantial evidence” of his subjective
belief of his imminent danger, it still would not overcome AEDPA deference to warrant habeas
relief. “[A] state-court factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first instance.” Wood v. Allen,
558 U.S. 290, 301 (2010). Because Schmitz was not entitled to the instruction under state law,
the trial court’s failure to give it was not error and did not deprive petitioner of a fair trial.
Accordingly, Schmitz is not entitled to relief on this instructional error claim either.
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B.
Improper Verdict (Ground Three)
Schmitz next argues that his due process rights were violated “when he was convicted
and sentenced for intentionally discharging a firearm when the jury only found he ‘used’ a
firearm.” The record reflects that, at the conclusion of trial, the jury returned a verdict form
entitled “Finding, Special Allegation Personal Use of a Firearm Count 1,” which read: “We, the
jury in the above-entitled matter, having found [Schmitz] . . . guilty of the crime of 2nd Degree
Murder . . . as alleged in Count 1, find the Special Allegation that [Schmitz] personally used a
firearm, in violation of Penal Code sections 12022.53(b), 12022.53(c), and 12022.53(d): [¶] . . .
True.” Schmitz argues, as he did on direct appeal that a true finding of firearm “use,” as stated
in Penal Code § 12022.53(b), is a “distinct and lesser enhancement allegation” that is insufficient
to support an allegation of firearm “discharge,” as required by Penal Code section 12022.53,
subdivision (c) and (d). The Court of Appeal construed his argument as a challenge to the
verdict form itself because it omitted mention of discharge. Schmitz, 2012 WL 3871361, at *5.
It rejected such claim due to a failure to object at trial and alternatively rejected it on the merits.
Id.
As an initial matter, because the state appellate court found Schmitz’s claim forfeited
under California’s contemporaneous objection rule, to the extent the claim raised in his Petition
reasserts the verdict form claim addressed by the Court of Appeal, it is procedurally defaulted
from federal habeas review. Coleman, 501 U.S. at 729-30 (a federal court will not review a
claim if the state court’s rejection of the claim rests on a state law ground that is independent of
the federal question and adequate to support the judgment); cf. Ayuyu v. Tagabuel, 284 F.3d
1023, 1026 (9th Cir.2002) (finding in federal civil suit that claim based on an improper verdict
15
form is waived if no objection to the form of the verdict was made in the record or in the motion
for new trial). The Ninth Circuit has repeatedly recognized and applied the California
contemporaneous objection rule in affirming denial of a federal habeas petition on grounds of
procedural default where there was a complete failure to object at trial. See, e.g., Inthavong v.
Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th
Cir. 2004).
In his Petition before this Court, Schmitz more clearly raises a claim under Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), which provides that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Schmitz argues
that, because the verdict form did not explicitly indicate that the jury found beyond a reasonable
doubt that Schmitz discharged a firearm, his conviction on the firearm enhancement was in
violation of Apprendi. But although the Court of Appeal did not specifically cite Apprendi, it
nonetheless concluded that Apprendi did not apply here because Schmitz was not deprived of his
right to have a jury determine each and every allegation against him beyond a reasonable doubt:
[T]he information alleged violations of Penal Code section 12022.53,
subdivisions (b) [personal use of a firearm], (c) [personal and intentional discharge of a
firearm], and (d) [personal and intentional discharge of a firearm causing great bodily
injury and death]. That information was read to the jury. The court instructed the jury
with CALCRIM No. 3149, entitled “Personally Used Firearm: Intentional Discharge
Causing Injury or Death (Pen. Code, §§ 667.61(e)(3), 12022.53(d)),” and CALCRIM No.
3146. CALCRIM No. 3149 begins, “If you find the defendant guilty of the crime charged
in Count 1, First Degree [M]urder, or the lesser crime of Second Degree Murder, you
must then decide whether the People have proved the additional allegation that the
defendant personally and intentionally discharged a firearm during that crime causing
death.” (Italics added.) In contrast, CALCRIM No. 3146 begins, “If you find the
defendant guilty of a lesser crime charged in Count 1, either Voluntary Manslaughter or
Involuntary Manslaughter, you must then decide whether the People have proved the
16
additional allegation that the defendant personally used a firearm during the commission
of that crime.” (Italics added.)
A verdict form is to be read in combination with the charging instrument, the plea
entered, and the trial court’s instructions. (People v. Paul (1998) 18 Cal. 4th 698, 706;
People v. Jones, supra, 58 Cal. App. 4th at p. 710.) Unless connected to an information,
verdict forms are ordinarily without meaning. (Paul, at pp. 706–707.) Furthermore, “the
form of the verdict generally is immaterial, so long as the intention of the jury to convict
clearly may be seen.” (Id. p. 707.)
Here, the jury’s intent was clear. The jury returned a verdict of guilty on the
lesser charge of second degree murder. Consistent with that verdict, and in keeping with
the instruction given in CALCRIM No. 3149, the jury found true the allegation that, in
committing the murder, [Schmitz] “used a firearm, in violation of Penal Code sections
12022.53(b), 12022.53(c), and 12022.53(d).” In other words, the jury found [Schmitz]
used a firearm in a manner that violated each of the three subdivisions, including
subdivision (d) which requires that the defendant “personally and intentionally
discharges a firearm and proximately causes great bodily injury . . . or death.”
Schmitz, 2012 WL 3871361, at *5-6.
This Court’s independent reading of the record comports with that of the Court of
Appeal. As discussed, the information charged Schmitz with personally discharging a firearm,
and the trial court correctly instructed the jury that it had to find that Schmitz personally
discharged the firearm in order to find true the enhancement allegation against him. Thus, as the
Court of Appeal reasonably concluded:
[T]he recitation of the information, the trial court’s instructions, and the verdict
form’s reference to each of the three relevant Penal Code sections properly placed
[Schmitz’s] guilt on all elements of the enhancement before the jury. Accordingly, the
jury’s clear intent to find [Schmitz] personally used a firearm, personally and
intentionally discharged a firearm, and personally and intentionally discharged a firearm
causing great bodily injury and death was demonstrated through the verdict.
Id. at *6.
Schmitz’s reliance on Apprendi is thus unavailing, and he is not entitled to federal habeas
relief on this claim either.
C.
Juror Bias/Misconduct (Grounds Four, Five, and Six)
17
Schmitz next raises a number of claims related to the sitting jurors. Schmitz raised these
claims to the state courts by way of habeas petition, the majority of which were denied with a
notation that, even if the allegations were true, Schmitz would not be entitled to relief. A final
claim, relating to whether the jurors followed instructions submitted by the defense, was denied
because Schmitz did not show prejudice from the alleged conduct.
The Sixth Amendment guarantees criminal defendants the right to a “fair trial by a panel
of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961); see Dyer v.
Calderon, 151 F.3d 970, 973 (9th Cir. 1998). While “[d]oubts regarding bias must be resolved
against the juror,” United States v. Martinez-Martinez, 369 F.3d 1076, 1082 (9th Cir. 2004), a
defendant “bears the burden of showing that a juror was actually biased against him or her and
that the district court abused its discretion or committed manifest error when it failed to excuse
the juror for cause,” United States v. Hanley, 190 F.3d 1017, 1030 (9th Cir. 1999) (internal
quotation marks and alteration omitted). “If only one juror is unduly biased or prejudiced or
improperly influenced, the criminal defendant is denied his Sixth Amendment right to an
impartial panel.” United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977).
Similarly, due process requires that a criminal defendant be tried by “a jury capable and
willing to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217
(1982); Estrada v. Scribner, 512 F.3d 1227, 1238 (9th Cir. 2008); Bayramoglu v. Estelle, 806
F.2d 880, 887 (9th Cir. 1986) (“Jurors have a duty to consider only the evidence which is
presented to them in open court.”). The introduction of prejudicial extraneous influences into the
jury room constitutes misconduct which may result in the reversal of a conviction. Parker v.
Gladden, 385 U.S. 363, 364-65 (1966). Habeas relief is warranted, however, only where it is
18
reasonably likely that the petitioner would have obtained a better outcome if the misconduct had
not occurred. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (constitutional trial errors do
not warrant habeas relief unless they have substantial and injurious impact on the jury’s verdict
or trial proceedings). The following factors are relevant to determining whether the alleged
introduction of extrinsic evidence constitutes reversible error: (1) whether the extrinsic material
was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the
extent to which the jury discussed and considered it; (4) whether the material was introduced
before a verdict was reached, and if so, at what point in the deliberations it was introduced; and
(5) any other matters which may bear on the issue of whether the introduction of extrinsic
material substantially and injuriously affected the verdict. Estrada, 512 F.3d at 1238; see also
Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir. 2000).
1.
Bias
Schmitz first contends that he was subjected to an impartial jury because one of the
jurors, referred to as Juror J, “held an impermissible bias against the mentally ill and the validity
of psychiatric testimony” and “committed misconduct when he argued the expert psychiatric
testimony should be disregarded based on the juror’s purportedly ‘expert’ opinion that people lie
about mental illness to get out of trouble and that mentally ill people are manipulative.”
In support of his claim that Juror J was biased against him, Schmitz attached to his state
court habeas petition 3 juror declarations detailing other jurors’ assessments of Juror J. But in
determining whether a defendant was convicted by a fair and impartial jury, Federal Rule of
19
Evidence 606(b) limits a federal court’s consideration of potential jury misconduct.1 That rule
provides:
During an inquiry into the validity of a verdict or indictment, a juror may not
testify about any statement made or incident that occurred during the jury’s deliberations;
the effect of anything on that juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment. The court may not receive a juror’s
affidavit or evidence of a juror’s statement on these matters.
FED. R. EVID. 606(b).2
In accordance with this rule, federal courts routinely deny motions for a new trial where
such requests are based on juror declarations deemed inadmissible under Rule 606(b). See, e.g.,
United States v. Bussell, 414 F.3d 1048, 1054-55 (9th Cir. 2005) (agreeing with district court that
juror declaration regarding juror speculation that co-defendant had pled guilty were inadmissible
under Rule 606(b) and that, therefore, no evidentiary hearing or new trial was warranted); United
States v. Rutherford, 371 F.3d 634, 640 (9th Cir. 2004) (upholding district court’s denial of new
trial because Rule 606(b) barred consideration of declarations stating that jurors ignored court’s
instructions and discussed defendant’s failure to testify).
Rule 606(b) also “applies to petitions for habeas corpus from state court prisoners.”
Erikson v. Rowland, 991 F.2d 803, at *2 (9th Cir. 1993) (unpublished). Thus, federal courts
1
The rationale for this rule is the protection of jury verdicts which “can be attacked
and set aside on the testimony of those who took part in their publication and all verdicts could
be, and many would be, followed by an inquiry in the hope of discovering something which
might invalidate the finding. Jurors would be harassed and beset by the defeated party in an
effort to secure from them evidence of facts which might establish misconduct sufficient to set
aside a verdict.” Tanner v. United States, 483 U.S. 107, 119-20 (1987) (citations omitted).
2
The rule applies an “[e]xception[] . . . for testimony as to ‘extraneous prejudicial
information’ brought to the attention of the jury, an improper ‘outside influence’ on a juror, or a
mistake in completing a jury form.” FED. R. EVID. 606(b). Because there was no extraneous
information, this exception is inapplicable here.
20
have likewise consistently rejected habeas claims alleging juror bias or misconduct where those
claims depend on evidence that would be inadmissible under Rule 606(b). See, e.g., id. at *3;
Harrison v. Gillespie, 640 F.3d 888, 895 (9th Cir. 2011) (noting, in context of a § 2241 habeas
petition, that a Court “may not consider jurors’ testimony addressing the jury’s deliberative
process unless the testimony ‘bear[s] on extraneous influences on the deliberation’”); Estrada,
512 F.3d at 1237-38 (9th Cir. 2008) (affirming district court’s application of Rule 606(b) to bar
consideration of certain juror affidavits supporting a § 2254 habeas petitioner’s juror misconduct
claim). Because Schmitz has not presented admissible evidence of the alleged juror misconduct
during deliberations, and, indeed, will necessarily be unable to do so given the nature of the
alleged misconduct, this claim must also fail on federal habeas review. Further, even if Schmitz
were able to present admissible evidence, “allegations that relate to ‘intrinsic jury processes’ do
not implicate the protections of the Sixth Amendment.” See Hernandez v. Barnes, No. CV 1201887, 2015 WL 269050, at *9 (C.D. Cal. Jan. 20, 2015) (citing United States v. Bagnariol, 665
F.2d 877, 887 (9th Cir. 1981) (“Intrinsic jury processes will not be examined on appeal and
cannot support reversal.”)).
2.
Misconduct
Schmitz also contends that Juror J additionally committed misconduct by “improperly
express[ing] his biased ‘expert’ opinion about mentally ill people during deliberations.”
Likewise, he claims that “misconduct occurred when jurors said they could disregard the defense
instruction” outlining Schmitz’s mental defect defense. He also alleges that Juror R committed
misconduct when he stopped the foreperson from reporting the jury’s deadlock and instead
encouraged the jury to continue deliberations. But none of these misconduct claims warrant
21
relief either because, again, the declaration evidence he provides in support of these claims is
barred by Rule 606(b).3
Schmitz further seeks an evidentiary hearing as to these claims, but Rule 606(b) also
precludes this Court from questioning jurors as to the internal mental processes by which the
verdict was rendered. See, e.g., United States v. Bussell, 414 F.3d 1048, 1054-55 (9th Cir. 2005)
(agreeing with district court that juror declaration regarding juror speculation that co-defendant
had pled guilty were inadmissible under Rule 606(b) and that, therefore, no evidentiary hearing
or new trial was warranted). Accordingly, Schmitz is not entitled to any type of relief on his
juror bias and misconduct claims.
3
Moreover, Schmitz cannot show that Juror J or Juror R committed misconduct in
these respects. It is true that a juror’s statements or opinions on a case to fellow jurors may, in
certain very limited circumstances, be found to taint the verdict and deprive a defendant of his
right to an unbiased jury. See Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997) (granting
habeas relief where a juror stated in the presence of other jurors during voir dire in a pre-AEDPA
case charging the defendant with sexual contact with a minor that she had worked for three years
as a child protective services worker, had expertise in the area of child sexual abuse and that she
had never been involved in a case in which the child’s claim of sexual abuse had not been borne
out). But the challenged statements of Juror J did not constitute juror misconduct since a
“‘juror’s past personal experiences may be an appropriate part of the jury’s deliberations.’”
Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir. 2004) (citation omitted); United States v.
Budziak, 697 F.3d 1105, 1111 (9th Cir. 2012); see also Hard v. Burlington N. R .R., 812 F.2d
482, 486 (9th Cir. 1987) (“Jurors must rely on their past personal experiences when hearing a
trial and deliberating on a verdict.”); Rucker v. Lattimore, 369 F. App’x 810, 813 (9th Cir. 2010)
(“The district court did not err in rejecting Rucker’s claim that her constitutional rights were
violated when during jury deliberation jurors nine and two discussed their personal experiences
as victims of sexual assault” because “‘[a] juror’s past personal experiences may be an
appropriate part of the jury’s deliberations.’” (citation omitted)). Additionally, given the
importance of reaching a unanimous verdict, it cannot be said that Juror R’s alleged statements
encouraging the jurors to continue deliberations was misconduct. Indeed, if the foreperson had
reported the deadlock, it would have been constitutionally acceptable for the trial court to issue
what is known as an Allen charge, see Allen v. United States, 164 U.S. 492 (1896), which “is
traditionally understood as ‘an instruction to consider the point of view of others’ when the jury
has reached an impasse in its deliberations,” United States v. Wills, 88 F.3d 704, 716 (9th Cir.
1996) (internal citations omitted).
22
D.
Ineffective Assistance of Trial Counsel (Ground Seven)
Schmitz also faults trial counsel for not earlier moving for an order that Schmitz receive
surgery to remove an arachnoid cyst. To demonstrate ineffective assistance of counsel under
Strickland v. Washington, a defendant must show both that his counsel’s performance was
deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984).
A deficient performance is one in which “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id.
The Supreme Court has explained that, if there is a reasonable probability that the
outcome might have been different as a result of a legal error, the defendant has established
prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v.
United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas
petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice
standard is applied and federal courts do not engage in a separate analysis applying the Brecht
harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin
v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective
assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
23
Thus, Schmitz must show that defense counsel’s representation was not within the range
of competence demanded of attorneys in criminal cases, and there is a reasonable probability
that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,
474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the
petitioner fails to make a sufficient showing under either of the Strickland prongs. See
Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not
address both prongs if the defendant fails on one).
The record indicates that, on the eve of trial, defense counsel filed a pre-trial motion
seeking an order that Schmitz receive the surgery prior to trial. The motion indicated that a
doctor had discovered the cyst in 2004 but had deemed surgery medically unnecessary.
According to the motion, however, a consulting neurosurgeon subsequently determined that the
surgery was “medically necessary,” and experts concluded that the cyst affected Schmitz’s
behavior, that Schmitz took medication to regulate that behavior, and that it was probable that
surgery would eliminate the need for the medication and allow Schmitz to present a better image
at trial. The court also heard oral argument at the motion, in which the defense conceded that
there was no emergency medical need for surgery. The prosecution did not dispute the cyst’s
existence but summarily opposed the motion. The court then ruled:
The matter’s been submitted. Just to make a record, we had a prehearing, pretrial
meeting on Wednesday. This motion was not made at that time. The matter’s been
before the Court now for several years and at no time has a motion been made for surgery
until the morning of trial.
The Court does not have a medical opinion, of course, as to whether Mr. Schmitz
needs to have a tumor removed.
I don’t have any medical information right now that he has a tumor. Although I
did read Dr. Ford’s report [from Schmitz’s earlier competency proceedings], and he
indicates there was a tumor . . . but that [there] would not be an effect on his trial.
Without more, I’m going to deny the motion.
24
In his habeas petition to the state superior court, Schmitz alleged that counsel was
ineffective for not filing the motion earlier and that, if he had, it was likely that the motion would
have been granted, and there was a “strong possibility” that removal of the cyst would have
altered Schmitz’s behavior at trial and proved that his “violent, impulsive behavior” was a
product of the cyst. The superior court considered and rejected the claim as follows:
It is claimed that [the surgical procedure] would have alleviated [Schmitz’s]
psychiatric symptoms and established that the killing was a result of those symptoms
rather than malice.
The court believes that this analysis is speculative. No post-trial information has
been brought forward to show [Schmitz’s] current situation, whether the psychiatric
symptoms have been alleviated or have persisted, or even whether the surgery has ever
been accomplished.
Schmitz fares no better on federal habeas review. This Court agrees with the state court
that this claim is far too speculative to warrant relief under the stringent guidelines enumerated
above. Schmitz has provided insufficient evidence to reasonably believe that the jury would
have rendered a different verdict had the surgery been performed prior to trial. He points to the
opinions of Dr. Tucker, who testified that surgery is successful in 80% of cases at curing or
significantly reducing these psychiatric symptoms, and Dr. Wu, who opined that the “vast
majority” of patients who have these cysts removed see a reversal in their psychoses, mood, and
cognitive problems. But Schmitz’s claim relies on an assumption that: a) the motion would have
been granted; b) the surgery would have been successful; c) the surgery would have altered
Schmitz’s behavior and psychiatric symptoms; and d) the jury would have believed that
Schmitz’s actions during the incident were induced by psychiatric problems related to the cyst.
Simply put, the evidence proffered fails to make the large leap required to demonstrate these
facts. See Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (granting habeas relief “on
25
the basis of little more than speculation with slight support” is improper). Notably, the
testimony of Dr. Tucker and Dr. Wu regarding the existence of the cyst and its alleged effect on
Schmitz’s behavior was before the jury for its assessment. The jury’s verdict, in the face of the
defense experts’ testimony, indicates that the jury did not believe that Schmitz’s cyst-related
psychiatric symptoms alleviated his culpability. Accordingly, Schmitz is not entitled to relief on
his ineffective assistance claim.
E.
Cumulative Error (Ground Eight)
Schmitz additionally alleges that the cumulative effect of the alleged errors he identifies
in Grounds One through Seven warrant reversal of his conviction. He raised this claim in his
state habeas petition to the California Superior Court, which was denied without specific
mention of this claim.
“While the combined effect of multiple errors may violate due process even when no
single error amounts to a constitutional violation or requires reversal, habeas relief is warranted
only where the errors infect a trial with unfairness.” Peyton v. Cullen, 658 F.3d 890, 896-97 (9th
Cir. 2011) (citing Chambers v. Mississippi, 401 U.S. 284, 298, 302-03 (1973)). Such “infection”
occurs where the combined effect of the errors had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623 (citation 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, 401 U.S. at 294. As discussed above, however, Schmitz does not allege
any claims that amount to error, and thus he demonstrates no errors that can accumulate to a
26
level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).
Accordingly, Schmitz is not entitled to relief on his cumulative error claim.
F.
Other Requested Relief
In his prayer for relief, Schmitz further requests various forms of additional relief. Two
of these requests have already been granted in this action, as Respondent has been ordered and
has completed its Answer in this case and has supplied the Court for its review the entire state
court record in the underlying action.
Schmitz also seeks an evidentiary hearing, discovery, authority to obtain without cost
subpoenas for witnesses and documents, and an opportunity to amend his Petition, if necessary.
But as thoroughly discussed above, Schmitz fails to bring any colorable claims, and an
opportunity to amend or supplement his Petition would not save it. Accordingly, the Court also
denies these other forms of relief.
V. CONCLUSION AND ORDER
Schmitz is not entitled to relief on any ground raised in his Amended Petition.
IT IS THEREFORE ORDERED THAT the Amended Petition under 28 U.S.C. § 2254
for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT all other requests for relief are DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 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,
27
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); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: May 13, 2016.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
28
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