Bernik v. Hatton

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 7/14/2023 RECOMMENDING the petition for writ of habeas corpus be denied. Referred to Judge Dale A. Drozd; Objections to F&R due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREY BERNIK,

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No. 2:17-cv-2348 DAD AC

Petitioner,

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v.

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FINDINGS AND RECOMMENDATIONS

SHAWN HATTON, Warden,

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Respondent.

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Petitioner is a California state prisoner proceeding through counsel with an application for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the original

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petition, ECF No. 1, which challenges petitioner’s 2011 conviction for second degree murder.

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Respondent has answered, ECF No. 11, and petitioner filed a traverse, ECF No. 22-1.
BACKGROUND

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I.

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Proceedings in the Trial Court

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A. The Evidence Presented at Trial

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The jury heard evidence of the following facts.1 Stephan Bernik owned a landscaping

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business. He negotiated to sell the business to Valeriy Pishtoy and accepted a deposit from him.

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The two could not reach agreement, however, and Pishtoy asked for his deposit back. They both

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This statement of facts is adapted from the opinion of the California Court of Appeal, Lodged
Doc. 9 at 2-4. Petitioner has expressly adopted this summary. ECF No. 1 at 10.
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agreed to meet in a supermarket parking lot to discuss the issue.
At the appointed hour, each party arrived, accompanied by friends. Stephan Bernik

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arrived in a Mazda truck that was pulling a trailer. Yury Dovgan was with him. Alex Chekayda

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and Roman Mysin arrived in a Lexus. They came at Dovgan’s request. Petitioner, who is

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Stephan Bernik’s son and Dovgan’s friend, arrived in a Nissan Titan pickup truck along with his

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two brothers.

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Dovgan had originally ridden with petitioner in the Titan, but prior to arriving at the

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supermarket, the Mazda and the Titan stopped, and Dovgan got out. He walked over to the

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Mazda, walked back, and put a gun next to the seatbelt buckle in the Titan. He then returned to

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the Mazda and rode with the elder Bernik to the supermarket.
Accompanying Pishtoy were Hariton Prutyanu, his son Aleksandr Prutyanu, and

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Yevgeniy Yakimov. Hariton arrived in his own car, and Yakimov and Aleksandr came in

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Aleksandr’s car. Pishtoy and Stephan Bernik started talking. Pishtoy heard Bernik say to another

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man, “Andrey, leave the gun.” Someone from behind Pishtoy put a rope around his throat and

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started to hit him, while Stephan Bernik hit him from the front. A violent fight broke out, and

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Pishtoy was seriously injured. One of his sons took him away.

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After the fight, the parties began fleeing the parking lot. Stephan Bernik drove out of the

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parking lot in his Mazda truck and trailer. As he did, Aleksandr’s friend Yakimov jumped onto

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the trailer. The Nissan Titan rolled by Aleksandr, and as it did, someone from inside the truck

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pointed a gun at him. Then the Titan left the lot.

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Petitioner’s friend Dovgan jumped into the Lexus with Chekayda and Mysin, and they left

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to follow Bernik’s Mazda and the Titan. Hariton and Aleksandr Prutyanu left in Hariton’s car

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and they, too, tried to follow the Mazda.

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As the elder Bernik drove the Mazda, Yakimov moved from the trailer to the Mazda’s

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bed. Bernik swerved the truck back and forth while Yakimov used a knife to break the rear

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window. With the truck still moving, Stephan Bernik opened the driver’s side door, jumped out,

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and ran away. Yakimov also jumped out of the truck, threw his knife in some bushes, and ran

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back to where his pickup was parked.
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The driverless Mazda crashed into a fire hydrant. Two witnesses stopped at the accident

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scene, and one pulled the keys out of the Mazda’s ignition. The Lexus pulled up to the scene, and

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Dovgan exited the Lexus. Carrying a crowbar, he ran up to the Mazda, angry and yelling. One of

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the witnesses calmed him down. Meanwhile, the Titan pulled up across the street, and a gunshot

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from inside the Titan hit and killed Dovgan. The Titan immediately left the scene.

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Later, the victim’s father, Vasily Dovgan, recorded a conversation he had with petitioner.

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In the conversation, petitioner admitted he killed his friend, Vasily’s son. The recording was

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played to the jury and a translated transcript was admitted into evidence by stipulation of the

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parties. In the conversation, petitioner stated that at the time of the accident, he thought his father

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had been injured or killed while driving the Mazda and had fallen over out of sight. He claimed

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that when he arrived at the scene, there were men with daggers running around, so he started

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shooting. He did not aim at anyone but thought, “Whoever I hit, I hit.” However, he stated that

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as the Titan pulled away, he thought he had “finished” the person he shot. He later learned he had

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killed “the wrong person.”

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Petitioner testified at trial. He claimed that after the parking lot fight, he and his two

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brothers drove off in the Titan. Before leaving the lot, he noticed some men on the other side of

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the fight were armed with weapons; one had a knife. These men tried to block the Titan, so he

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brandished his gun to scare them. He saw the man with the knife jump onto the Mazda’s trailer

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and make his way to the truck’s bed. The man started hitting the truck’s window with the knife.

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The Mazda and the Titan took different routes out of the parking lot, but both ended up on the

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same street, with the Mazda behind the Titan. Petitioner saw the Mazda swerving back and forth

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behind him, and his brother, who was driving the Titan, made a U-turn to go help their father.

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The Mazda almost hit them, and then it crashed. Petitioner could not see his father, so he thought

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his father had been stabbed and was slumped over in his seat.

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The Titan made another U-turn and headed back to the crash site. Petitioner saw someone

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by the Mazda who he thought was the man who had been in the back of the Mazda attempting to

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break its window, along with some people he thought were the man’s friends. He shot one time

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from the Titan to scare them away, and he saw someone fall. He asserted he just shot toward the
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Mazda and did not aim at anyone. After firing the shot, the Titan immediately sped off.

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Petitioner also did not call the police. Petitioner believed the person he shot was the person who

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had been in the back of the Mazda, whom he thought was Yakimov. He later learned he shot

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Dovgan.

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B. Outcome

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A jury convicted petitioner of second degree murder. Cal. Pen. Code, §§ 187, subd. (a),

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189. It also found that petitioner intentionally and personally used a firearm to commit the crime,

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resulting in death. Cal. Pen. Code § 12022.53, subds. (b), (c), and (d). The trial court sentenced

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defendant to a total prison term of 45 years to life: 20 years to life for the murder conviction, plus

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a consecutive 25 years to life for the firearm enhancement.
II.

Post-Conviction Proceedings
Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of

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conviction on May 2, 2016. Lodged Doc. 9. The California Supreme Court denied review on

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August 10, 2016. Lodged Doc. 16.

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On December 2, 2016, petitioner filed a motion to recall the remittitur based on

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ineffective assistance of appellate counsel. Lodged Doc. 10. The Court of Appeal summarily

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denied the motion on December 22, 2016. Lodged Doc. 12. Petitioner filed a petition for

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reconsideration on December 29, 2016, and the court denied that motion on January 5, 2017.

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Lodged Docs. 13, 14. Petitioner filed a petition for review in the California Supreme Court

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regarding the denial of the motion to recall the remittitur, which was denied on February 15,

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2017. Lodged Docs. 17, 18.

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STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), provides in relevant part as follows:
(d) 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 –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
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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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The statute applies whenever the state court has denied a federal claim on its merits,

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whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99

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(2011). State court rejection of a federal claim will be presumed to have been on the merits

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absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed,

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489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a

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decision appearing to rest on federal grounds was decided on another basis)). “The presumption

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may be overcome when there is reason to think some other explanation for the state court's

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decision is more likely.” Id. at 99-100.
The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal

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principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538

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U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established

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Federal law,” but courts may look to circuit law “to ascertain whether…the particular point in

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issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64

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(2013).

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A state court decision is “contrary to” clearly established federal law if the decision

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“contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529

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U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state

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court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to

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the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court

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was incorrect in the view of the federal habeas court; the state court decision must be objectively

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unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

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Review under § 2254(d) is limited to the record that was before the state court. Cullen v.

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Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court

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reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other

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words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182.
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Where the state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is

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confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d

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724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims

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summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a

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state court denies a claim on the merits but without a reasoned opinion, the federal habeas court

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must determine what arguments or theories may have supported the state court’s decision, and

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subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 102.

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DISCUSSION
I.

Claim One: Ineffective Assistance of Counsel
A. Petitioner’s Allegations and Pertinent State Court Record

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Petitioner alleges that his Sixth Amendment right to the effective assistance of counsel

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was violated by trial counsel’s failure to bring a motion, pursuant to Cal. Penal Code § 632, to

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exclude the illegally recorded conversation between petitioner and Vasily Dovgan. ECF No. 1 at

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14, 18. The substance of that conversation has been summarized above.

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B. The Clearly Established Federal Law
To establish a constitutional violation based on ineffective assistance of counsel, a

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petitioner must show (1) that counsel’s representation fell below an objective standard of

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reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v.

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Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an

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adverse effect on the defense. There must be a reasonable probability that, but for counsel's

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errors, the result of the proceeding would have been different. Id. at 693-94. The court need not

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address both prongs of the Strickland test if the petitioner's showing is insufficient as to one

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prong. Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of

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sufficient prejudice, which we expect will often be so, that course should be followed.” Id.

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C. The State Court’s Ruling
This claim was raised on direct appeal. Because the California Supreme Court denied

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discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned

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decision on the merits and is the subject of habeas review in this court. See Ylst v. Nunnemaker,
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501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012).
The appellate court ruled in pertinent part as follows:
To demonstrate ineffective assistance of counsel, a defendant must
show both that counsel’s performance was deficient and the deficient
performance prejudiced the defense. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) Because of
the difficulties inherent in evaluating counsel’s performance, “a court
must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
trial strategy.’ [Citation.]” (Id. at p. 689.)
Counsel’s performance here was not deficient. A motion to exclude
the conversation as an unlawful eavesdropping under section 632
would fail due to the exception contained in section 633.5. Section
632 prohibits a person from intentionally recording a confidential
communication by an electronic recording device without the
consent of all parties. (§ 632, subd. (a).) Generally, no evidence
obtained from such eavesdropping is admissible at trial. (§ 632, subd.
(d).)
However, section 633.5 provides an exception to section 632’s
prohibitions. According to section 633.5, “[n]othing in Section . . .
632 . . . prohibits one party to a confidential communication from
recording the communication for the purpose of obtaining evidence
reasonably believed to relate to the commission by another party to
the communication of . . . any felony involving violence against the
person . . . . Nothing in Section . . . 632 . . . renders any evidence so
obtained inadmissible in a prosecution for . . . any felony involving
violence against the person . . . or any crime in connection therewith.”
(§ 633.5.)
Section 633.5 exempts Vasily’s recording of his conversation with
defendant from section 632’s prohibitions, and would defeat any
objection to admitting the recording. Vasily recorded the
conversation to obtain evidence regarding defendant’s “felony
involving violence against the person.” His recording the
conversation was not prohibited, and the transcript of the recording
was admissible. Thus, any attempt by defendant’s counsel to exclude
the evidence would have been denied.
Defendant claims section 633.5 does not apply here because, as he
reads it, the statute applies only when the “felony involving violence
against the person” is a felony committed against the person who is
recording the conversation. No felony was committed against Vasily,
so, defendant contends, evidence of the conversation was not
admissible.
Defendant’s interpretation of section 633.5 is not consistent with the
statute’s language or the judicial precedent that interprets it. The
statute applies to a “party to a confidential communication,” but its
scope reaches to evidence of any felony involving violence against
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“the person.” The Legislature used the term “the person” to extend
the statute’s scope beyond the communicating parties. A “person” is
a “human being.” (Black’s Law Dict. (10th ed. 2014) p. 1324, col.
1.) Thus, for example, the phrases “crimes against the person” or
“crimes against persons” refer to a “category of criminal offenses in
which the perpetrator uses or threatens to use force” against a human
being. (Id. at p. 454, col. 2.) The Legislature’s use of the term “the
person” in section 633.5 confers the same effect on the statute. It
applies to evidence of “any felony involving violence against the
person,” or, in other words, violence against a human being.
Had the Legislature intended the statute to apply only to felonies
committed against one of the parties to the communication, it would
have limited its application to any felony involving violence against
a “party to a confidential communication,” the same term it used to
designate the persons having the communication. Instead, the
Legislature used the phrase “violence against the person.” “It is a
general rule of statutory construction that ‘[w]hen one part of a
statute contains a term or provision, the omission of that term or
provision from another part of the statute indicates the Legislature
intended to convey a different meaning.’ [Citations.]” (Klein v.
United States (2010) 50 Cal.4th 68, 80.) The term “person” in section
633.5 means something different than “party to a confidential
communication.”
Only two reported cases apply section 633.5 in fact situations similar
to this case, and both apply the meaning of section 633.5 we apply
here. People v. Maury (2003) 30 Cal.4th 342, concerned anonymous
telephone calls made to, and recorded by, a public “hotline.” The
defendant in a murder trial sought to suppress evidence of his
recorded calls to the hotline. As part of addressing that claim, the
Supreme Court stated the taped communications were lawful under
section 633.5 because they concerned three murders the police
suspected defendant committed. (Id. at p. 385.) The recordings were
lawful even though the violence was not committed against the
person who recorded the calls.
People v. Suite (1980) 101 Cal.App.3d 680, involved recordings by
state university police of telephone calls to their emergency
telephone line in which the defendant stated bombs were in various
campus buildings. The defendant claimed the recording of his calls
violated section 632. The Court of Appeal disagreed, holding among
other things that the calls were exempt from section 632 under
section 633.5. It determined a bomb threat–in this case, threats
involving buildings other than the one housing the police
department–involved the potential for the type of violence against
the person made admissible under section 633.5. (Id. at pp. 688-689.)
Again, the recordings were lawful even though the threats were not
made against the persons who recorded the calls.
The language of section 633.5 and the holdings of these cases
indicate section 633.5 applies to recorded confidential
communications containing evidence that connects a party to the
communication to any felony involving violence against any person,
not just to a felony involving violence against one of the parties to
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the confidential communication. In this case, section 633.5 would
have defeated a motion by defense counsel to exclude evidence of
defendant’s recorded conversation. Accordingly, we conclude
defense counsel did not render ineffective assistance by not moving
to exclude the evidence.

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Lodged Doc. 9 at 5-8.
D. Objective Reasonableness Under § 2254(d)

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Petitioner contends that “[t]he state court’s irrational expansion of section 633.5 to all

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cases involving crimes against any person was plainly unreasonable.” ECF No. 1 at 20:13-14

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(emphasis in original). However, the state court’s rulings on the interpretation and application of

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Cal. Penal Code §§ 632 and 633.5 are not proper subjects of federal habeas review. See Estelle v.

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McGuire, 502 U.S. 62, 67 (1991) (federal habeas relief unavailable for errors of state law). The

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sole question before this court is whether the state court was reasonable in its resolution of the

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Strickland issue, given the state of California law. This court is bound by the state court’s

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determination of what section 633.5 means and how it is properly applied. See Bradshaw v.

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Richey, 546 U.S. 74, 76 (2005) (per curiam) (“We have repeatedly held that a state court’s

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interpretation of state law, including one announced on direct appeal of the challenged conviction,

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binds a federal court sitting in habeas corpus.”); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)

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(“… state courts are the ultimate expositors of state law…and we are bound by their constructions

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except in extreme circumstances not present here.”).
Given the state court’s resolution of the state law question, its disposition of the Sixth

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Amendment question was the only possible outcome. Counsel cannot render deficient

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performance by failing to make a motion that cannot have succeeded. Nor can failure to bring a

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futile motion conceivably result in prejudice. Because there is nothing unreasonable about these

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conclusions, § 2254(d) precludes relief on this claim.
II.

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Claim Two: Excessive Pre-Charging Delay in Violation of Due Process
A. Petitioner’s Allegations and Pertinent State Court Record

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Petitioner alleges that his due process rights were violated by the unreasonable delay in

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charging him. ECF No. 1 at 14, 22. The homicide occurred on April 12, 2006. The criminal

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complaint was filed on February 19, 2009. Petitioner was arrested on February 21 and arraigned

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on February 24, 2009.

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On October 26, 2011, prior to trial, petitioner filed a motion to dismiss on grounds that the

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action’s filing nearly three years after the homicide violated his due process rights. 1 CT 118.2

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Petitioner claimed he had been prejudiced by the late filing because a recording of a witness’s

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911 call had been destroyed in the interim, and the witness’s statement to police differed from her

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statement to the 911 operator. 1 CT 123-126. The prosecution claimed the delay was caused by

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its initial determination that Cal. Penal Code § 632 barred admission of the taped conversation

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between petitioner and Vasily. When the prosecution later determined its interpretation of section

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632 was mistaken, it immediately filed charges. 1 CT 135. The trial court denied the motion to

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dismiss, finding that the prosecution’s negligence did not prejudice defendant because there is no

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statute of limitations on murder, and he could still call the witness and the person who received

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the 911 call to testify. 1 RT 5-12.3

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On appeal, petitioner did not pursue the theory that he had been prejudiced by destruction

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of the 911 call. Lodged Doc. 7 at 13. Instead, he argued in conclusory fashion that witness

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memories had faded with the passage of time. Id.

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B. The Clearly Established Federal Law

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The Sixth Amendment speedy trial guarantee does not attach until a defendant is arrested

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or charged,4 but the Due Process Clause protects against “oppressive” pre-accusation delay. See

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United States v. Lovasco, 431 U.S. 783, 788-789 (1977); United States v. Marion, 404 U.S. 307,

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324 (1971). Due process may be violated where the investigative delay was undertaken to gain

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“CT” refers to the Clerk’s Transcript on Appeal, Lodged Docs. 1 and 2.
“RT” refers to the Reporter’s Transcript on Appeal, Lodged Docs. 4 through 6.
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The United States Constitution provides that criminal defendants have “the right to a speedy
and public trial.” U.S. Const., amend. VI; see also Doggett v. United States, 505 U.S. 647, 651
(1992). The determination whether a defendant’s right to a speedy trial was violated is a factbased inquiry that requires balancing various factors of the case including the: (1) length of delay,
(2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the
defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). The length of delay serves as a
“triggering mechanism,” and if there is not a delay which is presumptively prejudicial, then there
is no reason to consider the other balancing factors. Id. The Supreme Court has not applied this
framework in the pre-accusation context.
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tactical advantage over the defendant. Lovasco, 431 U.S at 796. The mere possibility of

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prejudice from extended delay is insufficient to show a due process violation. Marion, 40 U.S. at

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325.

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C. The State Court’s Ruling
The California Court of Appeal ruled as follows:
Defendant contends he was denied his due process right against
precharging delay because the prosecution delayed arraigning him
for nearly three years after the homicide occurred. He claims he was
prejudiced due to witnesses’ memories fading and the prosecution’s
negligence. We conclude defendant forfeits this claim. He does so by
raising an argument on appeal that was not raised at trial, and by
failing to support his argument with any citations to the record. With
no evidence before us, defendant fails to establish he was prejudiced.
[…]
We conclude defendant has forfeited his due process claims. He
forfeits them on two grounds. First, he raises an argument here he did
not raise at trial. He contended at trial that he was prejudiced due to
the destruction of a 911 recording. Before us, he omits that argument
and claims he was prejudiced in part because witness memories had
faded. A criminal defendant “ ‘cannot argue the court erred in failing
to conduct an analysis it was not asked to conduct.’ ” (People v. Tully
(2012) 54 Cal.4th 952, 980.)
Second, defendant forfeits his claim because he failed to provide any
citations to the record to show the case “was replete with witnesses”
who could not remember the specifics of the event. Rule
8.928(a)(1)(B) of the California Rules of Court requires a party to
support an argument with necessary citations to the record. Where a
party does not comply with this rule, the party’s argument is deemed
forfeited. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Moreover, by providing no reference to the record, defendant fails to
show he was prejudiced by the prosecution’s delay. “A defendant
seeking relief for undue delay in filing charges must first demonstrate
resulting prejudice, such as by showing the loss of a material witness
or other missing evidence, or fading memory caused by the lapse of
time. [Citation.]” (People v. Abel (2012) 53 Cal.4th 891, 908.)
Because we do not assume prejudice (People v. Nelson (2008) 43
Cal.4th 1242, 1250), and defendant fails to establish any, our analysis
of the due process claim ends here.
Lodged Doc. 9 at 8-10.
D. Procedural Default
Respondent contends that this claim is procedurally defaulted, and the question of default
is contested. See ECF No. 1 at 24; ECF No. 11 at 27-28; ECF No. 22-1 at 5-6. Federal habeas
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review is generally barred where claims have been rejected in state court on the basis of

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independent and adequate state law rules, including procedural barriers to their consideration on

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the merits. Walker v. Martin, 562 U.S. 307, 315 (2011). District courts may nonetheless

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determine a petition on its merits, bypassing an asserted procedural defense, where the underlying

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claims lack merit. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997); see also Franklin v.

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Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). The undersigned chooses to bypass the procedural

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issue presented here.

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E. Objective Reasonableness Under § 2254(d)
In addition to finding the pre-accusation delay claim forfeited on procedural grounds, the

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court of appeal held that petitioner had not made out a due process claim because he made no

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showing of prejudice. This ruling cannot have been an objectively unreasonable application of

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Supreme Court precedent, because the Supreme Court has never held that a due process violation

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can be sustained in this context absent a showing of actual prejudice. See Wright v. Van Patten,

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552 U.S. 120, 125-26 (2008) (per curiam) (if no Supreme Court precedent provides the rule on

15

which petitioner’s claim depends, the state court’s decision cannot be contrary to, or an

16

unreasonable application of, clearly established federal law).

17

In contrast to the Sixth Amendment speedy trial context, see Barker v. Wingo, 407 U.S.

18

514, 530 (1972), in the pre-accusation delay context the Supreme Court has declined to recognize

19

any presumption of prejudice based on the length of delay. Quite to the contrary, the Court has

20

explained that the existence of statutes of limitation adequately protects defendants from the

21

potential prejudice inherent in delayed charging. Lovasco, 431 U.S. at 789; Marion, 404 U.S. at

22

322. That is precisely why a showing of actual prejudice is required. In Marion, the Supreme

23

Court reversed the dismissal of charges where the district court had found a three-year delay

24

between offense and indictment offended the constitution. Due process protects against

25

fundamental unfairness at trial, and the Court held that the three-year delay in bringing charges,

26

without more, did not demonstrate that the defendants could not receive a fair trial. Marion, 404

27

U.S. at 323-24. The Court declined to “determine when and in what circumstances actual

28

prejudice resulting from pre-accusation delays requires the dismissal of the prosecution.” Id. at
12

1

324. Marion makes clear, however, that a showing of actual prejudice is required.

2

Petitioner’s arguments that the prosecution failed to adequately justify the delay, and that

3

the state courts failed to conduct a balancing of all factors going to the reasonableness of the

4

delay, are unavailing in the federal habeas context—absent an objectively unreasonable

5

application of Supreme Court authority by the California Court of Appeal, relief is barred. No

6

Supreme Court authority puts the burden on the prosecution to justify pre-charging delay, or

7

requires balancing a la Baker v. Wingo in this context. Particularly in light of Marion, a case also

8

involving a three-year delay and no showing of actual prejudice, the state court’s rejection of

9

petitioner’s due process claim cannot be considered objectively unreasonable.

10

III.

Claim Three: Denial of New Trial Motion

11
12

A. Petitioner’s Allegations and Pertinent State Court Record
Following the jury’s verdict, petitioner moved for a new trial on grounds including newly

13

discovered evidence. 1 CT 277-285. Petitioner presented two items of evidence. The first was

14

the testimony of Dr. Boris Zhalkovsky, petitioner’s psychiatrist. Dr. Zhalkovsky had treated

15

defendant from 2004 until April 2006, less than two weeks before the homicide, for anxiety and

16

panic attacks. In an opinion rendered in June 2012, following petitioner’s November 2011

17

conviction, Dr. Zhalkovsky stated petitioner likely had a panic attack at the time of the shooting

18

arising from his perceived inability to protect his father. In Dr. Zhalkovsky’s opinion, petitioner’s

19

behavior at the time of the crime and his immediately leaving the scene demonstrated the poor

20

judgment that frequently accompanies patients with anxiety and panic attacks. 1 CT 294-297.

21

The second item of evidence consisted of a revised translation of the recorded telephone

22

conversation between defendant and Vasily Dovgan. In the version presented to the jury,

23

petitioner told Vasily that when he saw his father’s Mazda crash, he said, “That’s it, dad’s gone.”

24

The new translation provided in the motion for a new trial was, “That’s it, dad’s dead.” 1 CT

25

284-285.

26

The trial court denied the motion. It held that Dr. Zhalkovsky’s opinion did not qualify as

27

newly discovered evidence as it could have been discovered earlier with reasonable diligence.

28

Petitioner knew he had panic attacks and had received treatment for them since 2004. In addition,
13

1

he testified at trial and could have then explained any symptoms he may have experienced at the

2

time of the shooting. The revised transcript also did not qualify as newly discovered evidence, as

3

petitioner was asked at trial, and gave, his own explanation of what he said in the recorded

4

conversation. He also had the original translation for two years prior to trial when he could have

5

made a revision. In addition, the court ruled that Dr. Zhalkovsky’s opinion and the revised

6

transcript would not have changed the outcome of the case. 3 RT 880-887.

7
8
9

B. The Clearly Established Federal Law
No United States Supreme Court precedent holds that the discovery after conviction of
evidence inconsistent with that conviction, without more, establishes a violation of federal

10

constitutional rights or supports federal habeas relief. Even affirmative proof of actual innocence

11

does not provide a basis for federal habeas relief, because there is no “clearly established federal

12

law” that recognizes a substantive constitutional right not to be criminally convicted if innocent.

13

See Herrera v. Collins, 506 U.S. 390, 404 (1993); District Attorney’s Office v. Osborne, 557 U.S.

14

52 (2009) (recognizing that the Supreme Court has not decided the issue).

15

In procedural contexts where “actual innocence” may be relevant to federal habeas

16

proceedings, the standard is high: a petitioner must present reliable new evidence, in light of

17

which no reasonable jury would have convicted him. See Schlup v. Delo, 513 U.S. 298 (1995)

18

(actual innocence as exception to procedural default); McQuiggin v. Perkins, 569 U.S. 383 (2013)

19

(actual innocence as basis for equitable tolling of statute of limitations). Meeting this standard

20

does not entitle a petitioner to habeas relief; it only excuses a procedural defect that would

21

otherwise bar federal consideration of some other, independently cognizable claim of a

22

constitutional violation.

23
24
25
26
27
28

C. The State Court’s Ruling
The state appellate court ruled as follows:
“ ‘ “The determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed
unless a manifest and unmistakable abuse of discretion clearly
appears.” ’ [Citations.] ‘ “[I]n determining whether there has been a
proper exercise of discretion on such motion, each case must be
judged from its own factual background.” ’ [Citation.]
14

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“In ruling on a motion for new trial based on newly discovered
evidence, the trial court considers the following factors: ‘ “1. That
the evidence, and not merely its materiality, be newly discovered; 2.
That the evidence be not cumulative merely; 3. That it be such as to
render a different result probable on a retrial of the cause; 4. That the
party could not with reasonable diligence have discovered and
produced it at the trial; and 5. That these facts be shown by the best
evidence of which the case admits.” ’ [Citations.]” (People v.
Delgado (1993) 5 Cal.4th 312, 328.)
The trial court here did not abuse its discretion in denying the motion
for new trial sought on the basis of newly discovered evidence.
Defendant could have discovered the evidence with any diligence
prior to trial. Dr. Zhalkovsky’s opinion did not qualify as newly
discovered evidence, as defendant knew from two years prior to the
murder that he suffered anxiety and panic attacks and was being
treated for the condition by the doctor. If that was relevant to his
defense, he could have informed his trial counsel or testified about it
himself when he took the stand. He did neither. The revised transcript
also did not qualify as newly discovered evidence, as defendant had
the original transcript for two years prior to trial when he could have
informed his counsel of a mistranslation. He also explained on the
stand what he remembered he said in the conversation. In any event,
the purported mistranslation was trifling. In the context of this case,
defendant’s statement of “[t]hat’s it, dad’s gone,” is no different than,
“[t]hat’s it. Dad is dead.”
Moreover, admitting the purported new evidence on retrial was not
likely to result in a different result. Defendant admitted on the stand
and in the conversation with Vasily that he killed the victim. He
admitted the person he thought he shot was Yakimov. Although he
now says he thought his father was dead or “gone,” he claimed at
trial that he was protecting his father. Yet, he immediately left the
scene without checking on his father, he did not call the police, and
he failed to explain these actions. This was sufficient evidence to
support his second degree murder conviction with or without the new
evidence.
Lodged Doc. 9 at 12-13.
D. Objective Unreasonableness Under § 2254(d)
The appellate court denied this claim under the standards applicable to motions for new

23

trials in California, without explicit consideration of any federal constitutional issue at stake. The

24

state law question is not subject to review here in any event, as it provides no basis for federal

25

habeas relief. See Estelle, 502 U.S. at 67. Assuming a sub silentio rejection of the federal issue

26

on the merits, there is nothing unreasonable about the state court’s resolution of this claim. To

27

the contrary, because the United States Supreme Court has never held that the postconviction

28

discovery of exculpatory evidence renders a conviction unconstitutional, AEDPA bars relief. See
15

1

Wright, 552 U.S. 120, 125-26. Accordingly, even if petitioner’s evidence could be considered

2

both “newly discovered” and exculpatory, federal habeas relief would be unavailable.

3

IV.

4

A. Petitioner’s Allegations and Pertinent State Court Record

5
6

Claim Four: Jury Tampering and Related Jury Bias

During deliberations, the jury informed the court that some “family members of the case”
had had contact with some of the jurors. The court then examined the affected jurors.5

7

Juror No. 11, the jury foreperson, stated someone in the audience had asked him how

8

much jurors receive in fees for jury duty. Juror No. 11 stated he had waived the fees. After the

9

jury had finished deliberations for the day, the same person contacted three of the jurors,

10

including Juror No. 11, as they left the courthouse. He asked if they were through for the day.

11

None of the jurors responded. Minutes later, as the trio walked to their parked cars, Juror No. 11

12

noticed four people who had been in the courtroom, including the one who had questioned the

13

group moments earlier, standing around a vehicle and watching the jurors get into their cars. The

14

four people did not say anything to the jurors.

15

As Juror No. 11 drove away, he noticed one of the four people, a female, was following

16

him in her car. They both continued onto the freeway. Juror No. 11 was not certain she was

17

following him, but he performed a couple of maneuvers in traffic and outmaneuvered the vehicle.

18

He did not feel afraid from these contacts, and none of the other jurors expressed fear when they

19

heard about them.

20

Juror No. 10 had seen the same man Juror No. 11 described asking the jurors as they left

21

the courthouse if they were done for the day. The juror also saw him walk through the juror

22

parking lot. Juror No. 10 had seen a group of people outside the courthouse as the juror left for

23

the parking lot but was not sure they were watching the juror. The juror thought some of the

24

female jurors were concerned and uncomfortable about these contacts, but they were not afraid.

25

Juror No. 6 reported seeing some of the people in the courtroom audience at a restaurant

26

during lunch. One of them was the same man described by Juror Nos. 11 and 10. Juror No. 6

27
28

5

3 RT 798-862.
16

1

overheard a female in the group say “it’s murder,” and “left his father.” No one in the group

2

addressed or contacted the juror.

3

Juror No. 5 was with Juror No. 11 when, leaving the courthouse, a man asked them if they

4

were done for the day. The juror replied they were. Juror No. 5 also saw the group of people

5

from the courtroom audience watch as the jurors went to their parked cars. The man who had

6

inquired of them earlier was one of those who watched.

7

Juror No. 2 had also seen the group of people watching the jurors as they went to the jury

8

parking lot. Not wanting them to see her get into her car, Juror No. 2 held up and pretended to

9

use her phone. Juror No. 2 then saw a female and a male from the group walk through the juror

10

parking lot. The juror saw the male get into a car parked on the street that borders the lot. Seeing

11

this and hearing the other jurors talk about their experiences made Juror No. 2 wonder if she

12

should be worried.

13

Juror No. 12 stated he had sat down in the hallway next to a female. The juror did not

14

recognize her. The juror said good morning, the female said good morning, and she commented

15

on the weather. They exchanged a few words, and then the juror recognized the female as

16

someone he had seen in the courtroom. The juror got up and moved.

17

Juror Nos. 2, 5, 6, 10, 11, and 12 all stated these contacts would not affect their ability

18

to be fair and impartial to both the prosecution and the defense, and they could set the

19

contacts aside. The court inquired of the entire panel, and all of the jurors indicated they could be

20

fair and impartial for both sides.

21
22

B. The Clearly Established Federal Law
The Sixth Amendment right to a jury trial “guarantees to the criminally accused a fair trial

23

by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Down, 366 U.S. 717, 722 (1961). In a

24

criminal case, any private communication, contact, or tampering, directly or indirectly, with a

25

juror during a trial about the matter pending before the jury is deemed presumptively prejudicial.

26

Remmer v. United States, 347 U.S. 227, 229 (1954). The presumption is not conclusive,

27

however. What the constitution requires is a hearing at which a judicial officer “determine[s] the

28

circumstances, the impact [of the contacts] upon the juror, and whether or not [they were]
17

1

prejudicial[.]” Id. at 230 (ordering hearing on remand). “Due process means a jury capable and

2

willing to decide the case solely on the evidence before it, and a trial judge ever watchful to

3

prevent prejudicial occurrences and to determine the effect of such occurrences when they

4

happen.” Smith v. Phillips, 455 U.S. 209, 217 (1982).

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C. The State Court’s Ruling
The California Court of Appeal ruled as follows:
“An accused has a constitutional right to a trial by an impartial jury.
[Citations.] An impartial jury is one in which no member has been
improperly influenced [citations] and every member is ‘ “capable and
willing to decide the case solely on the evidence before it” ’
[Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.)
“A juror’s . . . involuntary exposure to certain events or materials
other than what is presented at trial generally raises a rebuttable
presumption that the defendant was prejudiced and may establish
juror bias. [Citation.] As relevant here, . . . [a] nonjuror’s
unauthorized communication with a juror during trial that concerns
the matter pending before the jury likewise raises a presumption of
prejudice. [Citations.]” (People v. Merriman (2014) 60 Cal.4th 1,
95.) Other events outside the courtroom that may require
examination for probable prejudice may “include attempts by
nonjurors to tamper with the jury, as by bribery or intimidation.” (In
re Hamilton, supra, 20 Cal.4th at p. 295.)
“[T]he presumption of prejudice is rebutted, and the verdict will not
be disturbed, if a reviewing court concludes after considering the
entire record, including the nature of the misconduct and its
surrounding circumstances, that there is no substantial likelihood that
the juror in question was actually biased against the defendant.
[Citations.] Our inquiry in this regard is a ‘mixed question of law and
fact’ subject to independent appellate review. [Citation.] But ‘ “[w]e
accept the trial court’s credibility determinations and findings on
questions of historical fact if supported by substantial evidence.”
[Citations.]’ [Citation.]” (People v. Merriman, supra, 60 Cal.4th at
pp. 95-96.)
After reviewing the record and the nature of the misconduct, we
conclude there is no substantial likelihood the jury was actually
biased against defendant due to the public contacts. Nothing in the
record indicates the jurors understood which party the people who
spoke with them and watched them were supporting. The incidents
of direct comments to the jurors did not concern any substantive issue
or evidence from the trial. Juror No. 6 overheard comments about the
case, but there was no indication the comments were directed
towards the juror or that the juror knew which party the people
supported. Some of the jurors were concerned about being watched
by people, but none of them expressed feeling fear or intimidation.

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5
6
7
8
9
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In addition, under the trial court’s questioning, each juror stated he
or she had not been affected by the contacts and could be fair and
impartial to both sides. The court was entitled to rely upon those
statements “to determine whether a juror can maintain his or her
impartiality after an incident raising a suspicion of prejudice.”
(People v. Harris (2008) 43 Cal.4th 1269, 1304.) We defer to the trial
court’s credibility determinations when supported by substantial
evidence, and the jurors’ statements are substantial. (Id. at p. 1305.)
Under the totality of the circumstances, there is no substantial
likelihood the jurors were actually biased against defendant due to
the public contacts. The trial court did not err in denying the motion
for new trial on this basis.
Lodged Doc. 9 at 15-16.
D. Objective Unreasonableness Under § 2254(d)
In applying Remmer, supra, the Ninth Circuit has consistently distinguished actual

11

tampering, defined as “an effort to influence the jury’s verdict by threatening or offering

12

inducements to one or more of the jurors” and giving rise to a strong presumption of prejudice,

13

from run of the mill ex parte contacts which carry no such presumption. United States v. Dutkel,

14

192 F.3d 893, 895 (9th Cir. 1999); see also, Moody v. Chappell, 554 Fed. Appx. 588 (9th Cir.

15

2014) (finding habeas relief unavailable under § 2254(d) where jurors were contacted but not

16

threatened or bribed by trial spectators). Taking circuit precedent as a guide to the reasonable

17

application of the Supreme Court’s jury tampering jurisprudence, see Renico v. Lett, 559 U.S.

18

766, 779 (2010) (under AEDPA, circuit authority does not define but may illuminate the contours

19

of “clearly established federal law”), the state court’s ruling was eminently reasonable.

20

Nothing in the trial court record demonstrated that any spectator had threatened or offered

21

inducements to any juror. Accordingly, petitioner cannot prevail on a theory of presumed bias.

22

The trial court held a thorough hearing that explored the impact of the contacts on each of the

23

affected jurors, which is what is constitutionally required in cases of either tampering or garden

24

variety ex parte contacts. See Remmer, 347 U.S. at 230 (tampering); Smith, 455 U.S. at 217 (ex

25

parte contacts). The court was entitled to accept the jurors’ sworn testimony that they could

26

remain impartial. Murphy v. Florida, 421 U.S. 794, 800 (1975). Because there is nothing

27

objectively unreasonable, either factually or legally, in the state court’s conclusion that

28

petitioner’s jury remained impartial despite the ex parte contacts, relief is unavailable.
19

1

V.

Claim Five: Failure to Properly Instruct the Jury on Transferred Intent

2

A. Petitioner’s Allegations and Pertinent State Court Record

3

The jury was instructed as follows pursuant to CALCRIM No. 562:

4

If the defendant intended to kill one person, but by mistake or
accident killed someone else instead, then the crime, if any, is the
same as if the intended person had been killed.

5
6

CT [].

7

Relying on People v. Matthews, 91 Cal. App. 3d 1018, 1024 (1979), petitioner requested

8

that the jury be instructed further that “any defense that applied to an intended killing, applied to

9

the unintended killing as well.” 3 RT 747. The trial court denied the request. Id.

10
11

B. The Clearly Established Federal Law
Claims of error in state jury instructions are generally matters of state law, and thus may

12

not be considered on federal habeas review. See Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993).

13

Federal habeas relief is available only where instructional error violated due process by rendering

14

the trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Alleged

15

instructional error “must be considered in the context of the instructions as a whole and the trial

16

record.” Id. at 72. In challenging the failure to give an instruction, a habeas petitioner faces an

17

“especially heavy” burden because “[a]n omission, or an incomplete instruction, is less likely to

18

be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

19
20
21
22
23
24
25
26
27
28

C. The State Court’s Ruling
The state appellate court ruled as follows:
Under the common law doctrine of transferred intent, “one’s criminal
intent follows the corresponding criminal act to its unintended
consequences. . . . [T]he reasoning applies equally to carry the lack
of criminal intent to the unintended consequences and thus preclude
criminal responsibility.” (People v. Matthews (1979) 91 Cal.App.3d
1018, 1023 (Matthews), italics omitted.) Accordingly, “the doctrine
of self-defense is available to insulate one from criminal
responsibility where his act, justifiably in self-defense, inadvertently
results in the injury of an innocent bystander.” (Id. at p. 1024.)
Defendant argued he was not guilty of any crime due to lawful selfdefense, and, alternatively, he was not guilty of murder because he
did not intend to kill. He requested a pinpoint instruction on
transferred intent. Relying on Matthews, he sought to add the
following language to CALCRIM No. 562: “any defenses that
20

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applied to any intended killing applied to the unintended killing as
well.” The trial court denied the request, holding that CALCRIM No.
562 adequately explained the law. The court instructed the jury with
CALCRIM No. 562 as follows: “If the defendant intended to kill one
person, but by mistake or accident killed someone else instead, then
the crime, if any, is the same as if the intended person had been
killed.”
Defendant contends the trial court erred by refusing to give his
pinpoint instruction modifying CALCRIM No. 562. He asserts the
instruction would have been beneficial in jury deliberations, as
defendant testified he just wanted to scare people away from his
father.
The trial court did not err. A court may refuse a proposed instruction
when another instruction covers the same point. (People v. Clark
(2011) 52 Cal.4th 856, 975.) Other instructions the court gave to the
jury here fully explained the point defendant wanted addressed. The
court instructed the jury with a pinpoint instruction also offered by
defendant, instruction No. 505a, that specifically addressed
defendant’s theory. The instruction read: “If the defendant acted in
justifiable defense of another, but he mistakenly injured or killed a
bystander, he did not commit any crime against that person. In other
words, the defendant is not guilty if he justifiably attempted to defend
another person, but by mistake he injured or killed a bystander. The
prosecution has the burden of proving beyond a reasonable doubt that
the defendant did not act in justifiable defense of another person.”
Moreover, the court gave instruction No. 505a in the context of other
instructions that addressed defendant’s defenses to the shooting. The
court instructed as follows: “If a person kills with a legally valid
excuse or justification, the killing is lawful and he has not committed
a crime;” and “[t]he defendant is not guilty of murder or
manslaughter if he was justified in killing someone in defense of
another.” The court went on fully to instruct on the defense of selfdefense.
The court also gave instructions that addressed the defense of lack of
intent to kill. The court instructed on killing in the heat of passion
and imperfect self-defense, both of which theories would have
reduced defendant’s crime to voluntary manslaughter due to a lack
of intent. In addition, the court stated: “In order to prove murder or
voluntary manslaughter, the People have the burden of proving
beyond a reasonable doubt that the defendant acted with intent to kill
or with conscious disregard for human life. If the People have not
met either of these burdens, you must find the defendant not guilty
of murder and not guilty of voluntary manslaughter.”
The court also instructed on involuntary manslaughter, where a
person kills without the intent to kill and without conscious disregard
for human life. It stated: “Involuntary manslaughter is a lesser
offense to murder . . . . When 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.” The
court fully explained the elements of involuntary manslaughter.
21

1

Taken together, the court’s instructions addressed defendant’s theory
based on transferred intent–that he acted in self-defense and did not
intend to kill. Because the theory was so fully covered, the court did
not err when it refused to give defendant’s duplicative pinpoint
instruction.

2
3
4

Lodged Doc. 9 at 17-19.
D. Objective Unreasonableness Under § 2254(d)

5

The state court’s rejection of this claim involved no objectively unreasonable application

6
7

of clearly established due process principles. The reviewing court was required to consider the

8

instructions as a whole and in the context of the entire trial, Waddington v. Sarausad, 555 U.S.

9

179, 191 (2009), and it did so. The court correctly identified several other jury instructions that

10

covered petitioner’s transferred intent theory. It is readily apparent that the jury was permitted to

11

fully consider petitioner’s assertion of self-defense in the transferred intent context – petitioner

12

testified in support of this theory, and defense counsel argued it to the jury. The jury instructions

13

did not in any way limit consideration of the defense theory. Accordingly, there was no

14

fundamental unfairness. Even if the requested pinpoint instruction was proper as a matter of state

15

law, the failure to give it does not support federal habeas relief. See Menendez v. Terhune, 422

16

F.3d 1012, 1029 (9th Cir. 2005).

17
18
19
20
21

VI.

Claim Six: Insufficient Evidence to Support Verdict
A. Petitioner’s Allegations and Pertinent State Court Record
Petitioner contends that the evidence was insufficient to disprove self-defense.
B. The Clearly Established Federal Law
Due process requires that each essential element of a criminal offense be proven beyond a

22

reasonable doubt. United States v. Winship, 397 U.S. 358, 364 (1970). In reviewing the

23

sufficiency of evidence to support a conviction, the question is “whether, viewing the evidence in

24

the light most favorable to the prosecution, any rational trier of fact could have found the essential

25

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

26

(1974). If the evidence supports conflicting inferences, the reviewing court must presume “that

27

the trier of fact resolved any such conflicts in favor of the prosecution,” and the court must “defer

28

to that resolution.” Id. at 326. “A reviewing court may set aside the jury’s verdict on the ground
22

1

of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos

2

v. Smith, 565 U.S. 1, 2 (2011) (per curiam). In other words, a verdict must stand unless it was

3

“so unsupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566

4

U.S. 650, 656 (2012).

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C. The State Court’s Ruling
The California Court of Appeal ruled as follows:
Defendant contends insufficient evidence supports his conviction of
second degree murder because he acted only to protect his father
from what he thought was an attack by a man with a knife. We
disagree, as ample evidence supports the conviction.
To convict defendant of murder, the jury had to conclude defendant
(1) committed an act that caused the victim’s death, (2) acted with
malice, and (3) killed without lawful excuse or justification. (§§ 187,
189.) Malice is either express or implied. Defendant acted with
express malice if he manifested “a deliberate intention unlawfully to
take away the life of a fellow creature.” (§ 188.) He acted with
implied malice if the killing resulted from “ ‘an intentional act, the
natural consequences of which are dangerous to life, which act was
deliberately performed by [defendant] who knows that his conduct
endangers the life of another and who acts with conscious disregard
for life.’ ” (People v. Blakeley (2000) 23 Cal.4th 82, 87.)
Substantial evidence supports the first two elements of murder.
Defendant’s act of shooting caused the victim’s death, and defendant
acted with either express or implied malice. Defendant’s later
admission that he had killed “the wrong person” implies he intended
to kill someone. Moreover, he intentionally and deliberately fired his
gun into the crowd of people gathered by the Mazda, knowing his act
would endanger their lives but consciously disregarding that fact.
Defendant’s explanation of his thought process at the time of the
shooting perfectly describes implied malice: “Whoever I hit, I hit.”
Sufficient evidence also supports the third element of murder; the
jury’s determination that defendant killed without justification. For a
killing in defense of another to be justified, the defendant must
actually and reasonably fear that the person is in imminent danger of
great bodily injury or death. (People v. Humphrey (1996) 13 Cal.4th
1073, 1082.)
Substantial evidence at trial indicated defendant did not actually
believe his father was in imminent danger. Defendant shot only one
shot from the truck, and then he and his brother immediately left the
scene without checking on their father or seeing if the shot had scared
people away. Defendant testified he believed all of the people
surrounding the Mazda were hostile to his father, yet after firing the
shot, he left the scene while purportedly thinking his father was still
surrounded by people defendant believed were hostile. Defendant
also did not seek police assistance or medical aid for his father. He
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returned to the scene some hours later after he learned he had shot
his friend. Police were there, but he did not speak with them. He
called his attorney.

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This evidence was sufficient for the jury to conclude defendant did
not actually fear that his father was in imminent danger of harm.
Because there was no actual fear, the killing was not justified, and all
of the elements of second degree murder were met.

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Lodged Doc. 9 at 19-20.
D. Objective Unreasonableness Under § 2254(d)

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Although the state court did not cite Jackson v. Virginia or explicitly apply the federal

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constitutional standard it prescribes, this court may not grant relief unless the state court’s

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analysis was objectively unreasonable under Jackson. See Early v. Packer, 537 U.S. 3 (2002)

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(even if state court fails to cite or indicate awareness of federal law, its decision must be upheld

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“so long as neither the reasoning nor the result of the state-court decision contradicts” clearly

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established United States Supreme Court authority). Nothing in the state court’s resolution of this

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issue is inconsistent with Supreme Court precedent.
Under Jackson, the appellate court was obliged to view the evidence in the light most

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favorable to the judgment and to consider all reasonable inferences in support of that judgment. It

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did so. There is nothing objectively unreasonable in the conclusion that the verdict was not

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irrational. The jury heard petitioner’s testimony in support of his self-defense theory, and

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rejected it. Neither the state appellate court nor this court may revisit that credibility

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determination under binding Supreme Court precedent. Particularly in light of the “double dose

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of deference” to the verdict that is required under Jackson and the AEDPA, Boyer v. Belleque,

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659 F.3d 957, 964 (9th Cir. 2011), federal habeas relief is unavailable.
VII.

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Claim Seven: Ineffective Assistance of Appellate Counsel
A. Petitioner’s Allegations and Pertinent State Court Record

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Petitioner alleges that appellate counsel violated minimum constitutional standards by

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failing to raise the issue that petitioner was denied his right to a fair trial when the court forced

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him to testify with a sheriff’s deputy sitting directly behind him. ECF No. 1 at 39.

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At trial, a uniformed sheriff’s deputy sat behind petitioner when he was at counsel’s table

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and also accompanied him to the witness stand and sat nearby while petitioner testified. Before

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petitioner took the stand, defense counsel asked that the escort officer remain at counsel’s table.

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2 RT 482. Counsel argued that petitioner had not shown himself to be dangerous at trial or during

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his three years of incarceration, and that he had no prior criminal record. 2 RT 483. The trial

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court rejected this request, giving the following explanation:

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Now, insofar as whether or not the escort officer is going to be
allowed to accompany the defendant to the stand, now I’ll note that
our escort officers actually are seated a lot closer to the defendants
during the course of the trial while the defendant is seated at counsel
table than they ever would be at – once or if the defendant takes the
stand.
But in this particular case, and I do understand that you know the
Court can exercise its discretion as long as the Court makes case
specific reasons for ordering the escort officer to accompany and sit
by while the defendant testifies.
And I am going to exercise that discretion. In this particular case in
the first instance we have probably the most egregious type of crime
that one man could commit against another which is murder.
So this is a very serious crime. But the Court doesn’t base its
justification solely on the nature of the crime. But I also want to
indicate that during the course of this trial it’s pretty apparent to this
Court that the defendant has a very difficult time controlling himself.
Simply put, I don’t think anyone looking at this record and looking
at this defendant and looking at the defendant’s actions during the
course of this trial, could say that he has conducted himself in an
exemplary fashion; in fact, it’s quite the contrary.
I’m concerned because the defendant can’t control himself. In fact,
on several occasions the defendant has had a number of outbursts
where we’ve essentially lost at least two days, two complete days to
this trial because he could not control himself.
I imagine that during the course of his testimony, once again we’ll
go through a situation where, once again, he can’t control himself
and he can’t control his emotions. It’s not as though he’s just sitting
there silently crying to himself and I think we’ve described it for the
record he’s – you know, he rocks back and forth, he loses his
emotions, he starts – you know, snot starts to come out of his nose,
on one occasion he started mumbling to himself.
And I’ll note that when the defendant starts doing that each time –
and I’ve had several escort officers granted. The last couple of days
I’ve had the same escort officer, each time the escort officers have
attempted to assist the defendant in trying to control his emotions.
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They’ve provided him – one occasion I saw a deputy provide him
with water. On another occasion they provided him with some
Kleenex. Next he now has a box of Kleenex in front of him.
Be that as it may, he was still unable to control himself on at least
two of those occasions the defendant started ripping at his tie, ripping
at his shirt and the deputies once again they really didn’t put their
hands on him, they didn’t attempt to subdue him in any fashion, they
attempted to simply help him. But they were unable to do so.
So I have a very real concern based on what the defendant has
demonstrated throughout the course of this trial that he’s unable to
control himself. And, God forbid, the defendant will be unable to
control himself start ripping off his clothes and run through this
court.
I haven’t seen that yet, but based on his actions he simply is not able
to control himself.
I think the Court would be remiss in this case if the Court were not
to station a deputy – let me indicate this. The deputy will be stationed
a bit further away than the deputy is stationed near the defendant as
the defendant sits at that counsel table.
I intend to have a deputy simply sit closer because it is close space
here the deputy is going to sit closer to the jury box than he would
the defendant.
I am not intending to have a deputy stand behind the defendant. I
don’t think that’s necessary that he stand behind him.
But I am going to have him sit off to the side approximately – it
would be no more than five feet from where the defendant is seated
as he testifies.
And, you know, as I indicated, I don’t know – I really don’t know
what the policy of the other courts in this county even are. I don’t
know from court to court. I imagine that judges go through the same
type of hearing that we’re conducting right now, but I’m not basing
– I want to make it clear I’m not basing my ruling on any perceived
policy around this courthouse.
And I do understand that the Court needs to balance the need for
some type of heightened security risk against the additional
precaution inherent and prejudicial, at least to the extent that the
jurors might be – the defendant might be prejudiced in the eyes of
the jury.
And I am balancing that need. But in this particular case given the
actions of the defendant throughout this trial it’s clear to me that it
would not only assist the orderly processes of this court, but it would
also benefit the defendant who is unable – simply put, has been
unable to control himself throughout this trial.

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I don’t think anyone – like I said, I don’t think anyone looking at the
case could look at the defendant and say that he is able to control
himself.

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So I have a very real concern not only for the safety of this court, but
also for the orderly administration of this court and I’ve described
that repeatedly throughout the record.

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There were several other occasions when we – counsel approached
the bench when we were considering recessing because the defendant
was unable to control himself.

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And I’ll note yesterday was one of those days. And I know you went
and talked to him and then the defendant for the first time yesterday,
although he sat there crying, he wasn’t as demonstrative as he had
been on those earlier occasions.

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So I want to make it clear that the Court has very fact specific reasons
for stationing a guard or a bailiff near the witness stand and I am – I
am going to deny your request to have the escort officer wait at the
table while the defendant testifies.

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2 RT 484-489.
The jury was subsequently instructed as follows:

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The fact that a member of the Sacramento County Sheriff’s
Department was sitting near the defendant while he testified is not
evidence. Do not speculate about the reason. You must completely
disregard that circumstance in deciding the issues in this case. Do not
consider it for any purpose or discuss it during your deliberations.

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3 RT 760.
B. The Clearly Established Federal Law

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A criminal defendant enjoys the right to effective assistance of counsel on appeal. Evitts

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v. Lucey, 469 U.S. 387, 391 (1985). Claims that this right has been violated are evaluated under

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the framework of Strickland v. Washington, 466 U.S. 668 (1984). Smith v. Robbins, 528 U.S.

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259, 285 (2000). Under Strickland, the constitution is violated when (1) counsel’s representation

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falls below an objective standard of reasonableness, and (2) the defendant is prejudiced by the

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unreasonable performance. Strickland, 466 U.S. at 692, 694. To demonstrate prejudice in the

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appellate context, petitioner must show a reasonable probability that he would have prevailed on

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appeal absent counsel’s alleged errors. Smith, 528 U.S. at 285-286.

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C. The State Court’s Ruling
The claim of appellate ineffective assistance was presented to the California Court of
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Appeal in a motion to call the remittitur, which was denied without comment. Lodged Doc. 12.

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A petition for review was summarily denied by the California Supreme Court. Lodged Doc. 18.

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D. Objective Unreasonableness Under § 2254(d)
Because the state courts rejected this claim on the merits but without a written opinion,

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this court must determine what arguments or theories may have supported the state court’s

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decision and subject those arguments or theories to § 2254(d) scrutiny. Harrington v. Richter,

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562 U.S. at 102. The question remains objective reasonableness under clearly established

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Supreme Court precedent. Id.

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Petitioner’s appellate ineffectiveness claim could reasonably have been rejected on either

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the performance prong of Strickland or for lack of prejudice, for the same reason: the claim had

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little likelihood of success. Under California law, a “deputy’s presence at the witness stand

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during a defendant’s testimony is not inherently prejudicial.” People v. Stevens, 47 Cal.4th 625,

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638 (2009). In deciding where to station security personnel in the courtroom, a court “must

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exercise its own discretion to determine whether a given security measure is appropriate on a

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case-by case basis.” People v. Hernandez, 51 Cal.4th 733, 742 (2011). Such determinations are

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reviewed for abuse of discretion. Id. at 741. Given the trial court’s extensive, case-specific

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factual findings regarding petitioner’s inability to control himself in the courtroom, there can be

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no reasonable likelihood that petitioner would have prevailed on appeal had counsel presented the

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issue. Appellate counsel cannot be faulted for deciding to weed out a weak claim. See Jones v.

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Barnes, 463 U.S. 745, 751-54 (1983). And because there is little likelihood of a different result,

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the ineffective assistance claim fails for lack of prejudice. See Smith, 528 U.S. at 285-286.

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CONCLUSION
For all the reasons explained above, the state courts’ denial of petitioner’s claims was not

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objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS

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HEREBY RECOMMENDED that the petition for writ of habeas 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 twenty-one 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.” If petitioner files objections,

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he shall also address whether a certificate of appealability should issue and, if so, why and as to

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which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed

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within fourteen days after service of the objections. The parties are advised that 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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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: July 14, 2023

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