Preston v. Lattimer

Filing 26

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge William Alsup on 5/6/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 5/6/2011)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT FOR THE

8

NORTHERN DISTRICT OF CALIFORNIA

9

United States District Court
For the Eastern District of California

10
11
12

DIANNA MAE PRESTON,

13

v.

15

C 09-02262 WHA

Petitioner,

14

No.

MARY LATTIMER, Warden,

16
17

ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS

Respondent.
_____________________________/

18
19
20

Petitioner Dianna Preston, a California state prisoner proceeding pro se, seeks a writ of
habeas corpus under 28 U.S.C. 2254. For the reasons set forth below, the petition is DENIED.

21
22

BACKGROUND

23

On May 28, 2003, a jury found petitioner guilty of the first-degree murder of Kevin LaPorta,

24

the father of petitioner’s toddler granddaughter, Kara. The events leading to petitioner’s conviction

25

are detailed below.

26

In late March or early April of 2002, petitioner began expressing concerns to her daughter,

27

Heather Pearce, that LaPorta might be molesting Kara. Heather is Kara’s mother. Heather and

28

LaPorta were not married.

1

After an overnight visit at LaPorta’s house, Heather noticed that Kara’s clitoral hood was

2

swollen on one side. Heather and petitioner took Kara to two hospitals for an examination.

3

According to petitioner, the Humboldt County Sheriff’s Department discouraged them from

4

conducting a sexual assault examination of Kara because it would be fruitless and highly invasive.

5

No examination was performed.

6
7

In late April 2002, petitioner went to a gun shop and indoor shooting range in Eureka. She
bought a gun, a Charter Arms .38 Special, and practiced at the range.

8

In early May, after picking up Kara from a visit with LaPorta, petitioner and Heather

9

observed a white substance on the sides of her vagina. They took Kara to the hospital. The

United States District Court
For the Eastern District of California

10

substance tested positive for semen. Detective Robert Metaxas of the Eureka Police Department

11

warned Heather that Kara must never be alone with LaPorta.

12

When confronted with the test results, LaPorta seemed shocked but was cooperative with the

13

police investigation. He agreed to provide a blood and DNA sample. A subsequent DNA analysis

14

eliminated LaPorta as the source of the semen sample taken from Kara.

15

Detective Metaxas then turned the focus of his investigation to petitioner and Heather. When

16

he told Heather that LaPorta was eliminated as the source of the semen, she was astounded.

17

Petitioner and Heather believed that LaPorta had somehow “planted” semen to implicate Heather.

18

On July 19, 2002, petitioner told Heather that she was going out to buy shoes. She

19

proceeded to hitchhike to Eureka. Petitioner was seen in the parking lot of LaPorta’s acupuncture

20

office in Eureka between 2:00 or 3:00 and 6:00 in the afternoon, sitting on the curb. She wore an

21

auburn wig and sunglasses. As LaPorta left his office, she approached him, pulled out a revolver

22

and shot him twice. LaPorta ran into a nearby restaurant. Petitioner followed him and shot him

23

again. She then walked to the waiting area of the restaurant and sat down. She apologized for the

24

commotion and said that she was out to get LaPorta because he had molested her granddaughter.

25

When the police arrived, she told them that she thought she just killed a man. In subsequent

26

interviews, she stated that she intended to kill LaPorta in order to protect Kara.

27
28

At trial, petitioner pled not guilty by reason of insanity. Trial counsel also requested jury
instructions regarding second-degree murder, manslaughter based on unreasonable defense of
2

1

another, and voluntary manslaughter due to heat of passion. The trial court declined to give

2

manslaughter based on unreasonable defense of another instructions for lack of supporting evidence.

3

The remaining instructions were given to the jury.

4

The jury rejected petitioner’s defense and convicted petitioner of first-degree murder with

5

personal use of a firearm, and the special circumstance of lying in wait. She was sentenced to life

6

without parole and a restitution fine was imposed.

7

The California Court of Appeal affirmed the judgment in an unpublished opinion on

8

February 14, 2005. People v. Preston, No. A103369, 2005 WL 348962 (Feb. 14, 2005). Petitioner

9

subsequently filed habeas petitions in Humboldt County Superior Court, the California Court of

United States District Court
For the Eastern District of California

10
11

Appeal and the Supreme Court of California. All were denied.
Petitioner filed the instant federal habeas petition on September 11, 2009. She alleges that

12

she received ineffective assistance of counsel at trial, the prosecutor committed misconduct, the trial

13

judge was biased, the trial court’s failure to give certain jury instructions violated her right to due

14

process and the instructions given violated her constitutional rights. Respondent filed an answer on

15

May 28, 2010, and petitioner filed a traverse on August 24, 2010.

16
17

LEGAL STANDARD

18

This court may entertain a petition for a writ of habeas corpus “in behalf of a person in

19

custody pursuant to the judgment of a State court only on the ground that he is in custody in

20

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 2254(a).

21

A district court may not grant a petition challenging a state conviction or sentence on the

22

basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication of

23

the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application

24

of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2)

25

resulted in a decision that was based on an unreasonable determination of the facts in light of the

26

evidence presented in the State court proceeding.” 28 U.S.C. 2254(d); Williams v. Taylor, 529 U.S.

27

362, 412–13 (2000). If the state court did not reach the merits of a claim, federal review of the claim

28

is de novo. Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir. 2003).
3

1

A federal court must presume the correctness of the state court’s factual findings. 28 U.S.C.

2

2254(e)(1). The state court decision implicated by section 2254(d) is the “last reasoned decision” of

3

the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. Fleming, 423 F.3d

4

1085, 1091–92 (9th Cir. 2005). When there is no reasoned opinion from the state’s highest court to

5

consider a petitioner’s claims, a federal court must “look through” the summary disposition to the

6

last reasoned decision. Ylst, 501 U.S. at 801-06.
Habeas relief is warranted only if the constitutional error at issue had a “‘substantial and

7
8

injurious effect or influence in determining the jury’s verdict.’” Penry v. Johnson, 532 U.S. 782,

9

796 (2001).

United States District Court
For the Eastern District of California

10
ANALYSIS

11
12
13

A.

Claim One
Petitioner alleges numerous instances of ineffective assistance of counsel at trial. She asserts

14

that her attorney misinformed her with regard to various aspects of the law, particularly the law

15

governing voluntary manslaughter, and failed to inform her with regard to other aspects.

16

Claims of ineffective assistance of counsel are examined under Strickland v. Washington,

17

466 U.S. 668 (1984). In order to prevail on a claim of ineffectiveness of counsel, the petitioner must

18

establish two factors. First, he must establish that counsel’s performance was deficient, i.e., that it

19

fell below an “objective standard of reasonableness” under prevailing professional norms, id. at

20

687–68, “not whether it deviated from best practices or most common custom,” Richter, 131 S. Ct.

21

at 788 (citing Strickland, 466 U.S. at 650). “A court considering a claim of ineffective assistance

22

must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of

23

reasonable professional assistance.” Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 689).

24

Second, he must establish that he was prejudiced by counsel’s deficient performance, i.e., that “there

25

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

26

would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is a probability

27

sufficient to undermine confidence in the outcome. Ibid. Where the defendant is challenging his

28

conviction, the appropriate question is “whether there is a reasonable probability that, absent the
4

1

errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. Overall, “the

2

standard for judging counsel’s representation is a most deferential one.” Richter, 131 S. Ct. at 788.

3

Petitioner asserts that her attorney falsely told her that whether or not any molestation

4

occurred was irrelevant to her defense. Counsel’s advice however, was correct. Under California

5

law, where there is reasonable belief in an event giving rise to a provocation, the provocation may be

6

deemed adequate for voluntary manslaughter, even if the belief is false. People v. Brooks, 185 Cal.

7

App. 3d, 687, 694 (1986) (emphasis added). Since counsel’s advice was sound, his representation

8

was not deficient.

9

Petitioner claims that trial counsel wrongly advised her that “without [her] insanity plea,

United States District Court
For the Eastern District of California

10

[she] was one hundred percent certain to be convicted of first degree murder and sentenced to life

11

without parole” (Pet. at App. D, p. 21). Given the overwhelming evidence of premeditation, trial

12

counsel’s assessment appears reasonable. Petitioner bought a gun and practiced shooting it,

13

travelled to Eureka with her gun and ammunition, waited for LaPorta in the parking lot, walked up

14

to him and shot him before following him into a restaurant and shooting him several more times.

15

Moreover, petitioner fails to demonstrate that counsel’s prediction adversely affected the outcome of

16

his trial. See Strickland, 466 U.S. at 694.

17

Petitioner claims that trial counsel falsely told her that “heat of passion” manslaughter has a

18

requirement of immediacy, but her legal research indicates that legally adequate provocation may

19

occur over a considerable period of time. The record does not support petitioner’s allegations.

20

When requesting jury instructions regarding voluntary manslaughter at a hearing attended by

21

petitioner, trial counsel noted that heat of passion can build over time (Resp’t’s Ex. 8 at 422).

22

Furthermore, heat of passion can also cool. As the jury instructions explained, a defendant must act

23

“under direct and immediate influence of the quarrel or heat of passion” and not after “sufficient

24

time has elapsed for angry passion to end and for reason to control [the accused’s] conduct” (id. at

25

539). Since petitioner killed LaPorta approximately two months after Kara’s last visit with him,

26

“heat of passion” does not appear to have been a viable defense theory.

27

Petitioner alleges that trial counsel falsely told her that purchasing a gun ahead of time

28

proved malice aforethought and “automatically [made her] guilty of murder” (Pet. at App. D, p. 21).
5

1

Trial counsel’s assessment of the evidence however, appears reasonable. Petitioner’s purchase of

2

her gun over two months before killing LaPorta is strong evidence of malice aforethought. In any

3

event, petitioner fails to demonstrate that trial counsel’s statement adversely affected the outcome of

4

the trial. Strickland, 466 U.S. at 694.

5

Petitioner asserts that her trial counsel falsely told her that lying in wait alone proves first

6

degree murder. California Penal Code § 189 provides that “all murder which is perpetrated by

7

means of . . . lying in wait . . . is murder of the first degree.” Since trial counsel’s explanation of the

8

law was correct, his performance was not deficient.

9

Petitioner further alleges that trial counsel failed to inform her of various aspects of the law.

United States District Court
For the Eastern District of California

10

More specifically, she asserts that he did not tell her that a “jury is entitled to find a defendant guilty

11

of a lesser included offense,” that voluntary manslaughter is a lesser included offense of murder, that

12

a court must find a defendant guilty of the lesser offense when the evidence equally supports guilt of

13

a greater and a lesser offense, that evidence of provocation overcomes a presumption of malice, that

14

the heat of passion justifies giving voluntary manslaughter instructions if such passion would be

15

aroused in the mind of an ordinary person under the circumstances, that the “legal definition of

16

malice” does not apply to her, that malice is an essential element of murder, that the distinguishing

17

element between murder and manslaughter is malice, that if malice is not proven beyond reasonable

18

doubt, the jury must convict only of manslaughter, that a crime “could be mitigated to manslaughter

19

if the defendant establishes by a preponderance of the evidence that he acted under extreme

20

emotional disturbance,” that the jury must be instructed on a defense where there is substantial

21

evidence of excuse or justification, that the jury decides all matters of fact, and that the “character of

22

the defendant is crucial in determining whether the a homicide is murder or manslaughter” (Pet. at

23

App. D, p. 22-24). Petitioner fails to cite any Supreme Court authority requiring trial counsel to

24

discuss in detail the law of a lesser included offense, or every aspect of malice and voluntary

25

manslaughter with his client. Moreover, petitioner fails to establish that had she been informed of

26

the aforementioned, the outcome of her trial would have been different. Strickland, 466 U.S. at 694.

27
28
6

1

Petitioner alleges numerous other similar instances of ineffective assistance. The court has

2

reviewed all of her allegations and finds that they all lack merit. Accordingly, claim one is DENIED.

3

B.

4

Claim Two
Petitioner alleges that her trial counsel aided the prosecution in convicting her of first-degree

5

murder throughout her trial. She contends that counsel “trivialized, distorted or left out altogether

6

[her] real evidence for the molest; exaggerated or misrepresented [her] trivial evidence, and

7

assassinated her character” (Pet. at App. D, p. 26).

8

More specifically, petitioner contends that counsel neglected to investigate and present

9

favorable evidence. She asserts for example, that the jury should have heard that she passed a

United States District Court
For the Eastern District of California

10

Computer-assisted Voice Stress Analysis (CVSA) test, a type of polygraph test (Pet. at App. E, p.

11

37). Defense counsel did, however, attempt to introduce this evidence, but the prosecutor refused to

12

stipulate to its admission. Under California law, such a stipulation is required for the admission of

13

the results of polygraph tests. See Cal. Evid. Code § 351.1(a). Furthermore, evidence that petitioner

14

took the test was admitted when a police detective’s statement was played for the jury. In the

15

statement, Detective Hubbard refers to petitioner having taken the test (Resp’t’s Ex. 2, at 13-14).

16

Accordingly, counsel was not deficient for failing to present this evidence.

17

Petitioner alleges that counsel should have presented evidence that LaPorta refused to take a

18

CVSA test. California Evidence Code § 351.1(a) however, prohibits admission of evidence of an

19

offer to take or a refusal to take a polygraph examination. Evidence of LaPorta’s refusal to take a

20

CVSA test therefore would have been inadmissible at trial. Counsel’s failure to present this

21

evidence did not constitute deficient performance.

22

Petitioner contends that trial counsel entered a stipulation regarding the CVSA evidence

23

which was so “damaging that it alone undermines confidence in the verdict” (Pet. at App. D, p. 27).

24

According to petitioner, Detective Metaxas, who was investigating Kara’s alleged molestation, told

25

her, “as a ruse,” that LaPorta had taken and passed the CVSA test (Pet. at App. E, p. 37). In taped

26

statements played to the jury, petitioner referred to her belief that LaPorta had passed a lie detector

27

test. Subsequently, the parties entered the following stipulation (Resp’t’s Ex. 8 at 505):

28
7

1
2
3

There has been mention of a voice stress analyzer test. Any such test has not been
proven to be scientifically reliable. The test is used as an investigative tool, however
the results are generally inadmissible in a court of law. In this case such evidence is
offered only to show the belief or mental state of the person who mentioned the test.
It is not offered to show that such test was actually taken or what if any results were
obtained from it.

4
Petitioner’s fails to demonstrate that counsel was ineffective for entering the stipulation. He
5
does not establish, for example, that the stipulation inaccurately summarized the law governing the
6
admissibility of polygraph tests or the relevance of the evidence to petitioner’s mental state.
7
Petitioner’s allegation lacks merit.
8
9

United States District Court
For the Eastern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Petitioner further alleges that counsel was ineffective for failing to disclose that Heather had
taken and passed the CVSA test when he questioned her and Detective Metaxas at trial, to find out
that LaPorta had actually refused to take the CVSA test, to discover that Detective Metaxas ‘had lied
to Heather about it,” and to ascertain, in questioning Heather, the basis for petitioner’s belief that
LaPorta was “evil” (Pet. at App. E, p. 41). With respect to all of these allegations, even assuming
that counsel’s performance was somehow deficient, petitioner fails to establish that but for his
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
Petitioner also alleges that counsel was ineffective for failing to preserve “issues” in
connection to the CVSA evidence for appeal. Since no error occurred in connection to the CVSA
evidence, there were no claims to preserve for appeal.
Petitioner asserts that counsel was ineffective for failing to present evidence of the swelling
of Kara’s clitoris after her second visit with LaPorta. Kara’s second visit with LaPorta took place in
April 2002. Petitioner killed LaPorta in July 2002. To the extent that petitioner alleges that this
evidence would have supported a finding of voluntary manslaughter due to heat of passion,
petitioner fails to establish that any provocation occurring in April 2002 would have continued to
arouse the passion of an ordinary person three months later when LaPorta was killed. See Brooks,
185 Cal. App. 3d at 694. Trial counsel’s decision to not focus on Kara’s injuries was reasonable.
Petitioner also asserts that counsel failed to investigate medical records relating to Kara’s
injury and failed to present evidence of Kara’s behavior, which led petitioner to suspect molestation.
As noted above, trial counsel’s decision to not focus on Kara’s injuries was reasonable.

8

1

Furthermore, even assuming that counsel’s performance was somehow deficient in this regard,

2

petitioner fails to establish that but for his errors, the result of the proceeding would have been

3

different. Strickland, 466 U.S. at 694.

4

Petitioner alleges that trial counsel “suppressed evidence, failed to object to prosecutorial

5

misconduct and assisted the district attorney in distorting everything the jury heard” (Pet. at App. D,

6

p. 27). Petitioner’s allegations are vague and conclusory, and accordingly lack merit. James v.

7

Borg, 24 F.3d 20, 26 (9th Cir. 1994).

8
9

Petitioner alleges myriad other similar instances of ineffective assistance. The court has
reviewed all of her allegations and finds that they all lack merit. Accordingly, petitioner’s claim two

United States District Court
For the Eastern District of California

10

is DENIED.

11

C.

12

Claim Three
Petitioner alleges that the prosecutor committed misconduct by withholding certain evidence

13

from the jury. She asserts that the prosecutor failed to disclose that LaPorta refused to take the

14

CVSA test, withheld a medical report documenting Kara’s injury, and failed to disclose that

15

Detective Metaxas had lied to Heather about LaPorta having taken the CVSA test. She further

16

alleges that the prosecutor committed misconduct by asserting in his opening statement that Kara

17

had undergone a “sexual assault response team” (SART) exam which failed to reveal molestation.

18

She asserts that the only SART exam Kara undertook revealed that the substance found on the sides

19

of her vagina following her visit with LaPorta was, in fact, semen.

20

Respondent asserts that this claim is procedurally defaulted because the state court denied it

21

on the independent and adequate state law ground, created by In re Dixon, 41 Cal. 2d 756 (1953),

22

that it could have been, but was not on raised on direct appeal. Respondent is correct. See Smith v.

23

Crose, 2010 WL 1660240 (E.D. Cal. 2010), Protsman v. Pliler, 318 F. Supp. 2d 1004 (S.D. Cal.

24

2004). Even assuming that the claim is not defaulted however, it lacks merit.

25

The Supreme Court has held that "the suppression by the prosecution of evidence favorable

26

to an accused upon request violates due process where the evidence is material either to guilt or to

27

punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373

28

U.S. 83, 87 (1963). Evidence is material "if there is a reasonable probability that, had the evidence
9

1

been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable

2

probability' is a probability sufficient to undermine confidence in the outcome." United States v.

3

Bagley, 473 U.S. 667, 682 (1985).

4

“There are three components of a true Brady violation: [t]he evidence at issue must be

5

favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence

6

must have been suppressed by the State, either willfully or inadvertently; and prejudice must have

7

ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

8

Here, petitioner fails to establish that LaPorta’s refusal to take the CVSA test was“material”

9

to her guilt or punishment, or that the prosecution’s non-disclosure of this evidence prejudiced her.

United States District Court
For the Eastern District of California

10

See Brady, 373 U.S. at 87; Strickler, 527 U.S. at 281. Accordingly, no Brady violation occurred.

11

The prosecution’s alleged non-disclosure of Kara’s medical report also fails to give rise to a

12

Brady violation. The medical report at issue is one prepared by Dr. Joseph Carroll, dated April 27,

13

2002, in which he notes the “swelling of the clitoral hood” (Pet. at App. F, p. 52). This document

14

does not appear to be either exculpatory or impeaching. Strickler, 527 U.S. at 281-82 . Petitioner

15

also fails to demonstrate that the prosecution was in possession or aware of this report. See United

16

States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985) (prosecution not required to

17

disclose information it does not possess.) No Brady violation occurred.

18

The prosecution’s failure to disclose that Detective Metaxas had lied to Heather about

19

LaPorta having taken the CVSA test similarly fails to give rise to a Brady violation. Apparently,

20

Detective Metaxas made this statement after the focus of his investigation of Kara’s alleged

21

molestation turned to petitioner and Heather. Petitioner fails to establish that this nondisclosure was

22

so serious that there is a reasonable probability that the suppressed evidence would have produced a

23

different verdict. Strickler, 527 U.S. at 281.

24

Finally, petitioner’s contention that the prosecutor committed misconduct by asserting in his

25

opening statement that Kara’s SART exam failed to reveal molestation also lacks merit. The

26

prosecutor’s opening statements are not contained in the record pursuant to California Appellate

27

Court Rule 8.320(c)(3). Instead, petitioner offers her notes, taken during trial, which state: “SART

28

not done 1st time because the sheriff lied about the nature of the exam. (Can’t say exam showed
10

1

nothing.) Said the exam would hurt the baby” (Pet. at App. F, p. 56). Assuming that petitioner’s

2

notes accurately reflect the prosecutor’s statements at trial, his misstatement that a SART exam was

3

conducted during Kara’s first medical visit does not rise to the level of egregious misconduct that

4

amounts to a violation of due process. See Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996)

5

(even if a prosecutor’s argument is egregiously improper, a federal court cannot issue a writ of

6

habeas corpus to state authorities unless the prosecutor’s comments so infected the trial with

7

unfairness as to make the resulting conviction a denial of due process.”) The prosecutor’s alleged

8

comments did not render petitioner’s trial unfair.

9

The court has reviewed all of the allegations raised in petitioner’s third claim and concludes

United States District Court
For the Eastern District of California

10

that they lack merit. Accordingly, claim 3 is DENIED.

11

D.

12

Claim Four
Petitioner asserts that judge was impartial because he initially denied a request for a change

13

of venue, declined to give voluntary manslaughter instructions, rendered her “Marsden” hearing a

14

“farce,” and succumbed to “small town dynamics” and “groupthink” (Pet. at App. D, p. 31-34).

15

Respondent asserts that this claim is procedurally defaulted because the state court denied it

16

on the independent and adequate state law grounds that it could have been, but was not on raised on

17

direct appeal. As in claim 3, respondent is correct. Even assuming that the claim is not defaulted

18

however, it lacks merit.

19

The Due Process Clause guarantees a criminal defendant the right to a fair and impartial

20

judge. See In re Murchison, 349 U.S. 133, 136 (1955); Kennedy v. Los Angeles Police Dep't, 901

21

F.2d 702, 709 (9th Cir. 1989). A claim of judicial misconduct by a state judge in the context of

22

federal habeas review does not simply require that the federal court determine whether the state

23

judge committed judicial misconduct; rather, the question is whether the state judge's behavior

24

"rendered the trial so fundamentally unfair as to violate federal due process under the United States

25

Constitution." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (citations omitted), cert. denied,

26

517 U.S. 1158 (1996). A state court finding of the absence of judicial bias is entitled to the

27

presumption of correctness under 28 U.S.C. 2254(e)(1). Ortiz v. Stewart, 149 F.3d 923, 938 (9th

28

Cir. 1998).
11

1

Petitioner’s contends that the judge was biased because he initially denied her motion for a

2

change of venue, and when he ultimately granted it, lamented the difficulty the victim’s friends and

3

family would experience attending the trial. As discussed below, these allegations lack merit.

4

In his order denying petitioner’s motion for a change of venue, the judge stated:

5

8

There are factors which favor both retention and change of venue. In considering
those factors, both quantitavely and qualitatively, and the facts and analysis
underlying each of the factors, it cannot be said at this stage of the proceedings there
is a reasonable likelihood that the defendant cannot receive a fair and impartial trial in
Humboldt County. The most that can be said is that such is a mere a possibility. Jury
questionnaires and/or voir dire may help to answer whether that possibility rises to
the required higher level.

9

(Resp’t’s Ex. 1 at 187-188). Following the completion of voir dire, petitioner’s counsel renewed his

10

motion for a change of venue. The trial court granted this motion, noting that “it is without question

11

that there is a reasonable likelihood that Miss Preston cannot get a fair and impartial trial in this

12

county due to the extensive pretrial publicity and the knowledge that prospective jurors have about

13

the case and the opinions that they have formed” (Resp’t’s Ex. 8 at 11). The court noted that it was

14

“mindful of the unfortunate effects that the change of venue will have on so many,” that it would be

15

a financial burden for the county, offices of the District Attorney and Public Defender, and that it

16

would be difficult for the friends and family of the victim to attend the trial (id. at 12).

6

United States District Court
For the Eastern District of California

7

17

The judge’s rulings and comments do not provide evidence of bias. The judge merely

18

expressed sympathy for the many parties who would be inconvenienced by his ruling. Petitioner

19

fails to overcome the overcome the presumption of correctness of the state court’s finding of a lack

20

of judicial bias. Ortiz, 149 F.3d at 938.

21

Petitioner alleges that the judge was biased because he initially ruled that voluntary

22

manslaughter instructions were not warranted for lack of supporting evidence. Petitioner’s

23

disagreement with the judge’s legal ruling does not constitute evidence of bias. See Poland v.

24

Stewart, 117 F.3d 1094, 1103 (9th Cir.1997) (judicial rulings almost never constitute a valid basis

25

for allegations of bias.) Moreover, as petitioner herself admits, the judge ultimately did give the jury

26

voluntary manslaughter instructions (Pet. at App. D, p. 31). Petitioner’s allegation lacks merit.

27

Petitioner alleges that the judge displayed bias at her “Marsden” hearing, rendering his

28

decision that her trial counsel was adequately representing her “meaningless” (Pet. at App. D, p. 33).
12

1

Petitioner’s conclusory allegations are insufficient to overcome the state court’s factual finding of a

2

lack of judicial bias. Ortiz, 149 F.3d at 938.

3

Petitioner alleges that various factors, such as “small town dynamics,” the phenomenon of

4

“groupthink,” and the fact that the judge at her trial was elected, all provide additional evidence of

5

bias (Pet. at App. D, p. 3-34). Again, petitioner’s conclusory allegations are insufficient to

6

overcome the state court’s factual finding of a lack of judicial bias. Ortiz, 149 F.3d at 938.

7

The court has reviewed all of petitioner’s allegations of judicial bias and concludes that none

8

have merit. Claim four is therefore DENIED.

9

E.

United States District Court
For the Eastern District of California

10

Claim 5
Petitioner alleges that the trial court violated his constitutional rights by failing to give

11

certain required jury instructions. Respondent counters that this claim is procedurally defaulted

12

because the state court denied it on the independent and adequate state law grounds that it could

13

have been, but was not on raised on direct appeal. As in claims 3 and 4, respondent is correct. Even

14

assuming that the claim is not defaulted however, it lacks merit.

15

In order to obtain federal habeas relief on grounds of instructional error, a petitioner must

16

prove that the error “so infected the entire trial that the resulting conviction violates due process.”

17

Estelle v McGuire, 502 U.S. 62, 72 (1991). The instruction must be viewed in the context of the

18

entire trial and the jury instructions taken as a whole. Ibid. “An omission, or an incomplete

19

instruction, is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431

20

U.S. 145, 155 (1977).

21

Petitioner contends that the trial court should have instructed the jury with CALJIC No. 8.74

22

because a use note suggests that “this instruction be given sua sponte” (Pet. at App. D, p. 34). She

23

further alleges that the trial court erred by failing to instruct the jury with CALJIC 8.75 because its

24

use note states that “the court must give either 8.75 or else 17.10 and 17.49. 17.10 by itself is not an

25

option.” Ibid. Petitioner states that at her trial, only CALJIC 17.10 was given. Ibid. Petitioner also

26

claims that the court erred by failing to instruct, in accordance with California case law, that “a

27

homicide which just misses being justifiable by a hair is not murder but manslaughter.” Id. at 35.

28

Finally, petitioner alleges that the trial court erred by failing to instruct that California Penal Code
13

1

§ 1159 allows a jury “to convict a defendant of a lesser included offense for any reason.” Ibid.

2

Petitioner fails to demonstrate that the trial court’s failure to give the above-mentioned jury

3

instructions violated her federal right to due process. At most, she raises errors of state law, which

4

are not cognizable on federal habeas. Estelle, 502 U.S. at 71-72. Accordingly, claim five lacks

5

merit and is DENIED.

6

F.

7

Claim Six
Petitioner alleges that CALJIC No. 8.11 “unconstitutionally shifted the burden of proof to the

8

defense” (Pet. at App. D, p. 35). She contends that since CALJIC No. 8.11 states that “malice is

9

express where there is manifested an intention unlawfully to kill a human being,” but CALJIC No.

United States District Court
For the Eastern District of California

10

8.40 states that “every person who unlawfully kills another human being without malice aforethought

11

but either with an intent to kill or with conscious disregard for human life is guilty of manslaughter,”

12

there is no such thing as voluntary manslaughter because “every intentional, unlawful killing is done

13

with malice” under the definition of CALJIC No. 8.11. Id. at 35-36a (emphasis added).

14

Respondent counters that this claim is procedurally defaulted because the state court denied

15

it on the independent and adequate state law grounds that it could have been, but was not on raised

16

on direct appeal. As in claims 3–5 , respondent is correct. Even assuming that the claim is not

17

defaulted however, it lacks merit.

18

When the instructions issued at petitioner’s trial are viewed as a whole, it is clear that the

19

jury was properly instructed. See Estelle, 502 U.S. at 72. The voluntary manslaughter instructions

20

began as follows:

21
22
23
24
25
26
27

Every person who unlawfully kills another human being without malice aforethought
but either with an intent to kill or with conscious disregard for human life is guilty of
voluntary manslaughter in violation of Penal Code Section 192(a). There is no
malice aforethought if the killing occurred upon a sudden quarrel or heat of passion.
(Resp’t’s Ex. 8 at 537). The jury was also instructed as follows:
The distinction between murder and manslaughter is that murder requires malice
while manslaughter does not. When the act causing the death though unlawful is
done in the heat of passion or is excited by a sudden quarrel that amounts to adequate
provocation the offense is manslaughter. In that case, even if an intent to kill exists,
the law is that malice which is an essential element of murder is absent.

28
14

1

Id. at 540 (emphasis added). The record demonstrates that jury was clearly instructed on the

2

distinction between murder and manslaughter, and was told that it could find petitioner guilty of

3

voluntary manslaughter even if it found that she had an intent to kill. Petitioner’s claim six is

4

therefore DENIED.

5
6

CONCLUSION

7

The state court’s adjudication of petitioner’s claims did not result in a decision that was

8

contrary to, or involved an unreasonable application of, clearly established federal law, nor did it

9

result in a decision that was based on an unreasonable determination of the facts in light of the

United States District Court
For the Eastern District of California

10

evidence presented in state court proceedings. Accordingly, the petition is DENIED. The clerk shall

11

enter judgment in favor of respondent and close the file.

12

Furthermore, a certificate of appealability will not issue. Reasonable jurists would not “find

13

the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

14

529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the Court of

15

Appeals.

16

IT IS SO ORDERED.

17
18

DATED:

May 6, 2011

___________________________________
WILLIAM H. AlSUP
United States District Judge

19
20
21
22
23
24
25
26
27
28
15