Ross v. Swarthout

Filing 22

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Richard Seeborg on 4/8/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 4/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS

Petitioner,

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No. C 11-2806 RS (PR)

LEONARD ROSS, II,

v.
G. SWARTHOUT, Warden,
Respondent.
______________________________ /

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INTRODUCTION
Petitioner seeks federal habeas relief from his state convictions. For the reasons set
forth below, his petition for such relief is DENIED.

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BACKGROUND
In 2008, a Santa Clara County Superior Court jury convicted petitioner of battery and

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assault, consequent to which he was sentenced to a term of 36 years-to-life in state prison.1

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Petitioner was denied relief on state judicial review. This federal habeas petition followed.

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This was his second trial on these charges. His first conviction was reversed on
appeal. (Ans., Ex. 2 at 1.)
No. C 11-2806 RS (PR)
ORDER DENYING HABEAS PETITION

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Evidence presented at trial showed that in 2004, petitioner punched an adult female in

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response to her slapping him during an argument. He punched her about 15 times on the left

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side of her face. It took the efforts of a 300-pound man to pull petitioner away from the

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victim, who required surgery to treat her injuries. As grounds for federal habeas relief,

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petitioner claims that the trial court’s self-defense instruction (CALCRIM No. 3470)

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inaccurately stated the law and therefore its presentation to the jury violated his right to due

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process.

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STANDARD OF REVIEW
This Court may entertain a petition for a writ of habeas corpus “in behalf of a person

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United States District Court
For the Northern District of California

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

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

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A writ of habeas corpus may not be granted with respect to any claim adjudicated on the

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merits in state court unless the state court’s adjudication: “(1) resulted in a decision that was

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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 (2) resulted in a decision that was

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based on an unreasonable determination of the facts in light of the evidence presented in the

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State court proceeding.” 28 U.S.C. § 2254(d). The first prong applies to questions of law and

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to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407–09 (2000), while

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the second prong applies to decisions based on factual determinations. Miller-El v. Cockrell,

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537 U.S. 322, 340 (2003).

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Under the first prong, a state court decision will be deemed contrary to clearly

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established federal law only if “the state court arrive[d] at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the state court decide[d] a case

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differently than [the Supreme] Court has on a set of materially indistinguishable facts.”

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Williams, 529 U.S. at 412–13. A state court decision will be deemed an unreasonable

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application of clearly established federal law “if the state court identifie[d] the correct

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governing legal principle from [the Supreme] Court’s decisions but unreasonably applie[d]

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No. C 11-2806 RS (PR)
ORDER DENYING HABEAS PETITION

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that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court may

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not issue the writ simply because that court concludes in its independent judgment that the

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relevant state-court decision applied clearly established federal law erroneously or

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incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

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DISCUSSION

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Petitioner claims that the trial court’s use of CALCRIM No. 3470 denied him the

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privilege of self-defense because it misstated the law.2 He argues, specifically, that it

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(1) conveyed the impression that self-defense is available only to one facing an imminent

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battery and not an imminent assault, and (2) left the jury to determine only whether the

United States District Court
For the Northern District of California

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amount of force used, and not the means by which that force was applied, was reasonable.

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The state appellate court, however, concluded that the instruction was a correct statement of

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the law. (Ans., Ex. 2 at 6.)

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Habeas relief is not warranted here. First, the state appellate court’s interpretation

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that the instruction correctly stated California law binds this federal habeas court. Bradshaw

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v. Richey, 546 U.S. 74, 76 (2005). That ends the matter.

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Second, even if that were not the end of the matter, the instruction is not reasonably

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susceptible to petitioner’s interpretation. In California, the privilege of self-defense serves to

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protect those persons who, having reasonably perceived an imminent harm to their person,

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use force that is reasonably necessary to defend themselves from injury. See People v.

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Minifie, 13 Cal. 4th 1055, 1064–65 (Cal. 1996). As embodied in CALCRIM No. 3470, the

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privilege of self-defense is available to any actor who (1) reasonably perceived imminent

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harm to his person, (2) reasonably believed that the use of force was necessary to defend

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against that harm, and (3) used no more force than was reasonably necessary to defend

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himself from injury.

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Defense counsel proposed the giving of the standard form of CALJIC No. 3470,
proposing no changes and offering no objection to its wording. (Ans., Ex. 4 at 650–51.) In
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closing argument, he noted the requirements CALCRIM No. 3470 embodies. (Id. at
995–97.)
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No. C 11-2806 RS (PR)
ORDER DENYING HABEAS PETITION

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Contrary to petitioner’s claim, CALCRIM No. 3470 did not convey the impression

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that self-defense is available only to one who acts in response to a threatened battery and not

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a threatened assault. As the state appellate court noted, “technical distinction between assault

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and battery, which is central to [petitioner’s] argument, has no apparent bearing on the right

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of self-defense.” (Ans., Ex. 2 at 6.) Therefore, “the jury was quite properly told [that] the

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right of self-defense arises from a reasonable belief on the defendant’s part that he is in

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imminent danger of suffering bodily injury . . . Nothing in this language, or in the law it is

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intended to reflect, requires the jury to find either an imminent battery or an attempted

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assault.” (Id. at 6–7.) Petitioner’s suggested embellishments to the instruction “could only

United States District Court
For the Northern District of California

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have confused the jury.” (Id. at 9.)
Also, CALCRIM No. 3470 does not forbid the jury from considering whether the

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means used to inflict force was reasonable. In fact, case law supports the jury’s

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consideration of the means: “for a claim of self-defense to be sustained, the means employed

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must have been reasonable.” (Id. at 11.) Such consideration, however, “would be subsumed

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by the more traditional question of reasonable force.” (Id. at 12) (italics omitted). Thus, the

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instruction did not require that the jury in this case evaluate only the amount of force

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petitioner used, or exclude its consideration of the means used.

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In sum, because the state appellate court’s determination of state law binds this Court,

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and because CALCRIM No. 3470 did not misstate the law or otherwise mislead the jury, its

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application in this case did not result in a violation of due process. Because there was no

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constitutional violation, the state court’s decision was reasonable and is entitled to AEDPA

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deference. Accordingly, petitioner’s claim is DENIED.

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CONCLUSION

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

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

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

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the evidence presented in the state court proceeding. Therefore, this petition is DENIED.

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No. C 11-2806 RS (PR)
ORDER DENYING HABEAS PETITION

A certificate of appealability will not issue. Reasonable jurists would not “find the

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

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

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the Court of Appeals. The Clerk shall enter judgment in favor of respondent and close the

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file.

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Petitioner has filed a motion for discovery. (Docket No. 20.) However, his motion

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does not request additional time to conduct discovery, nor does it specify the evidence he

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seeks. Rather, the motion appears to contain an additional claim.

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Petitioner was required to “specify all the grounds for relief available to [him]” and to

United States District Court
For the Northern District of California

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“state the facts supporting each ground” in his petition. Rule 2(c), Rules Governing Section

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2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. If he wishes to

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amend his petition, he must seek the permission of this Court. Mayle v. Felix, 545 U.S. 644,

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654–55 (2005) (citing Fed. R. Civ. P. 15(a)). Insofar as it is a motion to amend the petition,

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it is DENIED. Petitioner has shown no grounds justifying such a late amendment. Insofar as

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it is a discovery motion, it is DENIED. The Clerk shall terminate Docket No. 20, enter

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judgment in favor of respondent, and close the file.

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IT IS SO ORDERED.
DATED: April 8, 2013

______________________
RICHARD SEEBORG
United States District Judge

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No. C 11-2806 RS (PR)
ORDER DENYING HABEAS PETITION