Kayik v. Diaz

Filing 28

Order denying 16 Amended Petition for Writ of Habeas Corpus; denying 27 Motion for Evidentiary Hearing. Signed by Hon. Thelton E. Henderson on 05/04/16. (tehlc1, COURT STAFF) (Filed on 5/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERHAN KAYIK,
Plaintiff,

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v.

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RALPH M. DIAZ,
Defendant.

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Case No. 12-cv-05907-TEH
ORDER DENYING MOTION FOR
EVIDENTIARY HEARING;
DENYING PETITION FOR WRIT
OF HABEAS CORPUS

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United States District Court
Northern District of California

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Petitioner Erhan Kayik, a California state prisoner sentenced to 15 years to life,

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seeks a writ of habeas corpus under 28 U.S.C. Section 2254 and an evidentiary hearing

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under Habeas Corpus Local Rule 2254-7 and Rule 8(a) of the Rules Governing Section

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2254 Cases. For the reasons stated below, the motion for an evidentiary hearing is

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DENIED; and the petition for writ of habeas corpus is DENIED.

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BACKGROUND

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I.

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Volkan’s Death
The following facts, taken from the California Court of Appeal’s unpublished

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decision, have not been rebutted with clear and convincing evidence and must, therefore,

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be presumed correct. 28 U.S.C. § 2254(e)(1).

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[Petitioner] was convicted of murdering his 16-year-old son
Volkan.
[Petitioner] was born and raised in Turkey. He married in 1990
and shortly thereafter his wife gave birth to Volkan.
[Petitioner] and his wife divorced when Volkan was one.
Sometime thereafter, Volkan’s mother died in an accident.
[Petitioner] blamed Volkan for her death. [Petitioner]
remarried and moved to the United States. Volkan remained in
Turkey with his grandparents.
Volkan was a charming child but he was also difficult in some
ways. He did poorly in school and had problems at work.

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United States District Court
Northern District of California

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Volkan also ran away from home. The problems grew serious
enough that [Petitioner] went to Turkey and brought Volkan
back to the United States.
Volkan’s problems continued after the move. He got into fights
at school and ran away from home repeatedly. [Petitioner],
who was struggling to overcome the effects of a recent heart
attack, found Volkan’s problems to be challenging.
On at least one occasion, [Petitioner]’s response to Volkan’s
behavioral problems exceeded permissible bounds. Volkan told
a social worker, Randall Freitas, that [Petitioner] hit him.
Thereafter in May 2007, Freitas met with [Petitioner] and
Volkan at their home. [Petitioner] admitted he hit Volkan in the
face. Freitas said that was not an acceptable method of
discipline in this country and that if [Petitioner] left any marks,
he would be charged with child abuse. Freitas made
[Petitioner] and his wife sign a safety plan and told them to
attend counseling.
On June 20, 2007, [Petitioner] phoned police to report that
Volkan had run away about a week earlier. [Petitioner] said he
did not call immediately because Volkan ran away frequently.
Omer Tutmaz was [Petitioner]’s friend. In July 2007, Tutmaz
visited [Petitioner] and offered to help him look for Volkan.
[Petitioner] and Tutmaz went to a lake that Volkan visited
sometimes. [Petitioner] described an earlier incident during
which Volkan had pulled down his swim trunks and displayed
his bottom to an older man. [Petitioner] was concerned because
such conduct is unacceptable in the Turkish culture.
In August 2007, [Petitioner] and Tutmaz met while on a
business trip. [Petitioner] was upset because he believed
friends had betrayed him. He bemoaned the fact that others
were not as trustworthy as Tutmaz, and in an effort to prove his
fidelity [Petitioner] said, “do you know how much I trust you?”
“I killed Volkan. This much I trust you.” Tutmaz was shocked
by the admission. He did not know what to do. [Petitioner] and
Tutmaz both went to their rooms.
[Petitioner] and Tutmaz spoke again the following day.
[Petitioner] said he killed Volkan the day he displayed his
bottom to the man at the lake. According to [Petitioner], he
confronted Volkan about why he was constantly running away.
When Volkan refused to answer, [Petitioner] put his hands
around Volkan’s neck and choked him until “[q]uite a bit of
blood” came out of his mouth. Volkan relented and agreed to
tell [Petitioner] “everything.” [Petitioner] replied, “You had the
chance to tell me so long, now there’s blood coming out of
your mouth. It’s too late. I’m going to kill you.”
Tutmaz asked [Petitioner] why he continued to choke Volkan.
[Petitioner] replied it was “already too late.” If he had let
Volkan go, he would have to go to jail anyway. Therefore
[Petitioner] chose “to finish it.” He squeezed Volkan’s neck
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while Volkan pleaded for mercy. Volkan was unable to
struggle because he was so small.

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[Petitioner] told Tutmaz that once Volkan was dead, he took
his body and buried it in the hills. He blamed Volkan’s death
on business associates who had betrayed him.

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Tutmaz did not go to the police immediately and tell them what
[Petitioner] had done. He wanted to give [Petitioner] a few
days to turn himself in. When [Petitioner] did not do so,
Tutmaz went to the police on August 16, 2007, and told them
[Petitioner] killed Volkan.

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A detective interviewed [Petitioner] and his wife on September
7, 2007. [Petitioner] said Volkan was missing and suggested
that the detective contact a homeless man with whom Volkan
associated.

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The detective interviewed [Petitioner] about a month later on
October 2, 2007, and again, [Petitioner] said Volkan was
simply missing. [Petitioner] said any comments Tutmaz may
have made to the contrary were caused by business problems
he had with Tutmaz’s family.

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United States District Court
Northern District of California

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The detective spoke with [Petitioner] again the following day
and this time, [Petitioner] agreed to take him to Volkan’s body.
[Petitioner] and two officers drove about 190 miles to the
mountains near Sierraville. [Petitioner] then led them to
Volkan's burial site. Animals had dug up the body.

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People v. Kayik, No. A-12-6088, 2011 WL 2237606, at *1-2 (Cal. Ct. App. June 8, 2011).

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II.

Petitioner’s Trial

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Based on the above facts, an information was filed on May 16, 2008 in Contra

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Costa County Superior Court charging Petitioner with murder and inflicting corporal

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injury on a child. 1 CT 158. At trial, the prosecution presented the evidence set forth

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above relating to Volkan’s death. Petitioner testified in his own defense, and his testimony

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set forth facts that were slightly different from the facts above. The California Court of

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Appeal’s unpublished decision sets forth Petitioner’s testimony as follows:

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[Petitioner] testified in his own defense and he admitted that he
killed Volkan. [Petitioner] said the death occurred the day he
saw Volkan display his bottom to the man at the lake.
[Petitioner] brought Volkan home and they began to argue. At
one point, [Petitioner]’s wife went to get some pizza. While
she was gone, [Petitioner] and Volkan continued to argue.
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Volkan questioned why [Petitioner] had not been there for
much of his life. [Petitioner] slapped Volkan in the face.
Volkan went to his room. [Petitioner] followed and when
Volkan refused to answer his questions, [Petitioner] “squeezed
his neck.” Volkan agreed to talk. [Petitioner] needed to “calm
down” and he went to the living room. Volkan came out a few
minutes later and sat next to him. [Petitioner] again asked
Volkan what was happening. Volkan replied, “fuck you all.
Have you done any fatherhood for me the last 16 years?”
[Petitioner] was out of control. He “squeezed [Volkan’s] neck
and squeezed his neck and squeezed his neck....” Volkan
kicked and struggled and tried to run away, but [Petitioner]
would not stop. He continued squeezing until Volkan said
“father” and then collapsed.

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[Petitioner] tried to “wake [Volkan] up.” That did not work, so
he carried Volkan to the bathroom and put him in the bathtub.
When [Petitioner]'s wife came home, he told her “Volkan is
gone.”

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United States District Court
Northern District of California

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[Petitioner] called his mother in Turkey and told her what he
had done. She told him to bury the body in a proper place.
[Petitioner] wrapped Volkan’s body and put it in the trunk of
his car. He then drove until he found a spot to bury it. He did
not dig a deep hole.

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[Petitioner] also presented testimony from a doctor who said
[Petitioner]’s heart attack had injured his brain. The doctor said
[Petitioner] suffered from memory loss and had a low tolerance
for frustration. A clinical neuropsychologist testified similarly.
She said [Petitioner] suffered severe brain injury from this
heart attack and that such injuries can cause personality
alterations and behavioral problems.

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In addition, [Petitioner] presented a wide array of evidence in
an effort to show that Volkan had behavioral problems that had
grown worse as he had gotten older. [Petitioner]’s mother
testified that Volkan was aggressive and destructive as he was
growing up. A clinical psychologist testified that Volkan had
an oppositional defiant disorder. Children with that disorder are
difficult to parent because they have trouble controlling their
behavior. A psychiatrist who treated Volkan agreed he had
oppositional defiant disorder. A relative from Turkey testified
Volkan was disrespectful and frequently ran away from home.
He also said Volkan had tried to attack his wife with a knife.
One of [Petitioner]’s business associates said Volkan stole
things. Volkan’s cousin testified that Volkan smoked, ran away
from school, and was disrespectful to his elders.

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Kayik, 2011 WL 2237606, at *2-3.

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Before jury deliberations began, Petitioner’s trial counsel was advised that one of

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the jurors – Juror No. 5 – had been a suspect in a series of child abduction cases in the

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1980s and 1990s.1 Id. at *5; 7 RT 1585. The prosecutor and defense counsel discussed

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this new information with the trial court, and the court found that absent a stipulation from

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counsel, the court did not have good cause to excuse Juror No. 5. 7 RT 1585. Defense

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counsel did not otherwise seek to remove Juror No. 5. On February 20, 2009, the jury

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found Petitioner guilty of second degree murder. 2 CT 408; 4 CT 1027.

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III.

Post-Verdict Procedural Background
On May 8, 2009, Petitioner filed a motion for new trial based on juror misconduct.

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United States District Court
Northern District of California

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The trial court conducted a hearing on Petitioner's motion and denied it. Kayik, 2011 WL

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2237606, at *3. On August 21, 2009, the trial court imposed judgment of imprisonment

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for 15 years to life. 5 CT 1361-63.
Petitioner appealed his conviction to the California Court of Appeal, which affirmed

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the conviction on June 8, 2011. Ct. App. Order at 20, Ex. 2 to Answer.2 On June 21,

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2011, Petitioner filed a petition for review in the California Supreme Court, which was

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denied on September 14, 2011. Ex. 7 to Answer. Petitioner filed a mixed petition for writ

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of habeas corpus on November 19, 2012, approximately three weeks before the end of the

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one-year statute of limitations period. Docket No. 1. On June 23, 2013, this Court granted

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Petitioner’s motion for a stay and abeyance pending exhaustion of Petitioner’s state court

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remedies. Docket No. 10. On July 23, 2014, the Superior Court denied Petitioner’s state

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court habeas petition. Ex. 11 to Answer. On December 17, 2014, the California Supreme

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Court denied Petitioner’s petition for review from the denial of his state habeas petition,

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thus exhausting Petitioner’s state remedies. Ex. 9 to Answer.

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One of Petitioner’s claims involves Juror No. 5’s answers to questions on the voir
dire questionnaires provided to prospective jurors. Another claim is the Juror No. 5 and
Juror No. 10 improperly introduced extrinsic evidence into jury deliberations. These
claims, and the related factual background, are discussed in more detail below.
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Unless otherwise noted, all Exhibits cited are the Exhibits lodged with the Court by
Respondent. See Docket No. 21-3.
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Now before the Court is Petitioner’s amended petition for writ of habeas corpus,

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filed on February 25, 2015. Am. Pet. (Docket No. 16). Also before the Court is

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Petitioner’s motion for an evidentiary hearing, filed on November 30, 2015. Mot. for

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Evid. Hearing (Docket No. 27).

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LEGAL STANDARD

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I.

Habeas Petition
Habeas petitions are governed by the Antiterrorism and Effective Death Penalty Act

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of 1996 (“AEDPA”). 28 U.S.C. § 2244, et seq. Under AEDPA, a petitioner is entitled to

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federal habeas relief only if s/he can show that the state court’s adjudication of his claim:

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United States District Court
Northern District of California

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(1) resulted in a decision that was contrary to, or involved an unreasonable application of,

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clearly established federal law; or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence presented in the state court

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proceeding. 28 U.S.C. § 2254(d)(1)-(2); Greene v. Fisher, --- U.S. --- , 132 S. Ct. 38, 44

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(2011).

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AEDPA creates a “highly deferential” standard for evaluating state court rulings

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and “demands that state court decisions be given the benefit of the doubt.” Woodford v.

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Visciotti, 537 U.S. 19, 24 (2002) (per curiam). A state court’s decision is contrary to

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clearly established federal law if it “applies a rule that contradicts the governing law set

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forth in [Supreme Court] cases,” or arrives at a different result in a case that “confronts a

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set of facts that are materially indistinguishable from a decision of [the Supreme] Court.”

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Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “The state court’s application of clearly

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established law must be objectively unreasonable, not just incorrect or erroneous.”

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Crittendon v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010) (internal quotation marks omitted).

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Further, a federal court must “presume the state court’s factual findings to be correct, a

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presumption the petitioner has the burden of rebutting by clear and convincing evidence.”

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Id.

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This standard is intentionally “difficult to meet,” because habeas is intended to

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function as a “guard against extreme malfunctions in the state criminal justice systems, not

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as a means of error correction.” Greene, 132 S. Ct. at 43 (citations omitted). A petitioner

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must therefore show that the “state court’s ruling on the claim being presented in federal

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court was so lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded disagreement.”

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Harrington v. Richter, 562 U.S. 86, 103 (2011).

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II.

Evidentiary Hearing
Rule 8(a) of the Rules Governing Section 2254 Cases provides that where a petition

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United States District Court
Northern District of California

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is not dismissed at a previous stage in the proceeding, the judge, after the answer and

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transcripts and record of the state court proceedings are filed, shall, upon review of those

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proceedings, determine whether an evidentiary hearing is required. The purpose of an

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evidentiary hearing is to resolve the merits of a factual dispute. An evidentiary hearing on

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a claim is required where it is clear from the petition that: (1) the allegations, if established,

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would entitle the petitioner to relief; and (2) the state court trier of fact has not reliably

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found the relevant facts. See Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).

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DISCUSSION

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I.

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Habeas Petition
Petitioner presents five claims for habeas relief in his petition to this Court.

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Specifically, Petitioner contends: (1) his due process rights were violated when the trial

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court failed to instruct the jury on involuntary manslaughter; (2) his right to an impartial

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jury was violated when the trial court denied his motion for a new trial based on jury

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misconduct; (3) his due process rights were violated when the trial court admitted evidence

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of his prior bad acts and the victim’s hearsay statements; (4) he received ineffective

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assistance of counsel when his trial counsel failed to investigate a juror’s background; and

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(5) he received ineffective assistance of counsel when his trial counsel failed to investigate
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and develop evidence concerning the victim’s possible birth defect. In evaluating these

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claims, the Court reviews the last reasoned state court decision. Ylst v. Nunnemaker, 501

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U.S. 797, 805 (1991).

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A.

Claim 1: Failure to Instruct the Jury on Involuntary Manslaughter

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The trial court instructed the jury on first degree murder, second degree murder, and

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voluntary manslaughter under a heat-of-passion theory, but did not instruct the jury on

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involuntary manslaughter. 7 RT 1563-73. Defense counsel did not object to the lack of

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instruction on involuntary manslaughter. Petitioner contends that the trial court’s failure to
instruct the jury on involuntary manslaughter constituted a violation of Petitioner’s due

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United States District Court
Northern District of California

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process rights. This claim was considered and denied on the merits by the California Court

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of Appeal, which is the last reasoned state court decision. See Ex. 8.

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The Court of Appeal correctly stated that “[a] trial court is obligated to instruct, sua

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sponte, on all legal theories that find substantial support in the evidence, but not on

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theories that are unsupported.” Kayik, 2011 WL 2237606, at *3 (citing People v.

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Breverman, 19 Cal. 4th 142, 162 (1998)). The Court of Appeal noted that during the trial,

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Petitioner admitted “that while arguing with Volkan, he lost control. He grabbed Volkan

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and ‘squeezed his neck and squeezed his neck and squeezed his neck…’ Volkan kicked

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and struggled and tried to run away, but [Petitioner] would not stop. He continued to

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squeeze until Volkan collapsed.” Id. at *4. Therefore, the Court of Appeal found that

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there was no support in the evidence for an instruction on involuntary manslaughter

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because no reasonable juror could find involuntary manslaughter from the testimony

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presented at trial. Id.

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A petitioner is not entitled to federal habeas corpus relief based on an erroneous

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jury instruction unless “the ailing instruction by itself so infected the entire trial that the

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resulting conviction violates due process.” Walker v. Endell, 850 F.2d 470, 475-76 (9th

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Cir. 1987). The Ninth Circuit has stated that “an omission, or an incomplete instruction, is

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less likely to be prejudicial than a misstatement of the law, and, thus, a habeas petitioner
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whose claim involves a failure to give a particular instruction bears an especially heavy

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burden.” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).

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The Court of Appeal’s finding that the evidence did not support an involuntary

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manslaughter instruction was not contrary to clearly established law; therefore, the

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omission of the instruction does not amount to a constitutional violation. The Supreme

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Court has declined to hold that a defendant in a non-capital case is constitutionally entitled

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to instructions on a lesser-included offense. Keeble v. United States, 412 U.S. 205, 213

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(1973), cf. Beck v. Alabama, 447 U.S. 625, 645 (1980). Therefore, there is no “clearly

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established federal law” that would have required the trial court to give the instruction sua
sponte; the only “clearly established federal law” pertaining to Petitioner’s first claim

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United States District Court
Northern District of California

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establishes that due process does not require that an instruction be given unless the

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evidence supports it. Hopper v. Evans, 456 U.S. 605, 611 (1982).

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Finally, even if the trial court did err in omitting the involuntary manslaughter

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instruction, Petitioner is not entitled to federal habeas relief because no prejudice resulted

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from the omission. Petitioner, in addition to showing error, must show that “the error had

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a substantial and injurious effect or influence in determining the jury’s verdict.”

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California v. Roy, 519 U.S. 2, 5 (1996) (internal quotations omitted). Here, the jury

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convicted Petitioner of second degree murder, and thus necessarily found that he acted

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with the requisite intent: conscious disregard for human life. Therefore, an instruction on

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involuntary manslaughter, which encompasses a lower level of intent, would not have

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changed the outcome of the jury’s deliberations.

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Because the Court of Appeal’s decision was entirely supported by the factual record

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and involved a reasonable application of Supreme Court authority, Petitioner’s first claim

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is without merit and is therefore DENIED.

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B.

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Petitioner’s next claim is based on purported juror misconduct. Petitioner contends

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Claim 2: Failure to Grant New Trial Based on Juror Misconduct

that the trial court’s denial of a new trial based on juror misconduct violated Petitioner’s
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Sixth Amendment right to trial by an impartial jury. Petitioner identifies two types of

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purported misconduct: (1) that Juror No. 5 was biased and improperly concealed his bias

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during voir dire; and (2) that Jurors Nos. 5 and 10 improperly introduced extrinsic

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evidence into the jury deliberation process. Petitioner’s claim regarding juror misconduct

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was considered on the merits by the California Court of Appeal, which is the last reasoned

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decision. See Ex. 8.

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Procedural default

At the outset, the state trial court previously found that Petitioner’s trial counsel had

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forfeited any claim relating to Juror No. 5’s background because trial counsel was put on

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United States District Court
Northern District of California

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notice of Juror No. 5’s background but chose not to challenge him.3 The California Court

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of Appeal noted that there was “considerable support for the trial court’s ruling on this

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point.” Kayik, 2011 WL 2237606, at *6. A state court finding that a claim is procedurally

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defaulted is an adequate and independent state ground warranting denial of the claim in

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federal habeas. Ylst, 501 U.S. at 801. Thus, the claim very well may be barred. However,

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the juror misconduct claims lack substantive merit as well; therefore, mirroring the

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California Court of Appeal, this Court will address the merits of the claims.

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2.

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Bias

Petitioner contends that Juror No. 5 was biased, and that his bias violated

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Petitioner’s right to due process of law and right to an impartial jury under the Fifth, Sixth

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and Fourteenth Amendments. Juror No. 5’s purported bias stems from his failure to

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disclose information about his connection to the past child abduction cases, including past

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involvement with psychologists and experience with law enforcement. Juror No. 5 also

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failed to fully disclose that he had been terminated for job misconduct.

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The Court may consider both the trial court and appellate court decisions on this
issue because the appellate court decision “adopts or substantially incorporates the
reasoning” of the trial court. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007).
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The California Court of Appeal independently considered the potential bias of Juror

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No. 5, considering at length all of the questions Juror No. 5 purportedly answered

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incorrectly on the questionnaire. The Court of Appeal also considered the state trial

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court’s finding of two instances where Juror No. 5 intentionally provided misleading

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answers; therefore, the Court of Appeal found that the misconduct created a presumption

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of prejudice. Kayik, 2011 WL 2237606, at *9.

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The two misleading answers identified by the state trial court were in response to

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question numbers 17 and 74. Question number 17 asked, “Have you ever been fired, laid

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off or asked to resign from a job?” Id. at *7. Juror No. 5 answered in the affirmative, but
his explanation (that he had been “[l]aid off several jobs due to lack of work”) was

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United States District Court
Northern District of California

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admittedly incomplete because Juror No. 5 did not include the fact that he had been fired

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“on two separate occasions for violating workplace rules.” Id. Question number 74 asked,

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“Have you ever had any experiences with law enforcement, a prosecutor, a criminal

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defense attorney, a judge, or the court system generally which you would characterize as

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unfair or unpleasant?” Id. at *8. Juror No. 5 answered in the negative. Id. However, an

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investigator who spoke to Juror No. 5 after the trial stated that Juror No. 5 admitted to the

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investigator that the answer was “a mistake,” because he had been the subjective of

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extensive investigations that he found “harassing, unfair and unpleasant.” Id. Juror No. 5

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contended that the mistake was not intentional, but instead was a result of fatigue and

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reading the question too hastily in an effort to fill out his questionnaire quickly. Id.

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A criminal defendant has a constitutional right to a trial by impartial jurors. U.S.

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Const. amends. VI, XIV. The voir dire process serves to safeguard this right by allowing

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the removal of prospective jurors who will not be able to impartially follow the court’s

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instructions. “A juror who conceals relevant facts or gives false answers during the voir

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dire examination thus undermines the jury selection process and commits misconduct.” In

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re Hitchings, 6 Cal. 4th 97, 111 (1993).

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Juror misconduct “raises a presumption of prejudice that may be rebutted by proof
that no prejudice actually resulted. People v. Cooper, 53 Cal. 3d 771, 835 (1991).
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However, the Court of Appeal found that there was no actual bias or prejudice as a result

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of Juror No. 5’s alleged misconduct. Adopting the trial court’s reasoning, the Court of

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Appeal found that it was not substantially likely that Juror No. 5 was biased against

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Petitioner. Kayik, 2011 WL 2237606, at *10. In fact, the Court of Appeal found that if

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Juror No. 5 was biased at all, such bias was likely in favor of Petitioner, because a juror

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with Juror No. 5’s experiences would likely be susceptible to an argument that Petitioner

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was falsely accused or otherwise mistreated by the justice system. Id. Finally, the Court

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of Appeal agreed with the trial court that “the best indication [that there was no bias

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against Petitioner] is the fact that defense counsel, once the information was known in

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substance, declined to request or stipulate that Juror Number 5 be removed.” Id.

United States District Court
Northern District of California

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The Court of Appeal’s finding that there was no prejudice was independent factual

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determination, and thus must be presumed correct by this Court. 28 U.S.C. § 2254(e)(1).

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For these reasons, the Court finds that the Court of Appeal’s determination that Juror No. 5

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was not biased was not an unreasonable application of clearly established law, and is fully

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supported by the record. Therefore, Petitioner is not entitled to habeas relief on this claim.

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3.

Extrinsic evidence

Petitioner also contends that Jurors Nos. 5 and 10 improperly introduced extrinsic

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evidence into the jury deliberation process. During deliberations, Juror No. 5 described an

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experience where he was nearly choked to death, and said that the experience informed

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Juror No. 5’s opinion of Petitioner’s mental state, because he was convinced that it would

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take several minutes to kill a person by strangulation. Kayik, 2011 WL 2237606, at *10.

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Also during deliberations, Juror No. 10 relayed her experience of having a brain tumor

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surgically removed, and shared with the other jurors that she did not suffer any brain

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impairment or memory loss as a result of the surgery. Id.

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“The Sixth Amendment guarantee of a trial by jury requires the jury verdict to be

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based on the evidence produced at trial.” Estrada v. Scribner, 512 F.3d 1227, 1238 (9th

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Cir. 2008). The Confrontation Clause is implicated by a juror's communication of
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extraneous facts to other jurors, because “[t]he juror in effect becomes an unsworn witness,

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not subject to confrontation or cross examination.” Id. (internal quotation marks and

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citation omitted). Furthermore, a petitioner is entitled to habeas relief only if it can be

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established that exposure to extrinsic evidence had “substantial and injurious effect or

5

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637

6

(1993); Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995).

7

The Court of Appeal considered this claim as well as evidence submitted by

8

Petitioner, and found that the conduct of Jurors Nos. 5 and 10 did not amount to

9

misconduct because they were simply “rely[ing] on their own personal experience to help
them evaluate the evidence that had been presented,” which, as a normal part of jury

11
United States District Court
Northern District of California

10

deliberations, was not improper. Kayik, 2011 WL 2237606, at *11. The Court of Appeal

12

also found that even if the conduct had been improper, no prejudice actually resulted

13

because (1) the statement of Juror No. 5 about strangulation was consistent with the trial

14

testimony and thus did not exercise improper influence over the jurors; and (2) the

15

statement of Juror No. 10 about her brain surgery was unrelated to Petitioner’s experience

16

with a heart attack, and thus would be unlikely to have much effect on the jurors. Id.

17

“It is expected that jurors will bring their life experiences to bear on the facts of a

18

case.” Hard v. Burlington N. R. R. Co., 870 F.2d 1454, 1462 (9th Cir. 1989) (affirming

19

denial of new trial despite allegations that a juror with special knowledge regarding x-ray

20

interpretation attempted to use that knowledge to sway other jurors). The Court of

21

Appeal’s decision that the actions of Jurors Nos. 5 and 10 were not misconduct, but rather

22

permissible introduction of life experiences, is supported by the factual record and is

23

objectively reasonable. However, even if the two jurors committed misconduct,

24

Petitioner’s claim would also fail on the merits due to lack of prejudice.

25

The inference the jurors may have drawn from Juror No. 5’s account of his own

26

near-strangulation is that it likely would have taken Petitioner several minutes to kill

27

Volkan by strangulation, and therefore that Volkan’s death could not have happened

28

instantaneously. Because Petitioner admitted that he “squeezed and squeezed and
13

1

squeezed” Volkan’s neck (4 RT 932), and there had already been expert testimony that

2

was consistent with Juror No. 5’s narrative, the jurors’ exposure to the alleged extrinsic

3

evidence could not have prejudiced their deliberations. Furthermore, because Juror No.

4

10’s experience (surgery to remove a brain tumor) was so divergent from Petitioner’s

5

situation (a heart attack), it is unlikely that Juror No. 10’s narrative could have prejudiced

6

the jury either.

7

Therefore, the Court finds that the purported extrinsic evidence was not prejudicial

8

because it did not have a substantial and injurious effect or influence in determining the

9

jury’s verdict. For these reasons, and because the Court of Appeal decision was supported
by the record and involved a reasonable application of federal law, the Court DENIES

11
United States District Court
Northern District of California

10

Petitioner’s request for habeas relief as to his juror misconduct claim.

12

Claim 3: Trial Court’s Admission of Evidence

13

C.

14

Petitioner seeks habeas relief from the trial court’s admission of the following

15

evidence: (1) a social worker’s testimony that Petitioner had admitted that he had hit

16

Volkan in the face; (2) a teacher’s testimony that Petitioner blamed Volkan for Volkan’s

17

mother’s death; (3) testimony from Volkan’s friends that Volkan was afraid of Petitioner

18

and that Petitioner had hit and threatened Volkan; and (4) a stipulation that a friend of

19

Volkan’s would testify that he saw Petitioner chasing Volkan and yelling at him in

20

Turkish. Kayik, 2011 WL 2237606, at *11-12.

21

A federal habeas court “cannot review questions of state evidence law” and may

22

only consider “whether the petitioner's conviction violated constitutional norms.” Henry v.

23

Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). Even if “it appears that evidence was

24

erroneously admitted, a federal court will interfere only if it appears that its admission

25

violated fundamental due process and the right to a fair trial.” Id. (citing Hill v. United

26

States, 368 U.S. 424, 428 (1962)). The Ninth Circuit advises that “[o]nly if there are no

27

permissible inferences the jury may draw from the evidence can its admission violate due

28

process” and “[e]ven then, the evidence must be of such quality as necessarily prevents a
14

1

fair trial.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991) (emphasis in

2

original) (internal quotations omitted).

3

Here, there were permissible inferences that the jury could draw from the testimony

4

of the social worker and the teacher. Under California Evidence Code Section 1101, other

5

than evidence used to prove a person’s disposition to commit a crime, evidence “relevant

6

to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge…)”

7

is freely admissible. Hurd v. Carey, 280 F. Supp. 2d 980, 986 (N.D. Cal. 2003). The

8

social worker’s testimony that Petitioner had hit Volkan before and was told of the

9

consequences of hitting him again could support an inference relating to Petitioner’s
motive for killing Volkan, as the Court of Appeal explained. Kayik, 2011 WL 2237606, at

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United States District Court
Northern District of California

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*12 (“Indeed, when Tutmaz asked [Petitioner] why he did not stop strangling Volkan

12

[Petitioner] replied that it was ‘already too late’ and that if he had let Volkan go, he would

13

have to go to jail anyway.”). The teacher’s testimony relating to Petitioner blaming

14

Volkan for Volkan’s mother’s death could also support an inference that Petitioner had a

15

motive to kill Volkan, out of anger. Finally, the evidence that Volkan was afraid of

16

Petitioner and that Petitioner had been seen chasing and yelling at Volkan supports an

17

inference that Petitioner may not have been entirely provoked by Volkan’s bad behavior. 4

18

Finally, the statements made by Volkan to his teacher and friends were not hearsay

19

statements because they were not used for the truth of the matter asserted, but rather to

20

show Volkan’s state of mind in that he was afraid of Petitioner.
Under the broad federal habeas standard, the possibility that the jury could make

21
22

these permissible inferences is sufficient, on its own, to defeat Petitioner’s claim.

23

However, in addition to proving constitutional error, Petitioner must also show that the

24

error had a “substantial and injurious” effect on the jury's verdict. Brecht, 507 U.S. at 623.

25

The Court of Appeal correctly concluded that even if the admission of the evidence was

26
27
28

4

As the Court of Appeal noted, the evidence of Volkan’s fear of his father was
correctly only admitted by the trial court as rebuttal evidence to the defense’s theory of
provocation. Kayik, 2011 WL 2237606, at *11.
15

1

erroneous, it was nevertheless harmless. Kayik, 2011 WL 2237606, at *14. The evidence

2

that was admitted was quantitatively and qualitatively trivial when considered in the

3

context of the entire trial. Id. at *14 (“The rebuttal evidence in question was brief and

4

covered less than 20 pages of a more than 1,700-page transcript. The conduct identified

5

was far less serious than the conduct [Petitioner] admitted to in open court and was not

6

particularly harmful.”). It certainly was not objectively unreasonable for the Court of

7

Appeal to determine that the admission of the evidence was harmless. See 28 U.S.C. §

8

2254(d). For these reasons, Petitioner’s claim relating to the trial court’s admission of

9

evidence is hereby DENIED on the merits.

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United States District Court
Northern District of California

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D.

Claims 4 and 5: Ineffective Assistance of Counsel

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Petitioner brings two claims of ineffective assistance of counsel, both with regard to

13

Petitioner’s trial counsel. First, Petitioner contends that his trial counsel was ineffective

14

when she failed to investigate Juror No. 5’s background. Second, Petitioner contends that

15

his trial counsel was ineffective because she failed to investigate the possibility of Volkan

16

having a birth defect that could have made it more probable that Volkan suffered an instant

17

death by neck compression.

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To succeed on a claim of ineffective assistance of counsel, “the defendant must

19

show that counsel’s representation fell below an objective standard of reasonableness,” and

20

“that there is a reasonable probability that, but for counsel’s unprofessional errors, the

21

result of the proceeding would have been different.” Strickland v. Washington, 466 U.S.

22

668, 688, 694 (1984). In the context of federal habeas relief, the district court does not

23

review the trial counsel’s performance directly; rather, “[t]he pivotal question is whether

24

the state court’s application of the Strickland standard was unreasonable.” Harrington,

25

562 U.S. at 101. This Court must therefore use “a ‘doubly deferential’ standard of review

26

that gives both the state court and the defense attorney the benefit of the doubt.” Burt v.

27

Titlow, --- U.S. --- , 134 S. Ct. 10, 13 (2013) (quoting Cullen v. Pinholster, 563 U.S. 170,

28

16

1

190 (2011)). The last reasoned state decision on both claims of ineffective assistance of

2

counsel is the Superior Court’s ruling on Petitioner’s state habeas petition. See Ex. 11.5

3

1.

4

Failure to investigate Juror No. 5’s background

Petitioner’s first challenge is to trial counsel’s failure to investigate Juror No. 5’s

5
6

background during voir dire. Petitioner alleges that trial counsel could have easily learned

7

of Juror No. 5’s connection with past notorious child abduction cases if she had conducted

8

a Google search of Juror No. 5’s name, or “his name plus the word ‘crime’ or ‘criminal,’”

9

and that “[s]uch a search would have resulted in a picture that could be compared to the

10

actual juror.” Am. Pet. at m-19 (Docket No. 16).
The Superior Court rejected Petitioner’s claim that his trial counsel rendered

United States District Court
Northern District of California

11
12

ineffective assistance by failing to investigate Juror No. 5’s background. Ex. 11 at 5-7.

13

The Superior Court noted that “[t]he use of technology in the courtroom has not yet

14

reached the stage where case law has held that compliance with professional norms would

15

require routine internet background checks of potential jurors,” and that defense counsel

16

acted in accordance with professional norms when, upon learning that someone in the

17

district attorney’s office recognized Juror No. 5, she requested and obtained Juror No. 5’s

18

criminal history, which showed nothing more than a “minor incident of public

19

intoxication.” Id. at 6. Furthermore, the Superior Court found that it was not “reasonably

20

probable that the failure to perform an internet background check affected the outcome,”

21

because later in the course of the trial, defense counsel had the opportunity to stipulate to

22

Juror No. 5’s removal, but chose not to do so for seemingly tactical reasons. Id. at 6-7.

23

The Court must determine whether this application of Strickland was unreasonable.

24

///

25
26
27
28

5

The Superior Court found a procedural bar to Petitioner’s claims of ineffective
assistance of counsel, finding that the state habeas petition was untimely. Ex. 11 at 4-5.
Such a determination is an adequate and independent ground which could warrant denial
of Petitioner’s federal habeas petition. Ylst, 501 U.S. at 801. However, the Superior Court
nonetheless decided to reach the merits of the claims; thus, this Court will do the same.
17

1

At the outset, the Superior Court was correct that if Petitioner could not establish
prejudice, then he could not succeed on his claim for ineffective assistance of counsel,

3

regardless of whether his trial counsel’s performance was defective. Strickland, 466 U.S.

4

at 697; Williams v. Calderon, 52 F.3d 1465, 1470 n.3 (9th Cir. 1995). No particular

5

finding on the question of performance was required. This Court finds that the Superior

6

Court’s conclusion that Petitioner failed to establish prejudice was not unreasonable. First

7

of all, as discussed above, the Court finds a high probability that Juror No. 5 – replete with

8

his history with the criminal justice system – would be a juror that a criminal defendant

9

would want to keep on a jury. However, even if not investigating Juror No. 5 during voir

10

dire was a failure on trial counsel’s part, it is highly improbable that the failure to conduct

11
United States District Court
Northern District of California

2

internet research to discover Juror No. 5’s background would affect the outcome of the

12

trial, because trial counsel was informed of Juror No. 5’s background, and given the

13

opportunity to strike Juror No. 5, prior to jury deliberations. Therefore, any purported

14

failure during voir dire was rendered harmless by that opportunity.

15

For the reasons stated above, Petitioner has not established that it was unreasonable

16

for the Court of Appeal to conclude that he was not prejudiced by his trial counsel’s failure

17

to investigate the background of Juror No. 5. Therefore, Petitioner’s fourth claim for

18

habeas relief fails on the merits.

19
20
21

2.

Failure to investigate Volkan’s birth defect

Petitioner’s next challenge is to trial counsel’s failure to investigate Volkan’s

22

Turkish birth records in order to develop evidence that Volkan had a birth defect that

23

caused him to hold his neck at an angle, thus making him more susceptible to death by

24

neck compression. Petitioner alleges that counsel was ineffective because she should have

25

first asked the defense expert, Dr. Hermann, whether evidence of a neck deformity would

26

have made a difference as to his testimony, and then if he answered in the affirmative, she

27

should have ordered Volkan’s medical records from Turkey. Am. Pet. at m-25.

28

18

The Superior Court identified the two items provided by Petitioner to support his

1
2

claim of ineffective assistance of counsel: (1) a letter from the defense expert, Dr.

3

Hermann; and (2) a declaration from Petitioner’s current counsel, referencing a note he had

4

seen in a file that was written by Petitioner. The letter indicated that Dr. Hermann had

5

reviewed statements from people who knew Volkan as a child and a photograph of

6

Volkan, and stated how his testimony at trial would have differed had he reviewed the

7

statements and photograph.6 Ex. 11 at 7. The declaration from Petitioner’s counsel states

8

that “in some unidentified file there is a written statement by [P]etitioner that [P]etitioner

9

informed his trial counsel of Volkan’s neck deformity, but that she ‘refused to even

10

investigate it.’” Id. at 8.
The Superior Court first found that Petitioner failed to meet the burden of pleading

United States District Court
Northern District of California

11
12

a prima facie case because he did not support his petition “with whatever documentary

13

exhibits are necessary for a complete understanding of his claim.” Id. at 7 (citing

14

Sherwood v. Superior Court, 24 Cal. 3d 183, 187 (1979)). The Superior Court noted the

15

convoluted nature of the evidence provided by Petitioner. First, the Superior Court

16

questioned why Petitioner did not file his own declaration setting forth precisely what

17

steps he asked his counsel to take that she refused, but instead filed a declaration from his

18

current counsel lacking any personal knowledge. Id. at 7-8. Second, the Superior Court

19

noted that Petitioner only provided the expert’s letter, and not the statements or picture

20

upon which his letter relied. Id. This circular and incomplete evidentiary showing was

21

insufficient to demonstrate that trial counsel’s performance fell below an objectively

22

reasonable standard. Id. Finally, the Superior Court stated that even if Petitioner had met

23

his documentary burden, “he would not have shown prejudice because the medical

24

evidence would not support a defense to the murder charge.” Id. at 8.

25

This Court finds that the Superior Court’s determination was not unreasonable. As

26

noted above, to succeed on a claim of ineffective assistance of counsel in federal habeas, a

27
6

28

The Superior Court noted that Dr. Hermann “does not indicate that he reviewed any
medical records from Turkey.” Ex. 11 at 7.
19

1

defendant must show not just that his trial counsel’s performance was objectively

2

unreasonable and that there is a reasonable probability that the result of the proceeding

3

would have been different absent the unreasonable performance, Strickland, 466 U.S. at

4

688, 694, but that the state court’s application of Strickland was itself objectively

5

unreasonable. Harrington, 562 U.S. at 101.

6

First, the Superior Court’s determination that Petitioner failed to meet the burden of

7

showing ineffective assistance of counsel was not unreasonable. The purported Turkish

8

medical records have not been produced, and the Superior Court was justifiably skeptical

9

as to whether the records exist at all. It appears probable that trial counsel found it to be a
waste of time and resources to chase an unsupported lead across continents. The Ninth

11
United States District Court
Northern District of California

10

Circuit has made clear that a difference of opinion as to trial tactics is insufficient to

12

establish ineffective assistance. United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981).

13

Based upon an independent review of the record, it cannot be said that trial counsel’s

14

decision to not investigate Volkan’s alleged birth defect “so undermined the proper

15

functioning of the adversarial process that the trial cannot be relied on as having produced

16

a just result.” Strickland, 466 U.S. at 686.

17

Second, it was not unreasonable for the Superior Court to find that even if counsel

18

was ineffective, there was no prejudice. Petitioner admitted during trial that he strangled

19

Volkan by squeezing his neck for a period of time. 4 RT 932 (Petitioner stated “Then I

20

squeezed his neck and squeezed his neck and squeezed his neck and – and I heard him

21

saying something like, ‘father,’ then he collapsed on the floor.”). Furthermore, Petitioner

22

admitted that he strangled Volkan because he lost control, due in part to side effects from

23

his heart attack, which made him unable to control his anger. See 4 RT 932 (Petitioner

24

stated “I was out of control and I was another person at that time.”). Therefore, the

25

Superior Court was correct to state that “without question the illegal act of strangulation

26

was a substantial cause of Volkan’s death,” and that Volkan’s pre-existing condition would

27

not have relieved Petitioner of liability. Ex. 11 at 8 (citing People v. Caitlin, 26 Cal. 4th

28

81, 155 (2001)). Therefore, this Court finds that there is not a reasonable probability that
20

1

the result of Petitioner’s trial would have been different, even if trial counsel had somehow

2

been able to produce the medical records and the defense expert’s testimony had changed

3

accordingly. Given the doubly deferential standard of review here, the Court cannot find

4

that the Superior Court’s determination was objectively unreasonable.
For these reasons, the Court finds that the Superior Court’s denial of Petitioner’s

5
6

ineffective assistance of counsel claims was not an unreasonable application of clearly

7

established law, and is fully supported by the record. Therefore, Petitioner is not entitled

8

to federal habeas relief on these claims, and the claims are DENIED on the merits.

9
10

United States District Court
Northern District of California

11

II.

Evidentiary Hearing
Petitioner requests an evidentiary hearing on his claims of ineffective assistance of

12

counsel. Mot. for Evid. Hearing at 6. An evidentiary hearing on a habeas petition is

13

mandatory only if a petitioner was denied a “full and fair hearing in a state court, either at

14

the time of the trial or in a collateral proceeding.” Townsend v. Sain, 372 U.S. 293, 312

15

(1963). The Court need not hold an evidentiary hearing if the petitioner fails to allege

16

facts sufficient to justify habeas relief.

17

In considering whether to grant an evidentiary hearing, the Court must first

18

determine whether a factual basis exists in the state court record. “It is axiomatic that

19

when issues can be resolved with reference to the state court record, an evidentiary hearing

20

becomes nothing more than a futile exercise.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th

21

Cir. 1998). Section 2254 provides that district courts shall afford state court factual

22

findings the presumption of correctness, and that the petitioner must rebut the presumption

23

of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

24

Upon careful consideration, the Court has determined that Petitioner’s habeas

25

petition does not allege facts sufficient to entitle him to relief on either claim of ineffective

26

assistance of counsel. Furthermore, the Court concludes that these claims do not require

27

further evidentiary development beyond the findings of the Superior Court. The Superior

28

Court’s finding that there was no prejudice was correct; therefore, even if Petitioner were
21

1

able to elicit new evidence relating to the reasonableness of trial counsel’s tactical

2

decisions, such evidence would still fall short of justifying habeas relief. Because the facts

3

necessary to evaluate Petitioner’s ineffective assistance of counsel claims exist in the

4

present record, and because it is extremely unlikely that an evidentiary hearing would yield

5

any further information about trial counsel’s decisions, Petitioner’s motion for an

6

evidentiary hearing is hereby DENIED.

7
8

III.

Appealability of This Decision
Rule 11(a) of the Rules Governing Section 2254 cases requires a district court to

9

rule on whether a petitioner is entitled to a certificate of appealability in the same order in

11
United States District Court
Northern District of California

10

which the petition is denied. Rule 11(a), Rules Governing § 2254 Cases. District courts

12

grant a certificate of appealability “only if the applicant has made a substantial showing of

13

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has

14

rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is

15

straightforward: the petitioner must demonstrate that reasonable jurists would find the

16

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

17

McDaniel, 529 U.S. 473, 484 (2000).

18

Here, Petitioner has not made a substantial showing that his claims amounted to a

19

denial of his constitutional rights, nor has he demonstrated that a reasonable jurist would

20

find this Court’s denial of his claims to be debatable. Accordingly, no certificate of

21

appealability is warranted in this case. Petitioner is advised that he may not appeal the

22

denial of a certificate of appealability, but he may ask the Court of Appeals to issue a

23

certificate of appealability under Rule 22 of the Federal Rules of Appellate Procedure. See

24

Rule 11(a), Rules Governing § 2254 Cases.

25
26

///

27

///

28

///
22

1
2

CONCLUSION
For the foregoing reasons, Petitioner’s writ of habeas corpus under 28 U.S.C. §

3

2254 is hereby DENIED. Petitioner’s motion for an evidentiary hearing is also DENIED.

4

Petitioner is not entitled to a certificate of appealability under 28 U.S.C. § 2253(c)(2).

5
6

IT IS SO ORDERED.

7
8
9

Dated: 05/04/16

_____________________________________
THELTON E. HENDERSON
United States District Judge

10

United States District Court
Northern District of California

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