Bates v. Clark

Filing 13

REPORT AND RECOMMENDATIONS denrying 1 Petition for Writ of Habeas Corpus filed by Mark Anthony Bates Objections to R&R due by 2/22/2008 and Replies due by 3/7/2008. Signed by Judge Barbara Lynn Major on 02/08/08. (ag)

Bates v. Clark

Doc. 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Report and Recommendation is submitted to United States District Marilyn L. Huff pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On February 20, 2007, Petitioner Mark Anthony Bates, a state prisoner who is proceeding pro se and in forma pauperis, commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. No. 1. murder. This Court has considered the Petition ("Pet."), Respondent's Answer and all supporting documents submitted by the parties. For Doc. v. KEN CLARK, Warden, Respondent. MARK BATES, Petitioner, ) ) ) ) ) ) ) ) ) ) Civil No. 07cv0330-H (BLM) REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner challenges his conviction for second degree

the reasons set forth below, this Court RECOMMENDS that Petitioner's

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Petition for Writ of Habeas Corpus be DENIED. FACTUAL AND PROCEDURAL BACKGROUND A. Petitioner's Conviction and Sentence The following facts are taken from the California Court of Appeal's opinion on direct review in People v. Bates, No. D045113, slip op. (Cal. Ct. App. Dec. 19, 2005). See Lodgment 5. This Court

presumes the state court's factual determinations to be correct absent clear and convincing evidence to the contrary. 28 U.S.C.

§ 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). FACTUAL AND PROCEDURAL BACKGROUND Bates, a transient, murdered another transient, the victim Jose Sanchez, by repeatedly bashing his head with large rocks until his head and face were virtually unrecognizable. The People argued at trial that Bates premeditated and deliberated the crime. Bates did not contest the fact that he killed Sanchez. Rather, Bates argued the offense was no more than manslaughter. A. The Homicide

19 20 21 22 23 24 25 26 27 28 At approximately 10:00 p.m. on October 21, 2003, San Diego police officers responded to a 911 call made by Sandra Ruiz, who was inside the Centro Cultural de la Raza (the center), located at the edge of Balboa Park. Ruiz was rehearsing for a play. Ruiz reported to police that Bates had banged on the door to the center and told her to call the police because there was someone outside "and it looks like they got their face bashed in." Ruiz did not open the door, instead viewing Bates through the video intercom system. When officers arrived they found Sanchez lying dead on the south side of the center. His head was crushed beyond recognition until he appeared headless. Sanchez was surrounded by debris, most of which was either blood stained or had brain tissue from the victim. There were four separate rocks near the victim. It was later determined that the rocks

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weighed 6.5, 10.5, 19, and 36.5 pounds. The rocks were covered with Sanchez's blood and brain tissue. Bates was soon discovered and contacted on the north side of the building, walking away from the scene. His pants had blood on them. His sweatshirt was on inside out, with no visible blood on it. However, it was later determined that there was blood on the outside of the sweatshirt. Bates did not seem drunk and there was no scent of alcohol on his person. Bates asked for his backpack, which he said was by the playground area. In response to some initial questions, Bates told police that he knew Sanchez and had banged on the door for help. He told police that he and others, including Sanchez, had been drinking earlier and having a barbeque in the park. The group started drinking around 3:00 pm. Bates later left for about 40 minutes. When he returned, he found Sanchez in the grass and thought he was asleep. He first kicked him to try to wake him up. He explained that he had gotten blood on his pants when he attempted to resuscitate Sanchez. Bates also told an officer that the officer would probably hear that he and Sanchez had had a fight earlier, but explained it was "no big thing" because they were transients. Bates asked the officer if he thought he needed a lawyer. Medical examiner and supervising pathologist Dr. Steven Campman opined that Sanchez died as a result of blunt force impact injuries to his head. Much of Sanchez's head above his upper lip had been "torn apart" as a result of his injuries. He had multiple fractures of his facial bones, his jaw bone, and his skull. Sanchez's brain had been pushed out of his skull as a result of the injuries. Dr. Campman compared his injuries to those being caused by a person having their head smashed between a car and the road in a rollover accident or a shotgun blast to the head. Sanchez also had fractures to the right and left ribs, a broken shoulder blade, and lung and liver lacerations, all consistent with someone jumping on his torso repeatedly. Dr. Campman utilized a photograph of Sanchez's head area, taken at the autopsy, to assist in his testimony. Sanchez's blood alcohol level measured 0.39 percent. At 0.20 percent most individuals would be unconscious, unless the person had built up a tolerance to alcohol. Blood spatter expert Brian Kennedy testified that the blood spatter on Bates's (sic) jeans and the dispersal of blood patterns up his pants suggested

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that he was "relatively close," "within inches" of Sanchez when his injuries occurred. Kennedy also testified that the blood stains were inconsistent with Bates kneeling and administering CPR to Sanchez. The blood staining he observed was consistent with multiple blows. The blood staining on Sanchez indicated that he was lying on his back at the time of his injuries. B. Custodial Interview of Bates

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Detective Brown explained that he believed they both knew what had happened and that he wanted to find out the truth of the matter. Detective Brown asked Bates, "Why don't you tell us what happened?" Bates replied, "I just want to know what I'm facing?" Detective Brown replied that it was up to the district attorney to make that determination and then asked, "Did you hurt that man? Why don't you just tell us what happened?" Bates responded, "Yea[h], I hurt him." Bates stated that he "got mad," picked up a rock, and "bashed" Sanchez's head in four times. Bates explained that he waited until Sanchez fell asleep, and then, using two rocks, he hit him in the head with the larger rock and in the rib cage with the second rock. Bates also admitted to kicking him "violently." Bates later attempted to excuse his actions, claiming that Sanchez was yelling in Spanish at him right before he hit him with the rock. He also Bates described an incident that occurred between himself and Sanchez earlier in the day, but initially denied that the incident was violent. The interviewing detectives suggested that the argument had turned into a fight that had gotten out of control. Detective Brown asked, "Isn't that what happened?" Bates replied, "I'm not saying anything right now." (Italics added.) Detective Brown explained that they were giving Bates an opportunity to clarify what happened at the scene, and told him he understood that sometimes "things get out of control." Detective Brown then asked if Bates had tried to get help for Sanchez and he replied, "I sure did." After Bates was placed in custody, he was interviewed by homicide detectives Kenneth Brown and Ed Valentine at 1:30 a.m. the following morning. Bates was given his Miranda warnings. Bates indicated he understood those rights, and the interview commenced. Bates initially denied murdering Sanchez, stating that he tried to give him CPR by pushing on his chest. Bates stated that he did not notice the condition of Sanchez's head because it was dark.

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claimed that Sanchez was trying to get up and hurt him and that before he struck him, Sanchez was "coming at [him]." C. Defense Case

Raymond Murphy, a psychologist, interviewed and tested Bates. He opined that Bates's IQ was 75 and that he was at the borderline level of retardation. He also testified that Bates was dysfunctional in his adaptive reasoning, making it difficult for him to find a place to live and work for a living. According to Murphy, Bates was capable of surviving, but could not adapt within a normal range of living skills. Murphy scored Bates as a six- to eight-year-old in terms of his basic psychomotor skills. Murphy also testified that Bates functioned emotionally as an eight-to ten-year-old, resulting in difficulty in decisionmaking, planning, setting goals, frustration and tolerance. Alcohol would further impact his impulse problems and frustration levels. Bates's mother testified that he did not walk until he was over two years old, had a difficult time functioning, and was "kind of slow." He was in special education classes in school and his speech was poor. Bates kept to himself as a child. D. Rebuttal

Psychologist Lynette Rivers, testifying for the prosecution, also tested Bates. She concluded that Bates had an IQ of 79, which did not qualify as retarded. Rather, Rivers testified that Bates had "borderline intellectual functioning." Bates told Rivers that he had no difficulty controlling his anger and could not think of anything that could make him angry. Rivers also noted that Bates used sophisticated words when interviewed by police, which denoted some higher-functioning verbal abilities. Bates's answers to questions indicated a degree of sophistication and planning as he constructed different explanations for what had occurred. However, Rivers did admit that Bates's scores indicated some neurocognitive problems that did not fall with the normal range and that he was functioning at a level less than that of one percent of the population. Lodgment 5 at 2-7. On July 9, 2004, a jury found Petitioner guilty of one count of second degree murder (in violation of California Penal Code

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§ 187(a)) and further found that Petitioner personally used a deadly and dangerous weapon -- a rock -- in the commission of the murder (in violation of California Penal Code § 12022(b)(1)). Lodgment 1, vol. 2 at 310, 346; Lodgment 2, vol. 4 at 632. The trial court sentenced

Petitioner to fifteen years to life for the murder conviction and to one additional year, to run consecutive to the first sentence, for using a deadly weapon, resulting in a total term of sixteen years to life in prison. B. Lodgment 2, vol. 4 at 644.

Direct Appeal Petitioner appealed to the California Court of Appeal, Fourth

Appellate District, Division One, asserting four claims for relief. Lodgment 3. Specifically, Petitioner alleged (1) that the trial

court deprived him of his Fifth, Sixth, and Fourteenth Amendment rights by improperly allowing the jury to hear statements he made to police in violation of Miranda v. Arizona, 384 U.S. 436, 473-474 (1966) (based on the fact that he did not knowing and voluntarily waive his Miranda rights and later unequivocally invoked his right to remain silent), (2) that he was deprived of federal and state due process when the trial court failed to instruct sua sponte on the meaning of unreasonable self-defense (CALJIC 5.17), (3) that the trial court abused its discretion under California Evidence Code § 352 by admitting inflammatory and unnecessary photographs of the victim's massive head wounds, and (4) that the cumulative effect of these errors required reversal. Id. In an unpublished opinion

filed on December 19, 2005, the California Court of Appeal affirmed the conviction. Lodgment 5.

On January 18, 2006, Petitioner filed a petition for review in the California Supreme Court, raising the same claims set forth

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in his direct appeal to the appellate court with the exception of the cumulative error allegation. Lodgment 6. On February 22, 2006, the California Supreme Court summarily denied the petition for review without citation of authority. C. Collateral Review Petitioner did not seek collateral review of his conviction or sentence in the state courts. On February 20, 2007, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging three grounds for relief. Answer on July 16, 2007. Doc. No. 1. Respondent timely filed an On August 20, 2007, Lodgment 7.

Doc. No. 9.

Petitioner requested an extension of time in which to file a traverse. Doc. No. 11. The Court granted his request and continued the traverse deadline to October 1, 2007 [Doc. No. 12], but as of the date of this report and recommendation, Petitioner has not filed a traverse or sought an additional extension of time in which to do so. STANDARD OF REVIEW Title 28 of the United States Code, section 2254(a), sets forth the following scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-

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132, 110 Stat. 1214. AEDPA:

Under 28 U.S.C. § 2254(d), as amended by

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Summary denials do constitute adjudications on the merits. See Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002).

Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court

decision.

Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).

A state court's decision is "contrary to" clearly established federal law if the state court: (1) "arrives at a conclusion opposite to that reached" by the Supreme Court on a question of law; or (2) "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's]." (2000). A state court's decision is an "unreasonable application" of clearly established federal law where the state court "identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the Williams v. Taylor, 529 U.S. 362, 405

prisoner's case."

Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003).

"[A] federal habeas court may not issue a writ simply because the

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court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly . . . . Rather, that application must be objectively unreasonable." (internal Andrade, marks 538 and U.S. at 75-76 (emphasis added) Clearly

quotation

citations

omitted).

established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412. Finally, habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C. § 2254(d)(2). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in the state court proceeding. See Miller-El, 537 U.S. at 340; see also Rice v.

Collins, 546 U.S. 333, 341-42 (2006) (the fact that "[r]easonable minds reviewing the record might disagree" does not render a decision objectively unreasonable). This Court will presume that

the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). DISCUSSION Petitioner raises three grounds for relief in the instant petition. In Ground 1, Petitioner challenges the state court's

determination that he knowingly and voluntarily waived his Miranda rights and that he did not unequivocally invoke his right to remain silent. Pet. at 6. In Ground 2, Petitioner argues that his federal

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due process rights were violated when the trial court failed to instruct the jury on unreasonable self-defense. Id. at 7. Finally, in Ground 3, Petitioner challenges the trial court's admission into evidence of inflammatory and unnecessary photographs of the victim's massive head wounds. Id. at 8.

In his Memorandum of Points and Authorities in Support of the Answer ("Resp't Mem."), Respondent addresses all three claims on the merits. See Resp't Mem. at 11-22. Specifically, Respondent

contends that the Court of Appeal's decisions as to all three claims were neither contrary to, nor unreasonable applications of, United States Supreme Court precedent. Id.

In evaluating the merits of Petitioner's claims, this Court must look through to the last reasoned state court decision. Ylst, 501 U.S. at 801-06. See

Here, because the California Supreme

Court summarily denied Petitioner's petition on direct review, the last reasoned state court decision on all of the claims presented in this case came from the California Court of Appeal. A. Ground 1 - Petitioner's Confession Petitioner alleges in his first claim for relief that the state court erred by determining that he knowingly and voluntarily waived his Miranda rights and that he did not unequivocally invoke his right to remain silent. Pet. at 6-71. Petitioner argues that Lodgment 5.

his limited cognitive abilities prevented him from freely waiving his rights and made him more susceptible to the coercive tactics utilized by the interrogating officers. Id.

1

The Petition contains two pages numbered as "7".

In this instance,

the Court refers to the second one, which contains a continuation of Ground 1.

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Respondent

counters

that

the

California

state

court's

determination that Petitioner's Miranda rights were not violated was neither contrary to, nor an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. Resp't Mem. at 11. Respondent argues

that the circumstances of Petitioner's initial waiver as well as those surrounding his subsequent statement about not wanting to talk support the state court's conclusion. 1. Waiver of Miranda Rights Id. at 11-15.

Petitioner first alleges that he did not knowingly and voluntarily waive his Miranda rights. The Court of Appeal

considered and rejected this claim on the following grounds: After being advised of his Miranda rights, Bates affirmatively told the detectives that he understood those rights. There is no evidence in the record of the interview that Bates lacked sufficient intelligence to understand those rights or the consequences of his waiver. There is no evidence that the questioning by detectives was overbearing or that they employed intimidation, coercion, or deception to make Bates waive his Miranda rights. Indeed, when ruling on the admissibility of the interrogation, the court viewed a videotape of that interview to determine the merits of Bates's claim that he was "intellectually helpless to assert his rights." In rejecting this contention, the court noted Bates's "initial deceptive claim that the blood on his pants was the result of an attempt to perform CPR on the victim, his sophisticated questions regarding the legal consequences of his actions, his reflective analysis of his mental state when he attacked the victim and his skillful alteration of the facts of his story following his confession...." The court found these facts demonstrated that Bates possessed "[a] keen understanding of his situation." The court also found that at all times Bates displayed a willingness and desire to communicate with the detectives and that the interrogation was not coercive. We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, where, as here, they are supported by substantial evidence. (Box, supra, 23 Cal.4th at

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p. 1194.) The court did not err in finding that Bates's waiver of his Miranda rights was knowingly and intelligently made. Lodgment 5 at 12-13. This Court must determine whether the Court of Appeal's opinion is contrary to, or an unreasonable application of, clearly established Supreme Court law. Under clearly established federal

law, a suspect who is subjected to custodial interrogation must be advised of his federal constitutional right to remain silent and his right to an attorney before questioning commences. Arizona, 384 U.S. 436, 444 (1966). Miranda v.

A defendant may waive his

Miranda rights "provided the waiver is made voluntarily, knowingly and intelligently." waiver is Moran v. Burbine, 475 U.S. 412, 421 (1986). if "it was the product of a free A

"voluntary"

and

deliberate choice rather than intimidation, coercion, or deception." Id. It is "knowingly and intelligently" made if the defendant had

"full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." 155 F.3d 1070, 1074 (9th Cir. 1998). circumstances surrounding the Id.; U.S. v. Doe,

"Only if the `totality of the reveal both an

interrogation'

uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Moran, 475 U.S. at 421. a. Voluntary Waiver

Petitioner contends that he did not voluntarily waive his Miranda rights because the officers used coercive tactics to which he was particularly susceptible due to his limited cognitive

abilities.

Pet. at 6.

As previously discussed, a waiver is

"voluntary" if "it was the product of a free and deliberate choice

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rather than intimidation, coercion, or deception." at 421.

Moran, 475 U.S.

"The sole concern of the Fifth Amendment, on which Miranda Colorado v. Connelly, 479

was based, is governmental coercion." U.S. 157, 169-170 (1986).

"[W]hile mental condition is surely

relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry." Id. at 520-21.

Here, the evidence does not support Petitioner's argument that the interrogating officers used coercive tactics in obtaining his waiver or his claim that his cognitive difficulties prevented him from voluntarily waiving his rights. As an initial matter,

there is no indication in the record that Petitioner was handcuffed during the interview or treated roughly while being brought into the interrogation room. See, e.g., Lodgment 1 at 202-04. And, the only questions the officers asked Petitioner before informing him of his Miranda rights were basic informational questions such as the spelling of his name, where he lived, his age, his level of education and the phone number of any family contacts. Id. When

Detective Brown read Petitioner his Miranda rights, he confirmed Petitioner's understand?" agreement Id. at 204. after each one by asking "[d]o you

Petitioner responded each time Detective Id.

Brown asked if he understood by saying "Yea" or "I sure do."

Detective Brown then asked "Do you want to tell me what happened tonight out there[?]" and Petitioner immediately began talking. Id. He did not ask any questions about his rights or express any uncertainty. Id. As such, none of the circumstances surrounding

Petitioner's waiver suggest that any police coercion occurred or that his waiver was anything but free and deliberate.

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Having considered the totality of the circumstances,

Moran,

475 U.S. at 421, this Court finds there is no evidence of police overreaching unreasonably and concludes federal that law the in Court of Appeal that did not

apply

determining

Petitioner

voluntarily waived his Miranda rights. b. Knowing and Intelligent Waiver

Petitioner also suggests that his waiver was not knowing and intelligent due to his limited cognitive faculties. Pet. at 6-7.

He cites to an expert's trial testimony that Petitioner is within the mild range of mental retardation, has the emotional range of an eight to ten year old, was in special education classes as a child, and likely suffered brain damage at an early age. Id. at 6.

Again, a waiver is only "knowingly and intelligently" made if the defendant had "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran, 475 U.S. at 421; Doe, 155 F.3d at 1074. However, "[t]he

Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." Colorado v. Spring, 479 U.S. 564, 574 (1987). In analyzing the totality of the circumstances, the court may consider several factors including "(i) the defendant's mental capacity; (ii) whether the defendant signed a written waiver; (iii) whether the defendant was advised in his native tongue or had a translator; (iv) whether the defendant appeared to understand his rights; (v) whether the defendant's rights were individually and repeatedly explained to him; and (vi) whether the defendant had prior experience with the criminal justice system." 502 F.3d 1130, 1140 (9th Cir. 2007). U.S. v. Crews,

While "[a] defendant's mental

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capacity directly bears upon the question of whether he understood the meaning of his Miranda rights and the significance of waiving his constitutional rights," U.S. v. Garibay, 143 F.3d 534, 538 (9th Cir. 1998), courts repeatedly have found that defendants with varying degrees of mental impairment nonetheless retained the

capacity to knowingly and voluntarily waive their Miranda rights. See, e.g., Derrick v. Peterson, 924 F.2d 813, 816 (9th Cir. 1990) (finding that defendant with mental age of a nine year old and an I.Q. of 62 was capable of understanding and knowingly and

intelligently waiving Miranda rights); U.S. v. Glasgow, 451 F.2d 557, 558 (9th Cir. 1971) (rejecting defendant's argument that he was "of such limited mental capacity that he was incapable of having made a knowing and intelligent waiver" of his Miranda rights); U.S. v. Rosario-Diaz, 202 F.3d 54, 69 (1st Cir. 2000) (upholding waiver by defendant with I.Q. in mid-70s and no prior experience with the criminal justice system over objection that waiver was not knowingly and intelligently made). In this case, several factors weigh against Petitioner's claim. First, Detective Brown read Petitioner each of his rights

individually and Petitioner confirmed that he understood each one. See U.S. v. Bautista-Avila, 6 F.3d 1360, 1366 (9th Cir. 1993) (finding it particularly significant in upholding intelligence of waiver that defendant affirmatively indicated that he understood his rights). Second, the dialogue in the record reflects that

Petitioner understood his rights as he did not ask any questions or otherwise signal that he was confused. Lodgment 1 at 202-04.

Additionally, there is no evidence suggesting that Petitioner was not a native English speaker so he was advised of his rights in his

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native language.

Id.

Third, the probation officer's report

indicates that Petitioner has been arrested on two prior occasions, at least one of which resulted in a conviction, which suggests that he previously has been advised of his Miranda rights and understands the rights involved. While Petitioner may well have cognitive

deficiencies, these do not per se bar the Court from finding that he intelligently waived his Miranda rights. See, e.g., Derrick, 924

F.2d at 816; Glasgow, 451 F.2d at 558; Rosario-Diaz, 202 F.3d at 69. Therefore, this Court finds under the totality of the circumstances that the Court of Appeal did not unreasonably apply clearly

established federal law in concluding that Petitioner knowingly and intelligently waived his rights. c. Invocation of the Right to Silence

Petitioner also implies that the officers relied on coercive tactics and Petitioner's limited cognitive abilities to prevent Petitioner from invoking his right to remain silent. Pet. at 6-7.

In adjudicating this claim, the Court of Appeal rejected Petitioner's argument that his statement "I'm not saying anything right now" was a clear and unambiguous invocation of the right to remain silent and mandated cessation of questioning. 8-9. Lodgment 5 at

After setting forth the Miranda standard and applicable

California case law, the appellate court concluded: Bates's statement is similar to those cited above and, under the circumstances, did not amount to an unequivocal assertion on his right to remain silent. Prior to the statement, he had given a false version of what had occurred. His statement, in context, that "I'm not saying anything right now" only indicated an unwillingness to talk about certain subjects. At most it sought to alter the course of the detectives' questions, not stop the interview altogether. Further, he gave no indication that he wanted the interview stopped, and continued to answer the

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officers' questions. The trial court correctly found that Bates did not unequivocally invoke his right to remain silent. Id. at 11. The Court of Appeal thus affirmed the trial court's

decision to admit Petitioner's confession into evidence. Id. at 20. The Supreme Court made clear in Miranda v. Arizona that a suspect may cut off questioning at any time during a custodial interrogation: Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. Miranda, 384 U.S. at 473-474. In subsequently interpreting the

Miranda opinion, the Supreme Court concluded that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was `scrupulously honored.'" U.S. 96, 104 (1975). The question of how clear the suspect's assertion of the right to remain silent must be has been addressed by analogy to cases pertaining to invocation of the right to have an attorney present. 2005). See Arnold v. Runnels, 421 F.3d 859, 866 n.8 (9th Cir. Thus, a brief history of law regarding the right to an In Edwards v. Arizona, 451 U.S. 477 Michigan v. Mosley, 423

attorney is instructive.

(1981), the Supreme Court made clear that law enforcement officers must cease questioning immediately if the suspect clearly asserts

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his or her right to have counsel present during the custodial interrogation. But, "if a suspect makes a reference to an attorney

that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the interrogating officers are not required to cease questioning the suspect. Davis v. United

States, 512 U.S. 452, 459 (1994). As the reference to "a reasonable officer" implies, whether or not the invocation is ambiguous is an objective inquiry. Id. at 458-59 (citing Connecticut v. Barrett, And, while the officer is not required

479 U.S. 523, 529 (1987)).

to bring the interrogation to a halt in the face of an ambiguous invocation of the right to counsel, the Supreme Court has admonished that "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney" before proceeding. Id. at 461. The Court declined, however, to require Id.

officers to ask clarifying questions.

In determining whether a suspect has unambiguously invoked his Miranda rights, the words of a Miranda request should be "understood as ordinary people would understand them." Barrett, 479 U.S. at 529; Arnold, 421 F.3d at 864. The suspect need not "speak Davis, 512 U.S. at 459

with the discrimination of an Oxford don."

(internal citation omitted); Arnold, 421 F.3d at 865 (noting that "in applying Davis, neither the Supreme Court nor this court has required that a suspect seeking to invoke his right to silence provide any statement more explicit or technically-worded than `I have nothing to say'"). Nor is any "talismanic phrase, such as `I

invoke my right to silence under the Fifth Amendment'" required.

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Arnold, 421 F.3d at 866; see also Emspak v. United States, 349 U.S. 190, 194 (1955) ("no ritualistic formula or talismanic phrase is essential in order to invoke the privilege against

self-incrimination"). On habeas review, great deference is given to the state court's factual and legal determinations. In order to reverse under AEDPA, this Court must find either (1) that the Court of Appeal's factual findings were unreasonable and Petitioner rebutted them with clear and convincing evidence (28 U.S.C. § 2254(d)(2)) or (2) that this determination is a question of law and the Court of Appeal's decision unreasonably applied clearly established federal law (28 U.S.C. § 2254(d)(1)).2 Here, Petitioner does not dispute the facts

surrounding the alleged invocation of his right to silence but, rather, challenges the court's legal determination that the

statement "I'm not saying anything right now" was not an unequivocal invocation of his right to remain silent. In the instant case, Petitioner's confession was tape-

recorded and the trial court reviewed the tape prior to making its determination. Lodgment 5 at 12. The transcript reveals that

before making the challenged statement, Petitioner described the relevant events to the officers. Lodgment 1 at 202-221. Petitioner explained that he knew the victim, that the victim watched his belongings for about two hours while Petitioner went somewhere else, that Petitioner returned to the area and discovered the victim but did not notice anything unusual about the victim's head, that he

2

See Anderson v. Terhune, 467 F.3d 1208, 1212-13 (9th Cir. 2006), en

banc rehearing granted, 486 F.3d 1155 (9th Cir. May 14, 2007) (No. 04-17237).

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knelt on the ground and administered CPR to the victim, and that he then went to a nearby building to get help. Id. at 202-08. During

this part of the transcript, the officers encouraged Petitioner to provide a detailed account of his evening but did not significantly challenge the story. Id. However, after hearing the story, the

officers explained to Petitioner that they did not believe he was telling them the complete story and they began to challenge him on specific details of his story and how his story might conflict with other evidence or testimony. Id. at 208-20. In response,

Petitioner admitted that he had drunk alcohol during the evening, that he had had a "peaceful argument" with the victim earlier in the day, and that he had nudged the victim with his foot when he first discovered the body. Id. Petitioner again insisted that he had

attempted CPR on the victim but had not noticed the condition of the victim's head. Id. at 221. The officers then presented Petitioner It

with an alternative theory of what transpired that evening. Id.

was in response to this alternative theory that Petitioner made the challenged statement, asserting that "I'm not saying anything right now." Id. After confession concluded reviewing applying in a these the facts correct and by referencing the the taped court the

and that

law,

appellate totality have of

context

under

the

circumstances,

reasonable

officer

would

not

considered

Petitioner's statement to be an unambiguous assertion of his right to remain silent. Lodgment 5 at 7-11. While this Court might reach

a different conclusion if the issue were presented to it initially, this Court cannot say that the Court of Appeal's conclusion was unreasonable. See Rice, 546 U.S. at 341-42 (the fact that

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"[r]easonable minds reviewing the record might disagree" does not render a decision objectively unreasonable); Andrade, 538 U.S. at 75-76 ("a federal habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly . . . . Rather, that application must be objectively unreasonable"). Because clearly established Supreme

Court law does not dictate that Petitioner's statement was an unequivocal invocation of his right to silence nor does it require the officers to make a specific inquiry after such a statement, and because the state court's conclusion was not objectively

unreasonable, Petitioner's claim fails. Even if the Court of Appeal's decision was unreasonable, the error was harmless. The Supreme Court has "repeatedly recognized

that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal." Washington v.

Recuenco, 548 U.S. 212, __, 126 S.Ct. 2546, 2551 (2006). Unless the case presents one of the rare situations where the error is

structural and requires automatic reversal, the constitutional error is subject to harmless error analysis. Id. (listing structural

errors as including: complete denial of counsel, biased trial judge, racial discrimination in selection of grand jury, denial of selfrepresentation at trial, denial of public trial, and defective reasonable-doubt instruction) (internal citations omitted); see also Arizona v. Fulminante, 499 U.S. 279, 295 (1991) (distinguishing prior precedent in determining that harmless error analysis does apply to coerced confessions). The harmless error analysis dictates that an error is harmless if the court can say with fair assurance

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that the error did not have "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Arnold, 421 F.3d at 867. In this case, there was overwhelming evidence establishing that Petitioner killed the victim. The question as presented at

trial was whether the killing constituted first degree murder, second degree murder, voluntary manslaughter, or involuntary

manslaughter. The jury was instructed on all four crimes. Lodgment 2, vol. 4 at 600-17. allegation and The jury rejected the first degree murder Petitioner of second degree murder.

convicted

Lodgment 1 at 310, 346; Lodgment 2, vol. 4 at 632.

The trial judge

told the jury that the difference between second degree murder and manslaughter is that second degree murder requires malice

aforethought whereas voluntary manslaughter mandates that there be no malice aforethought but requires an intent to kill or killing with conscious disregard for human life. Lodgment 2, vol. 4 at 609. The trial judge explained that: Malice, as used in malice aforethought, may be either express or implied. Malice is express when there is manifested an intention unlawfully to kill a human being. Malice is implied when: 1. 2. The killing resulted from an intentional act; The natural consequences of the act are dangerous to human life; and The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. The judge further explained that "[t]here is no

25 26 27 28 Id. at 606-07. 3.

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malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury." Id. at 609. Accordingly, the harmless error

analysis focuses on whether the portion of Petitioner's confession after the alleged invocation of silence had "a substantial and injurious effect or influence" on the jury's conclusion that

Petitioner possessed malice aforethought as required for second degree murder. If the challenged portion of Petitioner's confession is excluded, the remaining evidence establishes that Petitioner told Ms. Ruiz at approximately 10:00 p.m. that she should call the police because someone was outside "and it looks like they got their face bashed in." Lodgment 5 at 2. Officers responded and discovered the victim with his "head crushed beyond recognition until he appeared almost headless." Id. at 3. A doctor described the victim's head

injuries as similar to those sustained by a "person having their head smashed between a car and the road in a rollover accident or a shotgun blast to the head." Id. at 4. Four rocks, weighing 6.5,

10.5, 19, and 36.5 pounds, were discovered near the body covered with the victim's blood and brain tissue. Id. at 3. The physician

also testified that the victim had injuries consistent with "someone jumping on his torso repeatedly." Id. at 4. Petitioner's

statements during the first part of his confession (prior to his statement that he's not saying anything right now) establish that he knew the victim, that he had had a "peaceful argument" with the victim earlier in the day, that he returned to the location where the victim was located and where the argument had occurred and

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discovered the victim, that he performed CPR on the victim but did not notice the condition of the victim's head, and that he then went to a nearby building to get help. Another physician testified Id. at 3; Lodgment 1 at 202-21. the victim's blood was on

that

Petitioner's jeans, that the blood patterns on Petitioner's jeans indicated that Petitioner was "within inches" of the victim when the victim was injured, that the blood stains on Petitioner's jeans were inconsistent with Petitioner "kneeling and administering CPR" to the victim, and that the blood staining indicated that the victim sustained multiple blows while lying on his back. Id. at 4.

Because no one else was present when the attack occurred3, if the rest of Petitioner's confession had been suppressed, there would not have been any evidence presented to the jury that Petitioner believed he acted in self-defense.4

3

Karen

Clasey

described

the

altercation

that

occurred

between

Petitioner and the victim earlier in the day. Lodgment 2 at 225-32; 240-45. Ms. Clasey described the victim as a person who could become abusive when he drank and Petitioner as someone who usually remained quiet and by himself. left the location.
4

Id.

Ms.

Clasey testified that the fight had ended and the victim still was alive when she Id.

Petitioner did not say anything about his fear of the victim or his Lodgment 1 at 202-45. In the portion of his

belief that the victim was going to attack him until after he stated that he was "not saying anything right now." confession after the challenged statement, Petitioner admitted that he used the rocks to bash the victim's head and rib cage and that he violently kicked the victim. Id. at 222-45. Petitioner also explained that he drank several beers, Id. The that he lost his temper, that the victim made him really angry, and that he hit the victim because he believed the victim was going to attack him. facts asserted in this portion of Petitioner's statement support the arguments for both first degree and voluntary manslaughter. Because the jury rejected both crimes, there is no evidence that the allegedly improper portion of the confession affected the jury's verdict. Accordingly, the error in admitting that portion of the Petitioner's statement, if any, was harmless.

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Without the challenged portion of Petitioner's confession, there is overwhelming evidence that Petitioner killed the victim with malice aforethought. The size and number of rocks used and the devastating damage inflicted on the victim's head easily supports the jury's conclusion that Petitioner deliberately and intentionally threw the rocks on the victim's head knowing that such an act likely would endanger the victim's life and that he did so after he fought with the victim earlier in the day. This conclusion is reinforced

by the blood evidence and Ms. Ruiz' 911 statement, which establish that Petitioner lied on several critical issues, including how the victim's blood got on him, that he attempted CPR, and that he did not notice the devastating damage to the victim's head. Finally,

without the challenged portion of Petitioner's confession, there is no evidence negating the malice aforethought evidence because

Petitioner's confession offers the only evidence that the victim presented an immediate danger at the time of the killing or that Petitioner perceived such a danger. Given this evidence, the Court

concludes that there is a fair assurance that the admission of the portion of Petitioner's confession after the challenged statement did not have a substantial and injurious effect or influence in determining the jury's verdict. Brecht, 507 U.S. at 637.

Accordingly, the error in admitting the remainder of Petitioner's confession, if any, was harmless. In sum, this Court finds that the California Court of

Appeal's decision denying Petitioner's first claim was not contrary to, or an unreasonable application of, clearly established federal law, nor was it an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). The Court,

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therefore, RECOMMENDS that Petitioner's first ground for habeas relief be DENIED. B. Ground 2 - Failure to Instruct on Unreasonable Self-Defense Petitioner contends that the trial court erred by not, sua sponte, instructing the jury on the definition of unreasonable selfdefense (CALJIC No. 5.17) and, consequently, violated his federal due process rights. Pet. at 7. He acknowledges the Court of

Appeal's argument that substantial evidence of that defense was not present and that, even if it was, the defense was appropriately covered by other instructions so as to render any error harmless. Id. However, because unreasonable self-defense was never defined in any of these other instructions, Petitioner argues that the trial court should have separately instructed on this critical aspect of Petitioner's defense. Id.; Lodgment 6 at 11-12.

In response, Respondent argues that Petitioner's claim fails to state a federal question. Respondent submits Id. that the Resp't Mem. at 15. state court's Even if it does, was not

conclusion

unreasonable. 1.

Federal Question

As a preliminary matter, this Court notes that only claims alleging a violation of "the Constitution, laws, or treaties of the United States" are cognizable on federal habeas review. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991); see also 28 U.S.C. § 2254(a). Consequently, to ensure a federal court's review of his claims for relief, a habeas petitioner must allege he is in custody "in violation of the Constitution or the laws or treaties of the United States," see 28 U.S.C. § 2254(a), by citing "provisions of the federal Constitution or . . . either federal or state case law that

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engages in a federal constitutional analysis," Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) (explaining requirements for exhaustion purposes). In his second claim, Petitioner merely asserts that he was denied due process without of law as guaranteed any under the federal

constitution, provision.

specifying

particular

constitutional

Pet. at 7.

Because federal courts are obligated to

construe pro se pleadings liberally, see Barron v. Ashcroft, 358 F.3d 674, 676 (9th Cir. 2004), this Court interprets Petitioner's claim as alleging that the instructional error violated his

constitutional Due Process rights under the Fourteenth Amendment. Such an allegation undeniably states a cognizable claim for habeas relief. Accordingly, this Court finds that Petitioner has alleged

a federal violation sufficient to enable review of his claim. 2. Federal Relief

Respondent contends that Petitioner's claim that the state court failed to adequately define unreasonable self-defense

challenges only the state court's interpretation of state law and, as such, is not cognizable on federal habeas review. Resp't Mem. at 16. Respondent is correct that this claim is not cognizable on

federal habeas review because habeas relief is not available for an alleged error in the interpretation or application of state law. Estelle, 502 U.S. at 67-68; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991); see also Dugger v. Adams, 489 U.S. 401, 409 (1989) ("the availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution"). However, to the extent Petitioner argues that the jury was

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not instructed on a viable defense that was supported by the evidence, in violation of his federal constitutional rights, this claim is cognizable. Instructional error will support a petition

for federal habeas relief if it is shown "not merely that the instruction is undesirable, erroneous, or even `universally

condemned,'" Cupp v. Naughten, 414 U.S. 141, 146 (1973), but that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," id. at 147. "This

standard for instructional error applies to ambiguous or omitted instructions." 2001). Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir.

"An appraisal of the significance of an error in the

instructions to the jury requires a comparison of the instructions which were actually given with those that should have been given." Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Murtishaw, 255 F.3d at 971. Even if the omission in the instructions is found to have violated a petitioner's right to due process, a habeas petitioner can obtain relief only if the unconstitutional instructions had a substantial influence on the conviction and thereby resulted in actual prejudice under Brecht. Brecht requires a court to determine whether the constitutional error "`had a substantial and injurious effect or influence in determining the jury's verdict.'" 507 U.S. at 637. harmless. Brecht,

Trial errors that do not meet this test are deemed

See Bonin v. Calderon, 59 F.3d 815, 823-24 (9th Cir.

1995); Williams v. Calderon, 52 F.3d 1465, 1476 (9th Cir. 1995) (failure to instruct on element of kidnapping special circumstance subject to Brecht harmless error review). In this case, Petitioner contends that the trial court had a

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duty to instruct the jury sua sponte under CALJIC No. 5.17, which provides: A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of [voluntary] [or] [involuntary] manslaughter. [¶] As used in this instruction, an "imminent" [peril] [or] [danger] means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [¶] [However, this principle is not available, and malice aforethought is not negated, if the defendant by [his] [her] [unlawful] [or] [wrongful] conduct created the circumstances which legally justified [his] [her] adversary's [use of force], [attack] [or] [pursuit].] [¶] [This principle applies equally to a person who kills in purported self-defense or purported defense of another person.] Lodgment 5 at 14. court did As the Court of Appeal highlighted, the trial the jury on voluntary and involuntary

instruct

manslaughter under CALJIC Nos. 8.40 and 8.45, "both of which told the jurors there is no malice aforethought if the killing occurred `in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.'" Lodgment 5 at 16; Lodgment 2, vol. 4 at 609 (instruction to the jury on voluntary manslaughter) & 612 (instruction to the jury on involuntary manslaughter). Thus, the crux of Petitioner's claim is

that the trial court's failure to further clarify the unreasonable self-defense concept by way of a separate instruction "so infected the entire trial that the resulting conviction violates due

process."

Estelle, 502 U.S. at 71-72.

The Court of Appeal concluded that the trial court had no

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duty to instruct sua sponte on unreasonable self-defense because there was no substantial evidence that Petitioner killed Sanchez in the unreasonable belief that he was acting in self-defense.

Lodgment 5 at 15.

"As a general proposition, a defendant is

entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Matthews v. United States, 485 U.S. 58, 63 (1988)

(noting that "[a] parallel rule has been applied in the context of a lesser included offense instruction"). In other words, due

process requires defense instructions to be given only when the evidence warrants such an instruction. U.S. 605, 611 (1982). defense is not See Hopper v. Evans, 456

Under California law, unreasonable selfa defense, but rather a shorthand People v.

actually

description of one form of voluntary manslaughter.

Barton, 12 Cal. 4th 186, 200 (1995). "Accordingly, when a defendant is charged with murder the trial court's duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense." Id. at 201. The duty arises whenever there is

substantial evidence that "the defendant killed the victim in the unreasonable self-defense." but Id. good faith belief in having to act in

In this case, the Court of Appeal noted that

Petitioner confessed to voluntarily killing Sanchez while he was sleeping. Lodgment 5 at 15. It found that Petitioner's "later

attempt to justify the killing by telling detectives that Sanchez had `come at him' was simply not credible, nor was his initial statement that the blood got on his clothes because he was

performing CPR on Sanchez."

Id.

As such, the Court of Appeal

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concluded that the trial court had no duty to instruct sua sponte with CALJIC 5.17 because there was not substantial evidence in the record that Petitioner honestly believe he was in imminent peril. Id. at 15-16. On this record, this Court finds that the Court of Appeal's determination of the facts was reasonable. Unreasonable self-

defense is not a defense under California law and the trial court properly instructed the jury on the lesser included offenses of voluntary and involuntary manslaughter. Moreover, the trial court

reasonably determined that there was no credible evidence that Petitioner believed he was acting in self-defense, see 28 U.S.C. § 2254(e)(1) (this Court will presume that the state court's factual findings are correct absent clear and convincing evidence to the contrary), and Petitioner has not directed the Court to any evidence in the record for a reasonable jury to find Petitioner acted in unreasonable self-defense, Matthews, 485 U.S. at 63. Given that the jury ultimately rejected all self-defense theories, imperfect or otherwise, in concluding that Petitioner acted with the requisite malice to support a second-degree murder conviction, it is logical to assume that a more comprehensive instruction on unreasonable self-defense would not have affected their verdict. See Henderson,

431 U.S. at 156 (reasoning that "since it is logical to assume that the jurors would have responded to an instruction on causation consistently with their determination of the issues that were comprehensively explained, it is equally logical to conclude that such an instruction would not have affected their verdict").

Accordingly, the Court rejects the suggestion that omission of a more complete instruction on unreasonable self-defense "so infected

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the

entire

trial

that

the

resulting

conviction

violated

due

process."

Estelle, 502 U.S. at 71-72.

Furthermore, as the Supreme Court recognized under similar facts in Henderson, the likelihood of obtaining relief based on this type of claim is remote. In Henderson, the New York murder statute, under which the defendant was convicted, provided "`(a) person is guilty of murder in the second degree' when `(u)nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.'"

Henderson, 431 U.S. at 148.

The defendant challenged the trial

court's failure to specifically instruct the jury on the definition of causation, which the court of appeal defined as involving "ultimate harm" that "should have been foreseen." Id. On federal habeas review, the Supreme Court stated: In this case, the respondent's burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation beyond the reading of the statutory language itself of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Id. at 155. Upon the facts before it, the Supreme Court concluded at 152, 155.

that in light of the other instructions given in the case, omission of more complete instructions on the causation issue did not "so infect[] the entire trial that the resulting conviction violated due process." Id. at 156. The jurors had been instructed on

recklessness and returned a verdict finding that the defendant had, in fact, been reckless. Id. Because a finding of recklessness

necessarily includes a determination that the ultimate harm was foreseeable (the definition of causation), the jury did find

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causation and the Court, therefore, concluded that an additional instruction would not likely have affected the verdict. Id.

Moreover, the Supreme Court determined that even if it made the assumption that the jury would have reached a different verdict upon hearing the additional instruction, "the possibility is too

speculative to justify the conclusion that constitutional error was committed." Id. at 157.

This Court finds the instant case analogous to Henderson. Here, the Court need not even make as great an inference as the Henderson court because in this case the trial court actually instructed the jury twice on unreasonable self-defense. CALJIC 5.17 provides more elaboration, the jurors were Though fully

informed that unreasonable self-defense negates the element of malice aforethought necessary for a murder conviction. They

nonetheless convicted him of second degree murder, thus implying that the omission of the instruction did not "so infect[] the entire trial that the resulting conviction violated due process." Estelle, 502 U.S. at 71-72. Furthermore, the substantial coverage of this

issue by the voluntary and involuntary manslaughter instructions, coupled with the absence of credible evidence of unreasonable selfdefense, supports the Court of Appeal's conclusion that the jury's conclusion would have been the same even if the trial court had instructed with CALJIC 5.17 and that any error, therefore, was harmless. Brecht, 507 U.S. at 637; Bonin, 59 F.3d at 823-24.

Accordingly, this Court concludes that Petitioner's claim does not provide a basis for federal habeas relief and RECOMMENDS that Petitioner's second ground for relief be DENIED.

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C.

Ground 3 - Admission of Photographs of the Victim In his third ground for relief, Petitioner alleges that the

trial court abused its discretion in admitting inflammatory and unnecessary photographs of the victim's head. Pet. at 8.

Petitioner argues that the highly prejudicial nature of these photographs greatly exceeded their probative value and likely

influenced the jury to impose a second degree murder conviction as a compromise. Id.

Respondent submits that Petitioner has once again failed to state a federal claim but that, regardless, the state court's rejection of his claim regarding the admission of these photographs was not contrary to or an unreasonable application of United States Supreme Court law nor was it an unreasonable factual determination. Resp't Mem. at 19-20. The Court of Appeal succinctly described the factual

background of this issue as follows: A. Background

At trial, the people sought to introduce photographs of the crime scene, including depictions of Sanchez as officers found him, as well as photos taken at the autopsy that depicted his injuries. Defense counsel objected under Evidence Code section 352 that photos depicting Sanchez's head injuries were prejudicial and cumulative of testimony. The People responded that the photos were highly relevant and probative to show the malice necessary to support a first degree murder conviction, the injuries suffered by Sanchez, and the savageness of the attack. The People also argued that the photographs would assist the jury in understanding expert testimony. The court, after weighing the pictures' prejudice against their relevance, decided that one photograph depicting Sanchez at the crime scene and one p