Dwight Evans v. Raymond Madden ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWIGHT EVANS, No. 19-56054
Petitioner-Appellant, D.C. No.
2:18-cv-05980-R-SHK
v.
RAYMOND MADDEN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted November 13, 2020**
Pasadena, California
Before: CHRISTEN and WATFORD, Circuit Judges, and ROSENTHAL,***
District Judge.
Even on a cold appellate record and viewed through the doubly deferential
standard of federal habeas review, this case has some drama. Dwight Evans and
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lee H. Rosenthal, Chief United States District Judge for the
Southern District of Texas, sitting by designation.
Antonio Barnes had known each other for years and belonged to the same gang, the
Bounty Hunter Bloods. Evans was married to Tanasha Parker. Barnes was in a
romantic relationship with Parker.
On an election day in March 2013, Evans and Parker went to a polling place
where Parker was working. Evans signed in using the name “David,” not “Dwight.”
Barnes came to the polling place and asked to speak with Parker. Evans asked
Barnes “what’s up, player, player,” then asked Barnes to “step outside.” Evans led
the way to the door and checked to make sure Barnes followed him out of the
building. Seconds later, three shots rang out. Barnes stumbled back through the
door with gunshot wounds.
A janitor at the polling place was the first person to help Barnes. Barnes told
the janitor that the “old girl’s man” shot him and that he should not have been
“messing around” with her. Police found a sweatshirt with the nametag “David”
less than a block from the polling place.
Barnes survived. A jury convicted Evans of attempted premeditated murder
and of being a felon in possession of a firearm. He was sentenced to 50 years to life.
Evans argues that the trial court erred by failing to include the attempted
manslaughter instruction in the written jury instructions, although the court included
it in the oral instructions. Evans also argues that there was insufficient evidence to
support his convictions. The California Court of Appeal upheld his convictions and
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sentence, and the California Supreme Court denied discretionary review. Evans
filed a petition for writ of habeas corpus with the federal district court, which denied
it. We have jurisdiction under 28 U.S.C. § 2254, and we affirm.
I. The Standards of Review
We review de novo a district court’s denial of a petition for a writ of habeas
corpus. Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). In assessing a state
court conviction, we review the “last reasoned state court decision,” which, in this
case, was the California Court of Appeal’s decision to uphold Evans’s conviction.
Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). We may affirm on any ground
the record supports. Ybarra v. McDaniel, 656 F.3d 984, 989 (9th Cir. 2011).
Under the Antiterrorism and Effective Death Penalty Act of 1996, we may not
grant a writ of habeas corpus “with respect to any claim that was adjudicated on the
merits in State court proceedings” unless the adjudication 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 “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)(1), (2).
II. The Jury Instructions
Evans first argues that the trial court violated his due-process rights by failing
to provide written instructions on the lesser-included offense of attempted
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manslaughter. The trial court’s oral instructions included that “[a]n attempted killing
that would otherwise be attempted murder is reduced to attempted voluntary
manslaughter if the defendant attempted to kill someone because of a sudden quarrel
or in the heat of passion.” Besides orally instructing the jury on the elements of
attempted voluntary manslaughter, the trial court provided the jury with a verdict
form for attempted voluntary manslaughter. In closing, attorneys for both sides
argued the attempted voluntary manslaughter issue. The defense asked the jury to
find Evans guilty only of attempted voluntary manslaughter. The prosecutor argued
that the lesser offense did not apply because the shooting was “ambush” style and
not in the heat of passion.
The failure to provide written jury instructions on attempted voluntary
manslaughter in these circumstances was error, but the state court’s finding that the
error did not violate Evans’s due-process rights was not unreasonable. See United
States v. Jones, 353 F.3d 816, 819 (9th Cir. 2003) (“While providing the jury with
written instructions has become increasingly common in the past decades, it is not
automatically required.”). The California Court of Appeals neither violated nor
unreasonably applied clearly established federal law in denying relief on this claim.
III. The Sufficiency of the Evidence
Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), evidence is sufficient to
support a conviction if, “after viewing the evidence in the light most favorable to the
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prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Lucero v. Holland, 902 F.3d 979, 990 (9th Cir.
2018) (quoting Jackson, 443 U.S. at 319 (emphasis in original)). The question is
whether the jury’s finding was “so insupportable as to fall below the threshold of
bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 (2012) (per curiam). We
grant a writ of habeas corpus based on the insufficiency of the evidence only if we
“conclude that the state court’s determination that a rational jury could have found
each required element proven beyond a reasonable doubt was not just wrong but was
objectively unreasonable.” Johnson v. Montgomery, 899 F.3d 1052, 1056–57 (9th
Cir. 2018). When making this determination, we look to state law “only to establish
the elements” of the crime, and then “turn to the federal question of whether the
[state] court was objectively unreasonable in concluding that sufficient evidence
supported” its decision. Boyer, 659 F.3d at 965 (quoting Juan H. v. Allen, 408 F.3d
1262, 1266 n.14 (9th Cir. 2005)).
Evans argues that much of the witness testimony was contradictory and that
no physical evidence linked him to the shooting. The evidence showed that Barnes
identified Evans as the shooter within minutes after the shooting. At trial, Barnes
recanted his prior identification and said that he did not see Evans on the day of the
shooting. Instead, Barnes testified that he and Evans “get along.” To rebut Barnes’s
testimony, a police detective testified that gang members regularly do not cooperate
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with law enforcement or testify against fellow gang members. Barnes and Evans
were fellow gang members.
Evans also points out that the janitor who helped Barnes after the shooting no
longer remembered if Barnes identified Evans as the shooter. Two individuals who
were near the janitor at the time did not hear Barnes identify Evans as the shooter.
One of those witnesses was in the building just before the shooting and testified that
she did not see Barnes and Evans exchange angry words before they went outside.
While police found Evans’s sweatshirt in a truck bed half a block from the shooting
location, the sweatshirt had no blood or gunpowder residue. No one else saw Evans
shoot Barnes or saw Evans with a gun. A detective also testified that rival gang
members sometimes shoot each other, and, because Barnes and Evans were in rival
gang territory when Evans was shot, a rival gang member could have been the
shooter.
The record showed that Barnes had an intermittent romantic relationship with
Evans’s wife. Seconds after leaving the building with Evans, Barnes was shot three
times. And even though Evans and Barnes were friends, Evans and his wife left the
building immediately after Barnes was shot.
The record required the jury to resolve the conflicting evidence and make
credibility determinations about witnesses giving contradictory testimony. See
Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (“A jury’s credibility
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determinations are therefore entitled to near-total deference under Jackson.”). The
evidence, largely circumstantial, was sufficient to support the premeditated
attempted murder conviction. United States v. Begay, 673 F.3d 1038, 1043 (9th Cir.
2011) (“Premeditation can be proved by circumstantial evidence.”).
On this record, a federal habeas court “must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any . . . conflicts in
favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at
326. The judgment that there was sufficient evidence for a reasonable jury to
conclude that Evans was the shooter was not objectively unreasonable.
AFFIRMED.
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