(HC) Tran v. Angelea ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KHIEM TRAN No. 2:18-cv-3000 KJM DB 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 HUNTER ANGELEA, 15 Respondent. 16 17 Petitioner Khiem Thuong Tran, a state prisoner, proceeds pro se with a petition for a writ 18 of habeas corpus under 28 U.S.C. § 2254. Petitioner was convicted of second degree murder 19 entered on January 15, 2016 in the Sacramento County Superior Court. (ECF No. 18-1 at 181-82.) 20 He now challenges that conviction by arguing that the trial court’s failure to sua sponte modify 21 the voluntary intoxication jury instruction was prejudicial. For the reasons set forth below, this 22 court recommends denying the petition. 23 BACKGROUND 24 Facts Established at Trial 25 The California Court of Appeal for the Third Appellate District provided the following 26 summary of the facts presented at trial: 27 Defendant killed his wife by stabbing her eight times. That night, defendant and his wife went to a party. Shortly before they left the 28 party, defendant was holding a beer bottle. Someone asked him to 1 finish it. Defendant replied that he had already had seven beers. His wife drove them home. 2 Defendant and his wife lived with defendant’s parents. Defendant’s 3 father had gone to bed around 10:00 p.m. He woke to hear defendant and his wife arguing and yelling, though he could not make out what 4 they were saying. He was not concerned though: they would argue every month or so. 5 When defendant’s parents heard defendant’s son crying, they went 6 into the master bedroom. There, they found the wife lying on the ground. Defendant’s father called 911. As he did, he saw defendant 7 crawling down the hallway; defendant was also trying to call 911. 8 Defendant’s wife died from multiple stab wounds. She had two stab wounds on her chest and six on her upper back. She also had minor 9 cuts on her right hand, which were consistent with defensive wounds. 10 Defendant also had a number of stab wounds. He had a cluster of five or six superficial stab wounds near his left nipple and another cluster 11 of superficial wounds, near the middle of his chest. That cluster, however, had a “rather large, very gaping wound,” that went “a little 12 bit into the chest cavity.” The gaping wound was very different from the other wounds. 13 An expert for the defense opined defendant’s wounds were inflicted 14 at separate times and by different mechanisms. The tightly clustered wounds could be due to self-infliction. But the gaping wound implied 15 the defendant moved, and “usually you see movement when one is stabbed,” as opposed to self-inflicted. 16 Defendant’s blood was collected at 12:04 a.m., and his blood-alcohol 17 concentration ranged from 0.128 to 0.175 percent. 18 After the murder, defendant spoke with a detective and made numerous inculpatory statements, which were played for the jury: 19 “we got home—we both laughing and we both have fun and I don’t know what happened after that. I was so stupid why? . . .There’s 20 something wrong in my head?” “I think—I did it—I did everything so you don’t ask any more please sir—I (unintelligible) I don’t know 21 the only thing is I remember—is I shouldn’t do it.” “I killed my wife—I don’t know what else I can tell you.” 22 When asked how he had received the stab wounds, he said: “I think 23 she did me once—I did my twice—I don’t know—I don’t remember.” The detective tried to clarify: “Okay so you think she 24 stabbed you once and then you stabbed yourself twice is that what you’re sayin’?” Defendant said: “Yeah I think so—I don’t remember 25 how many I did . . . .” Asked why he would stab himself, defendant said: “If she die I want to die with her.” 26 27 (ECF No. 18-8 at 3–4; People v. Tran, No. C081997, 2017 WL 5022365, at *1–2 (Cal. Ct. App. 28 Nov. 3, 2017).) 1 After hearing the evidence, the trial court instructed the jury on the applicable law. (ECF 2 No. 18-1 at 136–73.) Those jury instructions included CALCRIM 220, which states “[i]n 3 deciding whether the People have proved their case beyond a reasonable doubt, you must 4 impartially compare and consider all the evidence that was received throughout the entire trial.”1 5 (Id. at 140; see also ECF No. 18-3 at 260.) The trial court also instructed the jury on CALCRIM 6 625 voluntary intoxication: 7 You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence 8 only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. 9 A person is voluntarily intoxicated if he becomes intoxicated by 10 willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly 11 assuming the risk of that effect. 12 You may not consider evidence of voluntary intoxication for any other purpose. 13 14 (ECF No. 18-1 at 171; see also ECF No. 18-3 at 277.) None of the parties objected to the 15 voluntary intoxication jury instruction. (ECF No. 18-3 at 254–55.) 16 Procedural Background 17 A. Judgment 18 A jury found petitioner not guilty of first degree murder and guilty of second degree 19 murder. (ECF No. 18-1 at 182.) The trial court imposed a prison term of 15 years to life for 20 second degree murder with a one-year enhancement for using a deadly weapon to commit the 21 offense. (Id. at 223; ECF No. 18-3 at 386-88.) 22 B. State Appeal and Federal Proceedings 23 Petitioner timely appealed his conviction on two grounds: (1) the trial court erroneously 24 instructed the jury that it “may,” rather than “must,” consider evidence of his voluntary 25 intoxication in determining defendant’s mental state; and (2) Penal Code section 29.4 improperly 26 foreclosed consideration of intoxication on implied malice. (ECF No. 18-5.) The California Court 27 1 Before the trial began, the trial court also instructed the jury on CALCRIM 103 reasonable 28 doubt. 1 of Appeal disagreed and affirmed the conviction. (ECF No. 18-8.) Petitioner subsequently filed a 2 petition for review in the California Supreme Court. (ECF No. 18-9.) On January 10, 2018, the 3 California Supreme Court summarily denied review. (ECF No. 18-10.) 4 On November 16, 2018, petitioner filed the present petition seeking habeas corpus relief. 5 (ECF No. 1.) Respondent has filed an answer. (ECF No. 17.) Petitioner filed a traverse. (ECF No. 6 20.) 7 STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS 8 A court entertains an application for a writ of habeas corpus by a person in custody under 9 a judgment of a state court on the ground that he is in custody in violation of the Constitution or 10 laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for an 11 alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 12 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Park v. California, 202 F.3d 1146, 1149 13 (9th Cir. 2000) (stating that “a violation of state law standing alone is not cognizable in federal 14 court on habeas.”). 15 This court may not grant habeas corpus relief unless the adjudication of the claim: 16 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 17 determined by the Supreme Court of the United States; or 18 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 19 State court proceeding. 20 28 U.S.C. § 2254(d). For purposes of applying § 2254(d)(1), “clearly established federal law” 21 consists of holdings of the United States Supreme Court at the time of the last reasoned state court 22 decision. Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 23 2011) (citing Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). Circuit court precedent “‘may be 24 persuasive in determining what law is clearly established and whether a state court applied that 25 law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th 26 Cir. 2010)). But it may not be “used to refine or sharpen a general principle of Supreme Court 27 jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall 28 v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam) (citing Parker v. Matthews, 567 U.S. 37 (2012)); 1 see also Carey v. Musladin, 549 U.S. 70, 76–77 (2006). Nor may circuit precedent be used to 2 “determine whether a particular rule of law is so widely accepted among the Federal Circuits that 3 it would, if presented to th[e] [Supreme] Court, be accepted as correct.” Marshall, 569 U.S. at 64. 4 A habeas corpus application can invoke § 2254(d)(1) in two ways. First, a state court 5 decision is “contrary to” clearly established federal law if it either applies a rule that contradicts a 6 holding of the Supreme Court or reaches a different result from Supreme Court precedent on 7 “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting 8 Williams, 529 U.S. at 405–06). Second, “under the ‘unreasonable application’ clause, a federal 9 habeas court may grant the writ if the state court identifies the correct governing legal principle 10 from th[e] [Supreme] Court’s decisions but unreasonably applies that principle to the facts of the 11 prisoner’s case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 12 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A] federal habeas court may not 13 issue the writ simply because that court concludes in its independent judgment that the relevant 14 state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that 15 application must also be unreasonable.” Williams, 120 S. Ct. at 1522; see also Schriro v. 16 Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75. “A state court’s determination 17 that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 18 disagree’ on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 19 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a 20 condition for obtaining habeas corpus from a federal court, a state prisoner must show that the 21 state court's ruling on the claim being presented in federal court was so lacking in justification 22 that there was an error well understood and comprehended in existing law beyond any possibility 23 for fairminded disagreement.” Richter, 562 U.S. at 786–87. 24 A petitioner may also challenge a state court’s decision as being an unreasonable 25 determination of facts under § 2254(d)(2). Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 26 2012). Challenges under this clause fall into two categories; first, the state court’s findings of fact 27 “were not supported by substantial evidence in the state court record,” or second, the “fact- 28 finding process itself” was “deficient in some material way.” Id.; see also Hurles v. Ryan, 752 1 F.3d 768, 790–91 (9th Cir. 2014) (If a state court makes factual findings without an opportunity 2 for the petitioner to present evidence, the fact-finding process may be deficient and the state court 3 opinion may not be entitled to deference.). Under the “substantial evidence” category, the court 4 asks whether “an appellate panel, applying the normal standards of appellate review,” could 5 reasonably conclude that the finding is supported by the record. Hibbler, 693 F.3d at 1146 (9th 6 Cir. 2012) (quoting Taylor v. Maddox, 366 F.3d 992, 999–1000 (9th Cir. 2004), overruled on 7 other grounds by Murray v. Schriro, 745 F.3d 984, 999–1001 (9th Cir. 2014)). The “fact-finding 8 process” category, however, requires the federal court to “be satisfied that any appellate court to 9 whom the defect [in the state court’s fact-finding process] is pointed out would be unreasonable 10 in holding that the state court’s fact-finding process was adequate.” Hibbler, 693 F.3d at 1146-47 11 (quoting Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). The state court’s failure to hold 12 an evidentiary hearing does not automatically render its fact-finding process unreasonable. Id. at 13 1147. Further, a state court may make factual findings without an evidentiary hearing if “the 14 record conclusively establishes a fact or where petitioner’s factual allegations are entirely without 15 credibility.” Perez v. Rosario, 459 F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 16 F.3d 1045, 1055 (9th Cir. 2003)). 17 If a petitioner overcomes one of the hurdles posed by section 2254(d), this court reviews 18 the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see 19 also Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (en banc). For claims upon which a 20 petitioner seeks to present new evidence, the petitioner must meet the standards of 28 U.S.C. § 21 2254(e)(2) by showing that he has not “failed to develop the factual basis of [the] claim in State 22 court proceedings” and by meeting the federal case law standards for the presentation of evidence 23 in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011). 24 This court looks to the last reasoned state court decision as the basis for the state court 25 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 26 “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from 27 a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the 28 reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en 1 banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim 2 has been presented to a state court and the state court has denied relief, it may be presumed that 3 the state court adjudicated the claim on the merits in the absence of any indication or state-law 4 procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be 5 overcome if “there is reason to think some other explanation for the state court’s decision is more 6 likely.” Id. at (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state 7 court decision rejects some of petitioner’s claims but does not expressly address a federal claim, a 8 federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on 9 the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013). When it is clear that a state court has 10 not reached the merits of a petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 11 2254(d) does not apply, and a federal habeas court reviews the claim de novo. Stanley, 633 F.3d 12 at 860. 13 ANALYSIS 14 Petitioner only presents one ground for relief. He argues that the trial court’s failure to sua 15 sponte modify the voluntary intoxication jury instruction was prejudicial. The relevant jury 16 instruction stated that the jury “may consider evidence, if any, of the defendant's voluntary 17 intoxication only in a limited way.” (ECF No. 18-1 at 171.) Petitioner asserts that the trial court 18 should have modified the instruction to state that the jury “must,” not “may,” consider evidence 19 of defendant’s voluntary intoxication defense. He claims that the trial court’s failure to do so 20 violated his right to due process under the Fourteenth Amendment. 21 I. State Court Opinion 22 Petitioner also raised this claim on direct appeal. In the last reasoned state court decision, 23 the California Court of Appeal rejected the claim on the merits, concluding that the instruction 24 was unambiguous and, assuming there was an error, defendant failed to show prejudice. The court 25 reasoned: 26 The challenged instruction is unambiguous: it informs the jury that it “may consider” voluntary intoxication “only in a limited way.” The 27 instruction then proceeds to explain the limited way a jury “may consider” voluntary intoxication. Defendant’s reading runs counter 28 to that plain meaning as well as another instruction given 1 (CALCRIM No. 103) that the jury, “must impartially compare and consider all the evidence that was received throughout the entire 2 trial.” Defendant’s reading is therefore unpersuasive. (See People v. Avena (1996) 13 Cal.4th 394, 417 [we do not concern ourselves with 3 whether a meaning can be “teased out” of instruction]; People v. Sanchez (2001) 26 Cal.4th 834, 852 [“Jurors are presumed able to 4 understand and correlate instructions and are further presumed to have followed the court’s instructions.”].) 5 And even assuming arguendo defendant’s reading is correct, he 6 could not establish prejudice. For one, in all probability his intoxication led the jury to find him not guilty of first degree murder. 7 (See § 29.4, subd. (b) [on a murder charge, voluntary intoxication is admissible on the issue of whether the defendant premeditated, 8 deliberated, or harbored express malice aforethought].) For another, voluntary intoxication can negate express malice, not implied malice. 9 (Ibid.) This presents an all but insurmountable hurdle where the underlying act, from which the inference was drawn, involves 10 stabbing the victim eight times. (See People v. Elmore (2014) 59 Cal.4th 121, 133 [“Malice is implied when an unlawful killing results 11 from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for 12 that danger”].) 13 (ECF No. 18-8 at 5.) 14 II. Discussion 15 A federal habeas court must determine “‘whether the ailing instruction by itself so 16 infected the entire trial that the resulting conviction violates due process.’” Estelle, 502 U.S. at 72 17 (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973).) The instruction cannot merely be 18 “undesirable, erroneous, or even ‘universally condemned.’” Donnelly v. DeChristoforo, 416 U.S. 19 637, 643 (1974). It must violate a constitutional right. Id. Mere errors of state law in jury 20 instructions may not form the basis of habeas relief. See Waddington v. Sarausad, 555 U.S. 179, 21 190–91 (2009); Gilmore v. Taylor, 508 U.S. 333, 342 (1993). The jury instruction “‘may not be 22 judged in artificial isolation,’ but must be considered in the context of instructions as a whole and 23 the trial record.” Estelle, 502 U.S. at 72 (citing Cupp, 414 U.S. at 147.) 24 When a jury instruction is ambiguous, the court must determine if there is a reasonable 25 likelihood that the jury applied the instruction in a manner that violates the Constitution. Id. This 26 requires proof that the trial error resulted actual prejudice, meaning a “‘substantial and injurious 27 effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637 28 (1993) (citing Kotteakos v. United States, 328 U.S. 759, 776 (1946); see also Davis v. Ayala, 576 1 U.S. 257, 267–68 (2015); Hedgpeth v. Pulido, 555 U.S. 57, 61–62 (2008) (per curiam); Fry v. 2 Pliler, 551 U.S. 112, 121–22 (2007). 3 The Supreme Court has cautioned that there are few infractions that violate fundamental 4 fairness. Id.; see, e.g., Sarausad, 555 U.S. at 191–92; Middleton v. McNeil, 541 U.S. 433, 437 5 (2004) (per curiam) (stating that “not every ambiguity, inconsistency, or deficiency in a jury 6 instruction rises to the level of a due process violation”); Jones v. United States, 527 U.S. 373, 7 390–92 (1999); Gilmore, 508 U.S. at 344. 8 Here, petitioner’s argument that the jury instruction violated his due process rights fails. 9 There is no Supreme Court precedent that holds that the voluntary intoxication jury instruction, as 10 given in this case, violates due process. “If no Supreme Court precedent creates clearly 11 established federal law relating to the legal issue the habeas petitioner raised in state court, the 12 state court’s decision cannot be contrary to or an unreasonable application of clearly established 13 federal law.” Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). Furthermore, other federal 14 habeas courts have rejected similar challenges to CALCRIM 625. See, e.g., Delreal v. Grounds, 15 No. C 13-03423 WHA, 2014 WL 573383 at *9 (N.D. Cal. Feb. 11, 2014); Olvera v. Long, No. 16 12cv1433 WQH MDD, 2013 WL 5348425 at *8 (S.D. Cal. Sept. 30, 2013); Torres v. Adams, No. 17 C 09-2431 RMW PR, 2011 WL 837766 at *9–10 (N.D. Cal. Mar. 3, 2011). 18 Even if there was an error in the challenged jury instruction, it cannot be viewed in 19 isolation. Estelle, 502 U.S. at 72. As noted by the California appellate court, other jury 20 instructions informed the jury that they “must impartially compare and consider all the evidence 21 that was received throughout the entire trial.” (ECF No. 18-8 at 5; ECF No. 18-1 at 140; see also 22 ECF No. 18-3 at 260.) Viewing the voluntary intoxication jury instruction in the context of the 23 entire trial record, there is no reasonable likelihood that the jury applied the instruction in an 24 unconstitutional manner. 25 Petitioner’s reliance on United States v. Birbal, 62 F.3d 456 (2d Cir. 1995) is misplaced. 26 In Birbal, the trial court improperly instructed the jury on the government’s burden of proof 27 beyond a reasonable doubt. Id. at 459–60. The trial court’s erroneous instruction stated that, 28 should the government fail to prove defendant’s guilt beyond a reasonable doubt, the jury “may” 1 acquit defendant, presuming his innocence. Id. at 460. The Second Circuit concluded that 2 acquittal is not optional in that situation; if the government does not meet its burden of proof, the 3 jury “must” find defendant not guilty. Id. “By instructing the jury that it ‘may,’ rather than ‘must,’ 4 acquit if the government failed to meet this burden, the court gave the jury the clearly unlawful 5 option on a lower standard of proof.” Id. Unlike Birbal, the voluntary intoxication jury instruction 6 at issue here does not misstate the burden of proof beyond a reasonable doubt. 7 CONCLUSION 8 Petitioner fails to meet the standards set out in 28 U.S.C. § 2254(d) by showing the state 9 court decision was contrary to or an unreasonable application of clearly established law as 10 determined by the Supreme Court, or resulted in a decision based on an unreasonable 11 determination of the facts. 12 Thus, it is RECOMMENDED that petitioner’s petition for a writ of habeas corpus (ECF 13 No. 1) be denied. 14 These findings and recommendations will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. The document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 19 shall be served on all parties and filed with the court within seven (7) days after service of the 20 objections. Failure to file objections within the specified time may waive the right to appeal the 21 District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 22 F.2d 1153 (9th Cir. 1991). 23 //// 24 //// 25 //// 26 //// 27 //// 28 1 In the objections, the party may address whether a certificate of appealability should issue 2 | in the event an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 3 | Cases (the district court must issue or deny a certificate of appealability when it enters a final 4 | order adverse to the applicant). 5 | Dated: June 14, 2021 pcm. J ORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11