Berry v. Davis

• Decision Date: 20 October 2014
• Docket Number: No. 2:10-cv-00305-JKS,2:10-cv-00305-JKS
• Court: U.S. District Court — Eastern District of California
• Parties: DONALD JOSEPH BERRY, Petitioner, v. RON DAVIS, Warden, Valley State Prison, Respondent.

DONALD JOSEPH BERRY, Petitioner, v. RON DAVIS, Warden, Valley State Prison,¹ Respondent.

No. 2:10-cv-00305-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 20, 2014

MEMORANDUM DECISION

Donald Joseph Berry, a state prisoner proceeding through appointed counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Berry is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Valley State Prison. Respondent has answered, and Berry has replied.

I. BACKGROUND/PRIOR PROCEEDINGS²

In resolving Berry's claims on direct appeal, the California Court of Appeal recounted the factual background of this case as follows:

[Anona Lorraine] Wine moved to Hayfork, California sometime around 2002 or 2003 to live with her mother. Eventually, she and [Berry] moved in together. By all accounts, their relationship was stormy.

In September 2005, Wine was involved in a car accident that left her in a coma for several weeks. She suffered a traumatic brain injury that affected her speech, memory, and mobility. When Wine was first released from the hospital, her mother cared for her, but after a few months, Wine moved to Redding, where she was cared for by her daughter, son, and her daughter's father, William Cote.

Sometime in June 2006, Wine moved back to Hayfork to live with [Berry]. At the time of Wine's murder, she was living with [Berry] at the Stokke Ranch in Hayfork. She had recovered some from her injuries, but she still had problems with her speech, balance, and generally with taking care of herself. Wine and [Berry] shared the care taking duties for the Stokke Ranch with Jerry Allen, who lived at the ranch in his recreational vehicle. Jerry's brother, Richard, lived in the RV as well.

Around 5:00 or 6:00 [in] the evening of January 23, 2007, Jerry Allen saw Wine and [Berry] when he left some food at their house. About an hour later, Jerry went to the local bar to have pizza, drink beer, and play pool. Around 8:00 or 9:00 p.m., Jerry went back to the ranch house to invite [Berry] and Wine to join him at the bar. He went into the house without knocking, and saw [Berry] standing over Wine with a shotgun. [Berry] was holding the gun as if he had just struck Wine with it, but Jerry testified he did not see [Berry] strike Wine. However, during a taped interview that occurred shortly after the incident, Jerry told detectives that he saw [Berry] hit Wine in the head twice with the butt of a shotgun.

[Berry] told Jerry that Wine had fallen and he was just helping her get up. [Berry] told Jerry that they would come to the bar.

When Jerry had been at the bar an hour or so, [Berry] showed up at the bar alone and stayed 20 or 30 minutes. [Berry] had a strange expression on his face that made Jerry feel eerie and scared. Jerry left the bar around 10:30 or 11:00 that night.

After Jerry got home, his brother Richard Allen left to go to [Berry's] house to get some tobacco. Richard came back and told Jerry that Wine needed help. Richard said Wine was lying on the floor and her pants were wet.

Jerry went into the house, and saw Wine propped up against the refrigerator. Wine's face looked like it had been badly beaten, and she was not breathing. Jerry administered CPR, and Wine started breathing. Jerry saw [Berry] walking around with the shotgun. Jerry could not call 911 from the house because the telephone was not on the counter where it usually was.

[Berry] had opened the shotgun, and appeared to be looking for a shell. Jerry pushed the shotgun out of [Berry's] hands, and the gun appeared to break. Jerry told [Berry] he was going to get help. As he left the house, he heard [Berry] saying "No, Jerry, no, no." Jerry drove to the police substation where he was able to get help.

When Deputy Ron Whitman reached the house, Wine had a pulse, but she was not breathing. Her face was black, her right eye was badly bruised, and she had a swollen lip. Wine never regained consciousness, and was declared brain dead the next day.

The cause of Wine's death was multiple blunt force injuries to her head. The injuries were to all areas of the head—the front, the back, the top, and the sides. She had three or four contusions on the top of the head, indicating as many blows to the top of the head. A blood test revealed she had nothing in her system other than a low level (belowtherapeutic range) of [V]alium. Wine had multiple other bruises and contusions on other parts of her body. Some of the injuries were older. A large chunk of her hair had been pulled out.

[Berry] testified that when he got home from the bar, he and Wine argued. She jumped up from the couch, and he pushed her back down. She lunged back up, and swung at him with a blunt-pointed pair of scissors. He grabbed the scissors out of her hand and threw them away. He testified that the scissors really "set [him] off." He could not believe she had the gall to try to stab him after all he had done for her. At this point, he had lost his temper beyond the point where he was in control of himself. [Berry] grabbed Wine by the hair, spun her around, and pushed her hard. When he pushed her, a clump of her hair pulled out.

At some point after pushing her down, he noticed she was lying on the floor and not getting up, even though her eyes were open. He reached down and slapped her once on the face because he thought she was faking unconsciousness. She did not respond, so he started slapping her more.

[Berry] testified that from the time he grabbed Wine's hair she had "relinquished doing anything." He had gained control of her, but lost control of himself. When he had her hair, she had given up and was not fighting anymore.

When he heard a knock at the door, he got his shotgun, went to the door, and saw that it was Jerry. He took the butt of the shotgun and moved Wine's head with it to show Jerry that she was not waking up.

People v. Berry, No. C058321, 2009 WL 3247371, at *1-3 (Cal. Ct. App. Oct. 9, 2009).

A jury found Berry not guilty of first degree murder, but guilty of second degree murder, corporal injury on a cohabitant, and assault with a firearm. Id. at *1. The jury also found true the special allegations that Berry personally used a firearm and personally inflicted great bodily injury in committing corporal injury of a cohabitant and assault. Id. The trial court sentenced Berry to an aggregate term of 25 years to life (15 years to life for second degree murder plus 10 years for the personal use of a firearm enhancement), and stayed the terms for the remaining counts and enhancements. Id.

Through counsel, Berry appealed, arguing that: 1) the trial court improperly instructed the jury on mutual combat; 2) the trial court improperly instructed the jury on felony murder; 3) the trial court erroneously permitted the introduction of expert testimony on battered women'ssyndrome and Stockholm syndrome; 4) the trial court erred in excluding a statement Berry made to a defense investigator; 5) his conviction should be reversed due to cumulative errors; 6) the three upper term sentences were imposed without an adequate statement of reasons and in violation of his Sixth Amendment right to a jury trial; and 7) the abstract of judgment was incorrect. The Court of Appeal directed the trial court to correct the abstract and affirmed the judgment of conviction in all other respects in a reasoned, unpublished opinion. Id. at *10.

Berry filed a counseled petition for review to the California Supreme Court, arguing that: 1) the trial court improperly instructed the jury on felony murder; 2) the trial court improperly instructed the jury on mutual combat; and 3) the trial court erred in excluding a statement Berry made to a defense investigator. The California Supreme Court summarily denied review.

Berry timely filed a pro se Petition with this Court on January 27, 2010, and Respondent answered. Berry then filed a motion for the appointment of counsel, in which he claimed that he was "totally unable," without the assistance of counsel, "to communicate rationally with this Court." The Court, through a previously assigned magistrate judge, denied Berry's motion. Berry subsequently filed a "notice of objection" to the Court's denial of his request for counsel as well as a request for a competency hearing. The Court appointed counsel and denied the motion for a competency hearing. Berry then filed a counseled Amended Petition as well as a motion for a stay and abeyance so that he could return to state court to raise several ineffective assistance of counsel claims. The Court granted the stay and abeyance, and after the California Supreme Court summarily denied Berry's exhaustion petition, Berry filed a memorandum of law in support of his Amended Petition which included his recently exhausted claims.

II. GROUNDS RAISED

In his counseled Amended Petition to this Court, Berry raises the following claims: 1) the trial court improperly instructed the jury on felony murder; 2) the trial court improperly instructed the jury on mutual combat; 3) he was deprived of his right to the effective assistance of counsel on multiple grounds; and 4) the cumulative effect of errors denied him due process and the right to a fair trial.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable...