BRIGHT v. HAVILAND
| Decision Date | 04 April 2011 |
| Docket Number | No. CIV S-09-1774 JAM CHS,CIV S-09-1774 JAM CHS |
| Parties | JERRY BRIGHT, Petitioner, v. JOHN W. HAVILAND, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Petitioner Bright, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of offenses including felon in possession of a firearm, Sacramento County Superior Court, case number 06F11307, for which he is serving a five year prison sentence.
The following factual summary was taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review of petitioner's conviction. These factual findings have not been rebutted with clear and convincing evidence and are therefore presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). In December 2006, Folsom Police Officer Hector Alvarez observed a vehicle swerve into a ditch and then come back onto the road, making a series of erratic corrections or fishtails. There were no other vehicles on the road. Alvarez began to pursue the vehicle, a Ford Explorer, and followed it as it made a U-turn before turning into an apartment complex. The Explorer pulled into what Alvarez assumed was its assigned parking stall at the apartment complex. Alvarez activated the lights of his patrol car and pulled in behind the vehicle. The driver, later identified as defendant Jerry Bright, the sole occupant, started to get out of the Explorer. Alvarez ordered him to get back inside. Apparently understanding Alvarez's commands, defendant complied.
Alvarez approached the Explorer on the driver's side while his partner, Officer Steven Bailey, approached on the passenger side. The driver's side window was down. Alvarez noticed a smell of alcohol and that defendant's eyes were bloodshot. As Alvarez began talking with defendant, Bailey shined his flashlight into the passenger side of the Explorer and saw a handgun within arms reach of defendant on the front passenger seat. The gun, a .40-caliber Beretta, was in plain view, with the barrel of the gun pointed downward and the handle of the gun leaning next to, or in contact with, the back of the passenger seat nearest to the driver's seat. Bailey signaled to Alvarez that there was a gun in the vehicle. Defendant was arrested and placed in the officer's patrol car. Bailey recovered the gun, which had a magazine clip loaded with 10 bullets.
While defendant was being arrested, the officers noticed, in addition to defendant's bloodshot eyes and the strong smell of alcohol, that defendant's speech was slurred, although intelligible, and his gait was unsteady. His pants were unzipped and the crotch was wet, apparently from urine. Defendant did appear to understand what was happening and what was being asked of him. He complied fairly readily with the officer's commands, although his demeanor and language were increasingly defiant and aggressive. When Folsom Police Sergeant Andrea Chapman arrived at the scene, defendant called her by rank and complained of his treatment by Alvarez and Bailey.
The officers determined the Explorer was registered to Akisha Byrd, who lived at the apartment complex in an apartment right in front of where the Explorer was parked. Alvarez spoke with Byrd who confirmed her ownership of the Explorer. Bryd had given defendant, her boyfriend, permission to take the Explorer at about 8:00 p.m. the previous night. Byrd testified there was no gun in the Explorer when defendant borrowed it. Byrd testified she does not own a firearm and had never before seen the Beretta seized from her Explorer. She has never seen defendant with a gun in the 10 years she has known him.
Bryd testified that while she allows defendant to use her Explorer, she does not allow his friends to be in the Explorer. She knows defendant disregards her wishes, in part, because she has found items in the Explorer that do not belong to either her or defendant. Bryd testified defendant has a drinking problem and that he had been drinking heavily over the past year. He often does not recall later what happened when he was drinking.
No fingerprints were found on the Beretta, the magazine clip or the bullets. The fingerprint identification technician testified it is difficult to obtain fingerprints from the handle of a gun. Defendant's blood sample taken after his arrest showed he had a blood-alcohol level of 0.21 percent.
It was stipulated defendant was convicted of a felony in 1999 in Sacramento County.
Defendant testified on his own behalf and admitted being drunk and driving that night. He testified he drank two 40-ounce beers and multiple mixed drinks in the approximately four hours prior to his arrest. Defendant claimed he was asked by a friend to drive a friend of that friend back to Orangevale from the club in South Sacramento where they had been drinking. Defendant drove this person, whose name he could not remember, to a location in Orangevale which he could not remember. Defendant could not provide any description of the person to whom he gave a ride except that he was African-American.
Defendant denied the Beretta was his and testified he never touched the gun. He testified he did not know the gun was in the Explorer. Defendant said he did not notice it. He wasn't paying attention. He did not remember it. He did not know anything about the gun. He did not know it was there. He did not know if the friend of his friend that he gave a ride to left the gun, but it was possible. He admitted he did not tell the police officers that there had been someone else in the car. He did not recall interacting with the police because he was drunk. He remembered being in a holding tank somewhere. Defendant never tried to find the person he gave a ride to that evening.
People v. Bright, No. C057440, slip op. at 2-6 (Cal. App. 3rd Dist. 2009).
A jury convicted petitioner of being a felon in possession of a firearm, misdemeanor driving under the influence (DUI), and misdemeanor driving with an elevated blood-alcohol level over 0.15. In a bifurcated court trial, the court found he had two prior DUI convictions, one prior serious felony juvenile adjudication for attempted second degree murder with personal use of a firearm and personal infliction of great bodily injury, and that he had served a prior prison term or possession of a controlled substance. The trial court ruled petitioner's prior juvenile adjudication could be used as a "strike" for purposes of California's habitual criminals, or "three strikes" law. See Cal. Penal Code §§ 667(b)-(i), 1170.12, 1192.7(c).
For the misdemeanor convictions, petitioner was sentenced to time served. For the firearm offense, he received an aggregate term of five years in state prison, consisting of a two-year middle term, doubled pursuant to the three strikes law, plus one additional year for the prior prison term enhancement.
On direct review, the California Court of Appeal, Third District, affirmed the judgment and sentence. A petition for review to the California Supreme Court was denied. The parties agree that petitioner has exhausted state remedies with respect to the claims presented.
Each of petitioner's six grounds for relief will be separately set forth and discussed herein. Petitioner claims:
(A) his due process rights were violated when the trial court failed to instruct the jury on the defenses of mistake of fact and accident;
(B) the trial court erred in its instruction on the illegal firearm possession charge; in the alternative, trial counsel rendered ineffective assistance;
(C) the prosecutor committed misconduct during closing argument;
(D) the trial court improperly gave an additional instruction aimed to help the jury break an impasse in deliberations;
(E) the trial court erred in its instruction on the reasonable doubt standard;
(F) use of a prior juvenile adjudication for enhancement purposes at sentencing deprived him of his right to jury trial.
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
Petitioner contends the trial court violated his due process rights by failing to instruct the jury, sua sponte, on mistake of fact1 and accident2 as affirmative defenses to the charge of illegal possession of a firearm.
On direct appeal, in the last reasoned state court decision applicable to this claim, the California Court of Appeal rejected the claim of error. The court of appeal noted "[a] trial court must instruct sua sponte...
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