Brown v. Miller, Case No. 1:12-cv-01787 AWI MJS (HC)

• Decision Date: 31 August 2014
• Docket Number: Case No. 1:12-cv-01787 AWI MJS (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: KAREEM BROWN, Petitioner, v. AMY MILLER, Respondent.

KAREEM BROWN, Petitioner, v. AMY MILLER, Respondent.

Case No. 1:12-cv-01787 AWI MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 31, 2014

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Charles French of the office of the California Attorney General.

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on April 1, 2008, of assault with a deadly weapon by a life inmate upon a correctional officer by means of force likely to produce great bodily injury with an enhancement for inflicting great bodily injury. (Clerk's Tr. at 1196-97.) On June 13, 2008, Petitioner was sentenced to an indeterminate term of 21 years to life to be served consecutively to the sentence of 20 years to life that Petitioner was already serving. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District on March 2, 2009. (Lodged Docs. 1-4.) The appeal was denied on November 5, 2009. (Id.) On December 11, 2009, Petitioner filed a petition for review with the California Supreme Court. (Lodged Doc. 5.) The petition was summarily denied on January 13, 2010. (Lodged Doc. 6.)

Petitioner filed a habeas petition with the Fifth District Court of Appeal on July 13, 2010. (Lodged Doc. 8.) The petition was denied without prejudice on March 7, 2011 for failing to exhaust remedies in the superior court. (Lodged Doc. 11.) On April 8, 2011, Petitioner filed a petition for writ of habeas corpus with the Kern County Superior Court. (Lodged Doc. 7.) The petition was denied on April 25, 2011. (Lodged Doc. 10.) Finally, Petitioner filed a habeas petition with the California Supreme Court on July 2, 2012. (Lodged Doc. 9.) The petition was denied as untimely October 17, 2012. (Lodged Doc. 12.)

Petitioner filed his federal habeas petition on November 1, 2012. (Pet., ECF No. 1.) The petition raised eight different claims for relief, listed as follows:

1.) That appellate counsel was ineffective for failing to raise claims that the state destroyed exculpatory evidence, that there was insufficient evidence of Petitioner's intent to commit the crime, that the trial court failed to instruct the jury on Petitioner's theory of provocation, and that the trial court abused its discretion in failing to admit evidence of the victim's bad acts;

2.) That the trial court admitted inflammatory and prejudicial photos of the victim, violating Petitioner's due process;

3.) That the state violated Petitioner's due process in failing to obtain a defense witness in federal custody; and

4.) Cumulative error.

(Pet. at 4-8, ECF No. 1.)

Respondent filed an answer to the petition on March 11, 2013. (Answer, ECF No. 15.) Petitioner filed a traverse on July 29, 2013. (ECF No. 26.) The matter stands readyfor adjudication.

II. STATEMENT OF THE FACTS¹

First, we turn to the evidence at trial. Michael Lippert, a correctional officer at California Correctional Institution in Tehachapi (CCI), called Craig Terry, a correctional officer working the control room at CCI, to let him know which inmates to let out for doctor's appointments. One was Brown's cellmate, whom Terry so informed on the public address system. After giving him time to get ready, Terry opened the cell door, but Brown stepped out instead. On the public address system, Terry ordered him to return to his cell, but he did not, so Terry called Lippert and told him, "Brown was out on the tier and would not return to his cell."

From downstairs, Lippert "repeatedly asked [Brown] to lock up," but his response was "negative." Brown, "quite agitated," started "swearing" at Lippert. Watching Lippert and Brown talk to each other, Terry saw Brown "throw his arms up in like a defiant manner, like he was refusing a direct order." On the public address system, Terry ordered Brown "to return to his cell" four or five times, but he did not comply. Lippert walked upstairs to "order him to lock up" and pointed his pepper spray at him "in case [he] needed to use it."

Once he was upstairs, Lippert saw Brown facing him in "a bladed stance, slightly skewed from facing you straight on, one foot slightly in front of the other. And his arms were down to his sides, slightly bent," and his fists were "clenched" in a fighting stance. Lippert fired his pepper spray. Brown charged him and struck "three to four heavy blows" to his head. Lippert lost consciousness.

From the control room, Terry saw Brown "striking [Lippert] about the face and chest" a total of about 10 times, some before he fell, some after he fell. After Lippert fell, Brown straddled him and kept striking him in the face until a rubber bullet Terry fired hit him in the lower back. Brown immediately stopped the assault and, after glancing behind him, looked at Terry in the control room and ran back into his cell.

Testifying in his own defense, Brown acknowledged leaving his cell and not going back inside even after Lippert "continued to give [him] direct orders to go back into the cell." The prison was on lockdown, racial wars were in progress, and he was concerned for his and his cellmate's safety. Brown told Lippert he would go back into his cell as soon as his cellmate left the cell. Lippert told him he needed to lock up or his cellmate would not see the doctor. Brown told Lippert he did not care if his cellmate saw the doctor. Saying he would spray Brown and lock him up if he did not lock up voluntarily, Lippert "pointed his pepper spray" at him, "took a defensive stance," and again told him to lock up. Brown again told Lippert he would go back into his cell as soon as his cellmate left the cell. Lippert pepper sprayed him. Brown "automatically respond[ed] in self-defense," striking him "four to five times" "real hard" "with clenched fists." After Lippert lost

consciousness and fell, Brown did not touch him again. He never got on top of him.

People v. Brown, 2009 Cal. App. Unpub. LEXIS 8845, 3-6 (Cal. App. 5th Dist. Nov. 5, 2009).

II. DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the conviction challenged arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court has jurisdiction over the action.

B. Legal Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if 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).

1. Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [ Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06. "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that even a general standard may be applied in an unreasonable manner" Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a 'principle' or 'general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing Williams, 529 U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786 (...