ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY Petitioner, a state prisoner incarcerated at California State Prison - Solano,1 has filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of a conviction obtained against him in state court. Dkt. No. 1 ("Pet."). Respondent has filed an answer. Dkt. No. 14. Petitioner has not filed a traverse, and the deadline to do so has since passed. The Court has carefully considered the briefs submitted by the parties. For the reasons set forth below, the petition is DENIED.
On April 29, 2015, an Alameda County jury found petitioner guilty of second degree murder (Cal. Penal Code § 187(a)). Ans., Ex. 12 ("CT") at 284. On June 25, 2015, the trial court sentenced him to fifteen years to life in state prison. CT 350.
Petitioner appealed this conviction, arguing that the trial court erred in admitting general expert testimony about domestic violence and in failing to give a limiting jury instruction that thistestimony was not evidence that he committed the charged crime, and that trial counsel was ineffective when he failed to object to the admission of this testimony and failed to request the necessary limiting instruction. Ans., Ex. 4.
On August 4, 2017, the California Court of Appeal affirmed the conviction in an unpublished decision. People v. Daniel, C No. A145854, 2017 WL 3327748 (Cal. Ct. App. Aug. 4, 2017).3 Ans., Ex. 7. Petitioner filed a petition for review with the California Supreme Court, arguing that the trial court committed reversible error in admitting Sergeant White's testimony regarding the cycle of domestic violence and in failing to give a limiting instruction that Sgt. White's testimony was not evidence that petitioner had committed the charged crime. Ans., Ex. 9. This petition for review was summarily denied on November 1, 2017. Ans., Ex. 10.
On November 20, 2018, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court, alleging that (1) trial counsel was ineffective because he failed to have petitioner take a psychological examination, failed to investigate a diminished mental capacity defense, and failed to argue a heat of passion defense; (2) insufficiency of the evidence in that the there was evidence of provocation that supported a conviction for voluntary manslaughter; and (3) petitioner's confession was involuntary, in violation of the Fifth Amendment. Ans., Ex. 11. On April 10, 2019, the California Supreme Court denied the habeas corpus petition as follows:
The petition for a writ of habeas corpus is denied. (See People v. Duvall (1995) 9 Cal. 4th 464, 474 [a petition for a writ of habeas corpus must include copies of reasonably available documentary evidence]; In re Dixon (1953) 41 Cal.2d 756, 759 [courts will not entertain habeas corpus claims that could have been, but were not, raised on appeal]; In re Swain (1949) 34 Cal.2d 300, 304 [a petition for a writ of habeas corpus must allege sufficient facts with particularity]; In re Lindley (1947) 29 Cal. 2d 709, 723 [courts will not entertain habeas corpus claims that attack the sufficiency of the evidence].).
Ans., Ex. 12.
On June 12, 2017, petitioner filed the instant habeas petition. On August 27, 2019, the Court found that the petition stated the following claims: (1) counsel was ineffective for failing topursue a diminished mental capacity defense; (2) insufficient evidence to support the conviction; (3) Miranda violation; and (4) ineffective assistance of appellate counsel for failing to raise these three claims. Dkt. No. 9. Petitioner also raised a fifth claim which the Court failed to address in its August 27, 2019 Order to Show Cause. In his fifth claim, petitioner argues that the trial court committed reversible error when it admitted the testimony of Sergeant White concerning the cycle of domestic violence, and when it failed to give a limiting instruction specifying that Sergeant White's testimony was not evidence that petitioner had committed the charged crime. Dkt. No. 1 at 26-31.
The following factual background is taken from the August 4, 2017 opinion of the California Court of Appeal:4
A jury convicted defendant Dominic Daniel of second degree murder after he brutally beat to death his girlfriend, Tsega Tsegay, and the trial court sentenced him to 15 years to life in prison. [FN 1] On appeal, Daniel claims that the court erred by (1) admitting general expert testimony about domestic violence and (2) failing to instruct the jury that this testimony was not evidence that he committed the charged crime. [FN 2] We affirm.
FN 1: Daniel was convicted of murder under Penal Code section 187, subdivision (a).
FN 2: Because we conclude that both claims fail on the merits, we need not address Daniel's arguments that, to the extent either claim was forfeited by his failure to object below, his trial counsel provided ineffective assistance of counsel.
I.
FACTS
A. Daniel and Tsegay's Relationship.
Daniel and Tsegay, an Ethiopian immigrant, met in 2009 and began dating. Both were alcoholics, and their relationship was marked by domestic violence.
One of the key witnesses who testified about the couple's violent history was Patrick L., who was 70 years old at the time of trial in 2015. He met Tsegay in the late 1990's and considered her to be like a daughter. She lived with him in his apartment in downtown Oakland and assisted him with daily tasks because he was legally blind. Daniel sometimes visited Tsegay at the apartment while Patrick L. was present. Patrick L. testified that Daniel was often drunk and "beating on [Tsegay] ... and fighting," and Tsegay said "many times"she was afraid of Daniel. On a few occasions, Patrick L. witnessed Daniel bite Tsegay's face. Daniel had also threatened to kill Tsegay, including once when Daniel was talking to his mother on the telephone and said, "I'm going to kill the bitch." Patrick L. testified that he never saw Tsegay start a fight with Daniel, although Patrick L. also admitted that she "was no angel with" her boyfriend.
During one incident in December 2010, Daniel tried to force his way into Patrick L.'s apartment. After Patrick L. opened the door, Daniel grabbed him by the throat, and Patrick L. attempted to hit Daniel with an ashtray. Daniel pushed his way inside and then attacked Tsegay, who was sleeping, by hitting her in the face until it looked like she had "golf balls in her mouth." Daniel made Tsegay leave with him, and Patrick L. called 911.
Officer Raymond Ward responded to the 911 call. He testified that he first spoke with Patrick L., who was "visibly upset and shaken." After leaving Patrick L.'s apartment, he got into his patrol car, drove about a block, and saw Daniel chasing Tsegay around a parked car. Officer Ward knew Tsegay because "[s]he walked around West Oakland," which was his beat, and was "very friendly." The officer saw Daniel punch Tsegay in the face "at least four times." Daniel stopped the attack only after Officer Ward intervened and arrested him. Both Daniel and Tsegay appeared intoxicated. Tsegay had "[s]wollen eyes and there was some blood," and Daniel did not have any injuries. Daniel pleaded no contest to a misdemeanor count of domestic battery based on this incident, and he was ordered to have no contact with Tsegay.
Police were called to Patrick L.'s apartment again in December 2011 for a report of domestic battery. This time, Officer Richardson San Andres responded. He testified that when he first arrived to the apartment, he spoke to Tsegay in the hallway. She was "a little nervous ... [and] a little frantic," and "[s]he had a minor laceration to the bridge of her nose" and dried blood on her shirt. Tsegay indicated that Daniel, who soon emerged from the elevator, had assaulted her, and Officer San Andres arrested him.
Another incident occurred in April 2012. This time, police were summoned to Daniel's mother's house in North Oakland based on a report that a man was preventing medical personnel from treating a victim inside the house. Officer Ward, who had responded to the first incident at Patrick L.'s apartment in December 2010, was among the first officers to respond. He approached Daniel, who was standing at the front door, and asked him whether someone inside the house was hurt. Daniel, who appeared to be intoxicated and had an "[a]ggressive" and "hostile" demeanor, responded, "No," but Officer Ward could see Tsegay standing inside with a "badly beaten" face. Daniel refused to allow the police inside to check on the house's occupants and turned to go inside himself, at which point Officer Ward and another officer grabbed Daniel to detain him. Daniel dropped to his knees, causing the two officers holding him to fall to the ground, and began to struggle. At one point, Daniel attempted to bite Officer Ward but was unable to inflict any injury because the officer was wearing a bulletproof vest. Daniel was finally subdued when more officers arrived to assist.
Officer Roberto Ruiz was one of the backup officers to arrive at the scene. He testified that when he arrived he saw Daniel on the ground "screaming" and resisting as other officers attempted to handcuff him. Daniel's mother and Tsegay, both of whom were inside the house, were yelling at the officers to let Daniel go. Officer Ruiz also knew Tsegay, whom he regularly saw on his beat. The officer characterized her as "calm, mellow," chatty, and "[v]ery friendly" when she was not drinking, which was about 80 percent of the time. When she was intoxicated, she would become "[v]ery loud" and "slur" her words, but the officer never saw her be aggressive.
After Daniel, who was uninjured, calmed down and was put in a patrol vehicle, Officer Ruiz took Tsegay
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