Davis v. Swarthout

• Decision Date: 07 February 2012
• Docket Number: No. 2:09-cv-01531-JKS,2:09-cv-01531-JKS
• Court: U.S. District Court — Eastern District of California
• Parties: MICHAEL AARON DAVIS, Petitioner, v. GARY SWARTHOUT,1 Warden, California State Prison, Solano, Respondent.

MICHAEL AARON DAVIS, Petitioner, v. GARY SWARTHOUT,¹ Warden, California State Prison, Solano, Respondent.

No. 2:09-cv-01531-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: February 7, 2012

MEMORANDUM DECISION

Michael Aaron Davis, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Davis is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered, and Davis has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Following a jury trial in January 2006 Davis was convicted in the Sacramento County Superior Court of attempted murder, Cal. Penal Code §§ 664, 187, with firearm enhancements, Cal. Penal Code §§ 12022.53(b)-(d). The trial court sentenced Davis to an indeterminate prison term of twenty-five years to life, plus seven years for the firearm enhancements. The California Court of Appeal affirmed Davis's conviction, but modified his sentence, in a partially publishedand partially unpublished opinion,² and the California Supreme Court denied review on March 11, 2009. Davis timely filed his Petition for relief in this Court on April 20, 2009.

The California Court of Appeal summarized the factual basis for Davis's conviction as follows:

Defendant Javier Munoz made and received several calls on his mobile telephone before and after he and several other men, including defendant Michael Davis, Preston Baldwin and John Hernandez, drove to the Meadowview Light Rail station in two SUVs to retaliate against "some brothers" who had "jumped" Hernandez's nephews. Instead, the men trapped a car driven by Demario Chappell, who had nothing to do with "jumping" Hernandez's nephews, and fired pistols at the car. Although a number of nine-millimeter and .45-caliber shots were fired, only one bullet struck Chappell. The bullet lodged in Chappell's brain, but miraculously did not kill him.

* * * *

Chappell drove to the Meadowview station in his white Chevrolet Corsica with his cousin Marquis Landers as a passenger, in order to pick up Arielle Jones, Landers's friend. She got in the back seat and Chappell started to drive her home. It was about 9:30.

Although the various witness accounts were not entirely consistent, a white or silver SUV cut Chappell off, requiring him to brake hard, and inducing him to make an unfriendly comment to the SUV's driver. Munoz's green SUV trapped Chappell's car. A number of men got out of the SUVs, and when Chappell saw a man pointing a gun at him, he drove off, hitting the second SUV in his effort to get away. After he blacked out he stopped the car and then Jones drove him to the hospital. Landers testified one shooter got out of each SUV, but later he testified he did not know this, and he had so told an officer before trial.

Two passersby heard someone in the green SUV yell "Bitch, ass, Niga" as it left; one heard laughter and described this yell as "Celebrating, sort of."

Many shots had been fired at Chappell's car; four 9 millimeter and seven .45-caliber shell casings were found. Two 9 millimeter bullets were found in the car, and a .45-caliber bullet was extracted from Chappell's brain.³

II. ISSUES PRESENTED/DEFENSES

In his Petition, Davis raises seven grounds for relief: (1) that the trial court erroneously allowed into evidence wiretap recordings of conversations that exceeded the scope of the warrant, i.e., concerning non-targeted offenses; (2A) the trial court erroneously allowed admission of wiretap recordings into evidence that had not been properly maintained under seal; (2B) as an alternative to Ground 2A, ineffective assistance of counsel for failing to require that the prosecution establish that the tape recordings had been properly sealed; (3) the trial court erroneously allowed admission of Davis's conversations with a co-defendant into evidence in which Davis allegedly threatened the victim; (4A) the introduction of evidence of Davis's prior conviction for shooting at two thirteen-year-old girls constituted prosecutorial misconduct; (4B) as an alternative to 4A, trial counsel's failure to object to evidence of Davis's prior conviction for shooting at the girls constituted ineffective assistance of counsel; (5A) the trial court failed to sua sponte instruct on the limited admissibility of the bad act evidence (CALJIC 2.50); (5B) as an alternative to 5A, trial counsel's failure to request a limiting instruction constituted ineffective assistance of counsel; (6) insufficiency of the evidence to support the firearm enhancement; and (7) the trial court erred in giving a "kill zone" instruction (CALJIC 8.66.1). Respondent asserts that Davis's first and both parts of his second grounds are procedurally barred, and both parts of his fourth ground are unexhausted and procedurally barred. Respondent raises no other affirmative defense.⁴

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" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."⁵ The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."⁶ The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.⁷ Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"⁸ When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent mustbe "objectively unreasonable," not just "incorrect or erroneous."⁹ The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.¹⁰ "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"¹¹ In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.¹² Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.¹³

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary errorcorrection through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.¹⁴

In applying this standard, this Court reviews the "last reasoned decision" by the state court.¹⁵ State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.¹⁶ This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.¹⁷

IV. DISCUSSION

A. Procedural Default

The California Court of Appeal held that Davis forfeited review of the claims related to admission of the wiretap evidence, the first ground and part A of the second ground, becauseDavis had not made a timely and proper objection in the trial court.¹⁸ Respondent contends that this constitutes an adequate, independent state procedural ground that bars review in this Court.¹⁹

Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."²⁰ This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."²¹ "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."²² A discretionary state procedural rule can be firmly established and regularly followed, so as to bar federal habeas review, even if the appropriate exercise of...