Isayev v. Lizarraga

• Decision Date: 19 September 2018
• Docket Number: No. 2:12-cv-02551-JKS,2:12-cv-02551-JKS
• Parties: MAKSIM ISAYEV, Petitioner, v. JOE A. LIZARRAGA, Warden, Mule Creek State Prison, Respondent.
• Court: U.S. District Court — Eastern District of California

MAKSIM ISAYEV, Petitioner, v. JOE A. LIZARRAGA, Warden, Mule Creek State Prison,¹ Respondent.

No. 2:12-cv-02551-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 19, 2018

MEMORANDUM DECISION

Maksim Isayev, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Isayev is in the custody of the California Department of Corrections and incarcerated at Mule Creek State Prison. Respondent has answered, and Isayev has replied. This Court denied the petitions for habeas relief filed by Isayev's co-defendants, Mariya Stepanov and Gennadiy Sevchuk, on December 9, 2015. See Stepanov v. Miller, Case No. 2:12-cv-02644-JKS; Sevchuk v. Cate, Case No. 2:12-cv-02857-JKS. Sevchuk did not appeal the Court's denial of his petition. Stepanov appealed, and the Ninth Circuit Court of Appeals denied Stepanov's request for a certificate of appealability, Case No. 15-17561. Isayev's Petition involves facts relevant to both Sevchuk's and Stepanov's cases.

I. BACKGROUND/PRIOR PROCEEDINGS

On April 3, 2006, Isayev, along with co-defendants Stepanov and Sevchuk, was charged with the first-degree murder of Dmitriy Paskar. The information alleged as a special circumstance that the defendants intentionally killed Paskar while lying in wait. It furtheralleged that Isayev personally used and discharged a firearm and that Sevchuk and Stepanov were vicariously armed with the shotgun in the commission of the murder. On direct appeal of Isayev's conviction, the Court of Appeal recounted the following facts underlying the murder charge:

The events surrounding this murder began when the victim slept with defendant Stepanov and then bragged about it. Stepanov was very upset and told defendant Isayev, her former boyfriend, what had happened. Isayev told his friend, defendant Sevchuk.

Defendant Sevchuk bought ammunition for Isayev's shotgun and loaded the gun. Isayev, Sevchuk and others drove to the victim's home, intending to shoot the victim when he came out of his house. However, when the victim made his appearance, he was accompanied by his girlfriend and the assault did not occur because defendants did not want any witnesses.

Isayev called Stepanov to report this kink in the plans, and told her to call the victim to make arrangements to meet him late that night at a park. Stepanov did so. When Isayev and Sevchuk drove up, Isayev saw the victim and Stepanov standing close together; the victim reached for Stepanov and groped her. Isayev got out of the car, retrieved his loaded shotgun from the trunk, and approached the victim, asking Stepanov if this was "the guy." When Stepanov nodded, Isayev shot the victim twice and killed him.

People v. Isayev, No. C055417, 2011 WL 2848584, *1 (Cal. Ct. App. July 19, 2011).

The defendants pled not guilty to the charge and denied the allegations. They were jointly tried before separate juries. At trial, Isayev admitted shooting the victim, but he asserted that it was in the heat of passion or due to provocation, and he was therefore guilty only of voluntary manslaughter. Stepanov claimed that she only wanted the victim to apologize and be punished, and she never intended Isayev to kill Paskar. Sevchuk asserted that, although he was at the scene of the murder, he was drunk and uninvolved in any plan to kill the victim. The primary issues at trial were thus: 1) whether the murder was premeditated; and (2) whether Sevchuk and Stepanov were liable as aiders and abettors for a murder that was the natural and probable consequence of an intended assault.

Evidence was presented at trial regarding Isayev's reputation as a violent and jealous person. It was also established that Sevchuk and Stepanov knew that Isayev had a gun and had previously been involved in shooting incidents arising from jealousy. Witnesses described hearing Isayev brag about the murder and make statements such as "[W]henever I do anything, I do it 100 percent. I know what I'm doing." He told one witness that he had aimed for the victim's head and killed him to stop him from raping girls.

Mikalai Yarmaliuk, the person who first drove the car to the victim's house, also testified for the prosecution. Yarmaliuk described Sevchuk loading the shotgun, the plan to shoot the victim, the phone conversations between Isayev and Stepanov, and Isayev's past violent conduct. Yarmaliuk had suffered head injuries in an earlier accident, and the defendants challenged his memory, emphasizing the inconsistencies in his testimony and his general credibility.

On March 12, 2007, Isayev's jury found him guilty of first-degree murder and found true the allegation that he personally used and discharged a firearm as well as the special circumstance allegation that the defendants intentionally killed Paskar while lying in wait.² The trial court subsequently sentenced him to a sentence of life imprisonment without the possibility of parole ("LWOP"), enhanced 25 years to life for the personal use and discharge of the shotgun.³

Through counsel, Isayev appealed his conviction, arguing that: 1) the trial court erroneously discharged a holdout juror; 2) the trial court improperly refused the defense'srequest to clarify the provocation instruction; 3) instructions discouraging read-back requests were improperly coercive; 4) the trial court abused its discretion and denied Isayev due process when it refused to exclude evidence of another shooting; 5) the instruction on the other shooting improperly restricted consideration of the relevant evidence to theories favoring the prosecution; 6) the jury was erroneously instructed as to the burden of proof required for the consideration of prior bad acts; 7) evidence regarding the other shooting was improperly admitted; 8) the imposed parole revocation fire was unauthorized; and 9) the lying in wait special circumstance is unconstitutional. Isayev also requested that the appellate court review the records of an in camera hearing to determine whether more of Yarmaliuk's medical records should have been disclosed.

On July 19, 2011, the California Court of Appeal struck one fine levied against Isayev but otherwise affirmed the conviction in all respects in a reasoned, unpublished opinion. Isayev, 2011 WL 2848584, at *26. Isayev petitioned for review in the California Supreme Court, raising his claims that: 1) the holdout juror was erroneously discharged; 2) the trial court erred in refusing to clarify the provocation instructions; 3) the jury instructions improperly discouraged read-back requests; 4) the court should have admitted culpability evidence regarding the other shooting; 5) Isayev's due process rights were violated by the admission of evidence of the other shooting; and 6) the lying in wait special circumstance is unconstitutional. The Supreme Court summarily denied review with respect to all defendants on October 26, 2011.

Isavey then filed in the state supreme court a counseled petition for a writ of habeas corpus. In that petition, he argued that: 1) his LWOP sentence constituted cruel and unusual punishment, and the trial court's failure to consider Isayev's youth and personal characteristicviolated Isayev's due process rights; 2) trial counsel rendered ineffective assistance at sentencing by failing to present mitigating evidence and failing to ask the trial court to exercise its discretion and impose a sentence of 25 years to life imprisonment; 3) appellate counsel was ineffective for failing to raise those sentencing issues on direct appeal; 4) trial counsel was ineffective for failing to investigate and present a defense based on diminished actuality; 5) the prosecutor's misstatement of the law during closing argument deprived Isayev of due process, and trial counsel was ineffective for failing to object; and 6) the jury instruction lowering the State's burden of proof with respect to the other shooting violated Isayev's rights to due process and a fair trial. Respondent filed an informal response to the petition, and Isayev filed a counseled reply.

The Supreme Court then ordered Respondent to show cause before the Superior Court as to the sole issue of whether Isayev, who was 17 at the time of the crime, was entitled to a resentencing hearing under Miller v. Alabama, 567 U.S. 460 (2012).⁴ Respondent filed a return to the order to show cause, and Isayev filed a counseled denial. The Superior Court vacated Isayev's sentence and referred his case for resentencing. Isayev was subsequently sentenced to a term of 25 years to life imprisonment with the possibility of parole, enhanced 25 years to life for the personal use and discharge of the shotgun, for an aggregate imprisonment term of 50 years to life. All other claims in his state habeas petition were denied without comment.

Isayev's wife and uncle by marriage timely filed a pro se Petition for a Writ of Habeas Corpus to this Court as Isayev's "next friends" on October 12, 2012. This Court, through apreviously-assigned magistrate judge, denied Isayev's motion to proceed with next friends but appointed counsel to represent Isayev. Docket No. 8. Appointed counsel filed a Second Amended Petition for a Writ of Habeas Corpus ("Petition;" Docket No. 23), the timeliness of which Respondent does not dispute. The Petition is now before the undersigned judge and ripe for adjudication.

II. GROUNDS/CLAIMS

In his counseled Petition before this Court, Isayev argues that: 1) trial counsel was ineffective for failing to investigate and present a defense based on diminished actuality; 2) the prosecutor's misstatement of the law during closing argument deprived Isayev of due process, and trial counsel was ineffective f or failing to object; 3) the trial court failed to exclude evidence of a dissimilar shooting and denied Isayev due process when it excluded evidence of third party culpability; 4) the trial court erroneously lowered the State's burden of proof with respect to the other shooting;...