ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY Patrick McDaniel, Sr., filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed an answer to the petition, and Petitioner has filed a traverse. The matter is now before the Court for consideration of the merits of the habeas petition. For the reasons discussed below, the petition is DENIED.
On October 7, 2009, Petitioner was found guilty by a Lake County jury of attempted voluntary manslaughter; assault with a firearm with personal use of a firearm and infliction of great bodily injury; possession of a firearm by a convicted felon; possession of ammunition by a convicted felon; and carrying a loaded firearm in a public place. Docket No. 12, Ex. 1 ("CT") at 1331-32. The jury acquitted Petitioner of the more serious charge of attempted murder. Id. at 1078. Petitioner also pled guilty to possession of narcotic substances. Id. at 1331-32. On November 24, 2010, the trial court imposed sentence in this case and two trailing cases, Lake County docket numbers CR913150 and CR918109 and sentenced Petitioner to an aggregate term of 20 years. Id.
Petitioner directly appealed the judgment in the California Court of Appeal, Docket No. 12, Ex. 3. The appellate brief argued that the trial court erroneously excluded one witness's 1990indecent exposure conviction; the trial court erroneously limited defense impeachment to the fact of misdemeanor evidence; and trial counsel was ineffective because he failed to offer evidence of the specific conduct underlying the misdemeanor convictions. Id., Ex. 3. On May 25 2012, in a reasoned opinion, the California Court of Appeal affirmed the judgment. Id., Ex. 6. On August 29, 2012 the California Supreme Court summarily denied the petition for review. Id., Ex. 10. Petitioner also filed a petition for a writ of habeas corpus in the California Court of Appeal, raising the issues in the instant habeas petition, namely ineffective assistance of trial counsel and of counsel appointed to file a new trial motion. Id., Ex. 4. The state appellate court summarily denied his habeas petition. Id., Ex. 7. Petitioner then filed a petition for a writ of habeas corpus in the California Supreme Court, which was also denied. Id., Exs. 9 and 11.
The instant petition was filed on June 18, 2013.
The following background facts describing the crime and evidence presented at trial are from the opinion of the California Court of Appeal1:
The convictions are all associated with a brief physical altercation the evening before Thanksgiving in 2008, that occurred between occupants and visitors at two residences next to each other on Second Street in Clearlake Oaks, and culminated in the shooting of Patrick O'Connor, Sr., known as Rick. Defendant did not contest that he committed the shooting, but claimed the shot was fired due to accidental discharge of his handgun during a struggle with the victim.
The victim and his wife Maria, Rick's son Patrick O'Connor, Jr., and his wife Angelica and their children, and Rick's brother James O'Connor, occupied one of the houses.1 The adjacent house was occupied by Jill Robbins, who was visited that evening by her former boyfriend Daniel Clapp, an acquaintance Willard Moleiro and his companion Kim, defendant and his companion Stephanie, and defendant's brother Cecil. Defendant and his brother are African-Americans; the O'Connors are White.
FN 1: For the sake of clarity and convenience we will refer to the O'Connor's by their first names. For the same reasons we will also refer to defendant and his brother Cecil by their first names.
During the course of the evening, the gathering at Robbins's house became boisterous. Moleiro observed defendant waving a "small caliber automatic" gun, while "ghetto trash talking."
When the victim and his son Patrick heard yelling and swearing at Robbins's house, they proceeded to the fence at the corner of their yard to "see what was going on." Defendant was standing on Robbins's front porch talking loudly on his cell phone. Robbins testified that she heard "voices raised" outside, so she walked out her front door and asked defendant to "please lower his voice." Defendant told Robbins to, "shut the hell up," or "bitch shut up," which according to her was typical language from him.
Rick and James heard an offensive verbal exchange between defendant and Robbins on the front porch. They also observed defendant push Robbins, although Robbins testified that defendant never touched her. The "men next door" asked Robbins if she needed help; her response was, "No, absolutely not." Rick told defendant, "That's enough of that." Rick and James testified that defendant retorted, "Fuck you, nigger."
Incensed that defendant called him "a name," Rick rushed through a gate into Robbins's yard, followed by Patrick and James. Robbins testified that as they pushed past her toward the front porch, Rick was holding what appeared to be a stick or pipe, and Patrick had what "looked like a screwdriver." She also heard one of them yell, "Get those fucking niggers." Patrick and Rick testified that they did not have any weapons in their hands, although Rick acknowledged that he carried a "tiny old-timer pocketknife" in his pocket as he approached defendant.
As Rick reached the porch, defendant struck him on the side of his head "with a hard object." Rick pushed defendant, who took "a couple steps back." According to Rick, defendant then stepped forward, raised a gun, and shot him.
Cecil, who had joined defendant on the porch, swung his fist at Patrick, but missed when Patrick ducked. As Patrick pushed Cecil away, he heard the "boom" of a gunshot, looked over, and saw the "flash" of a gun in defendant's right hand. Rick stumbled back and yelled, "I've been shot." Patrick testified that he heard two more two "clicking sounds" as he and Rick started to run away.
James heard the shot as he jumped the fence into Robbins's yard. When he reached the porch James asked Cecil if he shot Rick. Cecil immediately punched him in the jaw, knocking him to the ground. Robbins testified that James called defendant "a nigger," whereupon Cecil said, "You called my brother a nigger," and punched James in the face. James sustained a broken jaw from the punch.
Rick, Patrick and James retreated to their yard and awaited medical help. Rick was transported to the hospital for treatment of a gunshot wound that entered the base of his neck just above the sternum, and exited his back. Both defendant and Cecil ran through the front gate, out of the yard, and onto Second Street. At the hospital later that night a photo lineup was displayed to Rick; he identified defendant as the man who shot him.
A police investigation of the scene of the shooting that night revealed "blood drops" on Robbins's front porch, but no expended shell casings or weapons of any kind. The next day, a Walther PPK .380-caliber semi-automatic pistol was found in the dirt on the side of a carport, three houses away from Robbins's residence. Two rounds were "jammed" in the chamber, and three more were in the magazine. Upon inspection, dirt and a piece of cloth were discovered in the ejection port and the magazine of the gun. The registered owner of the gun was not determined, and it was not identified as the weapon used to shoot the victim.
The prosecution offered expert testimony on the condition and operation of the Walther PPK .380-caliber semi-automatic pistol. Sergeant Donald McPherson of the Lake County Sheriff's Department testified that the gun was equipped with an "internal safety" mechanism that prevented accidental firing without the "trigger being pulled." However, he testified that the gun may accidentally discharge if a person mistakenly left a finger on the trigger while holding it. The Walther PPK .380-caliber semi-automatic pistol was functional, but failed to properly reload and jammed occasionally during test firing.
The defense expert, Kenneth Gaudet, also examined the Walther PPK .380-caliber semi-automatic pistol found near the scene of the shooting. He agreed that the gun was functional, despite its dirty condition and oxidation. When the gun was test fired, Gaudet noticed that it malfunctioned intermittently due to "a failure to feed" from the magazine into the chamber.
Defendant was arrested in Las Vegas in December of 2008. In his ensuing statement to the police defendant asserted that after he exchanged insults and offensive epithets with the O'Connors, he observed them walk into Robbins's yard, "all riled up." Defendant became concerned when he observed one of the O'Connors carrying a "buck knife," so he removed the gun from his coat pocket and struck the victim in the head with it. When defendant hit Rick with the gun, it accidentally "went off." "Bam!" Defendant stated that he did not mean to shoot Rick. He insisted that if he had intended to kill the victim he would have fired multiple shots, not "just one." He then "panicked" and fled down the street. He threw the gun in someone's front yard as he left.
People v. McDaniel, No. A130570, 2012 WL 1898840, at *1-*3 (Cal. Ct. App. May 25, 2012).
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended section 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in ...
