McGEE v. KIRKLAND

• Decision Date: 18 June 2010
• Docket Number: Case No. CV 05-5077-PSG (OP).
• Citation: 726 F.Supp.2d 1073
• Parties: Brian McAuthor McGEE, Petitioner, v. Richard KIRKLAND, Warden, Respondent.
• Court: U.S. District Court — Central District of California

726 F.Supp.2d 1073

Brian McAuthor McGEE, Petitioner,

v.Richard KIRKLAND, Warden, Respondent.

Case No. CV 05-5077-PSG (OP).

United States District Court,C.D. California.

June 18, 2010.

COPYRIGHT MATERIAL OMITTED.

Brian McAuthor McGee, Imperial, CA, pro se.

Ryan Mitchell Smith, Timothy M. Weiner, Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND FINAL RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

PHILIP S. GUTIERREZ, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge, de novo. The Court concurs with and adopts the findings, conclusions, and recommendations of the Magistrate Judge,

IT IS ORDERED that Judgment be entered: (1) approving and adopting this Final Report and Recommendation; (2) directing that Judgment be entered granting the Petition and ordering Respondent to release Petitioner unless the State of California grants Petitioner a new trial within one hundred twenty (120) days.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

OSWALD PARADA, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the writ of habeas corpus be granted.

I. PROCEEDINGS

On July 12, 2005, Brian McGee (“Petitioner”), filed the current Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254 (“Petition”). On October 27, 2005, Respondent filed an Answer to the Petition. On February 13, 2006, Plaintiff filed a Reply to the Answer. Thus, this matter is ready for decision.

II. PROCEDURAL BACKGROUND

On July 16, 2001, Petitioner was convicted after a jury trial in the Los Angeles County Superior Court of one count of first degree murder (Cal. Penal Code § 187(a)), and one count of attempted murder (Cal. Penal Code §§ 664/187).

(Clerk's Transcript (“CT”) at 510-15.) On August 15, 2001, Petitioner was sentenced to a term of imprisonment of life without the possibility of parole. ( Id. at 516-19.)

Petitioner appealed his conviction to the California Court of Appeal, “arguing the trial court erred in considering his several” motions pursuant to People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and challenging evidentiary rulings. (Answer Ex. D.) On December 18, 2002, 104 Cal.App.4th 559, 128 Cal.Rptr.2d 309 (2002), the court of appeal reversed Petitioner's conviction because the trial court failed to inquire into the reasons for the prosecutor's first five peremptory challenges of prospective African-American jurors. ( Id. at 207.) The court of appeal remanded the matter to allow the trial court to determine whether it could address the Batson/ Wheeler issue and, if it could, to elicit and assess the prosecutor's reasons for excluding the prospective African-American jurors. ( Id.) ¹

On remand, the trial court acknowledged that it “ha[d] not made an attempt to look for” its notes from voir dire and was “really not going to bother to because” it had recourse to the transcript, which was more complete and which refreshed its memory. (Second Reporter's Transcript (“2RT”) ² at 5-6, 12,17.)

The trial court found it could address the Batson/Wheeler issues, solicited the prosecutor's reasons for excluding the jurors, again denied Petitioner's Batson/Wheeler motions, and ordered the judgment reinstated. ( Id. at 119-21.)

On November 15, 2004, 2004 WL 2580780, the California Court of Appeal affirmed Petitioner's conviction and sentence, rejecting Petitioner's contention that the trial court should have engaged in comparative juror analysis. (Answer Ex. J.)

Petitioner then filed a petition for review in the California Supreme Court. On January 19, 2005, the supreme court denied the petition. (Answer Ex. L.)

III.

PETITIONER'S CLAIMS

Petitioner presents the following claims for habeas corpus relief:

(1) The prosecution's exclusion of African-Americans from Petitioner's jury constituted Batson/Wheeler error;

(2) The trial court erroneously admitted certain out-of-court statements without a limiting instruction; and

(3) The trial court wrongfully excluded testimony bearing on an officer's credibility as a witness.

(Pet. at 5, 6.)

IV. STANDARD OF REVIEW

The standard of review applicable to Petitioner's claims is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 proceedings.

28 U.S.C. § 2254(d). Further, a State court factual determination must be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Under the AEDPA, the “clearly established Federal law” that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To determine what, if any, “clearly established” United States Supreme Court law exists, the court may examine decisions other than those of the United States Supreme Court. LaJoie v. Thompson, 217 F.3d 663, 669 n. 6 (9th Cir.2000); Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Ninth Circuit cases “may be persuasive.” Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999). On the other hand, a state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law, if no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court. Brewer v. Hall, 378 F.3d 952, 955 (9th Cir.2004); see also Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (in the absence of a Supreme Court holding regarding the prejudicial effect of spectators' courtroom conduct, the state court's decision could not have been contrary to or an unreasonable application of clearly established federal law).

Although a particular state court decision may be both “contrary to” and “an unreasonable application of” controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 413, 120 S.Ct. 1495. A state court decision is “contrary to” clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).” Williams, 529 U.S. at 406, 120 S.Ct. 1495. However, the State court need not cite or even be aware of the controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early, 537 U.S. at 8, 123 S.Ct. 362.

State court decisions which are not “contrary to” Supreme Court law may only be set aside on federal habeas review “if they are not merely erroneous, but ‘an unreasonable application’ of clearly established federal law, or are based on ‘an unreasonable determination of the facts.’ ” Early, 537 U.S. at 11, 123 S.Ct. 362 (citing 28 U.S.C. § 2254(d)). Consequently, a State court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413, 120 S.Ct. 1495 (e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an “unreasonable application,” a petitioner must show that the State court's application of Supreme Court law was “objectively unreasonable.” Woodford, 537 U.S. at 27, 123 S.Ct. 357. An “unreasonable application” is different from an erroneous or incorrect one. Williams, 529 U.S. at 409-10, 120 S.Ct. 1495; see also Woodford, 537 U.S. at 25, 123 S.Ct. 357; Bell v. Cone, 535 U.S. 685, 686, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

[1] Where, as here, a higher state court has denied a claim without explanation, federal courts “look through” that denial to the last reasoned state decision, in this case, the November 2004 decision of the California Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803-806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Shackleford v. Hubbard, 234 F.3d 1072, n. 2 (9th Cir.2000).

V. DISCUSSION

A. Applicable Federal Law.

1. Batson Three-Part Test.

[2] Under clearly-established federal law, “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of...