Medley v. Runnels

• Decision Date: 01 November 2007
• Docket Number: No. 05-55295.,05-55295.
• Citation: Medley v. Runnels, 506 F.3d 857 (9th Cir. 2007)
• Parties: Theodore Beech MEDLEY, Petitioner-Appellant, v. D.L. RUNNELS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

506 F.3d 857

Theodore Beech MEDLEY, Petitioner-Appellant, v. D.L. RUNNELS, Warden, Respondent-Appellee.

No. 05-55295.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 20, 2007.

Filed November 1, 2007.

Wayne Young, Santa Monica, CA, for petitioner-appellant Theodore B. Medley.

Robert M. Foster, Supervising Deputy Attorney General, San Diego, CA, for respondent-appellee D.L. Runnels, Warden; Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, and Gary W. Schons, Senior Assistant Attorney General, were on the brief.

Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding. D.C. No. CV-03-01509-LGB.

Before: MARY M. SCHROEDER, Chief Judge, STEPHEN REINHARDT, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, KIM MCLANE WARDLAW, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, RICHARD R. CLIFTON, JAY S. BYBEE, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge CALLAHAN; Partial Concurrence and Partial Dissent by Judge IKUTA.

CALLAHAN, Circuit Judge:

Theodore Beech Medley appeals from the district court's order denying his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for murder in state court and a related twenty-year enhancement for discharge of a firearm during commission of a felony. Medley alleges that: (1) he received ineffective assistance of counsel when his attorney ignored Medley's requests to testify; (2) the state trial court violated his right to due process by instructing the jury that a flare gun is a firearm, thus taking from the jury the determination of an element of the offense; and (3) he received ineffective assistance of counsel when his trial and appellate counsel failed to contest the jury instructions. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court's denial of Medley's petition for a writ of habeas corpus as to the first issue. As to the firearm enhancement, we reverse and remand with instructions to grant a conditional writ of habeas corpus, with instructions for the state court either to resentence without applying the firearm enhancement or to allow the State to retry the enhancement charge under California Penal Code section 12022.53(c) within a reasonable time as set by the district court.¹

I.

In 1998, Medley roomed with Michael Gonzales in Riverside, California. The two had quarreled, and Medley told a witness, his girlfriend Amie Denby, that he was going to get his flare gun to get rid of Gonzales. Medley retrieved a flare gun and returned to a park where he found Gonzales. Medley shot Gonzales with a flare, but it did not harm him. Gonzales ran and Medley pursued. Medley tried again to shoot Gonzales with a flare but missed. Medley then discarded the flare gun, pulled out a pocket knife, and chased down Gonzales. Medley inflicted more than four dozen knife wounds, eventually slitting Gonzales's throat from ear to ear. Medley and Denby then took the victim's car. Medley confessed the details of the murder to Denby, who later testified against him. Medley was arrested soon after the murder. Police found the discarded flare gun in the park.

Medley was charged with murder, including an enhancement for discharge of a firearm during the felony. At the start of the trial, Medley's attorney informed the court that he intended to challenge the assertion that a flare gun was a firearm. Relying on California Penal Code section 12001(b), which defines a firearm as "any device designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion, or other form of combustion," the trial court concluded that "in fact, that's how the flare gun works. If it falls within that definition, it certainly qualifies. . . . If in fact [the expert witness] testifies that's how it works, then the issue is moot." Later, during the jury phase of the trial, an expert witness testified that a flare gun operates by expelling a flare through a tube by means of an explosion similar to how an ordinary firearm operates. The judge then instructed the jury that "[a] flare gun is a firearm." Medley did not specifically object to this jury instruction.

During the trial, the defense relied on the theory that someone else had killed Gonzales but did not call any witnesses. After the defense had rested — but before final arguments — Medley informed the court that he wished to testify, but his lawyer had not permitted it. At that time, Medley's lawyer informed the court that he had advised Medley not to testify because he would be impeached with his prior convictions and by the details of a lengthy interview Medley gave police after his arrest.

A jury convicted Medley of murder and of discharge of a firearm during commission of a felony. On direct appeal, Medley challenged the jury instructions on other grounds but did not mention the flare gun jury instruction.

Medley then filed a state habeas petition in California Superior Court, which denied the petition as an attempted second appeal. The California Court of Appeal and California Supreme Court both denied Medley's request for habeas relief without commenting on the merits. Medley's habeas petition to the superior court focused on alleged ineffective assistance of counsel ("IAC"), but his petitions to the state appellate courts also argued that the trial court had erred by instructing the jury that a flare gun was a firearm.

Medley then filed a federal habeas petition in the District Court for the Central District of California, again arguing IAC and violation of the right to a jury determination with respect to whether the flare gun was a firearm. The district court denied the writ, holding that the statutory definition of "firearm" was a question of state law, and therefore it was unreviewable on a federal habeas petition. After a three-judge panel of this court affirmed in a memorandum disposition, we granted rehearing en banc.²

II.

Medley first claims that his attorney provided ineffective assistance by denying him the right to testify. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court can grant relief only if the state court decision affirming a petitioner's conviction was "contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States" or if the State proceeding "resulted in a decision that was based on an unreasonable determination of the facts . . . ." 28 U.S.C. § 2254(d).

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the constitutional standard for relief based on ineffective assistance of counsel. See Dows v. Wood, 211 F.3d 480, 484-85 (9th Cir.2000). To succeed on an IAC claim, the defendant must show: (1) "that counsel's performance was deficient" and (2) "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Supreme Court further noted that "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered . . . as a result of the alleged deficiencies." Id. at 697, 104 S.Ct. 2052.

Medley has not shown that his inability to testify was prejudicial. Medley argues that he would have testified that he killed Gonzales in self-defense. Medley's lawyer recommended that Medley not testify because he would have been impeached by his prior convictions and statements he made during a lengthy interview he gave police, which apparently were inconsistent with what Medley intended to testify. Moreover, as the Appellee ("the State") points out, Medley's self-defense testimony would have been inconsistent with the "someone else did it" defense previously advanced. Also, there was more than sufficient other evidence to convict Medley. Medley's girlfriend testified that Medley admitted to the murder, with no mention of any need to act in self-defense, and that Medley had described the details of the crime right after it occurred exactly as did the forensic experts who would later testify as to how the crime transpired. In addition, Medley's story of self-defense would have been undermined by his theft of the victim's car and the fact that the victim had more than four dozen knife wounds (which would appear to go well beyond the force necessary for self-defense). In sum, our review of the record convinces us that the testimony Medley wished to give would not have affected the outcome of the trial. Accordingly, Medley has failed to prove that the alleged IAC was prejudicial with respect to his murder conviction, and he is not entitled to relief on this issue. See id. at 687, 104 S.Ct. 2052.

III.

The heart of Medley's appeal is the contention that the trial court denied him due process when the trial judge instructed the jury that a flare gun is a firearm. Under AEDPA, Medley is only entitled to relief if the state court decision affirming his conviction was an unreasonable application of clearly established federal law or the State proceeding resulted in a decision that was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).

The Supreme Court has held that "the Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004). In addition, every fact necessary to increase the sentence beyond the statutory maximum (other than the fact of prior conviction) must be proved to a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348,...