Wilkins v. Lynch

• Decision Date: 12 March 2021
• Docket Number: Case No. 19-cv-06119-YGR (PR)
• Parties: KEITH M. WILKINS, Petitioner, v. JEFF LYNCH, Acting Warden, Respondent.
• Court: U.S. District Court — Northern District of California

KEITH M. WILKINS, Petitioner, v. JEFF LYNCH, Acting Warden, Respondent.

Case No. 19-cv-06119-YGR (PR)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

March 12, 2021

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DENYING CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Petitioner Keith M. Wilkins brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction. Dkt. 1. Specifically, on December 22, 2015, a San Francisco County jury found Petitioner guilty of voluntary manslaughter, second degree murder, and multiple counts of firearm-possession. The victims, Frederick Glaspie and Marche Daniels, were shot and killed on July 30, 3012 in San Francisco, California. Petitioner was convicted of both murders.

Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the petition as to all claims for the reasons set forth below.

II. BACKGROUND

A. Factual Background

The state appellate court handled the direct appeal filed by Petitioner in an unpublished opinion and described the relevant facts as follows¹:

At trial, the prosecution played a surveillance video which showed on the afternoon of July 30, 2012, appellant shot Glaspie in the head. Daniels witnessed the shooting and began to run away, but appellant shot him in the head from behind. Appellant then stood over Daniels and shot him twice more in the head. He returned to Glaspie and shot him again in the head.

Glaspie had no weapon on him and none were found near his body. Daniels also had no weapon on him and there were no weapons onthe ground near him.

Appellant's friend, Elijah Hopkins, had been killed two days before and appellant believed Daniels was involved in his murder. On July 30, 2012 some of Hopkins's family and friends, including appellant, were gathered at his home on Burr Street (the Burr Street house) in San Francisco.

Janeka Fells was visiting the Burr Street house to check on her friend Erica Augusta, Hopkin's sister. She saw Daniels and Glaspie arrive at the house and go upstairs and then she heard yelling. Everyone went outside and she saw that Daniels was crying and his lip was bleeding. She saw appellant talking with Glaspie. Daniels repeatedly told Fells: "I didn't do it." Fells never saw Daniels or Glaspie with a weapon or heard them threaten anyone.

Erica Augusta testified that when Daniels and Glaspie arrived at her house she felt scared because there had been talk that Daniels killed her brother.

Augusta identified appellant as the shooter in the video. Fells and Augusta both testified that appellant had a reputation as a peacemaker and a nonviolent person.

After the shooting, appellant fled the scene. Approximately three weeks later, officers attempted to arrest appellant and he ran from the officers after discarding a semiautomatic handgun.

Appellant testified at trial and admitted he shot both Daniels and Glaspie. He stated that he shot them because he was "afraid for his life and the lives of others in the house that they were going to kill somebody. Or hurt somebody." He stated that Towerside gang members had "shot up the house" before in 2009 and he believed Daniels was going to start fighting. Appellant stated he had been threatened multiple times in the past by Glaspie. When he was 17 years old, Glaspie threatened him with a gun. Appellant believed Glaspie wanted to start a gang war and was unconcerned about killing innocent people.

Appellant testified that Glaspie was a "general" in the Towerside gang. He acted as a mediator for the Towerside and Sunnydale gangs. Appellant believed that Daniels was Glaspie's "flunkey" who did Glaspie's "dirty work." Appellant stated that Glaspie told him that if you messed with him, he would kill "whoever was close to you."

Appellant testified that on the day of shooting, he felt "panic" when he saw Daniels and Glaspie arrive at the Burr Street house. He said two of the people in the house had guns. He took a gun from one of them. He said he just wanted to prevent any violence from happening.

When Daniels and Glaspie arrived at the front porch, appellant confronted them. Daniels stated: "I didn't do it." Appellant testified that he told Daniels, "Get the fuck out of here" and "you did it." Daniels entered the house. Appellant blocked Glaspie from entering the house. Glaspie stated: "It's about time you feel what I feel," which appellant took to mean the loss of a friend. After a commotion in thehouse, Glaspie pushed past appellant to go inside. Appellant walked out to the sidewalk with a gun under his arm. Appellant was afraid Daniels and Glaspie had other friends or gang members coming to back them up.

When Glaspie and Daniels returned to the front of the house, appellant pulled out the gun and told them to leave. Appellant stated he did not want to shoot Glaspie but he needed him to leave because he did not want a war between the gangs. Everyone was arguing and appellant believed Glaspie and Daniels were lying. He described himself as "[a]ngry, frightened, scared, hurt, nervous, paranoid, sad."

At this point, appellant claims Glaspie said: "I'm going to get my Tower niggas." He started shooting because he was "scared" that Glaspie was going to hurt someone in the house. "I'm like, fuck, you're not going to hurt me or nobody else."

On cross-examination, appellant admitted that he did not think Daniels was armed.

See People v. Wilkins, No. A148607, 2018 WL 4091012, *1-2 (Cal. App. 1 Dist. Aug. 28, 2018).

B. Procedural History

1. Conviction and Sentencing

Petitioner was charged with two counts of premeditated first degree murder (Cal. Penal Code § 187(a)) for the murders of Glaspie (count one) and Daniels (count two). The information alleged personal discharge of a firearm (Cal. Penal Code § 12022.53(d)) and the special circumstance of multiple murders (Cal. Penal Code § 190.2(a)(3)). Additionally, Petitioner was charged with one count of being a felon in possession of a firearm (Cal. Penal Code § 25400(a)(2)), and one count of being a convicted person carrying a loaded firearm (Cal. Penal Code § 25850(a)).

A San Francisco County jury acquitted Petitioner of the first degree murder counts but found him guilty of the lesser-included offenses of voluntary manslaughter for count one (Glaspie) and second degree murder for count two (Daniels). The jury found true the firearm-discharge allegations and found Petitioner guilty of all remaining counts. The trial court sentenced Petitioner to forty years to life, plus twenty-one years. 5 Clerk Transcript ("CT") 1134-1140.

2. Post-Conviction Appeals and Collateral Attack

Petitioner appealed the judgment and argued that his second degree murder conviction should be reversed. 5 CT 1136. On August 28, 2018, the California Court of Appeal disagreedand affirmed Petitioner's judgment. Resp't Ex. A; Wilkins, 2018 WL 4091012, *10. On December 12, 2018, the California Supreme Court denied the petition for review. Resp't Ex. B.

3. Federal Court Proceedings

On September 26, 2019, Petitioner filed the instant federal habeas petition.² Dkt. 1. The Court points out that Petitioner is only challenging his second degree murder conviction as to the killing of Daniels, just as he did on direct appeal. See id. at 10, 34; see also Wilkins, 2018 WL 4091012, at *1. He raises three claims: (1) the trial court improperly excluded expert testimony that was necessary to his defense; (2) the prosecutor committed misconduct³ during the rebuttal argument by misstating the standard for heat of passion voluntary manslaughter; and (3) cumulative error. Dkt. 1 at 8-37.⁴ On October 29, 2019, the case was reassigned from Magistrate Judge Joseph C. Spero to the undersigned. Dkt. 6. On December 27, 2019, the Court issued an order to show cause. Dkt. 9. On February 24, 2020, Respondent filed an answer. Dkt. 12, 12-1. Petitioner then filed a traverse on July 13, 2020.⁵ Dkt. 15. This matter is fully briefed and ripe for adjudication.

III. LEGAL STANDARD

A federal court may entertain a habeas petition from a state prisoner "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). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of theclaim: "(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 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of section 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority, falling under the second clause of section 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court...