Opinion
No. C 01-3275 MJJ
October 10, 2002
INTRODUCTION
Petitioner Brian Dennis Shannon ("Shannon") is in the lawful Custody of the California Department of Corrections, having been found guilty of second degree murder in a jury trial on December 12, 1994. Shannon now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition requires this Court to determine whether the erroneous lesser included voluntary manslaughter instruction, stating that the crime required an intent to kill, relieved the prosecution of its burden of proof with respect to the element of malice in the greater included offense of second degree murder, and thus violated Shannon's constitutional right to due process. under the Fourteenth Amendment. Having read and considered the papers, the Court DISMISSES the petition for a writ of habeas corpus as untimely.
FACTUAL BACKGROUND
On December 12, 1994, Shannon was sentenced in San Mateo Superior Court to fifteen (15) years to life for the murder of his girlfriend Kimberly Stack ("Stack" or "victim"), with an additional four (4) years for use of a firearm, and sixteen (16) months for a weapons possession count to which he pled nolo contendere at the commencement of trial. (California Penal Code §§ 187, 12022.5(A), 12280(B)).
The events underlying the conviction occurred on October 17, 1993, at Shannon's residence in El Granada, California. At approximately 8:00 a.m., Shannon called "911" to report that his girlfriend had been shot. A recording of the 911 call was played for the jury at Shannon's trial. Shannon told the dispatcher that his girlfriend was hurt and that he needed an ambulance at his home. Upon prompting by the dispatcher, Shannon said it was a gunshot wound and described the incident as "a fuckin' accident." When asked whether she shot herself, he said, "Fuck. No, I think that I did actually."
Shannon first called his father to tell him Stack had been shot and asked him what to do. Shannon's father then told him to call "911."
San Mateo County Deputy Sheriff James House was the first officer to arrive at the crime scene. Shannon led him upstairs to the living room where the victim lay. Shannon pointed out the gun, a .38-caliber revolver with a "hair trigger" modification, which was on the kitchen counter. Stack suffered a gunshot wound to the left She was nude from the waist up and had numerous bruises on her face and upper body. A sweatshirt was on the floor by her feet; inside it was a gold chain with a broken clasp. Shannon was wearing only boxer shorts and had scratches on his face and upper body.
The autopsy revealed human blood and tissue inside the barrel of the gun and on the outside surface of the gun, confirming the shot was fired very close to the victim's head. Stack was killed by a single gunshot which entered at the left temple, went through the brain, and exited in the area of the right temple. Gunshot residue was found both inside and outside of the wound, indicating the gun was fired within a fraction of an inch of the victim's head. Gunshot residue was also found in equal amounts on both of Stack's hands.
Laboratory testing also revealed there was semen in the victim's vaginal cavity, indicating recent sexual intercourse. Semen was also found on Shannon's boxer shorts. Additionally, both Stack and Shannon had cocaine and/or alcohol in their systems at the time of the murder.
At trial, the prosecution argued Shannon either intended to kill Stack or behaved with wanton disregard for human life by brandishing a gun he knew was particularly dangerous. The defense argued the shooting was accidental. In making this argument, however, it did not rely on a heat of passion defense.
The court instructed the jury on first "and second degree murder, as well as voluntary and involuntary manslaughter. Included were instructions on heat of passion and sudden quarrel. The jury deliberated for two full days and, on December 12, 1994, returned a verdict of second degree murder. It also found Shannon guilty of personal gun use and of unlawfully possessing an assault weapon.
Shannon filed a direct appeal in the California Court of Appeal, First Appellate District. That court affirmed his conviction on June 27, 1996 in a published opinion. See People v. Shannon, 46 Cal.App.4th 1365 (1996). On October 17, 1996, the California Supreme Court denied review.
On August 28, 2000, Shannon filed a petition for a writ of habeas corpus in the California Court of Appeal. The First Appellate District Court denied the petition on its merits, but without opinion. The California Supreme Court denied review on January 30, 2001. Shannon subsequently filed the instant petition with this Court on August 27, 2001.
LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244, et seq., (hereinafter "AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging noncapital state convictions or sentences must be filed within one year of the latest of four dates: (1) the date on which the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) the date on which the impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the date on which the constitutional right asserted was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A-D). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year limit. See Id. at § 2244(d)(2);Duncan v. Walker, 533 U.S. 167, 181 (2001).
With the enactment of the AEDPA, a federal court "shall not" grant an application for a writ of habeas corpus by a state prisoner unless the state court's earlier resolution of the claim "(I) 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). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court clarified the guidelines in § 2254(d), holding that the determination to be made on federal habeas review is whether the state court's determination was objectively unreasonable, not merely incorrect. Id. at 365.
The Court will grant habeas relief only if it finds: (1) a constitutional error occurred at the state court level, and (2) such error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The petitioner bears the burden of establishing the constitutional error had a substantial and injurious effect or influence in determining the jury's verdict. Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997).
ANALYSIS
I. Statute of Limitations
In its memorandum in support of its answer, Respondent argues the instant petition is untimely. Notwithstanding Shannon's assertions to the contrary, the Court agrees with Respondent and finds this petition is barred by the statute of limitations established under the AEDPA.
Shannon was convicted of second degree murder by a San Mateo jury in 1994. On direct appeal, Petitioner argued the jury instructions were erroneous in that they misstated the elements of manslaughter. The California Court of Appeal, First Appellate District, affirmed Shannon's convictions on June 27, 1996. See People v. Shannon, 46 Cal.App.4th 1365 (1996). The California Supreme Court denied review on October 17, 1996.
In Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999), the Ninth Circuit held "when a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires." See Id. at 1159. Shannon failed to seek a writ of certiorari from the United States Supreme Court, and thus his conviction became final on January 15, 1997, ninety days after the California Supreme Court decision denying review on October 17, 1996.
From January 15, 1997, the AEDPA's one-year statute of limitations began running and Shannon had until January 15, 1998, one year after his conviction became final, in which to file a federal habeas petition. Shannon, however, filed no such petition. On August 28, 2000, Shannon filed a petition for a writ of habeas corpus in the California Court of Appeal. He did so based on the June 2, 2000 decision by the California Supreme Court in People v. Lasko, 23 Cal.4th 101 (2000), which held, as a matter of state law, the crime of voluntary manslaughter did not require, and has never required, an intent to kill. Relying on the 2000 decision in Lasko, Shannon argued the trial court's misinstruction on voluntary manslaughter relieved the prosecution of its burden of proof on the element of malice, just as he did on direct appeal. The First District Court of Appeal denied the petition on November 9, 2000. Subsequently, on January 30, 2001, the California Supreme Court denied review. Shannon then filed the current federal habeas petition on August 27, 2001.
Under 28 U.S.C. § 2244(d)(2), the federal limitations period was tolled during the pendency of Petitioner's state writ proceedings (from August 28, 2000 to January 30, 2001).
A. Factual Predicate of The Present Claim
Although Shannon concedes the facts listed above, he argues his petition is timely because the date on which his conviction became final is not the relevant date for statute of limitations purposes. Instead, Shannon asserts the relevant date for the statute to run is the date "on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence, " or the date on which the California Supreme Court issued the Lasko decision. Specifically, Shannon asserts before Lasko, he had no federal due process claim as Respondents had erroneously been relieved of its burden of proof on the element of malice, absent a state court ruling that under California law the crime of voluntary manslaughter did not require, and has never required, an intent to kill. Thus, Shannon argues his federal claim did not ripen until the date of the Lasko decision.
The Court is not persuaded. Shannon fails to cite to, and this Court has not found, any legal authority supporting Shannon's argument that a state court decision which validates a petitioner's assignment of state law serves as a factual predicate for a habeas claim which could not have been discovered through the exercise of due dilgence. Moreover, consideration of cases interpreting the language of § 2244(d)(1)(D) require the factual predicate to be one based on the discovery of evidence that could not reasonably have been discovered previously. The cases do not allow for the application of the exception to the discovery of the basis for a legal theory.
The only case Shannon cites to is La Grand v. Stewart, 170 F.3d 1158 (9th Cir. 1999) for the proposition that the Ninth Circuit permits claims to be filed after they become ripe. While the proposition might be true, the Court finds La Grand inapposite as it is not a statute of limitations or accrual case. Indeed, it does not discuss § 2244(d)(1)(D) or the "factual predicate" of the petitioner's 27 claim, rather that case is about § 2244(b) and whether or not the petitioner should be allowed to file a second or successive ("SOS") petition for a writ of habeas corpus. See LaGrand, 170 F.3d at 1160 28 (permitting the petitioner to file a successive petition when the first was denied on grounds the claim was not ripe).
For example, in Flanigan v. Johnson, 154 F.3d 196 (5th Cir. 1998), the petitioner argued his trial counsel had performed ineffectively for failing to inform him that he did not have to testify at his trial. The petitioner argued his petition was not untimely because he was unaware of the "factual predicate" of his claim until November 1996, when he obtained an affidavit from his trial counsel on this issue. See Id. at 198. The Fifth Circuit rejected this application of § 2244(d)(1)(D) because petitioner was aware of the factual predicate of his claim prior to obtaining the affidavit from his trial counsel. That court held the tolling provided for in § 2244(d)(1)(D) does not allow the statute of Limitations to run once the petitioner has gathered sufficient evidence in support of a claim. See Id. at 199.
Likewise, in Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000), the Seventh Circuit rejected petitioners argument that § 2244(d)(1)(D) applied to his claim. That court held "[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance."
Owens is cited favorably by the Ninth Circuit in Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001).
Like the petitioner in Flanigan and Owens, Shannon knew the factual predicate of his claim at the time of his trial. In fact, he based his direct appeal in 1996 on the same grounds. Just as it does not provide an exception for when, or if, a petitioner can muster sufficient evidence in support of a claim, the language of § 2244(d)(1)(D) does not provide an exception for when, or if, case law becomes available to cause a petitioner to recognize the legal significance of the evidence. This is especially true since a federal constitutional error, if any, would have existed regardless of the state of the law. Accordingly, the petition does not fall under the exception established in § 2244(d)(1)(D).
Shannon relies on Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000) for the proposition that absent a state court ruling that the challenged instructions misstated the elements of murder and manslaughter under California law, he had no federal due process claim. In Solis, the Ninth Circuit stated a federal court must accept the identification of the elements of an offense as established by the California Supreme Court. See Solis, 219 F.3d at 927. It does not follow, however, that Shannon had no federal due process claim under, as discussed below, Mullaney v. Wilbur, 421 U.S. 684 (1975), where the United States Supreme Court held "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly raised in a homicide case." Mullaney, 421 U.S. at 704.
B. The Shannon Decision Does Not Amount To A State-Created Impediment
In his Traverse, Shannon alternatively argues that his claim is timely under § 2244(d)(1)(B) because prior to Lasko, the state of California law constituted a state-created impediment to his filing a petition. In support, Shannon points to the opinion issued by Court of Appeal, wherein the court acknowledged the instruction given at Shannon's trial was probably erroneous, but held it was bound by California Supreme Court precedents which seemingly approved such instructions. See People v. Shannon, 46 Cal.App.4th 1365 (1996). On that basis, Petitioner contends the State prevented him from seeking federal habeas relief in this Court, and until Lasko in June 2000, that impediment was not lifted.
The Court, again, is not persuaded. Shannon cites no authority to support his claim that court opinions may constitute a "state-created impediment" as established by § 2244(d)(1)(B). In fact, the limited case law interpreting this section concerns impediments created by actions of prison officials. See Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (finding the unavailability of AEDPA in prison law library may constitute impediment to filing timely habeas application within the meaning of§ 2244(d)(1)(B)); Giraldes v. Ramirez-Palmer, No. C 98-2757 SI, 1998 U.S. Dist. LEXIS 17573 (N.D. Cal. Nov. 3, 1998) (rejecting petitioner's argument that a prison lockdown impeded his efforts to file a petition within the meaning of § 2244(d)(1)(B)); Love v. Roe, No. 98-0718 IEG (LAB), 1999 U.S. Dist. LEXIS 5934 (S.D. Cal. Feb. 24, p999) (finding the prison officials' failure to deliver petitioner's materials to him while petitioner was in administrative segregation did not constitute a state-created impediment within the meaning of § 2244(d)(1)(B)).
Furthermore, even if the Shannon decision arguably constituted a state action in violation of the Constitution or laws of the United States, such action did not create an impediment to Shannon's filing of his application. Shannon argued on direct appeal the erroneous jury instruction relieved the prosecution of its burden of disproving heat of passion beyond a reasonable doubt. Regardless of what California courts held on his direct appeal, Shannon was always free to file a petition based on a violation of federal due under Mullaney v. Wilbur, 421 U.S. 684 (1975), where the United States Supreme Court held: "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly raised in a homicide case." Mullaney, 421 U.S. at 704 (finding that relieving the burden of proof from the prosecution violated the defendant's due process rights). Therefore, if Shannon is correct that the jury instructions at his trial effectively relieved the prosecution of its burden of proving the absence of heat of passion beyond a reasonable doubt, no matter what the law of California was, Shannon always had a claim of a due process violation in federal court. On these grounds, the Court finds the petition does not fall within the exception of § 2244(d)(1)(B) and is untimely. Accordingly, the petition is DISMISSED.
II. Merits
Even assuming Shannon's application was timely, the Court turns to the issue of whether the trial court here committed error and, if yes, that error was prejudicial. Shannon argues the trial court gave an erroneous jury instruction which relieved the prosecution of its burden of proving beyond a reasonable doubt the absence of heat of passion. This error, according to Shannon, was prejudicial because it had a "substantial and injurious effect or influence in determining the jury's verdict." On that basis, Shannon contends he was denied his due process rights under the Fourteenth Amendment.
Respondent counters the instructions adequately informed the jury that heat of passion negates both express and implied malice, reducing the crime from murder to manslaughter. The instructions further placed the burden of proving the absence of heat of passion beyond a reasonable doubt on the prosecution. On that basis, Respondent contends there was no error. Even if there were, Respondent contends the error was not prejudicial.
In determining whether the instruction given constituted error, the Court considers again the decision in Lasko where the trial court gave erroneous instructions pertaining to voluntary manslaughter as requiring an intent to kill. As was the case in Lasko, the trial court here erred in telling the jury it had to find Shannon intended to kill Stack in order to convict him of voluntary manslaughter. See Lasko, 23 Cal.4th at 107, 111 (finding error in the instruction of intent to kill as element for voluntary manslaughter).
The Court now turns to the issue of prejudice and, again, considers the Lasko decision. In Lasko, the trial court gave CALJIC No. 8.50, a standard instruction explaining the distinction between murder and manslaughter:
When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel such as amounts to adequate provocation the offense is voluntary manslaughter. In such a case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [ ] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel. . . .
See Lasko, 23 Cal.4th at 111-12 (emphasis added). By these instructions, the California Supreme Court determined the error was not prejudicial because the trial court instructed the jury it could not convict the defendant of murder unless the prosecution proved the defendant was not acting in the heat of passion at the time of the killing, regardless of whether the killing was intentional or unintentional. See id. at 112.
Here, the court in Shannon's trial gave CALJIC No. 8.50, the same instructions given in Lasko. See CT 334. With these instructions, and as found in Lasko, the Shannon court properly instructed the jury that it could not convict Shannon of murder unless the prosecution proved he was not acting in the heat of passion beyond a reasonable doubt. In light of the instructions given, the Court finds the prosecution's burden was not eased and, the error as to the intent to kill requirement was not prejudicial. On this basis, the Court would have denied the petition had it reached the merits.
"CT" refers to the Clerk's Transcript of the state court trial, submitted as Exhibit A, which is lodged with the Clerk of the Court.
Additionally, at Shannon's trial the court instructed the jury that voluntary manslaughter is a lesser crime to murder in the second degree, and emphasized: "if you have reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of such doubt and find it to be manslaughter rather than murder." See CT 341 (emphasis added). The Court finds this instruction further emphasizes the proper burden of proof.
Shannon further relies on statements made by the prosecutor as evidence of prejudice, although he does not argue prosecutonal misconduct. While the arguments of counsel are relevant in considering whether it is reasonably likely the jury would have applied the erroneous instruction, the actual instructions, viewed as a whole, carry substantially more weight. See Boyde v. Calfornia, 494 U.S. 370, 384-85 (1990). Shannon points out the prosecutor told the jurors that if they "don't find there was an intent to kill, then what you have is second degree murder." Memorandum In Support of Petition for Writ of Habeas Corpus, 14:25-26. However, Shannon also points out the prosecutor informed the jury it was not permitted to even consider the crime of voluntary manslaughter unless and until it found "the defendant not guilty of the greater crimes. Both first and second degree murder." See Id. at 15:1-3. After considering the instructions taken as a whole, the Court finds the jury could not have reached the elements of voluntary manslaughter, including the presumably erroneous instruction requiring "intent to kill" as an element, without first finding an absence of heat of passion beyond a reasonable doubt.
CONCLUSION
Based on the foregoing reasons the petition for a writ of habeas corpus is DISMISSED as untimely.