(HC) Verdugo v. Pfeiffer

• Court: District Court, E.D. California
• Decided: July 18, 2025
• Docket: 1:22-cv-00454
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GABRIEL VERDUGO, Case No. 1:22-cv-00454-JLT-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS 13 v. CORPUS AND DECLINE TO ISSUE CERTIFICATE OF APPEALABILITY 1 14 CHRISTIAN PFEIFFER, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent.

16 17 18 I. STATUS 19 Petitioner Gabriel Verdugo (“Petitioner” or “Verdugo”), a state prisoner, is proceeding pro 20 se on his Petition for Writ of Habeas Corpus filed under 28 U. S.C. § 2254 on April 18, 2022. 21 (Doc. No. 1, “Petition”). Petitioner challenges his conviction after a jury trial for first degree 22 murder with sentencing enhancements for the personal use of a firearm in the commission of a 23 felony and for the personal and intentional discharge of a firearm causing great bodily injury or 24 death. (Case No. BF162018A). (Doc. 14-1 at 1988; see id. at 230-32).2 The Kern County 25

26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 27 2 All citations to the pleadings and record are to the page number as it appears on the Case Management 28 and Electronic Case Filing (“CM/ECF”) system. 1 Superior Court sentenced Petitioner to an aggregate term of 50 years to life in prison. (Id. at

2 1988; see id. at 397-98).

3 On appeal, the Fifth Appellate District Court remanded to the trial court to allow

4 Petitioner an opportunity to raise the issue of his ability to pay the fines, fees, and assessments

5 imposed by the judgment. (Case No. F077101). (Doc. No. 14-1 at 2004). The appellate court

6 also instructed the trial court to correct a clerical error in the minute order from Petitioner’s

7 sentencing hearing. (Id.). The appellate court otherwise affirmed the judgment. (Id.). On April

8 14, 2021, the California Supreme Court summarily denied Verdugo’s petition for review. (Case

9 No. S267398). (Id. at 2077).

10 The instant federal Petition presents the following (restated) grounds for relief:

11 (1) The prosecution misstated the law in closing argument, impermissibly lowering the burden of proof. 12 (2) Trial counsel was ineffective for failing to object to the 13 prosecution’s incorrect statements of the law.

14 (3) The trial co urt improperly instructed the jury on voluntary intoxication. 15 (4) The cumulative errors worked to weaken the burden of proof. 16 17 (See Doc. No. 1 at 4-5). Respondent filed an Answer (Doc. No. 15), arguing Petitioner was not 18 entitled to relief on any of his grounds, and lodged the state court record in support (Doc. Nos. 14, 19 14-1). Petitioner did not file a traverse and the time to do so has expired. This matter is deemed 20 submitted on the record before the Court. After careful review of the record and applicable law, 21 the undersigned recommends the district court deny Petitioner relief on his Petition and decline to 22 issue a certificate of appealability. 23 II. GOVERNING LEGAL PRINCIPLES 24 A. Evidentiary Hearing 25 In deciding whether to grant an evidentiary hearing, a federal court must consider whether 26 such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, 27 would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 28 (2007). “It follows that if the record refutes the applicant's factual allegations or otherwise 1 precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id. Here,

2 the state courts adjudicated Petitioner’s claims for relief on the merits. This Court finds that the

3 pertinent facts of this case are fully developed in the record before the Court; thus, no evidentiary

4 hearing is required. Cullen v. Pinholster, 563 U.S. 170 (2011).

5 B. ADEPA General Principles

6 A federal court’s statutory authority to issue habeas corpus relief for persons in state

7 custody is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

8 Penalty Act of 1996 (AEDPA). AEDPA requires a state prisoner seeking federal habeas relief to

9 first “exhaus[t] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). If

10 the state courts do not adjudicate the prisoner’s federal claim “on the merits,” a de novo standard

11 of review applies in the federal habeas proceeding; if the state courts do adjudicate the claim on

12 the merits, then AEDPA mandates a deferential, rather than de novo, review. Kernan v. Hinojosa,

13 136 S. Ct. 1603, 1604 (2016). This deferential standard, set forth in § 2254(d), permits relief on a

14 claim adjudicated on the meri ts, but only if the adjudication: 15 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 16 determined by the Supreme Court of the United States; or 17 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 18 State court proceeding. 19 28 U.S.C. § 2254(d). This standard is both mandatory and intentionally difficult to satisfy. 20 Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415, 419 (2014). 21 “Clearly established federal law” consists of the governing legal principles in the 22 decisions of the United States Supreme Court when the state court issued its decision. White, 572 23 U.S. at 419. Habeas relief is appropriate only if the state court decision was “contrary to, or an 24 unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary 25 to” clearly established federal law if the state court either: (1) applied a rule that contradicts the 26 governing law set forth by Supreme Court case law; or (2) reached a different result from the 27 Supreme Court when faced with materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 28 12, 16 (2003). 1 A state court decision involves an “unreasonable application” of the Supreme Court’s

2 precedents if the state court correctly identifies the governing legal principle, but applies it to the

3 facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S.

4 133, 134 (2005), or “if the state court either unreasonably extends a legal principle from

5 [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to

6 extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362,

7 407, (2000). “A state court’s determination that a claim lacks merit precludes federal habeas

8 relief so long as fair-minded jurists could disagree on the correctness of the state court’s

9 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The petitioner must show that the

10 state court decision “was so lacking in justification that there was an error well understood and

11 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

12 When reviewing a claim under § 2254(d), any “determination of a factual issue made by a

13 State court shall be presumed to be correct[,]” and the petitioner bears “the burden of rebutting

14 the presumption of correctnes s by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt 15 v. Titlow, 571 U.S. 12, 18 (2013) (“[A] state-court factual determination is not unreasonable 16 merely because the federal habeas court would have reached a different conclusion in the first 17 instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)). 18 Even if a petitioner meets AEDPA's “difficult” standard, he must still show that any 19 constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v. 20 Abrahamson, 507 U.S. 619, 637 (1993). As the Supreme Court explained, while the passage of 21 AEDPA “announced certain new conditions to [habeas] relief,” it didn't eliminate Brecht’s actual- 22 prejudice requirement. Brown v. Davenport, 596 U.S. 118, 134 (2022). In other words, a habeas 23 petitioner must satisfy Brecht, even if AEDPA applies. See id. at 138 (“[O]ur equitable 24 precedents remain applicable ‘whether or not’ AEDPA applies.”) (citing Fry v. Pliler, 551 U.S. 25 112, 121 (2007)). In short, a “federal court must deny relief to a state habeas petitioner who fails 26 to satisfy either [Brecht] or AEDPA. But to grant relief, a court must find that the petition has 27 cleared both tests.” Id. at 134. 28 As discussed supra, for the deferential § 2254(d) standard to apply there must have been 1 an “adjudication on the merits” in state court. An adjudication on the merits does not require that

2 there be an opinion from the state court explaining the state court’s reasoning. Richter, 562 U.S.

3 at 98. “When a federal claim has been presented to a state court and the state court has denied

4 relief, it may be presumed that the state court adjudicated the claim on the merits in the absence

5 of any indication or state-law procedural principles to the contrary.” Id. at 99. “The presumption

6 may be overcome when there is reason to think some other explanation for the state court’s

7 decision is more likely.” Id. at 99-100. This presumption applies whether the state court fails to

8 discuss all the claims or discusses some claims but not others. Johnson v. Williams, 568 U.S.

9 289, 293, 298-301 (2013).

10 While such a decision is an “adjudication on the merits,” the federal habeas court must

11 still determine the state court’s reasons for its decision in order to apply the deferential standard.

12 When the relevant state-court decision on the merits is not accompanied by its reasons,

13 the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant 14 rationale. It sh ould then presume that the unexplained decision adopted the same reasoning. But the State may rebut the 15 presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s 16 decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record 17 it reviewed. 18 Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The federal court “looks through” the silent state 19 court decision “for a specific and narrow purpose—to identify the grounds for the higher court’s 20 decision, as AEDPA directs us to do.” Id. at 1196. 21 III. RELEVANT FACTUAL BACKGROUND 22 The Court adopts the pertinent facts of the underlying offenses, as summarized by the 23 California Fifth District Court of Appeal. A presumption of correctness applies to these facts. 24 See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

25 The victim in this case, Elvis G., arrived at the El Escorpion bar in Bakersfield around 10:45 p.m. one night in August 2015 and sat at 26 the service counter. The manager, Lorena G., knew Elvis from the bar. Lorena hired women to serve male customers drinks and keep 27 them company, and Aricema S., a friend of Lorena's who also knew Elvis from the bar, was working that night, along with several other 28 new employees. Aricema and Elvis had a friendly relationship but 1 just began talking again that night after some sort of falling out several days earlier, and Aricema testified that Elvis was buying 2 another woman drinks to make her jealous.

3 Ariana S., who was defendant's girlfriend and shares two children with him, was working that night, as was a woman named Rumor. 4 Both were newly hired. Ariana did not care for the job because it made her uncomfortable, and she thought about leaving several 5 times, telling Lorena at one point that she needed to leave because her baby was ill. She stayed, however, and she sat with Elvis at the 6 service counter. They talked and he bought her some drinks. At around 12:20 a.m., Elvis grabbed Ariana's hand and asked her to 7 dance. She said no and he immediately dropped her hand. Ariana testified Elvis touched her only that one time, he was fine when she 8 said no to dancing, and he did not act disrespectfully toward her.

9 Defendant arrived at the bar around 1:00 a.m. to pick Ariana up, and he handed Lorena a business card for a marijuana dispensary 10 and left another business card on the bar top. He played pool with some men he appeared to know and drank some beer. Lorena and 11 Aricema were somewhat concerned because defendant and his friends looked like they might have some gang involvement. 12 Ariana testified that at some point after defendant's arrival, the 13 group of women working had an argument or discussion regarding Elvis going behind the service counter and touching Lorena, and 14 although Arian a did not see Elvis go behind the bar or touch Lorena, she told the others that Lorena liked it. However, Aricema 15 was not aware of any complaints about Elvis, and Lorena denied that there was any argument or conversation regarding Elvis or that 16 he touched her. Lorena said Elvis went into the office with her for a few minutes, but he just wanted to say good-bye. He told her he 17 would not be seeing her again and to be careful because the women she just hired “were not good.” 18 Ariana denied she told defendant that Elvis had grabbed her hand 19 earlier and asked her to dance, but sometime after 1:30 a.m., Lorena saw defendant and his friend, Rumor, leave the bar. They then 20 returned, and Lorena heard Rumor tell defendant that Elvis was disrespectful to her and to kill him. 21 At approximately 1:39 a.m., defendant, along with some other men, 22 approached Elvis and defendant confronted him. Aricema, who was on the other side of the bar counter from Elvis, said defendant 23 sounded upset and asked Elvis why he was talking to and touching defendant's girl. Elvis looked at defendant, laughed it off, said 24 “[w]hat the fuck?” and “pretty much ignor[ed] him.” Aricema told defendant that Elvis was with her, but defendant pulled a gun from 25 his waistband, racked the slide, placed the muzzle near Elvis's left eye, and fired. Elvis fell to the ground and the coroner testified that 26 he died instantly.

27 Evidenced by footage from various surveillance cameras, defendant left the bar with Ariana after shooting Elvis and handed the gun to 28 another man, who concealed it and walked out of view. Defendant 1 and Ariana left in his car, and he took her to her mother's house. Later that morning, defendant picked her up and, against her will, 2 drove to a motel out of town. After a few days, Ariana arranged for someone to pick her up and take her home. She denied defendant 3 said anything about the shooting or told her why he shot Elvis, and she denied that he threatened her, although she conceded he had 4 gang connections that concerned her.

5 After the shooting, Lorena locked the bar and left with Aricema. A friend of Aricema's picked her up from Lorena's house, and Lorena 6 contacted a friend who is an attorney for advice. Lorena's friend called 911, and the two of them met sheriff's deputies at the bar 7 around 3:00 a.m.

8 The bar had multiple surveillance cameras and defendant was quickly identified as the suspect through the camera footage and the 9 business cards he left behind. Defendant was thereafter identified in a photo lineup by multiple witnesses, including Ariana, but almost 10 two years passed before he was located and arrested in Mexico.

11 (Doc. No. 14-1 at 1989-90 (footnote omitted)).

12 IV. ANALYSIS

13 Each of Petitioner’s grounds were raised on direct appeal to the Fifth Appellate District

14 Court and denied on the meri ts, then subsequently raised and summarily denied by the California 15 Supreme Court. Thus, each ground is exhausted, and the Court looks through to the Fifth 16 Appellate District’s reasoned decision in evaluating the claims under the deferential standard of 17 review. Wilson, 138 S. Ct. at 1192. 18 A. Ground One-Prosecutorial Misconduct 19 In his first ground, Petitioner argues the prosecution misstated the law regarding 20 premeditation and deliberation by using a “yellow light analogy” to indicate that deliberation and 21 premeditation could occur in the “blink of an eye.” (Doc. No. 1 at 4). 22 1. State Court Decision 23 The Fifth Appellate District denied Plaintiff’s prosecutorial misconduct claim as follows:

24 A. Background

25 The jury convicted defendant of willful, deliberate and premeditated murder. On appeal, defendant argues that the 26 prosecutor misstated the law with respect to the definition of deliberation, reducing the prosecution's burden of proof, and that 27 the error was prejudicial under any standard of review. The People contend that defendant forfeited review of his claim because 28 counsel failed to object at trial, the prosecutor did not misstate the 1 law, and even assuming error, it was harmless.

2 The trial court instructed the jury on first degree murder pursuant to CALCRIM No. 521 as follows: 3 “The defendant is guilty of first-degree murder if the People have 4 proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant 5 acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. 6 The defendant acted with premeditation if he decided to kill before completing the act that caused death. 7 “The length of time the person spends considering whether to kill 8 does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and 9 premeditation may vary from person to person and according to the circumstances. 10 “A decision to kill made rashly, impulsively, or without careful 11 consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is 12 the extent of the reflection, not the length of time.”

13 Relevant to defendant's claim of error, during closing argument, the prosecutor relied on a yellow traffic light analogy to illustrate a 14 rapid but delib erate and premeditated decision; and during rebuttal the prosecutor referred to deliberation while addressing voluntary 15 intoxication. Placed in context, the portions of argument defendant objects to are as follows: 16 “A common example that is used in describing issues of 17 premeditation and deliberation, making a choice, thinking about the consequences, and being able to do it almost instantaneously, is 18 something that probably everyone has done at some point.

19 “You are driving on the road. Maybe you are late for work. You are coming up to a traffic signal. It's green. You think you are going to 20 make it, but then the light turns yellow. And you have a decision. You know you have enough time to stop, but you are late and you 21 want to make it. So within an instant you make a choice. Do I slow down, play it safe, maybe be a little bit late for work, or do I risk a 22 ticket, risk an accident, and go through the light knowing it's going to turn red right before I go through the intersection. 23 “People make those choices instantaneously. You consider the 24 consequences of your actions. You know the consequences of your actions, and you make a choice. That's how quickly premeditation 25 and deliberation can happen. All that is required is the ability and the amount of time to make that type of decision, to make a 26 decision to weigh the consequences of the action and to make the decision to follow through with it. Clearly, that's what we have in 27 this case.

28 “The defendant has ample time before he even approaches Elvis ... 1 to decide what he is going to do. He has ample time to go to his car and get a gun. He has time to go up to Elvis ... and start talking to 2 him to confront him. He has time to hear Elvis ... kind of brush him off, which is pretty much what happens because what the defendant 3 is saying is so ridiculous. Because you can watch the video, and I encourage you to watch it all the way through.” (Italics added.) 4 During rebuttal, the prosecutor argued: 5 “So you can consider the voluntary intoxication evidence, if any, to 6 decide whether the defendant was capable of doing that. Was the defendant so drunk that he couldn't have possibly realized the 7 considerations for and against his choice, not knowing the consequences of his choice? 8 “Do you really think the defendant was so drunk that he didn't 9 know that shooting Elvis ... in the head would kill him? Of course not. He knew very well what was going on. He wasn't too drunk to 10 understand that, and you can tell by what he does afterwards. Because he knows what he's done is wrong. He knew it when he did 11 it, and he knew it immediately after. That's why he goes to the car, that's why he hands off the gun, and that's why he flies out of that 12 parking lot as fast as he can. Because he knows the choices that he's made, and he knows the consequences for them. He's already 13 thought about them. He knew about it well before he acted. He's not too drunk to get what he is doing is the point. That's the 14 deliberation.

15 “You can also consider voluntary intoxication to determine whether the defendant acted with premeditation which is—premeditation is 16 deciding to kill before completing the act that caused death. [¶] So was the defendant so drunk that he hadn't actually decided to kill 17 Elvis before pulling the trigger? There's no reason to pull the trigger when you have the gun against his head. He wasn't too drunk to 18 form the intent required for murder, the intent to kill. He wasn't too drunk to understand the consequences of his choice, to make 19 decisions that led to deadly consequences to Elvis .... The law doesn't allow a pass for people who have a few beers before they 20 commit a public execution.” (Italics added.)

21 B. Legal Standard

22 The legal standard governing claims of prosecutorial error is well established. “Under the federal Constitution, a prosecutor's 23 behavior deprives a defendant of his rights ‘when it comprises a pattern of conduct “so egregious that it infects the trial with such 24 unfairness as to make the conviction a denial of due process.” ’ ” (People v. Gamache (2010) 48 Cal.4th 347, 370–371, 106 25 Cal.Rptr.3d 771, 227 P.3d 342; accord, People v. Peterson (2020) 10 Cal.5th 409, 464, 268 Cal.Rptr.3d 56, 472 P.3d 382; People v. 26 Hill, supra, 17 Cal.4th at p. 819, 72 Cal.Rptr.2d 656, 952 P.2d 673.) “Conduct that falls short of that standard ‘may still constitute 27 misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.’ ” 28 (People v. Gamache, supra, at p. 371, 106 Cal.Rptr.3d 771, 227 1 P.3d 342; accord, People v. Peterson, supra, at p. 464,; People v. Hill, supra, at p. 819, 72 Cal.Rptr.2d 656, 952 P.2d 673.) “ ‘To 2 prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury 3 understood or applied the complained-of comments in an improper or erroneous manner.’ ” (People v. Gamache, supra, at p. 371, 106 4 Cal.Rptr.3d 771, 227 P.3d 342; accord, People v. Beck and Cruz (2019) 8 Cal.5th 548, 657, 256 Cal.Rptr.3d 1, 453 P.3d 1038; 5 People v. Centeno (2014) 60 Cal.4th 659, 667, 180 Cal.Rptr.3d 649, 338 P.3d 938.) 6 C. Analysis 7 “To preserve a claim for appeal under either state or federal law, a 8 defendant must raise a contemporaneous objection at trial and seek a jury admonition. [Citation.] In the absence of an objection, any 9 claim is forfeited unless an exception applies.” (People v. Gamache, supra, 48 Cal.4th at p. 371, 106 Cal.Rptr.3d 771, 227 10 P.3d 342; accord, People v. Peterson, supra, 10 Cal.5th at pp. 464– 465; People v. Hill, supra, 17 Cal.4th at p. 820, 72 Cal.Rptr.2d 656, 11 952 P.2d 673.) As the People point out, defense counsel did not object to the portions of closing argument now at issue on appeal 12 and defendant does not defend this omission based on any exception to the general rule of forfeiture. However, because 13 defendant advances a related claim that counsel rendered ineffective assistance by failing to object, we elect to resolve the 14 issue of prosec utorial error on the merits.

15 Defendant argues that “[w]hether purposeful or not, the [prosecutor's] argument was designed to persuade the jury to 16 disregard [his] defense that there was reasonable doubt as to whether he deliberated. The prosecutor's comments were not 17 benign; they were a calculated attempt to persuade the jury that [his] decision to put a bullet in the chamber of his gun and fire a 18 single shot alone was proof beyond a reasonable doubt of deliberation.” We disagree with defendant that the prosecutor 19 misstated the law during closing argument, and even if we assume error for the sake of argument, it was harmless. 20 1. No Error 21 The prosecutor's reliance on a yellow light analogy to illustrate the 22 concept of deliberation and premeditation was not unique. (People v. Avila (2009) 46 Cal.4th 680, 715, 94 Cal.Rptr.3d 699, 208 P.3d 23 634 [rejecting prosecutorial error claim relating to yellow light analogy]; People v. Son (2020) 56 Cal.App.5th 689, 698–700, 270 24 Cal.Rptr.3d 83 [same]; People v. Wang (2020) 46 Cal.App.5th 1055, 1086–1087, 260 Cal.Rptr.3d 343 [same]; People v. 25 Henderson (2020) 46 Cal.App.5th 533, 548–551, 260 Cal.Rptr.3d 104, review granted Dec. 23, 2020, S265172 [finding prosecutorial 26 error claim forfeited and rejecting claim that trial counsel's failure to object to yellow light analogy was ineffective or prejudicial].) 27 Although the prosecutor used the terms “almost instantaneously” and “within an instant,” viewed in context, the prosecutor clearly 28 argued that killing with premeditation and deliberation is similar to 1 running a yellow light in that the decision or choice may be made very rapidly but after reflecting and weighing the consequences. 2 Critically, the argument did not have the effect of undermining the trial court's instruction to the jury that “defendant acted deliberately 3 if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.” 4 Further, defendant's argument was recently considered and rejected 5 by two appellate courts. The Court of Appeal in People v. Wang explained, “Consistent with the law, the prosecutor used the traffic 6 light illustration to explain the concept of premeditation and deliberation as a weighing of options that can happen very quickly. 7 (CALJIC No. 8.20 [‘ “deliberate” means formed or arrived at or determined upon as a result of careful thought and weighing of 8 considerations for and against the proposed course of action’]; People v. Pearson (2013) 56 Cal.4th 393, 440, 154 Cal.Rptr.3d 9 541, 297 P.3d 793.) The illustration was consistent with the law.” (Cal.App.5th at p. 1085; accord, People v. Son, supra, 56 10 Cal.App.5th at pp. 699–700.) We agree and reject defendant's contention that the prosecutor's argument misled the jury into 11 believing that an instantaneous decision made without weighing considerations and consequences suffices to show premeditation 12 and deliberation.

13 We also reject defendant's contention that the prosecutor's yellow light analogy “trivialized [the issue] to the blink of an eye.” (People 14 v. Avila, supra , 46 Cal.4th at p. 715, 94 Cal.Rptr.3d 699, 208 P.3d 634 [prosecutor did not equate decision whether to stop at yellow 15 light with cold, calculated judgment of murder, but instead used assessment of circumstances as an example of a judgment that is 16 cold and calculated but quick].) Although we agree prosecutors must exercise caution to ensure their word choice does not suggest 17 action that is instantaneous and without reflection, the record in this case does not support the interpretation that the prosecutor misled 18 the jury by trivializing or dismissing the deliberative process required to support a finding of willful, deliberate and premeditated 19 murder.

20 2. Any Error Harmless

21 Moreover, even if we assume for the sake of argument that the prosecutor erred, any error was harmless. As previously stated, 22 where, as here, an error does not rise to the level of a due process violation by rendering the trial fundamentally unfair, we ask 23 whether there is a “ ‘a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous 24 manner.’ ” (People v. Gamache, supra, 48 Cal.4th at p. 371, 106 Cal.Rptr.3d 771, 227 P.3d 342; accord, People v. Beck and Cruz, 25 supra, 8 Cal.5th at p. 657; People v. Centeno, supra, 60 Cal.4th at p. 667, 180 Cal.Rptr.3d 649, 338 P.3d 938.) 26 The evidence shows that after playing pool for a while, defendant 27 left the bar with Rumor and then returned. As they reentered, Rumor told defendant that Elvis had disrespected her, although 28 Lorena, Aricema and Ariana all testified that Elvis was not 1 disrespectful and he did not touch any of the women other than picking up Ariana's hand when he asked her to dance with him. 2 Defendant approached with several other men and confronted Elvis about “touching his girl.” Elvis did not react aggressively, did not 3 reach for anything, and essentially ignored defendant other than laughing and saying, “What the fuck?” Defendant removed a gun 4 from his waistband; racked the slide, ejecting a live round that was recovered from the floor by law enforcement; placed the gun 5 against Elvis's face; and fired one shot. Defendant's actions, which amounted to a coldblooded execution of someone who was 6 unresisting and nonthreatening, were captured on surveillance camera. This allowed the jury to see the crime as it occurred and to 7 evaluate defendant's actions in that context.

8 Moreover, the jury was instructed with the definition of deliberation and premeditation, instructed that it must follow the court's 9 instructions to the extent the attorneys' comments conflicted with those instruction, and instructed that the attorneys' remarks are not 10 evidence. The admonitions regarding the need to follow the court's instructions and that the attorneys' remarks are not evidence were 11 repeated when defense counsel objected during the prosecutor's rebuttal argument. The prosecutor also reviewed the definition of 12 deliberation and premeditation during argument using language that mirrored the jury instruction. We are unpersuaded that under these 13 circumstances, there is a reasonable likelihood the jury applied the prosecutor's yellow light illustration in a manner not permitted 14 under the law. Accordingly, even if we assume error, it was harmless. 15 16 (Doc. No. 14-1 at 1991-96). 17 2. Analysis 18 Petitioner argues that the prosecutor’s use of the yellow light analogy amounted to a 19 misstatement of the law and lowered the burden of proof. (Doc. No. 1 at 4). However, Petitioner 20 wholly fails to engage with the state court’s analysis and rejection of this claim or present any 21 argument as to why the state court’s decision was contrary to, or an unreasonable application of, 22 Supreme Court precedent or based on an unreasonable determination of the facts. Respondent 23 argues the state court’s decision was reasonable and Petitioner failed to carry his burden of 24 showing otherwise. (Doc. No. 15 at 4). 25 “To decide if improper comments give rise to a constitutional violation, the relevant 26 question is whether the prosecutors’ comments so infected the trial with unfairness as to make the 27 resulting conviction a denial of due process.” Michaels v. Davis, 51 F.4th 904, 951 (9th Cir. 28 2022) (quotation marks omitted) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). 1 Importantly, “a slight misstatement of law by a prosecutor can be rendered harmless by the

2 court’s proper instruction to the jury. And under Supreme Court precedent, a jury is presumed to

3 follow the trial court’s instructions.” Deck v. Jenkins, 814 F.3d 954, 979 (9th Cir. 2016) (citation

4 modified).

5 Here, the appellate court correctly cited the applicable standard and concluded the

6 prosecution’s yellow light analogy was an appropriate illustration under California law of how

7 “the decision or choice may be made very rapidly but after reflecting and weighing the

8 consequences.” (Doc. No. 14-1 at 1994). This Court is bound by the state court’s interpretation

9 of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state

10 court’s interpretation of state law, including one announced on direct appeal of the challenged

11 conviction, binds a federal court sitting in habeas corpus.”).

12 Consideration of the remainder of the prosecution’s closing negates any argument that the

13 analogy rendered the trial fundamentally unfair because the prosecution did not argue that

14 Petitioner made a split-second decision. Rather, the prosecution argued Petitioner had “ample 15 time before he even approache[d] Elvis … to decide what he [was] going to do” and had “all the 16 time in the world to make his decision and weigh the consequences of his action.” (Doc. 14-1 at 17 1169). The prosecution highlighted that Petitioner had “ample time to go to his car and get a 18 gun,” “go up to Elvis … and start talking to him to confront him,” and “hear Elvis … kind of 19 brush him off” before the shooting. (Id.). Thus, “there is no reasonable likelihood that the 20 prosecutor’s [yellow light] analogy caused the jury to misapply the law regarding first-degree 21 murder.” Perez v. Johnson, No. CV 22-1302 RSWL (PVC), 2023 WL 3293368, at *13 (C.D. 22 Cal. Mar. 1, 2023) (rejecting habeas challenge to prosecution’s use of a texting while driving 23 analogy to illustrate the how quickly premeditation and deliberation can occur where prosecution 24 did not argue defendant made the decision in a split second) (collecting cases), report & 25 recommendation adopted, 2023 WL 3292866 (C.D. Cal. May 4, 2023). 26 Additionally, the trial court properly instructed the jury on premeditation and deliberation. 27 (Doc. No. 14-1 at 1149-50). The court instructed the jury to follow the law as explained by the 28 court and that if “the attorneys’ comments on the law conflict with [the court’s] instructions, you 1 must follow [the court’s] instructions.” (Id. at 1133). The jury is presumed to have followed

2 these instructions. Deck, 814 F.3d at 979. Thus, even if the prosecution’s analogy was improper,

3 the state appellate court reasonably concluded it did not so infect the trial with unfairness as to

4 make the resulting conviction a denial of due process such that it did not amount to a

5 constitutional violation. Michaels, 51 F.4th at 951.

6 Because the prosecution’s yellow light analogy did not rise to the level of a constitutional

7 error, Petitioner cannot show that the state court’s rejection of his prosecutorial misconduct claim

8 was contrary to, or an unreasonable application of, clearly established federal law, or based upon

9 an unreasonable determination of the facts. Thus, the undersigned recommends that ground one

10 be denied.

11 B. Ground Two-Ineffective Assistance of Counsel

12 In his second ground, Petitioner argues his trial counsel was ineffective for failing to

13 object to the prosecution’s statements during closing argument. (Doc. No. 1 at 4).

14 1. State Cou rt Decision 15 As detailed above, the state court concluded that the prosecution’s statements during 16 closing argument were not improper and, even if they were, any error was harmless. (See Doc. 17 No. 14-1 at 1993-96). The appellate court noted in a footnote following the discussion that these 18 conclusions rendered any argument that Petitioner received ineffective assistance of counsel 19 “moot.” (Id. at 1996 n.7). 20 2. Analysis 21 Petitioner argues his counsel’s failure to object to the prosecution’s closing argument 22 amounted to prejudicial error because the argument was “extremely powerful” and worked to 23 lower the burden of proof. (Doc. No. 1 at 4). However, Petitioner once again fails to engage with 24 the state appellate court’s decision rejecting his claim or present any argument as to why the 25 decision was contrary to, or an unreasonable application of, Supreme Court precedent or based on 26 an unreasonable determination of the facts. Respondent argues the state court reasonably rejected 27 the claim and “Petitioner’s failure to show that was incorrect even de novo, let alone 28 unreasonable” is fatal to his habeas claim. (Doc. No. 15 at 4). 1 Criminal defendants have a right to counsel at trial and on direct appeal. U.S. Const.

2 Amend VI. Claims alleging that trial or appellate counsel were constitutionally ineffective

3 require the Court to engage in the two-step analysis set forth in Strickland v. Washington,

4 466 U.S. 668 (1984). Under the first prong of that test, the petitioner must prove that his

5 attorney’s representation fell below an objective standard of reasonableness. Id. at 687-88.

6 To demonstrate deficient performance, the petitioner must show his counsel “made errors so

7 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

8 Sixth Amendment.” Id. at 687; Williams v. Taylor, 529 U.S. 362, 391 (2000). In reviewing

9 trial counsel’s performance, however, “counsel is strongly presumed to have rendered

10 adequate assistance and made all significant decisions in the exercise of reasonable

11 professional judgment.” Strickland, 466 U.S. at 690; Yarborough v. Gentry, 540 U.S. 1, 8

12 (2003). Only if counsel’s acts and omissions, examined within the context of all the

13 circumstances, were outside the “wide range” of professionally competent assistance, will

14 petitioner meet this initial bur den. Kimmelman v. Morrison, 477 U.S. 365, 386 (1986); 15 Strickland, 466 U.S. at 689-90. 16 Under the second part of Strickland’s two-prong test, the petitioner must show that he 17 was prejudiced by counsel’s conduct. 466 U.S. at 694. Prejudice is found where there is a 18 reasonable probability that, but for his counsel’s errors, the result would have been different. 19 Id. The errors must not merely undermine confidence in the outcome of the trial but must 20 result in a proceeding that was fundamentally unfair. Williams, 529 U.S. at 393 n.17; 21 Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The petitioner must prove both prongs: 22 deficient performance and prejudice. A court need not, however, determine whether 23 counsel’s performance was deficient before determining whether the petitioner suffered 24 prejudice as the result of the alleged deficiencies. Strickland, 466 U.S. at 697 (“If it is easier 25 to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we 26 expect will often be so, that course should be followed.”). 27 Here, the state appellate court rejected Petitioner’s ineffective assistance claim as 28 moot based on its conclusion that there was no error in the prosecution’s closing argument 1 and any error was harmless. (Doc. 14-1 at 1996 n.7). In terms of the Strickland test, the

2 conclusion that there was no error in the yellow light analogy forecloses any argument that

3 counsel was deficient for failing to object during closing argument. Further, even if

4 Petitioner could prevail on the deficiency prong here-not conceded-Petitioner cannot show

5 prejudice under the second prong of Strickland for the same reasons discussed above with

6 respect to ground one. This lack of prejudice alone was sufficient grounds to reject

7 Petitioner’s ineffective assistance claim. Strickland, 466 U.S. at 687 (“Unless a defendant

8 makes both showings, it cannot be said that the conviction or death sentence resulted from a

9 breakdown in the adversary process that renders the result unreliable.”).

10 Thus, Petitioner cannot show that the state court’s rejection of his ineffective

11 assistance claim was contrary to, or an unreasonable application of, clearly established

12 Supreme Court precedent, nor that it was based on an unreasonable determination of the

13 facts. The undersigned recommends that ground two be denied.

14 C. Ground Thre e-Instructional Error 15 In ground three, Petitioner argues the trial court erred when it instructed the jury regarding 16 voluntary intoxication. (Doc. No. 1 at 5). 17 1. State Court Decision 18 The appellate court rejected Petitioner’s instructional error claim on direct review, in its 19 reasoned decsion:

20 A. Background

21 With respect to the issue of voluntary intoxication, section 29.4 provides: 22 “(a) No act committed by a person while in a state of voluntary 23 intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be 24 admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, 25 knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. 26 “(b) Evidence of voluntary intoxication is admissible solely on the 27 issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the 28 defendant premeditated, deliberated, or harbored express malice 1 aforethought.

2 “(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, 3 drug, or other substance.”

4 The trial court instructed the jury on the issue with CALCRIM No. 625, the pattern instruction for voluntary intoxication in homicide 5 cases:

6 “You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence 7 only in deciding whether the defendant acted with an intent to kill and whether the defendant acted with deliberation and 8 premeditation.

9 “A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance, 10 knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect. 11 “You may not consider evidence of voluntary intoxication for any 12 other purpose.” (Italics added.)

13 Relying on the Court of Appeal's decision in People v. Stevenson (1978) 79 Cal.App.3d 976, 145 Cal.Rptr. 301 (Stevenson), 14 defendant claim s that CALCRIM No. 625 misstates the law by instructing the jury that it may consider evidence of voluntary 15 intoxication rather than must consider the evidence, which shifted the prosecutor's burden of proof and violated his right to a fair trial. 16 He concedes he did not object to the instruction in the trial court, but he contends that no objection was required because the error 17 was not invited and it affected his substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 15, 214 18 Cal.Rptr.3d 223, 389 P.3d 805; People v. Townsel (2016) 63 Cal.4th 25, 59–60, 201 Cal.Rptr.3d 19, 368 P.3d 569.) As 19 discussed, we reject defendant's claim of instructional error and, therefore, we do not reach the issue of whether the forfeiture 20 doctrine applies here. (People v. Johnson (2016) 62 Cal.4th 600, 639, 197 Cal.Rptr.3d 461, 364 P.3d 359; accord, People v. 21 Covarrubias (2016) 1 Cal.5th 838, 919, 207 Cal.Rptr.3d 228, 378 P.3d 615.) 22 B. Standard of Review 23 We review allegations of instructional error de novo. (People v. 24 Waidla (2000) 22 Cal.4th 690, 733, 94 Cal.Rptr.2d 396, 996 P.2d 46; People v. Martin (2000) 78 Cal.App.4th 1107, 1111, 93 25 Cal.Rptr.2d 433.) “In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law 26 relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.” (People v. Martinez (2010) 47 27 Cal.4th 911, 953, 105 Cal.Rptr.3d 131, 224 P.3d 877.) “[I]nstructions are not considered in isolation. Whether instructions 28 are correct and adequate is determined by consideration of the 1 entire charge to the jury.” (People v. Holt (1997) 15 Cal.4th 619, 677, 15 Cal.4th 1385A, 677, 63 Cal.Rptr.2d 782, 937 P.2d 213; 2 accord, People v. Thomas (2011) 52 Cal.4th 336, 356, 128 Cal.Rptr.3d 489, 256 P.3d 603.) “If the charge as a whole is 3 ambiguous, the question is whether there is a ‘ “reasonable likelihood that the jury has applied the challenged instruction in a 4 way” that violates the Constitution.’ ” (Middleton v. McNeil (2004) 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (per curiam).) 5 Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 6 422, 196 Cal.Rptr.3d 424, 363 P.3d 41.)

7 C. Analysis

8 1. No Error

9 At the time Stevenson was decided, California recognized the defense of diminished capacity, under which “ ‘[m]alice 10 aforethought could be negated by showing that a person who intentionally killed was incapable of harboring malice aforethought 11 because of a mental disease or defect or intoxication.’ ” (In re Christian S. (1994) 7 Cal.4th 768, 774, 30 Cal.Rptr.2d 33, 872 P.2d 12 574, quoting People v. Saille (1991) 54 Cal.3d 1103, 1110, 2 Cal.Rptr.2d 364, 820 P.2d 588, italics added.) The Court of Appeal 13 concluded in Stevenson that the trial court's multiple instructional errors were prejudicial because the instructions failed to 14 “proper[ly], fu ll[y] and complete[ly]” instruct on the issue of diminished capacity, which deprived the defendant of “a jury trial 15 on all the issues presented by the evidence.” (Stevenson, supra, 79 Cal.App.3d at p. 986, 145 Cal.Rptr. 301.) Relevant to defendant's 16 claim in this case, the court in Stevenson noted that on remand, former CALJIC No. 3.35, which instructed the jury it must consider 17 evidence of voluntary intoxication in determining whether he had specific intent, should be given instead of CALJIC 4.21, which 18 instructed the jury that it should consider the evidence of voluntary intoxication. (Stevenson, supra, at p. 987, 145 Cal.Rptr. 301.) 19 We find defendant's reliance on Stevenson misplaced. The defense 20 of diminished capacity was abolished by the Legislature in 1981 and evidence of voluntary intoxication is limited to the issue of 21 whether a defendant actually formed the requisite intent. (People v. Mendoza (1998) 18 Cal.4th 1114, 1125, 77 Cal.Rptr.2d 428, 959 22 P.2d 735; People v. Saille, supra, 54 Cal.3d at pp. 1111–1112, 2 Cal.Rptr.2d 364, 820 P.2d 588; § 29.4.) Defendant's argument that 23 it is error to instruct the jury it may consider evidence of voluntary intoxication rather than it must consider the evidence was rejected 24 by the California Supreme Court in the context of an analogous limiting instruction. (People v. Hajek and Vo (2014) 58 Cal.4th 25 1144, 1225, 171 Cal.Rptr.3d 234, 324 P.3d 88 (Hajek and Vo), abrogated in part on another ground in People v. Rangel (2016) 62 26 Cal.4th 1192, 1216, 200 Cal.Rptr.3d 265, 367 P.3d 649.)

27 In Hajek and Vo, the defendant challenged the limiting instruction regarding mental impairment evidence and advanced the same 28 argument defendant does here: “the use of ‘should’ and ‘may’ in the 1 mental disease or defect instructions ... permitted the jury to disregard entirely his mental impairment defense.” (Hajek and Vo, 2 supra, 58 Cal.4th at p. 1224, 171 Cal.Rptr.3d 234, 324 P.3d 88.) The court “presume[d] the jurors were capable of reading, 3 understanding, and applying the instruction in this commonsense manner rather than in [the defendant's] hypertechnical manner,” and 4 pointed out the “instruction was a limiting instruction that, after referencing [the defendant's] mental impairment evidence, told the 5 jury that its use was confined to determining whether [he] actually formed the requisite mental state for the charged crimes. That is the 6 meaning of the use of the word ‘may’ in the instruction, as is made clear by the word ‘solely’ that follows it: ‘You may consider such 7 evidence solely for the purpose of determining whether [the defendant] actually formed the mental state [sic] premeditated, 8 deliberated which is an element of the crimes charged ....’ (Italics added.) Thus, contrary to [the defendant's] reading, the instruction 9 did not authorize the jury to disregard his mental impairment evidence.” (Id. at p. 1225, 171 Cal.Rptr.3d 234, 324 P.3d 88.) 10 A similar claim was also rejected by the court in People v. Lucas, 11 which concluded, “It is pure speculation to believe the jury ignored certain evidence simply because an instruction advised the jury that 12 it ‘should’ or ‘may’ consider that evidence, instead of commanding the jury to consider that evidence.” (People v. Lucas (2014) 60 13 Cal.4th 153, 291, 177 Cal.Rptr.3d 378, 333 P.3d 587, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 14 1, 53, fn. 19, 1 91 Cal.Rptr.3d 855, 354 P.3d 983.) Decisions from our high court are binding (People v. Letner and Tobin (2010) 50 15 Cal.4th 99, 197–198, 112 Cal.Rptr.3d 746, 235 P.3d 62), and defendant advances no arguments that distinguish his claim here 16 from those previously rejected by the California Supreme Court. No error is shown. (People v. Lucas, supra, at p. 291, 177 Cal.Rptr.3d 17 378, 333 P.3d 587; Hajek and Vo, supra, 58 Cal.4th at p. 1225, 171 Cal.Rptr.3d 234, 324 P.3d 88.) 18 2. Asserted Error Harmless 19 Although we reject defendant's claim that CALCRIM No. 625's use 20 of the word “may” is erroneous, it bears mention that the evidence of intoxication was weak in this case. At the time of the crime, 21 defendant was heavyset and described as large, and while the evidence showed he drank some beer that night at the bar, the 22 quantity is unclear. Lorena testified she served him “[m]any” but estimated four or five when pressed and none of the eyewitnesses 23 testified that he appeared intoxicated. There was also no evidence of defendant's blood alcohol level given that he fled after the 24 shooting and remained at large for almost two years. The jury was able to evaluate defendant's actions and watch the killing via the 25 video surveillance footage, and both parties addressed the issue of voluntary intoxication during closing argument, informing the jury 26 that the evidence of intoxication was relevant to its determination whether defendant formed the intent to kill and whether he acted 27 with premeditation and deliberation.

28 Under these circumstances, the claimed ambiguity was harmless. 1 (People v. Nelson (2016) 1 Cal.5th 513, 548, 205 Cal.Rptr.3d 746, 376 P.3d 1178 [even assuming use of word “may” in limiting 2 instruction regarding mental condition was error, “[I]t is not reasonably likely the jury would have seized upon the use of ‘may’ 3 in the instruction as license to disregard evidence of the effect [the defendant's] mental condition [had] on the charged offenses.”].) 4 Even under the more stringent federal standard of review, we find beyond “reasonable doubt that a rational jury would have rendered 5 the same verdict absent the error.” (People v. Merritt (2017) 2 Cal.5th 819, 831, 216 Cal.Rptr.3d 265, 392 P.3d 421, citing Neder 6 v. United States (1999) 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35.) 7

8 (Doc. No. 14-1 at 1996-2000).

9 2. Analysis

10 Petitioner argues that by using “may” instead of “should” when instructing the jury

11 regarding voluntary intoxication, the court provided the prosecutor more leeway to argue that

12 intoxication evidence could be ignored and lowered the prosecution’s burden of proof. (Doc. No.

13 1 at 5). As with his earlier grounds, Petitioner’s argument wholly fails to engage with the state

14 court’s rejection of his claim to show that it was contrary to Supreme Court precedent or based on 15 an unreasonable determination of the facts. Respondent argues the appellate court “disagreed that 16 using a permissive term, as to a directive as to what was not permitted, was a problem” but even 17 if the trial court erred, “the sole effect would have been to allow jurors to exclude intoxication 18 evidence in part, and no prior Supreme Court case is cited that equates exclusion of evidence with 19 Petitioner’s legal theories asserted on appeal—in particular, as a directive that the prosecution 20 lacked the burden to prove guilt beyond reasonable doubt.” (Doc. No. 15 at 5). 21 As an initial matter, to the extent Petitioner is challenging whether the instruction was 22 proper under state law, such cannot be the basis of federal habeas relief. See Estelle v. 23 McGuire, 502 U.S. 62, 72 (1991) (“[T]he fact that the instruction was allegedly incorrect 24 under state law is not a basis for habeas relief.”). To the extent Petitioner brings an 25 instructional error claim based on federal law, such a claim fails. “A court reviewing a claim 26 of jury instructional error on federal habeas review first considers whether the erroneous 27 instruction amounts to a constitutional error.” Reno v. Davis, 46 F.4th 821, 841 (9th Cir. 28 2022). Importantly, while “the State must prove every element of the offense, and a jury 1 instruction violates due process if it fails to give effect to that requirement,” “not every

2 ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process

3 violation.” Dixon v. Williams, 750 F.3d 1027, 1032 (9th Cir. 2014) (citing Middleton v.

4 McNeil, 541 U.S. 433, 437 (2004)). Rather, “[a] constitutional error is established where the

5 ailing instruction by itself so infected the entire trial that the resulting conviction violates due

6 process.” Reno, 46 F.4th at 841 (quotations omitted). The challenged instructions “may not

7 be judged in artificial isolation, but must be viewed in the context of the overall charge.”

8 Dixon, 750 F.3d at 1033. Even where a constitutional error occurred, relief is not warranted

9 unless “the erroneous instruction had a ‘substantial and injurious effect or influence in

10 determining the jury’s verdict.’” Reno, 46 F.4th at 841.

11 Here, not only did the state court reject any argument that the instruction was improper, it

12 also concluded that any error was harmless beyond a reasonable doubt because the evidence of

13 intoxication was weak. (Doc. No. 14-1 at 2000). The only evidence concerning Petitioner’s

14 alleged intoxication was testi mony from one witness that she had served beers to Petitioner 15 (without any indication of how many) and testimony from another witness that she served 16 Petitioner approximately four or five beers. (Id. at 959, 998, 1062). There was no other evidence 17 to support that Petitioner, who was described as being overweight and weighing approximately 18 300 pounds, reached a level of intoxication where he could not form the requisite intent to support 19 the first degree murder conviction. Defense counsel even acknowledged that “[t]he effect of the 20 intoxication is somewhat limited in this case.” (Id. at 1224). Thus, there is no indication that the 21 instruction had a ”substantial and injurious effect or influence in determining the jury’s verdict.” 22 Reno, 46 F.4th at 841. 23 Accordingly, Petitioner cannot show that the state court’s rejection of his 24 instructional error claim was contrary to, or an unreasonable application of, clearly 25 established Supreme Court precedent, nor that it was based on an unreasonable determination 26 of the facts. The undersigned recommends that ground three be denied. 27 C. Ground Four-Cumulative Error 28 In his final ground, Petitioner argues the prosecutor’s misstatements of the law combined 1 with the instructional error worked together to weaken the burden of proof such that the

2 cumulative error denied him of due process. (Doc. No. 1 at 5). Respondent argues that

3 “Petitioner cites no prior Supreme Court case that agree with (rather than rejected) a due process

4 claim based on his theories” and a lack of any error on the other grounds bars habeas relief for

5 cumulative error. (Doc. No. 15 at 5).

6 “Cumulative error applies where, although no single trial error examined in isolation is

7 sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors [has] still

8 prejudice[d] a defendant.” Cook v. Kernan, 801 F. App’x 474, 477 (9th Cir. 2020) (internal

9 quotations and citations omitted). The cumulative error, however, “must render the trial and

10 sentencing fundamentally unfair.” Id. (citations omitted). Absent a finding of any error on any of

11 the proceeding grounds, the Court cannot find cumulative error. Williams v. Filson, 908 F.3d

12 546, 570 (9th Cir. 2018) (a court “cannot consider the cumulative effect of non-errors”); see also

13 McGill v. Shinn, 16 F.4th 666, 684 (9th Cir. 2021).

14 Because the undersign ed finds none of Petitioner’s preceding claims have merit, the 15 undersigned concludes Petitioner cannot show his conviction was fundamentally unfair nor a 16 “unique symmetry” of harmless errors that “amplify each other in relation to a key contested issue 17 in the case.” Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011). Thus, ground four is 18 without merit and should be denied. 19 V. CERTIFICATE OF APPEALABILITY 20 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 21 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 22 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 23 district court to issue or deny a certificate of appealability when entering a final order adverse to a 24 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 25 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 26 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 27 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 28 his constitutional claims or that jurists could conclude the issues presented are adequate to 1 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 2 | McDaniel, 529 U.S. 473, 484 (2000). Because Petitioner has not made a substantial showing of 3 | the denial of a constitutional right, the undersigned recommends that the court decline to issue a 4 | certificate of appealability. 5 Accordingly, it is RECOMMENDED: 6 1. Petitioner be DENIED all relief on his Petition for Writ of Habeas Corpus (Doc. No. 7 1); and 8 2. Petitioner be denied a certificate of appealability. 9 NOTICE TO PARTIES 10 These Findings and Recommendations will be submitted to the United States District 11 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 12 | after being served with a copy of these Findings and Recommendations, a party may file written 13 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 14 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 15 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 16 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 17 | CM/ECF document and page number, when possible, or otherwise reference the exhibit with 18 || specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 19 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 20 | 636(b)()(C). A party’s failure to file any objections within the specified time may result in the 21 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 22 *3 | Dated: _ July 18, 2025 Mihaw. Wh. foareh fackte 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE

26 27 28 23