Morrison v. Cueva

• Court: District Court, N.D. California
• Decided: October 13, 2021
• Docket: 3:20-cv-04239
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WARREN MORRISON, Case No. 20-cv-04239-EMC

8 Petitioner, ORDER DENYING PETITION FOR A 9 v. WRIT OF HABEAS CORPUS

10 JARED LOZANO,1 11 Respondent.

12 13 14 I. INTRODUCTION 15 Warren Morrison, a prisoner currently incarcerated at California Medical Facility in 16 Vacaville, filed this pro se action for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 17 Respondent has filed an answer and Mr. Morrison has filed a traverse. Mr. Morrison’s petition is 18 now before the Court for review on the merits. For the reasons discussed below, the petition for 19 writ of habeas corpus will be DENIED. 20 II. BACKGROUND 21 A. The Crime 22 The California Court of Appeal described the crime as follows:

23 On October 25, 2015, Michelle Smith had been dating [Jarmal] Magee for about three months. She dropped him off in the 300 block 24 of Wisteria in East Palo Alto and went to have dinner with a friend. Smith did not know whether Magee sold drugs, but suspected he 25 did. 26 1 Jared Lozano, the previous warden of California Medical Facility, where Mr. Morrison is 27 incarcerated, was originally named as the respondent in this action. Pursuant to Rule 25(d) of the 1 Magee phoned Smith later in the evening and she arrived after 9:00 p.m. to pick him up. She parked her car at 343 Wisteria and saw 2 appellant, whom she knew, and Doug Burse, whom she had seen on Wisteria before. Magee walked over to Smith’s car and told her that 3 he and the other two men were arguing about where he was from and who had lived in the neighborhood longer. Magee walked across 4 the street to pour himself a cup of cognac and returned to where the men were standing. After a couple of minutes, the argument 5 escalated to yelling about who was from Verbena, a street around the corner. 6 As they argued, Smith saw appellant throw a punch at Magee, who 7 fell on his back though the punch did not land. Appellant straddled Magee and stood over him. Burse kicked Magee as he lay on the 8 ground. Appellant hit Magee’s head as he attempted to hit back. Smith got out of her car and yelled stop. 9 According to Smith, appellant pulled out a gun from his waistband 10 and fired two rounds at Magee. Magee, who had been hit, got up, and Smith started running toward them out of concern for Magee. 11 Appellant pointed the gun at Smith and Magee pushed Smith down. Smith heard appellant fire two more shots. Magee told Smith to get 12 in the car and as he said this, a bullet went by her head. Smith then heard three shots in quick succession. She started her car and Magee 13 opened the passenger door, but did not get in. Smith drove a few feet, stopped and saw Magee lying on the sidewalk face down. 14 Appellant was standing over him and fired two more shots at his back. Smith got out of the car and appellant ran away. Smith tried 15 unsuccessfully to put Magee in her car and then called 911. She did not see Magee or Burse with a gun that night. 16 Magee died of multiple gunshot wounds. There were four total, 17 including one independently fatal wound to the upper left back that transected the spinal cord, two wounds to the back which were very 18 serious and likely to be independently fatal, and one to the groin that was not fatal. At the scene of the shooting, police recovered eight 19 nine-millimeter cartridge casings and an expended nine-millimeter bullet. The eight cartridge casings were all fired from the same gun. 20 The gunshot detection and location system ShotSpotter was 21 operational in the area. There were four activations of Shotspotter around 9:25 p.m. on October 25, with eight rounds fired over a 22 period of 35 seconds.

23 . . .

24 After his arrest in this case, appellant’s cell phone was searched. In November 2015, appellant visited websites covering news in East 25 Palo Alto, publicizing wanted fugitives, discussing self-defense and reporting the homicide of Magee. The phone history also showed 26 searches for getting away with murder, self-defense in California, crimes in East Palo Alto and appellant’s name. 27 Magee for “short-stopping” people—stopping people from going on 1 to the next person to buy marijuana from that person. A dispute devolved into Magee “talking smack” to appellant and Magee 2 approaching Burse to argue with him about who had been in the area longer. Magee tried to take a swing at appellant and they started 3 wrestling and fell to the ground. Burse tried to intervene at appellant’s request. 4 Magee tried to pull a gun from his waist and he and appellant 5 wrestled for control of it. The gun went off without hitting anyone and appellant and Magee continued to fight over the gun. The gun 6 went off again and either the first or second shot hit Magee in the leg. Appellant ended up with the gun and started shooting. Magee 7 fell to the ground on his stomach and appellant fired three shots, hitting Magee twice. Smith started screaming and appellant ran 8 away. Appellant shot Magee because he was afraid and angry; he threw the gun away in a dumpster in Stockton, where he lived. 9 10 People v. Morrison, No. A152440, 2019 WL 1567554, at *1–2 (Cal. Ct. App. Apr. 11, 2019), 11 review denied (June 26, 2019). 12 B. Procedural History 13 On May 9, 2017, a jury found Mr. Morrison guilty of the first degree murder of Jarmal 14 Magee with an enhancement for personally and intentionally discharging a firearm and causing 15 great bodily injury (Cal. Penal Code Section §§ 187(a), 12022.53(d)). CT 562-63. The jury found 16 Mr. Morrison not guilty of attempted murder of Ms. Smith. CT 564. The court sentenced Mr. 17 Morrison to an aggregate term of fifty years to life in prison, twenty-five years to life for the 18 underlying crime and twenty-five years to life for the enhancement. CT 417-19, 568-70. The trial 19 court “later recalled the sentence based on the passage of Senate Bill 620, which amended section 20 12022.53 to give the court discretion to strike enhancements under that section,” and imposed the 21 same sentence. Morrison, 2019 WL 1567554, at *2 n.2. Mr. Morrison separately appealed the 22 conviction and sentence on resentencing. Id. The California Court of Appeal remanded Mr. 23 Morrison’s case to give the trial court the opportunity to exercise its discretion not only to strike 24 the firearm enhancement, but also to impose “an uncharged lesser firearm enhancement.” People 25 v. Morrison, 34 Cal. App. 5th 217, 224 (2019). On the same date, the California Court of Appeal 26 affirmed the conviction. See Morrison, 2019 WL 1567554. The California Supreme Court 27 summarily denied review. Docket No. 11-22 at 37. 1 Court of Appeal affirmed after conducting an independent review of the record pursuant to People 2 v. Wende, 25 Cal. 3d 436 (1979). People v. Morrison, No. A158705, 2020 WL 7350761, at *1 3 (Cal. Ct. App. Dec. 15, 2020). 4 Mr. Morrison then filed this federal habeas petition, to which he attached appellate 5 counsel’s brief to the California Court of Appeal and petition for review to the California Supreme 6 Court. The petition for writ of habeas corpus in this action alleges that the trial court failed to 7 instruct the jury that provocation which reduces murder from first degree to second degree is 8 subjective rather than objective, violating Mr. Morrison’s right to due process by relieving the 9 prosecution of its burden to prove an element of the crime and his Sixth Amendment right to 10 present a defense. Pet., Docket No. 1 at 5-6, 47-48, 73. 11 III. JURISDICTION AND VENUE 12 This Court has subject matter jurisdiction over this action for a writ of habeas corpus under 13 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition 14 concerns the conviction and sentence of a person convicted in San Mateo County, California, 15 which is within this judicial district. 28 U.S.C. §§ 84, 2241(d). 16 IV. STANDARD OF REVIEW 17 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 18 custody pursuant to the judgment of a State court only on the ground that he is in custody in 19 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 20 The Antiterrorism And Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254 21 to impose new restrictions on federal habeas review. A petition may not be granted with respect to 22 any claim that was adjudicated on the merits in state court unless the state court’s adjudication of 23 the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application 24 of, clearly established Federal law, as determined by the Supreme Court of the United States; or 25 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of 26 the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 27 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 1 the state court decides a case differently than [the] Court has on a set of materially 2 indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). 3 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if 4 the state court identifies the correct governing legal principle from [the Supreme] Court’s 5 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 6 “[A] federal habeas court may not issue the writ simply because that court concludes in its 7 independent judgment that the relevant state-court decision applied clearly established federal law 8 erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. “A 9 federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state 10 court’s application of clearly established federal law was objectively unreasonable.” Id. at 409. 11 The state-court decision to which § 2254(d) applies is the “last reasoned decision” of the 12 state court, if there is a reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). 13 When confronted with an unexplained decision from the last state court to have been presented 14 with the issue, “the federal court should ‘look through’ the unexplained decision to the last related 15 state-court decision that does provide a relevant rationale. It should then presume that the 16 unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 17 (2018). 18 V. DISCUSSION 19 Mr. Morrison did not dispute at trial that he killed Mr. Magee; he only raised the defense 20 of provocation. Pet., Docket No. 1 at 24. He argues that the jury instructions, taken together, 21 misled the jury as to the type or degree of provocation required to reduce murder from first to 22 second degree. Id. at 25. 23 The jury was instructed with CALCRIM Nos. 520, 521, 522, and 570. CT 472-77. 24 CALCRIM 520 (First or Second Degree Murder with Malice Aforethought) explains that murder 25 requires malice aforethought, which can be express intent to kill someone or implied malice in the 26 form of intentionally committing an act with natural and probable consequences that are 27 1 dangerous to human life.2 CT 472. CALCRIM 521 (First Degree Murder) explains that the 2 prosecutor must prove beyond a reasonable doubt that the murder was willful and deliberate, with 3 premeditation, in order to constitute first degree murder.3 CT 474. This is as opposed to “a 4 2 The full text of CALCRIM 520 reads: 5

The defendant is charged in Count 1 with murder in violation 6 of Penal Code section 187. To prove that the defendant is guilty of this crime, the People 7 must prove that: 1. The defendant committed an act that caused the death of another 8 person; AND 9 2. When the defendant acted, he had a state of mind called malice aforethought; 10 AND 3. He killed without lawful excuse or justification. 11 There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state 12 of mind required for murder. The defendant acted with express malice if he unlawfully 13 intended to kill. The defendant acted with implied malice if: 14 1. He intentionally committed an act; 2. The natural and probable consequences of the act were 15 dangerous to human life; 3. At the time he acted he knew his act was dangerous to human 16 life; 4. He deliberately acted with conscious disregard for human life. 17 Malice aforethought does not require hatred or ill will toward the Victim. It is a mental state that must be formed before the act 18 that causes death is committed. It does not require deliberation or the passage of any particular period of time. 19 An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have 20 happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if 21 nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established 22 by the evidence. If you decide that the defendant committed murder, it is 23 murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in 24 CALCRIM No. 521.

25 CT 472-73.

26 3 The full text of CALCRIM 521 reads:

27 The defendant is guilty of first degree murder if the People 1 decision to kill made rashly, impulsively, or without careful consideration,” which lacks 2 deliberation and premeditation. Id. 3 CALCRIM 570 (Voluntary Manslaughter: Heat of Passion—Lesser Included Offense) 4 instructs that murder “is reduced to voluntary manslaughter if the defendant killed someone 5 because of a sudden quarrel or in the heat of passion,” requiring that (1) the defendant was 6 provoked, (2) he “acted rashly and under the influence of intense emotion” clouding his judgment, 7 and (3) “The provocation would have caused a person of average disposition to act rashly and 8 without due deliberation, that is, from passion rather than from judgment.”4 CT 475. CALCRIM 9 The defendant acted deliberately if he carefully weighed the 10 considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with 11 premeditation if he decided to kill before completing the acts that caused death. 12 The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and 13 premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the 14 circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On 15 the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of 16 time. The requirements for second degree murder based on express 17 or implied malice are explained in CALCRIM No. 520, First or Second Degree Murder With Malice Aforethought. 18 The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser 19 crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second 20 degree murder. 21 CT 474.

22 4 The full text of CALCRIM 570 reads:

23 A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a 24 sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or 25 in the heat of passion if: 1. The defendant was provoked; 26 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) 27 reasoning or judgment; 1 570 also instructs:

2 It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. 3 You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation 4 was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted 5 from passion rather than from judgment. 6 CT 475-76. 7 CALCRIM 522 (Provocation: Effect on Degree of Murder) instructs, in full part:

8 Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and 9 significance of the provocation if any, are for you to decide. If you conclude that the defendant committed murder but was provoked, 10 consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding 11 whether the defendant committed murder or manslaughter. 12 CT 477. Trial counsel did not object to any of these instructions, or request modifications or 13 additional instructions. See CT 347; RT 908-09. 14 disposition to act rashly and without due deliberation, that is, 15 from passion rather than from judgment. Heat of passion does not require anger, rage, or any specific 16 emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. 17 In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and 18 immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation 19 is not sufficient. Sufficient provocation may occur over a short or long period of time. 20 It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. 21 You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation 22 was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted 23 from passion rather than from judgment. If enough time passed between the provocation and the 24 killing for a person of average disposition to “cool off” and regain his or her clear reasoning and judgment, then the killing is not 25 reduced to voluntary manslaughter on this basis. The People have the burden of proving beyond a reasonable 26 doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you 27 must find the defendant not guilty of murder. 1 As demonstrated by the jury instructions, there are two ways in which provocation can 2 come into play in a California case involving murder or manslaughter: to negate the malice 3 required for any degree of murder, or to negate the deliberation and premeditation required for 4 first degree murder specifically. Malice can only be negated by a provocation that would meet an 5 objective standard and incite passion in an “ordinarily reasonable person under the given facts and 6 circumstances.” People v. Logan, 175 Cal. 45, 49 (1917). The deliberation and premeditation 7 required for a first degree murder conviction under California law can be negated, in contrast, by 8 evidence of a provocation that is purely subjective in nature, and applicable only to the defendant. 9 See, e.g., People v. Padilla, 103 Cal. App. 4th 675, 677 (2002) (defendant’s hallucination 10 “inadmissible to negate malice so as to mitigate murder to voluntary manslaughter but . . . 11 admissible to negate deliberation and premeditation so as to reduce first degree murder to second 12 degree murder”). The “test” to reduce first degree murder to second degree murder is 13 “subjective.” Id. at 679. 14 Mr. Morrison asserts that, because the jury was instructed that the test for provocation in 15 the manslaughter context is objective, and did not receive any explicit instruction that the test for 16 second degree murder provocation is subjective, the jury would have assumed that objective 17 provocation was required to reduce murder from first to second degree. See Pet., Docket No. 1 at 18 25-26, 74-75. This failure, he claims, in addition to being error under state law,5 “relieve[d] the 19 prosecution of its burden to prove premeditation and deliberation beyond a reasonable doubt,” and 20 prevented him from presenting a complete defense, in violation of the Sixth and Fourteenth 21 Amendments. Id. at 47-48. 22 The California Court of Appeal rejected Mr. Morrison’s claim, finding both that it was 23 forfeited by the failure to object at trial6 and that it failed on the merits. The court noted that 24 5 Mr. Morrison’s challenge to the jury instructions as erroneous under state law does not state a 25 claim cognizable in federal habeas corpus proceedings, Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); the Court addresses only his federal constitutional claims. 26

6 Under California law, a defendant must request a pinpoint instruction—which “relate[s] 27 particular facts to a legal issue in the case or ‘pinpoint[s]’ the crux of a defendant’s case, such as 1 CALCRIM 522 had previously been found “to adequately explain provocation as a factor 2 affecting the degree of murder.” Morrison, 2019 WL 1567554, at *3 (citing People v. Mayfield, 3 14 Cal. 4th 668, 767 (1997), as modified on denial of reh’g (Mar. 19, 1997), overruled on other 4 grounds by People v. Scott, 61 Cal. 4th 363, 349 P.3d 1028 (2015)). The court explained:

5 Here, there is no reasonable likelihood the jury thought that the provocation which determines whether a murder is of the first or 6 second degree is the same as the provocation required to negate malice and reduce a homicide to voluntary manslaughter. 7 CALCRIM No. 570, pertaining solely to voluntary manslaughter, properly specifies provocation in that context must be objectively 8 reasonable, in other words, that “a person of average disposition” would have been provoked “in the same situation and knowing the 9 same facts.” Read with CALCRIM No. 522, which does not contain any such requirements for provocation reducing a killing to second 10 degree murder, the only reasonable conclusion to be reached is that the provocation precluding a finding of premeditation is something 11 different from (and less than) that which would preclude a finding of malice. That is, the jury necessarily understood that if some 12 provocation exists, the killing must be second degree murder unless it finds the provocation was objectively reasonable under the 13 circumstances. Otherwise, there would be no need to separately instruct the jury to consider provocation in the context of second 14 degree murder as distinct from the provocation that will reduce a killing to voluntary manslaughter. Considering the instructions as a 15 whole, a reasonable juror would have understood that something less than objectively reasonable provocation could preclude a 16 finding of premeditation and justify a verdict of second degree murder. 17 18 Morrison, 2019 WL 1567554, at *4. 19 The California Court of Appeal further disagreed with appellate counsel’s attempts to 20 differentiate Mayfield, People v. Jones, 223 Cal. App. 4th 995, 1000 (2014), and People v. 21 Hernandez, 183 Cal. App. 4th 1327, 1333 (2010). Morrison, 2019 WL 1567554 at *4-5. In 22 Mayfield, the California Supreme Court held that the trial court “was under no duty to clarify or 23 amplify” the precursor to CALCRIM 522, which constituted a “pinpoint instruction,” “absent a 24 request.” Id. at *4 (quoting Mayfield, 14 Cal. 4th at 778). The California Court of Appeal 25 described Jones as upholding the same instructions provided at Mr. Morrison’s trial, and found 26 that “the defendant was seeking a pinpoint instruction to the extent he was arguing they should be 27 more specific.” Id. The Jones court found the argument forfeited because defense counsel had not 1 Court of Appeal noted that, like in Jones, the prosecutor in Mr. Morrison’s case had not “argued 2 an objective test applied to reduce murder from first to second degree.” Morrison, 2019 WL 3 1567554, at *4. 4 As noted by the Court of Appeal in Mr. Morrison’s case, Hernandez rejected a claim that 5 CALCRIM 522 was inadequate because it did not specifically link provocation to deliberation and 6 premeditation. Id. at *5. “The [Court of Appeal] concluded the jury would have understood from 7 CALCRIM No. 522 as well as CALCRIM No. 521 defining first degree murder (also given [in 8 Mr. Morrison’s trial]) ‘that provocation (the arousal of emotions) can give rise to a rash, impulsive 9 decision, and this in turn shows no premeditation and deliberation.’” Id. (quoting Hernandez, 183 10 Cal. App. 4th at 1334). In addition, although the jury in Hernandez had not been instructed with 11 the objective standard at all, whereas Mr. Morrison argued that the jury in his case had been 12 impacted by hearing the objective standard in the manslaughter context, the California Court of 13 Appeal found that the instructions were not misleading because the objective standard instruction 14 did not “preclude the defense from arguing that [subjective] provocation played a role in 15 preventing the defendant from premeditating and deliberating.” Id. (quoting People v. Rogers, 39 16 Cal. 4th 826, 880 (2006)). 17 As the last reasoned decision from a state court, the California Court of Appeal’s decision 18 is the decision to which § 2254(d) is applied. See Wilson, 138 S. Ct. at 1192. Mr. Morrison is 19 entitled to habeas relief only if the California Court of Appeal’s decision was contrary to, or an 20 unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was 21 based on an unreasonable determination of the facts in light of the evidence presented. Without 22 reaching the question of forfeiture, the California Court of Appeal’s conclusion regarding the 23 merits was neither contrary to, nor an unreasonable application of, federal law. 24 A. Jury Instructions 25 To obtain federal habeas relief for an error in the jury instructions, a petitioner must show 26 that the error “so infected the entire trial that the resulting conviction violates due process.” 27 Estelle v. McGuire, 502 U.S. 62, 72 (1991). A jury instruction violates due process if it fails to 1 v. McNeil, 541 U.S. 433, 437 (2004). “[A] single instruction to a jury may not be judged in 2 artificial isolation, but must be viewed in the context of the overall charge.” Id. (quoting Boyde v. 3 California, 494 U.S. 370, 378 (1990)). “Even if there is some ‘ambiguity, inconsistency, or 4 deficiency’ in the instruction, such an error does not necessarily constitute a due process 5 violation.” Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (quoting Middleton, 541 U.S. at 6 437). 7 Where a potentially defective instruction is at issue, the court must inquire whether there is 8 a “reasonable likelihood” that the jury applied the challenged instruction in a way that violates the 9 Constitution. Estelle, 502 U.S at 72 & n.4; Boyde, 494 U.S. at 380. Even if there is a 10 constitutional error in the instructions, habeas relief is not available unless the error had a 11 substantial and injurious effect or influence in determining the jury’s verdict. Calderon v. 12 Coleman, 525 U.S. 141, 146-47 (1998); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 13 The California Court of Appeal did not explicitly address Mr. Morrison’s federal 14 constitutional claim that the jury instructions in totality operated to relieve the prosecution of the 15 burden of proof of premeditation and deliberation.7 “When a federal claim has been presented to a 16 state court and the state court has denied relief, it may be presumed that the state court adjudicated 17 the claim on the merits in the absence of any indication or state-law procedural principles to the 18 contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011); see also Johnson v. Williams, 568 U.S. 19 289, 300-301 (2013) (when a state court rejects a federal claim without expressly addressing it, 20 7 Respondent argues that Mr. Morrison “does not attempt to raise, and has not exhausted, a claim 21 of instructional error amounting a [sic] violation of due process under the test of Estelle v. McGuire.” Ans., Docket No. 10-1 at 21. Respondent is wrong. In order to exhaust a federal 22 habeas claim in state court, a petitioner “must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Gray v. 23 Netherland, 518 U.S. 152, 162–63 (1996). Mr. Morrison’s appellate counsel clearly stated a federal constitutional claim that the instructions “relieve[d] the prosecution of its burden to prove 24 malice beyond a reasonable doubt,” and explained all the facts underlying the claim. Pet., Docket No. 1 at 47, see id. at 24-31 (facts). He also cited a state case holding that the “failure to instruct 25 on provocation . . . is an error of federal constitutional dimension that denies the defendant due process because it relieves the prosecution of the burden to prove malice beyond a reasonable 26 doubt,” and argued by “parity of reasoning” that the same applied to second degree murder provocation. Id. at 47; People v. Thomas, 218 Cal. App. 4th 630, 642 (2013), as modified on 27 denial of reh’g (Aug. 22, 2013). Mr. Morrison fairly presented the Estelle v. McGuire claim that 1 federal habeas courts must presume the federal claim was adjudicated on the merits and review it 2 deferentially). 3 Because the state court denied the federal constitutional claim on the merits without 4 explanation, this Court “must determine what arguments or theories supported or . . . could have 5 supported, the state court’s decision; and then it must ask whether it is possible fair-minded jurists 6 could disagree that those arguments or theories are inconsistent with the holding in a prior 7 decision of [the U.S. Supreme] Court.” Harrington, 562 U.S. at 102. Mr. Morrison is entitled to 8 habeas relief only if the California Court of Appeal’s decision was contrary to, or an unreasonable 9 application of, clearly established federal law from the U.S. Supreme Court, or was based on an 10 unreasonable determination of the facts in light of the evidence presented. 11 The California Court of Appeal’s decision here was not contrary to or an unreasonable 12 application of clearly established federal law. Its rationale that there was no reasonable likelihood 13 that the jury believed that the prosecution was relieved of the burden of proving premeditation and 14 deliberation beyond a reasonable doubt was sound. CALCRIM 520 and 521 clearly establish that 15 the prosecutor has the burden of proving premeditation and deliberation, and that those elements 16 are absent where there is a rash or impulsive decision to kill. CALCRIM 521 and 522 refer to the 17 defendant’s actual mental state, suggesting that subjective rather than objective provocation 18 negates those elements. CALCRIM 521 instructs the jury to consider whether the defendant 19 weighed considerations and made a cold decision, or made a rash decision, with emphasis on the 20 extent of the defendant’s reflection. CALCRIM 522 directs the jury to consider whether the 21 defendant was provoked, not whether an average person would have been provoked. CALCRIM 22 570, which expressly addresses voluntary manslaughter, in contrast, explicitly requires that, to 23 reduce murder to manslaughter, the provocation must have been reasonable. As the California 24 Court of Appeal noted, the fact that CALCRIM 521 and 522 (which address first and second 25 degree murder) did not require objective provocation, while CALCRIM 570 (which addresses 26 voluntary manslaughter) did so require, would have accurately led the jury to believe that 27 objective provocation was not required for second degree murder. 1 provocation to reduce first degree to second degree murder has to be objective. See Morrison, 2 2019 WL 1567554, at *4. The prosecutor only discussed objective provocation in the section of 3 her closing argument that clearly addressed voluntary manslaughter and the absence of malice. 4 RT 958-961. In discussing premeditation and deliberation, she analogized premeditation to a 5 driver checking the rearview and sideview mirrors before changing lanes. RT 952-53. She also 6 gave an example of a person at a firing range intentionally killing someone standing near the 7 target, which constitute second degree murder, which would be elevated to first degree if the 8 person then decides to finish he job and pulls the trigger again. RT 953. She repeated Mr. 9 Morrison’s response when she asked him on cross-examination if he wanted to punish Mr. 10 Magee,8 and argued “[p]unishment is not provocation. Punishment is a motive to kill.” RT 964. 11 None of the prosecutor’s discussion of premeditation and deliberation, or of objective provocation, 12 suggested that subjective provocation could not negate premeditation or deliberation. 13 The California Court of Appeal reasonably determined that the failure to provide an 14 instruction on subjective provocation did not relieve the prosecution of the burden of proof as to 15 premeditation and deliberation, and there was no federal constitutional error. 16 Further, even if there was constitutional error, it was harmless.9 A jury instruction that 17 omits an element of an offense is constitutional error subject to “harmless error” analysis. 18 8 On cross-examination, Mr. Morrison testified: 19

I wasn’t thinking about running. I was thinking about—I was angry. 20 I mean, somebody just tried to shoot me or possibly kill me. So I didn’t think about running, taking the gun and running, like. 21 Q: Well, you thought about punishing him, though; right? A: Yes 22 Q: And is that what you wanted to do when you fired those—after the first two shots, when you fired those next three shots, was that to 23 punish him for having a gun? A: Not for having a gun. For pulling the gun on me and trying to 24 shoot me. 25 RT 857.

26 9 The California Court of Appeal did not make a harmlessness determination, because it found no error. This Court therefore applies the harmless error standard from Brecht v. Abrahamson, 507 27 U.S. 619, 637 (1993) de novo and asks whether the error “had substantial and injurious effect or 1 Evanchyk v. Stewart, 340 F.3d 933, 940 (9th Cir. 2003). An omission or misdescription of an 2 element of an offense will be found harmless unless it “‘had substantial and injurious effect or 3 influence in determining the jury’s verdict.’” California v. Roy, 519 U.S. 2, 4-5 (1996) (quoting 4 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). 5 Mr. Morrison’s testimony strongly suggested that he had premeditation and deliberation at 6 some point during what the prosecutor’s Shotspotter expert testified was eight gunshots over the 7 course of 33 seconds captured on audio, RT 250. Accepting Mr. Morrison’s version of events,10 8 he testified that, after he got the gun from Mr. Magee in the tussle, he shot Mr. Magee while he 9 was running away, from about 16 or 17 feet, and then, after Mr. Magee had fallen to the ground, 10 he approached him and shot him several more times from three or four feet away. See RT 833-34, 11 846-47. He also testified that after the tussle on the ground ended, he specifically waited for Mr. 12 Magee to pass by where Ms. Smith was before he started shooting:

13 I just started shooting after he pass—I didn’t want to start shooting while he was by her because I didn’t want to hurt her, nor did I want 14 to hurt him at the time. I just didn’t want her in between what was going on between us. So I waited until he passed her and got to the 15

16 10 Mr. Morrison was not a highly credible witness, making any error even more harmless. The prosecutor asked Mr. Morrison to read into the record a letter he wrote to Doug Burse in which 17 Mr. Morrison appeared to ask Mr. Burse to “come to court” and testify as to a specific series of events: 18

“Tell Doug that I need him to come to court for me. It can help me. 19 Tell him he did not”—“he didn’t do shit so he don’t have to trip off nothing. I got this. Doug, tell them that it was you that was tripping 20 off Maal for short-stopping, not me, and that I tried to stop the whole thing. Maal started talking shit to me for no reason. Maal 21 tried to hit you, but I stepped [in] and between y’all. Doing so, I got hit. That’s how the fight began. During the fight, we all fell to the 22 ground. Next thing you know is you see Maal trying to pull a gun out. You see him—You see me try to grab for . . . [sic] him. In the 23 process, the gun goes off. I get it [sic] and start shooting. Period!!” And then I said: “All”—referring to myself. “All Warren did was 24 defend & fight for his life. End of statement.” . . . 25

RT 872-73. The prosecutor questioned him about the letter, and he acknowledged 26 that he did not actually get hit, but “almost got hit” in the tussle. RT 875. The letter and Mr. Morrison’s own acknowledgment of its inconsistency with his trial 27 testimony cast his narrative in doubt. He also testified that he was the victim in the end of this white fence, and I just started shooting. 1 RT 798. He continued: 2 [A]s I was shooting, he falls to the ground on his stomach. And at 3 that time, I didn’t know that I had shot him. It just looked like he fell, like he tripped. But, so I walked up as he was laying down or 4 on the ground and— Q: And did you shoot him again? 5 A: Yes. I shot him two times while he was laying down.

6 RT 799. And he agreed with the prosecutor that he intended to punish Mr. Magee for pulling a 7 gun on him. See supra at 13-14 n.8. His thought process was deliberate and calculated enough for 8 him to wait for Mr. Magee to pass by Ms. Smith, and for him to have an intent to punish Mr. 9 Magee. It is highly unlikely that the jury would have found, in light of Mr. Morrison’s testimony 10 about the extent of his thought process and reflection during the shooting, as well as the fact that 11 he approached Mr. Magee after he had fallen down and shot him two more times, that he was 12 subjectively provoked in a manner that negated premeditation and deliberation. The jury would 13 likely have convicted Mr. Magee of first degree murder even if it had been instructed that 14 provocation to reduce first to second degree murder can be subjective.11 15 B. The Right to Present a Defense 16 Mr. Morrison also claims that the instructions prevented him from presenting a complete 17 defense. Whether grounded in the Sixth Amendment’s guarantee of compulsory process or in the 18 more general Fifth or Fourteenth Amendment guarantee of due process, “the Constitution 19 guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Holmes 20 v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683 690 21 (1986)); see California v. Trombetta, 467 U.S. 479, 485 (1984) (due process); Chambers v. 22 Mississippi, 410 U.S. 284, 294 (1973) (compulsory process). 23 There is no clearly established federal law linking the right to present a defense to 24 allegedly erroneous jury instructions. See Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993) 25 (meaningful opportunity to present a complete defense invoked by Supreme Court in cases 26

27 11 Nor do the juror notes—which discussed the special allegation form and requested reading some 1 involving “the exclusion of evidence” and “the testimony of defense witnesses”; applying this 2 principle to “confusing instructions on state law which prevent a jury from considering an 3 affirmative defense” would “make a nullity of the rule reaffirmed in Estelle v. McGuire”). 4 Further, even if such law existed, it was not violated during Mr. Morrison’s trial. He was 5 permitted to present the defense of subjective provocation, and did so numerous times. His 6 testimony addressed his emotional and mental state and the amount of time he had for reflection. 7 He testified that he started shooting “[b]ecause I was scared from the initial shot. I was just scared 8 at the time.” RT 798. He stated: “It actually happened, like, really fast. The fight happened, the 9 tussle over the gun, the two shots went off. He gets up and—the time—when I get up, the next 10 time I see him is, he’s right here, and that’s when I just started shooting.” Id. He testified that he 11 shot Mr. Magee the last time because he was scared and angry because they were friends, although 12 not close friends, and he “didn’t think that [Mr. Magee] would try to do anything like this.” RT 13 800. He “didn’t think at all.” Id. Elaborating on cross-examination, Mr. Morrison said he was 14 angry because “Jarmal is like an older cousin to me and he watched me grow up. So I didn’t—I 15 wouldn’t never thought he was trying to pull a gun out on me and try to kill me.” RT 859. He 16 testified that fear was a bigger emotion for him at that time than anger, and that he remained afraid 17 even after Mr. Magee was running away. RT 859-60. 18 Defense counsel focused exclusively during his closing argument on objective provocation 19 to reduce murder to voluntary manslaughter, and did not explicitly discuss second degree murder. 20 RT 997-1001. But nothing prevented defense counsel from arguing that the murder was second 21 degree. And although his focus was on provocation meeting the voluntary manslaughter standard, 22 he clearly presented the defense that Mr. Morrison was subjectively provoked. See RT 998-999. 23 The jury instructions did not prevent the jury from considering Mr. Morrison’s arguments at trial 24 that the murder was not premeditated or deliberate. The jury was affirmatively instructed that 25 provocation could negate premeditation and deliberation. That defense counsel did not choose to 26 emphasize that Mr. Morrison’s subjective provocation alone was adequate for second degree 27 murder does not mean the trial court committed constitutional error in preventing Mr. Morrison 1 The California Court of Appeal reasonably determined that the failure to provide an 2 instruction on subjective provocation did not prevent Mr. Morrison from presenting a complete 3 defense, and there was no federal constitutional error. 4 1. No Certificate Of Appealability 5 A certificate of appealability will not issue because “reasonable jurists would” not “find 6 the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 7 McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is denied. 8 VI. CONCLUSION 9 For the foregoing reasons, the petition for writ of habeas corpus is DENIED. 10 The Clerk shall enter judgment in favor of Respondent and close the file. 11 Additionally, the Clerk is directed to substitute Daniel Cueva on the docket as the 12 respondent in this action. 13 14 IT IS SO ORDERED. 15 16 Dated: October 13, 2021 17 18 ______________________________________ EDWARD M. CHEN 19 United States District Judge 20 21 22 23 24 25 26 27