Thinn v. Johnson

• Court: District Court, S.D. California
• Decided: April 19, 2024
• Docket: 3:22-cv-00002
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLINTON THINN, Case No.: 22-cv-2-LAB-VET

12 Petitioner, ORDER: 13 v. (1) DENYING PETITION FOR 14 RAYBON JOHNSON, Warden, et WRIT OF HABEAS CORPUS. al., 15 [Dkt. 1]; and Respondents. 16 (2) DENYING CERTIFICATE OF 17 APPEALABILITY

18 I. INTRODUCTION 19 Petitioner Clinton Thinn, a state prisoner proceeding through counsel, filed 20 a Petition for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. 21 (Dkt. 1).1 Thinn challenges his 2018 conviction in San Diego Superior Court case 22 number SCD270553 of first-degree murder and his resultant sentence of twenty- 23 five years to life. (Id. at 1–2; see also Dkt. 5-2 at 123–24, Clerk’s Tr. (“CT”) 375– 24 76, Lodgment No. 1). 25 Thinn alleges his federal constitutional rights under the Fifth, Sixth, and 26 Fourteenth Amendments were violated by: (1) the trial court’s exclusion of 27 1 Page numbers cited in this Order refer to those imprinted by the Court’s electronic 28 1 circumstantial evidence that Thinn acted in self-defense; (2) the trial court’s 2 refusal to instruct the jury on perfect and imperfect self-defense; and 3 (3) cumulative error. (Dkt. 1 at 6–8; 1-2 at 9–17). 4 Respondent Raybon Johnson filed an Answer and lodged the state court 5 record. (Dkt. 4–5, 8). Respondent maintains habeas relief is unavailable and 6 Thinn isn’t entitled to an evidentiary hearing on his claims because (1) to the 7 extent Thinn claims violations of state law, Claims One and Two aren’t cognizable 8 on federal review and (2) in any event, the state court adjudication of each of 9 Thinn’s three claims on the merits is neither contrary to or an unreasonable 10 application of clearly established federal law nor based on an unreasonable 11 determination of the facts. (Dkt. 4 at 2; 4-1 at 10–19). 12 Thinn has also filed a Traverse, in which he admits in general that claims 13 which raise only state law violations aren’t cognizable on federal habeas, but 14 maintains his claims are based on the federal constitution and alleges the state 15 court adjudication of his claims are contrary to and/or an unreasonable application 16 of clearly established law. (Dkt. 6 at 2). Thinn also disputes Respondent’s 17 contention he isn’t entitled to an evidentiary hearing on his habeas claims and 18 “denies that the state court reasonably found the facts but alleges that the record 19 contains sufficient facts to rebut the state courts [sic] findings without necessarily 20 taking new evidence at a hearing.” (Id.). 21 The Court has reviewed the briefing, documents filed, and the legal 22 arguments presented by both parties. For the reasons discussed below, the Court 23 DENIES the Petition and DENIES a certificate of appealability. 24 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 25 The Court gives deference to state court findings of fact and presumes them 26 to be correct; Thinn may rebut the presumption of correctness, but only by clear 27 and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 28 506 U.S. 20, 35–36 (1992) (holding findings of historical fact, including inferences 1 properly drawn from those facts, are entitled to statutory presumption of 2 correctness); Sumner v. Mata, 449 U.S. 539, 545–47 (1981). The California Court 3 of Appeal affirmed the judgment in People v. Thinn, D074397 (Cal. Ct. App. 4 July 23, 2020), (see Dkt. 5-18, Lodgment No. 8), and summarized the following: 5 Defendant Clinton Thinn was placed in cell 4 of module 5-B of Central Jail on November 21. Victim Lyle W. 6 became his cellmate two days later. At 1:49 a.m. on the 7 morning of December 3, inmate L.F. joined them. When L.F. arrived, it seemed that Thinn and Lyle were getting 8 along. Lyle was talkative and was describing a collage he 9 was making, while Thinn looked on. L.F. offered Lyle a small amount of methamphetamine that he had snuck into 10 the jail and promptly went to sleep on the bottom bunk. 11 Sometime later, Lyle woke L.F. to ask whether he and Thinn could have the rest of L.F.’s methamphetamine. L.F. 12 asked if they could get him coffee in the morning, and Lyle 13 said they would try. L.F. then gave the remainder to Lyle and returned to sleep. When he awoke, Lyle was 14 unresponsive on the floor, and deputies were at the cell 15 door. 16 Module 5 was under lockdown all morning on December 3, meaning inmates could not leave their cells. 17 Deputies delivered medication for Lyle that morning. A 18 hard count taken around noon indicated that all inmates were accounted for and in their cells. San Diego County 19 Sheriff’s Deputy Trevor Newkirk observed nothing unusual 20 during his hard count—Thinn and Lyle seemed to get along like normal cellmates. Deputy Matthew Charlebois agreed, 21 recalling that Thinn and Lyle “appeared to be talking and 22 almost kind of laughing with each other.” 23 At 12:55 p.m., Thinn pressed the intercom button in cell 4, sending a signal to the tower overlooking the entire 24 fifth floor. Deputy Charles Delacruz listened as Thinn 25 asked for a nurse to check his cellmate’s vitals. Delacruz logged a “man down” call, paging colleagues to the scene. 26 Deputy Charlebois was the first to arrive at cell 4. He saw 27 Thinn standing over Lyle’s feet, staring toward both Lyle and the cell door with a “1,000 yard stare.” Thinn seemed 28 1 out of breath, was breathing heavily, and had red marks on his shirtless chest and stomach area. Deputy Newkirk 2 arrived around that same time to find Lyle lying prone, face 3 down, with his head near the cell door. He too described Thinn as standing in the middle of the cell, looking toward 4 Lyle. Thinn was shirtless, out-of-breath, and appeared 5 flush or red in the face. Newkirk described his expression as akin to a deer in headlights, eyes wide with surprise. 6 L.F. was laying in the bottom bunk when Newkirk 7 opened the cell. He was fully clothed and had apparently 8 been sleeping. Unlike Thinn, L.F. was neither flushed nor out of breath; he seemed confused when escorted out. 9 Newkirk removed L.F. and Thinn to seek medical 10 assistance for Lyle. As Thinn waited in the holding area, Deputy Christopher Simms observed him pacing the room 11 for fifteen to twenty minutes, periodically staring at Simms 12 with wide eyes and sitting down on a table. Deputy Curtis Stratton described Thinn’s torso as appearing flush during 13 this time, as if he had just been exercising. He was 14 breathing heavy and had shaky hands and blood around his fingernails. The forensic evidence technician took 15 photographs of blood in the nail bed of Thinn’s left thumb 16 and purple discoloration in the tops of his knuckles. DNA analysis later tied the blood found on Thinn’s thumbnail to 17 Lyle. 18 Lyle was transported to the hospital but never 19 regained consciousness. He died a week later when his family removed him from life support. Given reports that 20 there had been an altercation at the jail, Lyle’s father 21 examined his son’s hands but saw nothing other than bruising on Lyle’s face. The autopsy concluded that Lyle 22 died by homicide from ligature strangulation. Petechiae, or 23 tiny hemorrhages, in Lyle’s eyes were consistent with asphyxiation, and there was bruising and bleeding in his 24 mouth. The medical examiner identified a linear scab on 25 Lyle’s neck. Because there were no ligature marks on the back of Lyle’s neck, it was likely that the ligature was 26 applied with more force or friction to the front. Deputy 27 Stratton explained that the red mark on the front of Lyle’s neck looked almost like a necklace had been ripped off of 28 1 him from behind. Although the medical examiner could not determine how long the ligature had been applied to Lyle’s 2 neck, she explained that it typically takes anywhere from a 3 few minutes to ten minutes for strangulation to cause irreversible brain damage. 4 A thorough search of the cell revealed a piece of blue 5 fabric, potentially fashioned from jail garments, in the toilet. 6 The medical examiner believed it was possible that the mark on Lyle’s neck had been formed by the piece of fabric 7 found in the toilet. Inmates at San Diego Central Jail 8 receive one set of jail-issued clothing per week, consisting of a blue shirt and pair of pants and undergarments. L.F. 9 was fully clothed when deputies arrived. Lyle and Thinn 10 were both shirtless. One blue shirt was found hanging in the cell, but it was not ripped or torn in any manner to be 11 linked to the fabric from the toilet. A careful search did not 12 reveal any torn pieces of blue clothing or torn sheets in the cell that could be linked to the torn fabric in the toilet. 13 The San Diego County District Attorney charged 14 Thinn with first degree murder. During pretrial motions in 15 limine in Thinn’s first trial, Judge Frederick Maguire ruled that he would allow the defense to present expert 16 testimony by Francisco Mendoza, who would explain racial 17 divisions and politics in San Diego Central Jail. The court explained that it had no problem admitting general 18 testimony by Mendoza indicating a hostile racial 19 environment at the jail, but the extent of Mendoza’s testimony would be limited based on evidence already in 20 the record as to whether Thinn was vulnerable, alone, or 21 the victim of racial politics. As was apparent to the jury in both trials, Thinn was White, while Lyle and L.F. were 22 Black. 23 On January 25, 2018, prospective jurors saw Thinn 24 in handcuffs during jury selection, prompting a mistrial. With a new jury empaneled, trial continued before Judge 25 Maguire. The prosecution argued that the nature of the 26 killing—ligature strangulation from behind for some number of minutes—supported a finding of premeditated 27 and deliberated murder. Thinn in turn argued perfect or 28 imperfect self-defense. 1 Viewing a video of breakfast service from another day, a drug treatment expert testified for the defense that 2 Lyle’s random movements were consistent with 3 methamphetamine use. A psychiatrist opined that methamphetamine use is associated with unpredictable 4 and irrational violence. Inmate Clyde M. testified that 5 immediately after the incident, Thinn yelled, “man down” through the vents, asking for help. A defense investigator 6 who observed Thinn’s hands more than a year after the 7 incident described them as naturally purplish in color. 8 But the heart of the defense focused on Thinn’s vulnerability as a foreigner. Inmate Mario L. explained that 9 although module 5-B was designed as a race-neutral 10 incentive module, racial tensions remained. Thinn was an outsider; people took advantage of him by raiding his 11 commissary. Alexander W. explained that racial politics 12 were widespread in module 5-B. Thinn was obviously a foreigner, spoke with an accent, and “didn’t seem to fit in 13 anywhere.” He kept to himself whereas Lyle was the 14 opposite, ordering other inmates around. Lyle seemed to bully Thinn by taking his food without permission. Taking 15 food in jail is “a very big deal” and “could have severe 16 consequences.” When someone of a different race steals an inmate’s food, a failure to protect oneself could 17 precipitate a race riot. 18 Expert Francisco Mendoza then took the stand. He 19 explained that foreigners are isolated at Central Jail; lacking a defined race category, they become targets for 20 violence, demands for sexual favors, or demands for 21 commissary as “rent” for protection. Stealing another inmate’s food was a serious matter and could escalate to 22 violence or death. Mendoza explained that Thinn’s 23 behavior in the jailhouse breakfast video was unusual. He waited until all other inmates finished eating to leave his 24 cell. This behavior suggested to Mendoza that Thinn felt 25 isolated, without anyone to back him up. By contrast, Lyle appeared neither vulnerable nor isolated; he was the first 26 one out for breakfast and appeared like a jail “regular.” 27 Judge Maguire decided to instruct the jury on self- 28 defense and imperfect self-defense. Although he did not 1 find the defense evidence compelling, the theories were within the realm of possibilities that a rational jury could 2 accept. Sure enough, a second mistrial was declared after 3 the jury failed to reach a verdict. Jurors hung on degree— five found first degree murder, two found second degree 4 murder, and five found voluntary manslaughter. 5 A third jury was empaneled for a second trial, which 6 began in June 2018 before Judge Leo Valentine, Jr. During motions in limine, the court pressed defense counsel to 7 identify the evidence it claimed supported its self-defense 8 theory. Defense counsel explained his intent to show that Thinn was being bullied and, given jailhouse race politics, 9 felt isolated as a foreigner. Counsel suggested that Thinn 10 was defending himself from Lyle’s methamphetamine- induced attack. 11 The court found this proffer speculative—that Lyle 12 may have taken methamphetamine did not support a 13 nonspeculative inference that he attacked Thinn on December 3. Moreover, experts could not testify about 14 jailhouse race relations absent any indication those 15 dynamics were at play when Lyle was strangled. Thinn could show that he was bullied by Lyle, though the court 16 cautioned that this might support premeditation. But there 17 would be no expert or percipient witness testimony on jailhouse race relations. When pressed by defense 18 counsel, the court explained that although various things 19 could have happened in the cell, racial dynamics only supported a speculative inference as to what actually 20 happened unless there was something more to suggest 21 that Lyle attacked Thinn in the cell because of his race. 22 Given the court’s evidentiary rulings, Thinn’s second trial was considerably shorter than his first. The 23 prosecution’s case remained the same—the nature of the 24 strangulation from behind for some number of minutes supported a finding of premeditated and deliberated first 25 degree murder. 26 Near the end of the prosecution’s case-in-chief, the 27 parties held an extended discussion as to whether the jury 28 would be instructed on self-defense. Arguing the red marks 1 on Thinn’s chest were consistent with a struggle, defense counsel maintained self-defense instructions were 2 supported by the evidence. He reiterated his view that 3 evidence of racial dynamics at Central Jail, bullying by other inmates, and the effects of Lyle’s methamphetamine 4 use would support a claim of self-defense, but complained 5 that this proffer had been precluded. The court disagreed— bullying evidence had not been excluded, but jailhouse 6 politics “provides fodder for speculation” without giving 7 jurors any evidence of what happened in the cell. As the court explained, self-defense requires some information 8 about a defendant’s state of mind, and all the evidence 9 sought to be introduced by the defense did not support any nonspeculative finding in that regard. Based solely on the 10 prosecution’s evidence of red marks on Thinn’s chest, 11 there was insufficient evidence for a self-defense instruction. 12 Ultimately, the defense examined a single witness at 13 the second trial, investigator Tanya Kunz. As she did in the 14 first trial, Kunz explained the purple marks found on Thinn’s knuckles by deputies on the day of the incident: Thinn’s 15 hands appeared purple in their ordinary course. Although 16 the defense subpoenaed Clyde M. to testify that Thinn cried out for help, he did not appear and could not be found. 17 At the close of trial, defense counsel pressed for an 18 instruction on voluntary manslaughter based on a heat of 19 passion theory. The court refused the request, explaining there was no evidence of a motive or disagreement to 20 support a nonspeculative theory that Lyle had been killed 21 in a heat of passion. The jury was instructed on first degree premeditated and deliberated murder and second degree 22 malice murder. It was not instructed on voluntary 23 manslaughter, self-defense, or imperfect self-defense. 24 During closing arguments, defense counsel argued there was no evidence of premeditation or deliberation to 25 support a conviction for first degree murder, as Thinn and 26 Lyle had been laughing just 40 minutes before the homicide. Rejecting this argument, the jury convicted Thinn 27 of first degree murder. The trial court sentenced him to 25 28 years to life in state prison. 1 (id. at 2–9 (emphasis in original)). 2 Thinn appealed the judgment to the California Court of Appeal, raising Claim 3 One presented here in the opening brief and raising Claim Two and Claim Three 4 presented here in the supplemental opening brief. (See Dkt. 5-13, 5-15, Lodgment 5 Nos. 3, 5). On July 23, 2020, in a reasoned opinion, the Court of Appeal denied 6 each of the three claims and affirmed Thinn’s judgment. (Dkt. 5-18, Lodgment 7 No. 8). Thinn thereafter raised all three claims presented here in a petition for 8 review with the California Supreme Court. (Dkt. 5-19, Lodgment No. 9). On 9 September 23, 2020, the California Supreme Court denied the petition in a 10 decision stating in full: “The petition for review is denied.” (Dkt. 5-20, Lodgment 11 No. 10). 12 On January 3, 2022, Thinn filed a federal Petition and accompanying 13 memorandum which raised three claims for relief. (Dkt. 1). On April 4, 2022, 14 Respondent filed an Answer and accompanying memorandum and lodged 15 portions of the state court record. (Dkt. 4–5). On April 22, 2022, Thinn filed a 16 Traverse. (Dkt. 6). On October 20, 2022, Respondent filed a supplemental notice 17 of lodgment which included Supplemental and Augmented Reporter’s Transcripts. 18 (Dkt. 8). 19 III. THINN’S CLAIMS 20 (1) The trial court’s exclusion of circumstantial evidence that Thinn acted in 21 self-defense deprived him of his right to present a defense in violation of the Fifth, 22 Sixth, and Fourteenth Amendments. (Dkt. 1 at 6; 1-2 at 9–13). 23 (2) The trial court’s refusal to instruct the jury on perfect and imperfect self- 24 defense lessened the prosecution’s burden of proof and violated Thinn’s federal 25 due process right to a determination beyond a reasonable doubt of all the 26 elements of the offense charged and to have the jury consider his defense in 27 violation of the Fifth, Sixth, and Fourteenth Amendments. (Dkt. 1 at 7; 1-2 at 13– 28 17). 1 (3) The cumulative effect of the errors identified in Claims One and Two 2 deprived Thinn of his federal right to due process and a fair trial in violation of the 3 Fifth, Sixth, and Fourteenth Amendments. (Dkt. 1 at 8; 1-2 at 17). 4 IV. STANDARD OF REVIEW 5 Thinn’s Petition is governed by the provisions of the Antiterrorism and 6 Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 7 320, 326–29 (1997). A state prisoner isn’t entitled to federal habeas relief on a 8 claim that the state court adjudicated on the merits unless the state court 9 adjudication: “(1) resulted in a decision that was contrary to, or involved an 10 unreasonable application of, clearly established Federal law, as determined by 11 the Supreme Court of the United States,” or “(2) resulted in a decision that was 12 based on an unreasonable determination of the facts in light of the evidence 13 presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 97– 14 98 (2011) (quoting 28 U.S.C. §§ 2254(d)(1)–(2)). 15 A decision is “contrary to” clearly established law if “the state court arrives 16 at a conclusion opposite to that reached by [the Supreme] Court on a question of 17 law or if the state court decides a case differently than [the Supreme] Court has 18 on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 19 413 (2000). A decision involves an “unreasonable application” of clearly 20 established federal law if “the state court identifies the correct governing legal 21 principle . . . but unreasonably applies that principle to the facts of the prisoner’s 22 case.” Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir. 2004). With respect to 23 § 2254(d)(2), “[t]he question under AEDPA is not whether a federal court believes 24 the state court’s determination was incorrect but whether that determination was 25 unreasonable–a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 26 465, 473 (2007) (citing Williams, 529 U.S. at 410). “State-court factual findings, 27 moreover, are presumed correct; the petitioner has the burden of rebutting the 28 presumption by ‘clear and convincing evidence.’” Rice v. Collins, 546 U.S. 333, 1 338–39 (2006) (quoting 28 U.S.C. § 2254(e)(1)). 2 “A state court’s determination that a claim lacks merit precludes federal 3 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of 4 the state court’s decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. 5 Alvarado, 541 U.S. 652, 664 (2004)). The United States Supreme Court 6 recognized that “[a]s amended by AEDPA, § 2254(d) stops short of imposing a 7 complete bar on federal court relitigation of claims already rejected in state 8 proceedings,” but instead “[i]t preserves authority to issue the writ in cases where 9 there is no possibility fairminded jurists could disagree that the state court’s 10 decision conflicts with [the Supreme] Court’s precedents.” Id. at 102. In a federal 11 habeas action, “[t]he petitioner carries the burden of proof.” Cullen v. Pinholster, 12 563 U.S. 170, 181 (2011) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per 13 curiam)). 14 V. DISCUSSION 15 Thinn raised each of the three claims presented here in a petition for review 16 in the California Supreme Court and the California Supreme Court’s denial of that 17 petition was without a statement of reasoning. (See Dkt. 5-19, 5-20). The United 18 States Supreme Court has repeatedly stated that a presumption exists “[w]here 19 there has been one reasoned state judgment rejecting a federal claim, later 20 unexplained orders upholding that judgment or rejecting the same claim rest upon 21 the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Wilson 22 v. Sellers, 584 U.S. 122, 128 (2018) (“We conclude that federal habeas law 23 employs a ‘look through’ presumption.”). As such, in the absence of record 24 evidence or argument seeking to rebut this presumption, the Court will “look 25 through” the California Supreme Court’s summary denial to the reasoned opinion 26 issued by the state appellate court with respect to each of Thinn’s three federal 27 habeas claims. See Nunnemaker, 501 U.S. at 804 (“The essence of unexplained 28 orders is that they say nothing. We think that a presumption which gives them no 1 effect-which simply ‘looks through’ them to the last reasoned decision-most nearly 2 reflects the role they are ordinarily intended to play.”) (emphasis in original) 3 (footnote omitted)). 4 While the state court doesn’t appear to have specifically addressed Thinn’s 5 federal claims, the Court must also presume the state court adjudicated both the 6 state and federal contentions on the merits and AEDPA applies to each of Thinn’s 7 three federal habeas claims, given the lack of any indication otherwise. See 8 Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court 9 and the state court has denied relief, it may be presumed that the state court 10 adjudicated the claim on the merits in the absence of any indication or state-law 11 procedural principles to the contrary.”); see also Johnson v. Williams, 568 U.S. 12 289, 301 (2013) (“When a state court rejects a federal claim without expressly 13 addressing that claim, a federal habeas court must presume that the federal claim 14 was adjudicated on the merits—but that presumption can in some limited 15 circumstances be rebutted.”). 16 A. Claim One 17 Thinn first contends the trial court’s decision to exclude proffered 18 circumstantial evidence that he acted in self-defense deprived him of his right to 19 present a defense in violation of the Fifth, Sixth, and Fourteenth Amendments. 20 (Dkt. 1-2 at 9–13). 21 The California Court of Appeal rejected this claim in a reasoned decision as 22 follows: 23 At his first trial, Thinn introduced testimony by inmates Mario L. and Alexander W. about race relations in 24 module 5-B and patterns of bullying between Lyle and 25 Thinn. He also introduced testimony by expert Francisco Mendoza to explain how being a foreigner left him exposed 26 and vulnerable. In the second trial, Judge Valentine 27 permitted the defense to introduce evidence that Thinn was being bullied, but excluded evidence regarding jailhouse 28 1 racial politics. Although Thinn challenges this ruling on appeal, we conclude no error occurred. 2 Only relevant evidence is admissible (Evid. Code,1 3 § 350)—that is, evidence “having any tendency in reason 4 to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210.) 5 Evidence that leads only to speculative inferences is 6 irrelevant. (People v. Morrison (2004) 34 Cal.4th 698, 711.) Mindful that trial courts have broad discretion to determine 7 relevancy of evidence, error will be found only if a court 8 “acted in an arbitrary, capricious, or patently absurd manner.” (People v. Jones (2013) 57 Cal.4th 899, 947.)2 9 1 Unless otherwise indicated, further statutory 10 references are to the Evidence Code. 11 2 Thinn cites section 352 and maintains that 12 application of this statute “must yield to a defendant’s due process right to a fair trial and 13 to the right to present all relevant evidence of 14 significant probative value to his or her defense.” (People v. Cunningham (2001) 25 15 Cal.4th 926, 999.) His argument, however, 16 misconstrues the record. The court did not deem the jailhouse race politics relevant but 17 nonetheless exclude it under section 352 as 18 necessitating an undue consumption of time. Rather, it concluded the evidence supported 19 only a speculative inference as to what 20 happened in the jail cell and therefore excluded it on relevancy grounds. Because we agree 21 with this analysis, we need not consider 22 whether its exclusion was separately appropriate under section 352. 23 24 Because the racial tension evidence was offered to show self-defense, understanding the components of that 25 theory is critical to evaluating its relevance. “Self-defense 26 is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of 27 defending oneself from imminent danger of death or great 28 bodily injury. [Citation.] A killing committed in perfect self- 1 defense is neither murder nor manslaughter; it is justifiable homicide.” (People v. Randle (2005) 35 Cal.4th 987, 994.) 2 Although a person acting in imperfect self-defense “also 3 actually believes he must defend himself from imminent danger of death or great bodily injury,” that belief is 4 unreasonable. (Ibid.) “Imperfect self-defense mitigates, 5 rather than justifies, homicide; it does so by negating the element of malice.” (Ibid.; see People v. Simon (2016) 1 6 Cal.5th 98, 132 (Simon).) 7 “The subjective elements of self-defense and 8 imperfect self-defense are identical. Under each theory, the appellant must actually believe in the need to defend 9 himself against imminent peril to life or great bodily injury.” 10 (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 (Viramontes).) “If the trier of fact finds the requisite belief in 11 the need to defend against imminent peril, the choice 12 between self-defense and imperfect self-defense properly turns upon the trier of fact’s evaluation of the 13 reasonableness of appellant’s belief.” (Ibid.) 14 Thinn elected not to testify. His cellmate L.F. was the 15 only other potential witness, but he was asleep the entire time. Although Thinn is correct that a defendant’s 16 testimony is not always required to show self-defense (see 17 Viramontes, supra, 93 Cal.App.4th 1256; People v. Ororpeza (2007) 151 Cal.App.4th 73, 82 (Oropeza)), the 18 circumstances of this case likely required such testimony. 19 Without it, there was no evidence of Thinn’s actual state of mind. Absent some indication of what occurred in cell 4 on 20 December 3, there was no basis for the jury to believe that 21 Lyle threatened or attacked Thinn. Nor is there any rational basis for a jury to find that Thinn actually believed in the 22 need to defend himself against imminent danger of death 23 or great bodily harm when he strangled Lyle from behind. Any inference as to Thinn’s state of mind is speculative: 24 with no evidence to moor it, testimony that racial politics 25 were rampant in module 5-B or that Thinn as a foreigner was particularly vulnerable would only support a 26 speculative, rather than reasonable, inference as to what 27 happened in cell 4 on December 3. Speculative evidence is properly excluded on relevancy grounds. (See People v. 28 1 Babbitt (1988) 45 Cal.3d 660, 682 [“‘The inference which defendant sought to have drawn from the [proffered 2 evidence] is clearly speculative, and evidence which 3 produces only speculative inferences is irrelevant evidence.’”].)3 4 3 Indeed, the foundation was far weaker at the 5 second trial, where the defense chose not to 6 examine fellow inmates Mario L. and Alexander W. about Lyle’s bullying of Thinn. 7 Far from suggesting any underlying tension 8 between inmates, the only evidence presented at the second trial showed that Lyle and Thinn 9 seemed to get along. 10 Thinn’s authorities do not suggest otherwise. In 11 Viramontes, two defense witnesses “testified they saw someone shoot at [defendant] first.” (Viramontes, supra, 93 12 Cal.App.4th at p. 1263.) Supporting their account was 13 “undisputed forensics evidence establishing the use of two guns” and witness accounts of “a pause between the first 14 shot and subsequent shots.” (Ibid.) Likewise, in People v. 15 Minifie (1996) 13 Cal.4th 1055 (Minifie), the defendant testified that he shot in the victim’s direction because he 16 thought the victim was reaching for his crutches to hit him 17 over the head. (Id. at pp. 1063–1064.) Expert testimony regarding battered women’s syndrome was admissible to 18 explain the reasonableness of the defendant’s actions in 19 People v. Humphrey (1996) 13 Cal.4th 1073, where the defendant testified to shooting her intimate partner 20 because she thought he was reaching for a gun to shoot 21 her. (Id. at p. 1080.) And evidence that the victim had heroin in his system was admissible to corroborate claims 22 of erratic behavior in People v. Wright (1985) 39 Cal.3d 23 576, where in prior statements and trial testimony the defendant stated the victim had threatened him and was 24 reaching toward his back pocket for what the defendant 25 believed to be a weapon. (Id. at pp. 581–582, 583–584.) 26 Thinn relies heavily on People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, but there too, the evidence 27 supported a rational jury finding that the defendant was in 28 fear when he stabbed the victim. Defendant Sotelo-Urena, 1 a homeless man, was on trial for the murder of Nicholas Bloom, another homeless man, who he stabbed 70 to 80 2 times with a large kitchen knife. (Id. at p. 740.) Although 3 Sotelo-Urena did not testify at trial, the jury heard recordings of two police interviews. (Id. at p. 737.) In them, 4 Sotelo-Urena said he was sitting on the library steps at 5 night reading when Bloom approached him and aggressively asked for a cigarette. When Sotelo-Urena 6 replied that he did not have one, Bloom moved in as if to 7 fight. Sotelo-Urena was pretty sure Bloom was one of the people who had attacked him in the past, and when Bloom 8 reached to grab something from his pocket or waistband, 9 he assumed Bloom was grabbing a knife. Perceiving he was in danger yet again, Sotelo-Urena grabbed a kitchen 10 knife from his backpack and told Bloom to get away. But 11 Bloom just laughed like he wanted to hurt Sotelo-Ureno, prompting the latter to respond to the threat. (Id. 12 at pp. 737–738.) Other evidence at trial demonstrated that 13 Sotelo-Urena waited for police to arrive, told responding officers that Bloom was trying to kill him, and showed them 14 the kitchen knife he had used to stab him. (Id. at pp. 739– 15 740.) The jury likewise heard evidence that Bloom had injected a large amount of methamphetamine was acting 16 aggressively before he was stabbed. (Id. at p. 737.) 17 Against this backdrop, Sotelo-Urena proffered expert 18 testimony of a retired judge who would explain the effects of increased victimization and risks of violence faced by the 19 chronically homeless. (Sotelo-Urena, supra, 4 Cal.App.5th 20 at pp. 741–742.) Based on local and national studies, the defense expert “was prepared to testify that the 21 vulnerability to violence experienced by homeless people 22 tends to create a greater than normal sensitivity to perceived threats of violence.” (Id. at p. 742.) The exclusion 23 of the homelessness evidence on this record was error— 24 the expert testimony was probative both of the defendant’s actual belief in the need to defend himself and the 25 reasonableness of that belief. (Id. at pp. 750, 752.) It was 26 also probative of the defendant’s credibility—i.e., whether the jury should believe Sotelo-Urena’s statements to 27 police. (Id. at p. 752.) 28 1 It is not enough to say, as Thinn argues, that the “jailhouse-politics evidence here was analogous to the 2 homelessness evidence in Sotelo-Urena.” While the two 3 types of evidence may share some similarities, their admissibility turns in each case on the presence of 4 foundational facts. Where, as here, there is no evidence 5 regarding the circumstances of the attack, contextual evidence only invites speculative rather than reasonable 6 inferences as to Thinn’s state of mind. Thus, it cannot be 7 said to have a tendency in reason to prove a disputed material fact. (§ 210.) 8 In summation, to prove his or her own frame of mind 9 to argue self-defense, a defendant is entitled to corroborate 10 testimony that he or she was in fear of peril by proving the reasonableness of such fear. (Minifie, supra, 13 Cal.4th 11 at p. 1065.) A defendant may likewise offer contextual 12 evidence to help the jury understand the situation from his or her perspective. (Sotelo-Urena, supra, 4 Cal.App.5th 13 at p. 745.) But without direct or circumstantial evidence 14 suggesting the defendant was subjectively in fear at the time he killed, corroborating testimony lacks foundation 15 and cannot be admitted on its own to prove that ultimate 16 fact. General evidence of jailhouse racial tensions supported at best a speculative inference as to what might 17 have happened in cell 4 on December 3. Absent some 18 evidence that Lyle attacked Thinn, or that Thinn was subjectively fearful of such an attack, this evidence as 19 inadmissible to support a defense theory of perfect or 20 imperfect self-defense. 21 (Dkt. 5-18 at 9–15 (alterations and emphasis in original)). 22 Respondent first maintains “[t]he state court’s determination that the trial 23 court did not abuse it’s [sic] discretion in excluding the proffered evidence was 24 reasonable” and “[m]ore importantly, the state court’s finding that the evidence 25 was properly excluded under state law is binding on this Court.” (Dkt. 4-1 at 13 26 (citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Hicks on Behalf of Feiock v. 27 Feiock, 485 U.S. 624, 630 & n.3 (1988); and Mullaney v. Wilbur, 421 U.S. 684, 28 691 & n.11 (1975)). While Respondent’s observation is accurate, Thinn clearly 1 asserts the state trial court’s exclusion of the proffered evidence violated his 2 federal constitutional right to present a defense, and that alleged violation, not any 3 potential state law error, is the issue before this Court. See Estelle v. McGuire, 4 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to 5 reexamine state-court determinations on state-law questions. In conducting 6 habeas review, a federal court is limited to deciding whether a conviction violated 7 the Constitution, laws, or treaties of the United States.”); see also Jammal v. Van 8 de Kamp, 926 F.2d 918, 919–20 (9th Cir. 1991) (“The issue for us, always, is 9 whether the state proceedings satisfied due process; the presence or absence of 10 a state law violation is largely beside the point.”) Indeed, “[w]hile a petitioner for 11 federal habeas relief may not challenge the application of state evidentiary rules, 12 he is entitled to relief if the evidentiary decision created an absence of 13 fundamental fairness that ‘fatally infected the trial.’” Ortiz-Sandoval v. Gomez, 81 14 F.3d 891, 897 (9th Cir. 1996) (quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 15 1465 (9th Cir. 1986)). 16 “[T]he Constitution guarantees criminal defendants ‘a meaningful 17 opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 18 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); see also 19 Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (same). “While the 20 Constitution thus prohibits the exclusion of defense evidence under rules that 21 serve no legitimate purpose or that are disproportionate to the ends that they are 22 asserted to promote, well-established rules of evidence permit trial judges to 23 exclude evidence if its probative value is outweighed by certain other factors such 24 as unfair prejudice, confusion of the issues, or potential to mislead the jury.” 25 Holmes, 547 U.S. at 326. 26 In this instance, the defense sought to introduce and present evidence and 27 testimony about jail politics and race relations, as well as the victim’s drug use 28 and mental issues, to provide support for the defense’s self-defense theory, “so 1 the jury can draw reasonable inferences that there was an attack” and that “in jail 2 the need to use self-defense is frankly somewhat heightened because you can be 3 attacked with weapons or you can be attacked in a deadly manner, and you’re 4 within a confined space.” (Dkt. 8-2 at 32–33, Augmented Reporter’s Tr. (“ART”) 5 132–33). To this, the trial court responded: 6 I understand. You just made my point: “You could be.” “You could be.” “You could be.” The question here is 7 what happened? If your client is not prepared to get on the 8 stand and tell the jurors what happened, you’re asking me to allow you, then, to put on a bunch of speculation about 9 what could have happened; not what happened, what may 10 have happened. There’s multiple things that may have happened. We have no idea what happened. 11 So unless you’ve got something to suggest that [the 12 victim] attacked your client, it’s a stretch to get self- 13 defense. I just want to make sure you understand that before you get to your case, because I’m not going to allow 14 evidence in that causes the trier of fact to speculate, 15 because I’m going to instruct them they’re not to speculate. 16 (id. at 33). The trial court went on to explain the reasons supporting the decision, 17 noting while: 18 It may be of interest of what the politics are in the jail, but unless you tell me and you’ve got evidence that your 19 client was being attacked because of race, because of 20 politics, because of anything other than human behavior, I don’t see why we need to spend time educating these 21 citizens about jailhouse politics. [¶] I understand that may 22 be your theory, but self-defense does not apply to the reasonable inmate in jail. Self-defense applies to the 23 reasonable person under similar circumstances. . . . [¶] So 24 when you want to talk about jailhouse politics, what would an inmate feel compelled to do under these circumstances, 25 that’s not the standard of reasonableness for self-defense. 26 It’s a reasonable person. 27 (id. at 39–40). In response to defense counsel noting Thinn had a “red” chest and 28 “marks on his hands and on a toe,” the trial court stated: 1 I’m trying to get the record clear for appellate purposes. If you have evidence that he attacked your 2 client, I’m going to ask you what it is; if you don’t, I just want 3 the record to reflect that you don’t; that you’re asking to use circumstantial evidence to argue that he attacked your 4 client. 5 Well, I will concur that is physical evidence that 6 something happened. I don’t know that it’s physical evidence that he was assaulted. I understand that -- for the 7 Court, that’s much closer than the speculation about jail 8 politics and what may or may not have happened. To the extent your client has got bruises, he’s got what appears to 9 be -- whether he’s been attacked or defensive wounds, 10 whatever they are, that’s physical evidence. That’s relevant. That’s admissible. 11 But what the politics are, how that affected your 12 client, is pure speculation. I just want you to understand 13 how this court is making that distinction. 14 (id. at 42–43). 15 While Thinn didn’t testify at trial, Lonzell Fudge, the third inmate in the cell 16 at the time of the killing, did testify. After he was placed in the cell with Thinn and 17 the victim, Fudge stated he offered a piece of the methamphetamine he had to 18 the victim, who accepted it, but Fudge never saw if anyone consumed or used it. 19 (Id. at 470, 473–74). When the victim asked Fudge for another piece, Fudge 20 provided it and stated he would like it if someone could get him coffee. (Id. at 474). 21 According to Fudge, Thinn remained in another area of the cell during this time 22 but wasn’t asleep. (Id. at 471, 474). After that, Fudge stated he rolled back over 23 to go back to sleep; he next recalled rolling over to see a deputy and the cell door 24 open. (Id. at 475). Fudge stated: “I had no idea what happened like at all. I was 25 just waking up out of sleep.” (Id. at 476). 26 As the state appellate court reasonably found, the trial court’s conclusion 27 was both reasonable and well-supported, in that: “Where, as here, there is no 28 evidence regarding the circumstances of the attack, contextual evidence only 1 invites speculative rather than reasonable inferences as to Thinn’s state of mind” 2 and “without direct or circumstantial evidence suggesting the defendant was 3 subjectively in fear at the time he killed, corroborating testimony lacks foundation 4 and cannot be admitted on its own to prove that ultimate fact.” (Dkt. 5-18 at 14 5 (emphasis in original)). Indeed, in the absence of any evidence, whether direct or 6 circumstantial, as to what occurred in the cell or that could support a finding Thinn 7 was in fear at the time the victim was killed, it was clearly within the trial court’s 8 discretion to exclude the proffered evidence of jail racial politics. See, e.g., 9 Holmes, 547 U.S. at 326 (“[W]ell-established rules of evidence permit trial judges 10 to exclude evidence if its probative value is outweighed by certain other factors 11 such as unfair prejudice, confusion of the issues, or potential to mislead the jury.”). 12 Thinn nonetheless contends “the circumstantial evidence suggested 13 Petitioner acted in self-defense” citing the peaceful co-existence between Thinn 14 and the victim prior to another inmate bringing drugs into the cell and giving them 15 to the victim, asserting “[t]he logical inference was that the methamphetamine 16 caused [the victim] to precipitate some sort of conflict with Petitioner,” and 17 “Petitioner appeared disturbed by whatever transpired and pushed the call button 18 to summon help, suggesting he did not intend for [the victim] to die.” (Dkt. 1-2 19 at 13). But a different potential inference that could be drawn from the 20 circumstantial evidence was everything was indeed peaceful in the cell until 21 methamphetamine was introduced, which precipitated an altercation started by 22 Thinn, who wanted the drugs that had been given to the victim and resulted in 23 Thinn strangling the victim from behind while Fudge slept. Alternately, yet another 24 potential inference given Fudge’s testimony he didn’t see who used or consumed 25 the drugs could be that Thinn took some of the drugs, which caused Thinn to act 26 violently and strangle the victim. After the killing, Thinn then pushed the call button 27 due to remorse, fear the incident had gotten out of hand, or after sobering up. In 28 any event, the “inference” Thinn suggests is clearly not the only possible one 1 which could be drawn and there is no evidence in the record as to the 2 circumstances of the altercation that led to the victim’s death, much less evidence 3 supporting self-defense as opposed to other potential explanations, particularly 4 as the victim was strangled from behind. 5 Given Thinn didn’t testify at trial and the third cellmate present at the time of 6 the killing stated he was asleep, the state court correctly and aptly observed that 7 “[a]bsent some indication of what occurred in cell 4 on December 3, there was no 8 basis for the jury to believe that [the victim] threatened or attacked Thinn” and 9 there isn’t “any rational basis for a jury to find that Thinn actually believed in the 10 need to defend himself against imminent danger of death or great bodily harm 11 when he strangled [the victim] from behind.” (Dkt. 5-18 at 11). 12 The state court also rightly noted “the foundation [for self-defense] was far 13 weaker at the second trial, where the defense chose not to examine fellow inmates 14 [] about [the victim’s] bullying of Thinn” and “[f]ar from suggesting any underlying 15 tension between inmates, the only evidence presented at the second trial showed 16 that [the victim] and Thinn seemed to get along.” (Id. at 12 n.3). Indeed, Deputy 17 Matthew Charlebois testified that when he passed by the cell around noon on the 18 day in question for the hard count, Thinn and the victim “appeared to be talking 19 and almost kind of laughing with each other,” and noted the victim “was sitting on 20 the toilet inside the cell using it as a chair” while Thinn “was standing inside the 21 cell.” (Dkt. 8-2 at 671). Similarly, Fudge testified that when he was placed in the 22 cell with Thinn and the victim, the two cellmates were “getting along.” (Id. at 468). 23 Based on the lack of any direct or circumstantial evidence as to Thinn’s state 24 of mind at the time of the killing, much less evidence that the killing had any 25 connection to the fact that the victim and Thinn weren’t of the same racial 26 background, the trial court correctly concluded Thinn’s proffered self-defense 27 evidence would only invite speculation without basis and accordingly, the Court 28 can’t conclude the trial court’s “evidentiary decision created an absence of 1 fundamental fairness that ‘fatally infected the trial,’” Ortiz-Sandoval, 81 F.3d at 2 897 (quoting Kealohapauole, 800 F.2d at 1465), or deprived Thinn of “‘a 3 meaningful opportunity to present a complete defense,’” Crane, 476 U.S. at 690 4 (quoting Trombetta, 467 U.S. at 485). 5 Because Thinn fails to demonstrate the state court rejection of this claim 6 was either contrary to, or an unreasonable application of, clearly established 7 federal law or that it was based on an unreasonable determination of the facts, 8 Claim One doesn’t merit habeas relief. To the extent Thinn requests an evidentiary 9 hearing on this claim, the Court’s conclusion habeas relief isn’t warranted based 10 on a review of the record renders an evidentiary hearing unnecessary. See Totten 11 v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not 12 required on issues that can be resolved by reference to the state record.” 13 (emphasis in original)). 14 B. Claim Two 15 Thinn next contends the trial court’s refusal to instruct the jury on perfect 16 and imperfect self-defense lessened the prosecution’s burden of proof and 17 violated his federal due process right to a determination beyond a reasonable 18 doubt of all the elements of the offense charged and to have the jury consider his 19 defense. (Dkt. 1-2 at 13–17). 20 The California Court of Appeal rejected this claim in a reasoned decision as 21 follows: 22 Thinn next raises a related claim of instructional error. Toward the close of the prosecution’s case-in-chief, 23 the parties discussed jury instructions. The court stated 24 that CALCRIM No. 505 (Self-Defense) was “just in there so it can be taken out, but at the present time, the evidence 25 does not support [it].” Defense counsel interjected that red 26 marks on Thinn’s chest were sufficient “for a juror to draw a conclusion that a fight occurred and that Mr. Thinn was 27 acting in self-defense.” After an extended discussion 28 revisiting the exclusion of jailhouse racial politics evidence, 1 the court disagreed—evidence of red marks on Thinn’s chest was insufficient to support an instruction on self- 2 defense. 3 On appeal, Thinn contends the trial court erred by 4 failing to instruct the jury on self-defense and imperfect self-defense.4 In addition to red marks on his body 5 “suggesting a physical struggle,” Thinn points to evidence 6 that he pressed the intercom in cell 4 to seek medical assistance for Lyle. Moreover, he argues that surveillance 7 video informed jurors “that the jail was generally 8 segregated by race, that Thinn was a White inmate in a cell with two Black inmates, and that a deputy who worked at 9 the jail found this fact remarkable.” Relying again on 10 Viramontes, supra, 93 Cal.App.4th 1256, Thinn argues instructions on perfect and imperfect self-defense were 11 warranted notwithstanding his decision not to testify. 12 4 Although counsel only objected to the 13 omission of instructions on self-defense, Thinn maintains the court had a sua sponte duty to 14 instruct jurors on imperfect self-defense. “A trial 15 court has a sua sponte duty to instruct the jury on a lesser included uncharged offense if there 16 is substantial evidence that would absolve the 17 defendant from guilt of the greater, but not the lesser, offense.” (Simon, supra, 1 Cal.5th at p. 18 132.) Voluntary manslaughter based on 19 imperfect self-defense is an uncharged lesser offense of first degree murder. (People v. 20 Breverman (1998) 19 Cal.4th 142, 154.) 21 “We review a trial court’s decision not to instruct on 22 perfect self-defense or imperfect self-defense de novo.” (See Simon, supra, 1 Cal.5th at p. 133; People v. Waidla 23 (2000) 22 Cal.4th 690, 733.) No instructions on either 24 theory are warranted “absent substantial evidence to support them.” (People v. Stitely (2005) 35 Cal.4th 514, 25 551 (Stitely).) In reviewing the evidence supporting an 26 instruction, we construe the record in the light most favorable to the defendant. (People v. Wright (2015) 242 27 Cal.App.4th 1461, 1483.) As we explain, no error occurred. 28 1 For both perfect and imperfect self-defense, a defendant must actually believe in the need to defend 2 himself or herself against imminent peril to life or great 3 bodily injury. (Viramontes, supra, 93 Cal.App.4th at p. 1262.) “To require instruction on either theory, there must 4 be evidence from which the jury could find that appellant 5 actually had such a belief.” (Ibid.) Thus in Stitely, supra, 35 Cal.4th 514, the court properly refused instructions on 6 perfect or imperfect self-defense where there was no 7 substantial evidence that the defendant was in actual fear of imminent harm. (Id. at p. 552.) In Oropeza, instructions 8 on self-defense and imperfect-self-defense were properly 9 denied in the absence of evidence suggesting that the defendant fired shots out of fear. (151 Cal.App.4th at p. 82.) 10 Similarly, where a “defendant did not testify as to any 11 apprehension or danger he may have felt” and no other witness testified that he “acted out of reasonable fear,” 12 there was “no substantial evidence of perfect self-defense” 13 to support an instruction in People v. Hill (2005) 131 Cal.App.4th 1089, 1102 (Hill). A different result was 14 reached in Viramontes based on an entirely different 15 record—if the defense witnesses in Viramontes were believed, the jury “could find appellant had an actual belief 16 that he was in imminent peril and that lethal force was 17 necessary to defend himself against the person who shot at him.” (Viramontes, at p. 1263.) 18 Simply put, there is no substantial evidence here that 19 would support a perfect or imperfect self-defense 20 instruction here. Even if jurors accepted that Thinn and Lyle engaged in a mutual struggle—despite the come- 21 from-behind strangulation and lack of marks on Lyle’s 22 hands—there is no evidence from which jurors could make a reasonable, as opposed to speculative, finding as to 23 Thinn’s state of mind when he strangled Lyle. That Thinn 24 called for help after Lyle was unconscious does not suggest otherwise. Likewise, evidence that a sheriff’s 25 deputy was surprised at Thinn’s placement given his race 26 does not support a nonspeculative finding that Thinn reacted in perfect or imperfect self-defense. “Speculative, 27 minimal, or insubstantial evidence is insufficient to require 28 an instruction” on either theory. (Simon, supra, 1 Cal.5th at 1 p. 132; Hill, supra, 131 Cal.App.4th at p. 1101.) On our record, no instructional error occurred. 2 3 (Dkt. 5-18 at 15–17 (alteration and emphasis in original)). 4 Respondent maintains “[b]ecause this claim only challenges the trial court’s 5 discretion under state law, it does not raise a federal question,” but “[i]n any event, 6 the state court’s rejection of this claim was reasonable.” (Dkt. 4-1 at 15). With 7 respect to Respondent’s first contention, the Court again acknowledges claims of 8 error in the application of state law are generally not cognizable on federal habeas 9 review. See McGuire, 502 U.S. at 67–68. Indeed, “violations of state law are not 10 cognizable on federal habeas review.” Rhoades v. Henry, 611 F.3d 1133, 1142 11 (9th Cir. 2010). Yet in this instance, Thinn clearly contends the trial court’s refusal 12 to instruct the jurors on perfect or imperfect self-defense violated his federal 13 constitutional rights to a determination of all elements of the charged crimes 14 beyond a reasonable doubt and to present a defense, (see Dkt. 1-2 at 13–17), 15 which states a cognizable federal claim. 16 Again, “the Constitution guarantees criminal defendants ‘a meaningful 17 opportunity to present a complete defense.’” Crane, 476 U.S. at 690 (quoting 18 Trombetta, 467 U.S. at 485); see also Holmes, 547 U.S. at 324 (same). To this 19 end, “[i]t is well-settled that a criminal defendant is entitled to a jury instruction ‘on 20 any defense which provides a legal defense to the charge against him and which 21 has some foundation in the evidence, even though the evidence may be weak, 22 insufficient, inconsistent, or of doubtful credibility.’” United States v. Sotelo-Murillo, 23 887 F.2d 176, 178 (9th Cir. 1989) (quoting United States v. Yarbrough, 852 F.2d 24 1522, 1541 (9th Cir. 1988)); accord Beardslee v. Woodford, 358 F.3d 560, 577 25 (9th Cir. 2004) (citing United States v. Scott, 789 F.2d 795 (9th Cir. 1986)) 26 (“Failure to instruct on the defense theory of the case is reversible error if the 27 theory is legally sound and evidence in the case makes it applicable.”); Mathews 28 v. United States, 485 U.S. 58, 63 (1988) (“As a general proposition a defendant is 1 entitled to an instruction as to any recognized defense for which there exists 2 evidence sufficient for a reasonable jury to find in his favor.”). 3 For state instructional error to rise to the level of a federal violation, a 4 petitioner must show it “‘so infected the entire trial that the resulting conviction 5 violates due process.’” McGuire, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 6 U.S. 141, 147 (1973)). Such alleged error “must be considered in the context of 7 the instructions as a whole and the trial record.” Id. (quoting Naughten, 414 U.S. 8 at 147). Additionally, because this claim involves an omitted instruction rather than 9 an erroneous one, Thinn bears an “especially heavy burden” to show prejudice 10 from the trial court’s decision. See Villafuerte v. Stewart, 111 F.3d 616, 624 11 (9th Cir. 1997) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (“‘[A]n 12 omission, or an incomplete instruction, is less likely to be prejudicial than a 13 misstatement of the law’ and, thus, a habeas petitioner whose claim involves a 14 failure to give a particular instruction bears an ‘especially heavy burden.’”). 15 In requesting self-defense instructions, trial defense counsel cited “red 16 marks” on Thinn’s chest as “evidence that there was some kind of physical 17 altercation,” and argued: “We don’t know exactly what it was, but I think that it’s 18 sufficient for a juror to draw a conclusion that a fight occurred and that Mr. Thinn 19 was acting in self-defense.” (Dkt. 8-2 at 628). Presently, Thinn similarly asserts 20 the red marks “suggest[ed] a physical struggle” and argues he “called for help . . 21 . which suggested [Thinn] had not initiated an attack intended to kill.” (Dkt. 1-2 22 at 15). While the Court agrees with Thinn’s first assertion that these red marks 23 would tend to suggest a physical altercation had occurred, such marks on their 24 own don’t indicate who was the aggressor or what precipitated any such struggle. 25 The trial court similarly and reasonably found as much. (See Dkt. 8-2 at 629 (“So 26 the question becomes this redness on his chest or his back, there’s no evidence 27 of where that came from. . . . [I]t’s not inconsistent . . . that someone was strangled 28 from behind. . . . [However,] [i]t doesn’t show a fight. It may show a physical 1 altercation, depending on how you want to define that, but it doesn’t show a fight 2 that rises to a level of self-defense.”)). 3 Thinn’s latter assertion indeed appears hypothetical at best, as Thinn 4 summoning assistance after strangling his cellmate does nothing to suggest that 5 it was his cellmate, and not Thinn, who initiated the altercation. It might just have 6 easily been Thinn who started the altercation, overwhelmed the victim, strangled 7 him, and afterwards summoned help as either an act of remorse or because the 8 altercation had gone further than Thinn had intended. Thinn also points to 9 evidence introduced at trial as to “Petitioner’s vulnerability,” that “the jail was 10 generally segregated by race,” that Thinn was white and his two cellmates were 11 black, and “that a deputy who worked at the jail found this fact remarkable.” 12 (Dkt. 1-2 at 16). The conclusions Thinn attempts to draw from this evidence are 13 again tenuous, as that evidence at best only shows Thinn was perhaps housed in 14 an atypical manner but does nothing to show race played any part in the killing 15 nor that the incident was precipitated by the victim. Without any evidence 16 whatsoever about what took place in the cell, Thinn’s arguments and suggestions 17 are simply speculative. 18 Thinn contends the asserted instructional error “lessened” the prosecution’s 19 “burden of proving beyond a reasonable doubt that the killing was not justified.” 20 (Id. at 17). However, the jurors were properly and thoroughly instructed on the 21 prosecution’s burden of proof, Thinn’s presumption of innocence, and on 22 reasonable doubt. (See Dkt. 8-2 at 813). Of specific relevance to Thinn’s 23 contentions, the trial court also instructed the jurors on the consideration of 24 circumstantial evidence and instructed that if two reasonable conclusions could 25 be drawn from such evidence, they “must accept the one that points to innocence.” 26 (See id. at 815–16). 27 Finally, the jurors were also instructed on the elements of the charged 28 crime, including that the prosecution was required to prove malice aforethought to 1 prove Thinn was guilty of either first-degree or second-degree murder. (See id. 2 at 822–24). The jurors were expressly instructed that proof of either express 3 malice or implied malice was required to establish malice aforethought to prove 4 murder and that: 5 The defendant acted with express malice if he unlawfully intended to kill. The defendant acted with 6 implied malice if, 1, he intentionally committed an act; 2, 7 the natural and probable consequence of the act were dangerous to human life; 3, at the time he acted, he knew 8 this act was dangerous to human life; and 4, he deliberately 9 acted with conscious disregard for human life. 10 (id. at 822–23 (emphasis added)); see also Dkt. 5-2 at 92). The trial court also 11 instructed the jurors: “The defendant is guilty of first-degree murder if the People 12 have proved that he acted willfully, deliberately, and with premeditation,” 13 discussed and defined each of those terms, and directed: “The People have the 14 burden of proving beyond a reasonable doubt that the killing was first-degree 15 murder rather than a lesser crime. If the People have not met this burden, you 16 must find the defendant not guilty of first-degree murder and the murder is second 17 degree.” (Dkt. 8-2 at 823–24; see also Dkt. 5-2 at 93). 18 In the present case, given there was no record evidence introduced as to 19 what occurred in the cell at the time the victim was killed, Thinn fails to show the 20 state court acted unreasonably in rejecting Thinn’s claim of error arising from the 21 trial court’s refusal to instruct the jurors on perfect or imperfect self-defense. See 22 Mathews, 485 U.S. at 63; see also Beardslee, 358 F.3d at 577; Sotelo-Murillo, 23 887 F.2d at 178. Additionally, because the jurors were properly instructed on the 24 burden of proof, reasonable doubt, and the elements of the charged crimes, and 25 considering the asserted error with respect to the trial record and entire 26 complement of jury instructions, Thinn hasn’t shown the instructional error 27 lessened the prosecution’s burden of proof and fails to bear the “especially heavy 28 burden,” Villafuerte, 111 F.3d at 624 (quoting Kibbe, 431 U.S. at 155), of 1 demonstrating that the absence of the requested instructions “so infected the 2 entire trial that the resulting conviction violates due process,” McGuire, 502 U.S. 3 at 72 (quoting Naughten, 414 U.S. at 147). 4 Because Thinn fails to show the state court rejection of this claim was either 5 contrary to, or an unreasonable application of, clearly established federal law or 6 that it was based on an unreasonable determination of the facts, Claim Two 7 doesn’t merit federal habeas relief. To the extent Thinn requests an evidentiary 8 hearing on this claim, the Court’s conclusion habeas relief isn’t warranted based 9 on a review of the record renders an evidentiary hearing unnecessary. See Totten, 10 137 F.3d at 1176. 11 C. Claim Three 12 Finally, Thinn asserts the cumulative effect of the errors identified in Claims 13 One and Two deprived Petitioner of his federal right to due process and a fair trial 14 in violation of the Fifth, Sixth, and Fourteenth Amendments. (Dkt. 1-2 at 17). 15 The California Court of Appeal rejected this claim in a reasoned decision as 16 follows: 17 Thinn argues that the cumulative effect of the court’s evidentiary and instructional errors deprived him of due 18 process. Having rejected both claims of error, “there is no 19 cumulative prejudice to evaluate.” (People v. Lopez (2018) 5 Cal.5th 339, 371.) 20 21 (Dkt. 5-18 at 17). 22 “The cumulative effect of multiple errors can violate due process even where 23 no single error rises to the level of a constitutional violation or would independently 24 warrant reversal.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing 25 Chambers v. Mississippi, 410 U.S. 284, 290 n.3 (1973)); see also Killian v. Poole, 26 282 F.3d 1204, 1211 (9th Cir. 2002) (quoting United States v. de Cruz, 82 F.3d 27 856, 868 (9th Cir. 1996)) (“[E]ven if no single error were prejudicial, where there 28 are several substantial errors, ‘their cumulative effect may nevertheless be so 1 prejudicial as to require reversal.’”). 2 Because Thinn fails to state a claim of error as to either of the two claims 3 presented in the Petition, the Court finds no possibility of cumulative error. 4 Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (“Because there is no 5 single constitutional error in this case, there is nothing to accumulate to a level of 6 a constitutional violation.”). The Court thus can’t conclude the state court rejection 7 of this claim was either contrary to, or an unreasonable application of, clearly 8 established federal law or that it was based on an unreasonable determination of 9 the facts. Claim Three doesn’t merit habeas relief. To the extent Thinn requests 10 an evidentiary hearing on this claim, the Court’s conclusion habeas relief isn’t 11 warranted based on a review of the record renders an evidentiary hearing 12 unnecessary. See Totten, 137 F.3d at 1176. Thinn’s Petition is DENIED. 13 VI. CERTIFICATE OF APPEALABILITY 14 “The district court must issue or deny a certificate of appealability when it 15 enters a final order adverse to the applicant.” 28 U.S.C. § 2254, Rule 11(a). “A 16 certificate of appealability should issue if ‘reasonable jurists could debate whether’ 17 (1) the district court’s assessment of the claim was debatable or wrong; or (2) the 18 issue presented is ‘adequate to deserve encouragement to proceed further.’” 19 Shoemaker v. Taylor, 730 F.3d 778, 790 (9th Cir. 2013) (quoting Slack v. 20 McDaniel, 529 U.S. 473, 484 (2000)). The Court finds issuing a certificate of 21 appealability isn’t appropriate in this instance because reasonable jurists wouldn’t 22 find debatable or incorrect the Court’s conclusion that none of Petitioner’s three 23 claims warrant federal habeas relief nor does the Court find any of the issues 24 presented deserve encouragement to proceed further. See 28 U.S.C. § 2253(c); 25 Slack, 529 U.S. at 484. A certificate of appealability is DENIED. 26 // 27 // 28 // 1 CONCLUSION 2 For the reasons discussed, the Court DENIES Thinn’s Petition for a Writ of 3 || Habeas Corpus and DENIES a certificate of appealability. 4 IT IS SO ORDERED. 5 6 ||Dated: April 19, 2024 l 4A. Ws WY Hon. Larry Alan Burns 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28