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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 MICHAEL DUNN, Case No. 2:21-cv-2103-CJC (MAR) 11 Petitioner, 12 v. FINAL REPORT AND 13 RECOMMENDATION OF UNITED

MONTGOMERY, STATES MAGISTRATE JUDGE

14 Respondent. 15

16 17 18 This Final1 Report and Recommendation is submitted to the Honorable 19 Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. § 636 and 20 General Order 05-07 of the United States District Court for the Central District of 21 California. 22 I. 23 SUMMARY OF RECOMMENDATION 24 Petitioner Michael Dunn (“Petitioner”) has filed a pro se Petition for Writ of 25 Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. 26 § 2254 (“section 2254”), challenging his 2015 state conviction for second-degree 27 1 murder. ECF Docket No. (“Dkt.”) 1. Petitioner asserts multiple claims of 2 instructional error and challenges the exclusion of evidence. 3 Because Petitioner’s claims fail on their merits, the Court recommends 4 DENYING the Petition. 5 II. 6 PROCEDURAL HISTORY 7 A. STATE COURT PROCEEDINGS 8 On March 23, 2015, following a jury trial with co-defendant Julius Harris in the 9 Los Angeles County Superior Court, Petitioner was convicted of second-degree 10 murder (Cal. Pen. Code § 187(a)). CT2 at 29, 75–76; RT3 at 4807–08.4 The jury also 11 found true that Petitioner both personally used a firearm, and personally and 12 intentionally discharged a firearm, but found not true that he personally and 13 intentionally discharged a firearm causing great bodily injury (Cal. Pen. Code 14 § 12022.53(b), (c), (d) & (e)(1)). CT at 29, 75–76; RT at 4808–09, 5704. Finally, the 15 jury found true the allegation that the crime was committed for the benefit of, at the 16 direction of, or in association with a criminal street gang (Cal. Pen. Code § 17 186.22(b))5. CT at 29, 76; RT at 4809. 18 2 The Court takes judicial notice of the documents lodged by Respondent in other cases that are 19 relevant here. See Fed. R. Evid. 201(b)(2); United States v. Raygoza-Garcia, 902 F.3d 994, 999 n.2, 20 1001 (9th Cir. 2018) (a court may take judicial notice of undisputed matters of public record, which may include court records and dockets available online). The Clerk’s Transcript cited here, from 21 Petitioner’s second appeal, was lodged in conjunction with Respondent’s motion to dismiss Petitioner’s prior federal habeas petition. See Dunn v. Montgomery, No. 2:19-cv-08059-CJC (JEM), 22 Dkt. 8–1. Respondent identified the documents in that lodgment as follows: A. Clerk’s Transcript, One Volume (excluding confidential probation report at pages 9 through 23 25), Lodg. A (“CT”) 24 B. Docket for California Court of Appeal case number 300289 (“Lodg. B”) 3 The Reporter’s Transcript was lodged in conjunction with Respondent’s Answer filed in Harris’s 25 federal habeas proceedings. See Harris v. Gastelo, No. 2:19-cv-07052-CJC (JEM), Dkts. 20–3, 20–4. Respondent identified the document as: 21. Reporter’s Transcript, 15 Volumes (“RT”) 26 4 The Court’s citations to the RT and CT are to the pagination in those respective transcripts. All 27 other citations to electronically filed documents refer to the CM/ECF pagination. 5 1 On July 1, 2015, Petitioner admitted that he had one (1) prior serious or violent 2 felony conviction (Cal. Pen. Code § 667(a)(1)), three (3) prior convictions for which a 3 prison term was served (Id., § 667.5(b)), and a prior strike conviction (Id., §§ 667(d), 4 1170.12(b)). RT at 6001–03. That same day, the court sentenced him to prison for a 5 term of fifty-eight (58) years to life.6 RT at 6007; CT at 26, 29. 6 Petitioner and Harris appealed their convictions to the California Court of 7 Appeal. Lodgs. 2–6.7 On October 27, 2017, the appellate court concluded that one 8 (1) of Petitioner’s prior prison term enhancements should be stayed and that he was 9 entitled to an extra day of custody credit. Lodg. 1; People v. Harris, No. B266099, 10 2017 WL 4857007 (Cal. Ct. App. Oct. 27, 2019).8 The judgment in Petitioner’s case 11 6 Harris, who was not charged with any prior-conviction allegations, was sentenced to forty-five (45) 12 years to life. RT at 5704; CT at 1–13. 13 7 The remaining numerically identified lodgments were lodged in conjunction with Respondent’s Motion to Dismiss filed in Harris’s federal habeas proceedings. Harris v. Gastelo, No. 2:19-cv- 14 07052-CJC (JEM), Dkts. 8–9. Respondent identified the documents in that lodgment as follows: 1. California Court of Appeal Opinion filed on October 27, 2017 (“Lodg. 1”) 15 2. [Harris]’s Opening Brief (“Lodg. 2”) 16 3. [Petitioner]’s Opening Brief (“Lodg. 3”) 4. Respondent’s Brief (“Lodg. 4”) 17 5. [Harris]’s Reply Brief (“Lodg. 5”) 6. [Petitioner]’s Reply Brief (“Lodg. 6”) 18 7. [Harris]’s Petition for Rehearing (“Lodg. 7”) 8. [Petitioner]’s Petition for Rehearing (“Lodg. 8”) 19 9. Docket for California Court of Appeal Case number B266099 (“Lodg. 9”) 10. [Harris]’s Petition for Review in California Supreme Court case number S245621 (“Lodg. 20 10”) 21 11. [Petitioner]’s Petition for Review in California Supreme Court Case number S245621 (“Lodg. 11”) 22 12. Order Granting Petition for Review in California Supreme Court Case number 245621 (“Lodg. 12”) 23 13. [Harris]’s Supplemental Opening Brief (“Lodg. 13”) 14. [Petitioner]’s Supplemental Opening Brief (“Lodg. 14”) 24 15. California Court of Appeal Opinion filed on April 26, 2018 (“Lodg. 15”) 25 16. [Harris]’s Petition for Review in California Supreme Court case number S248979 (“Lodg. 16”) 26 17. [Petitioner]’s Petition for Review in California Supreme Court case number S248979 (“Lodg. 16”) 27 18. Review Denial Order for California Supreme Court case number S248979 8 1 was affirmed in all other respects. Harris, 2017 WL 4857007, at *1, *12. Harris’s 2 judgment was affirmed in full. Id. 3 Petitioner and Harris petitioned for review of the California Court of Appeal’s 4 decision in the California Supreme Court. Lodgs. 10–11. On January 31, 2018, the 5 state supreme court granted review and transferred the matter to the appellate court 6 to reconsider the judgments in light of California Senate Bill 620, which took effect 7 January 1, 2018, and gave trial courts discretion to strike certain firearm 8 enhancements. Lodg. 12. 9 Petitioner and Harris filed supplemental briefs in the Court of Appeal. Lodgs. 10 13–14. On April 26, 2018, the appellate court again affirmed both judgments of 11 conviction, but it remanded to the Superior Court for reconsideration of their 12 sentences in light of Senate Bill 620, and for correction of Petitioner’s sentence as 13 previously directed. Lodg. 15; People v. Harris, No. B266099, 2018 WL 1960474 14 (Cal. Ct. App. Apr. 26, 2018). Petitioner and Harris again filed petitions for review in 15 the California Supreme Court, which were summarily denied on August 8, 2018. 16 Lodg. 16–18. 17 On September 27, 2018, the Superior Court stayed one (1) of Petitioner’s one- 18 year prior prison term enhancements (Cal. Pen. Code § 667.5(b)) and modified his 19 credits, but it declined to strike the firearm enhancement under Senate Bill 620. CT at 20 31–32. The court then resentenced Petitioner to prison for a term of fifty-seven (57) 21 years to life. CT at 33. 22 On December 17, 2018, Petitioner filed a habeas petition in the Superior Court. 23 Lodg. C.9 The petition was denied on January 11, 2019, in a reasoned order. Lodg. 24 D. 25 9 The remaining alphabetically identified lodgments were lodged in conjunction with Respondent’s 26 Answer filed in this case. Respondent identifies the documents in that lodgment as follows: 27 C. Habeas Corpus Petition, Los Angeles County Superior Court (“Lodg. C”) D. Minute Order, Los Angeles County Superior Court (“Lodg. D”) 1 On February 19, 2019, Petitioner filed a habeas petition in the California Court 2 of Appeal. Lodg. E. The petition was summarily denied on March 8, 2019. Lodg. F. 3 On March 29, 2019, Petitioner filed a form10 petition for resentencing under 4 California Penal Code section 1170.9511 in the Superior Court. CT at 35–37. The 5 resentencing petition was denied on July 22, 2019, in a reasoned order. CT at 202–03. 6 While his petition for resentencing was pending, on May 16, 2019, Petitioner 7 filed a habeas corpus petition in the California Supreme Court. Lodg. G. The state 8 supreme court denied the petition on July 31, 2019, with citation to In re Dixon, 41 9 Cal. 2d 756, 759 (1953) and a parenthetical explaining “courts will not entertain 10 habeas corpus claims that could have been, but were not, raised on appeal.” Lodg. H. 11 On August 2, 2019, Petitioner filed a notice of appeal from the denial of his 12 petition for resentencing under California Penal Code section 1170.95. CT at 204. 13 B. PRIOR FEDERAL HABEAS PROCEEDINGS 14 On September 18, 2019, Petitioner filed his first federal habeas Petition in this 15 Court. Dunn v. Montgomery, No. 2:19-cv-08059-CJC (JEM), Dkt. 1. On November 16 7, 2019, Respondent moved to dismiss the federal petition on abstention grounds. Id. 17 at Dkt. 7. On May 4, 2020, the assigned magistrate judge issued a Report and 18 Recommendation recommending that the motion be granted. Id. at Dkt. 20; Dunn v. 19 Montgomery, 2020 WL 3065427 (C.D. Cal. May 4, 2020). On June 8, 2020, the 20 G. Habeas Corpus Petition, California Supreme Court case number S255844 (“Lodg. G”) 21 H. Electronic Docket, California Supreme Court case number S255844 (“Lodg. H”)

I. Opening Brief, California Court of Appeal case number B300289 (“Lodg. I”)

22 J. Opinion, California Court of Appeal case number B300289 (“Lodg. J”) 23 K. Habeas Corpus Petition, California Supreme Court case number S266008 (“Lodg. K”) L. Habeas Denial Order, California Supreme Court case number S266008 (“Lodg. L”) 24 10 The resentencing petition was a downloadable form petition/declaration prepared by Re: Store Justice (www.restorecal.org) a cosponsor of California Senate Bill No. 1437 legislation. See People 25 v. Edwards, 48 Cal. App. 5th 666, 670 (2020). 26 11 Senate Bill 1437 amended California Penal Code sections 188 and 189 to reduce accomplice liability for felony murder where the accomplice did not commit the act that killed the victim. 27 Senate Bill 1437 also added California Penal Code section 1170.95, which provides a procedure by 1 district court accepted the findings and recommendations of the magistrate judge, 2 granted the motion to dismiss, and entered judgment dismissing the action without 3 prejudice. Dunn v. Montgomery, 2020 WL 3065099 (C.D. Cal. June 8, 2020). On 4 August 13, 2020, after Petitioner’s appellate counsel filed a Wende12 brief indicating 5 there were no non-frivolous issues to raise, the California Court of Appeal affirmed 6 the trial court’s post-judgment order denying resentencing. Lodgs. I, J; People v. 7 Dunn, B300289, 2020 WL 4691737 (Cal. Ct. App. Aug. 13, 2020). 8 On December 8, 2020, Petitioner filed a habeas petition in the California 9 Supreme Court. Lodg. K. The petition was denied on February 17, 2021. Lodg. L; 10 Dkt. 1 at 41. The court cited In re Clark, 5 Cal. 4th 750, 767–69 (1993) with a 11 parenthetical explaining “courts will not entertain habeas corpus claims that are 12 successive,” and Dixon, 41 Cal. 2d at 759, with a parenthetical explaining “courts will 13 not entertain habeas corpus claims that could have been, but were not, raised on 14 appeal.” Lodg. L; Dkt. 1 at 41. 15 B. INSTANT FEDERAL HABEAS PETITION 16 On March 5, 2021, Petitioner filed the instant Petition in this Court challenging 17 his conviction. Dkt 1.13 On May 6, 2021, Respondent filed an Answer. Dkt. 11. On 18 May 19, 2021, Petitioner filed a Reply. Dkt. 14. 19 On August 30, 2021, the Court issued a Report and Recommendation denying 20 the Petition. Dkt. 16. On September 17, 2021 Respondent filed Objections to the 21 Report and Recommendation. Dkt. 17. Petitioner has not filed a response. The 22 Court issues this Final Report and Recommendation addressing Respondent’s 23 Objections in footnotes 31 and 37. 24 12 People v. Wende, 25 Cal. 3d 436 (1979). 25 13 As noted, Harris also challenged his conviction in federal habeas proceedings. Harris v. Gastelo, 26 No. 2:19-cv-07052-CJC (JEM), Dkt. 1. On November 25, 2020, the assigned magistrate judge issued a Report and Recommendation recommending this Court deny Harris’s first amended 27 petition on the merits. Id. at 22; Harris v. Gastelo, 2020 WL 7890673 (C.D. Cal. Nov. 25, 2020). 1 The matter thus stands submitted. 2 III. 3 SUMMARY OF FACTS 4 For a summary of the facts, this Court relies on the California Court of 5 Appeal’s opinion as those facts pertain to Petitioner’s claims:14

6 A. Background 7 Isaac “Ike” Gaston, Champagne Gaston, Izell Gaston, Frank Gaston and 8 Keon Easley[15] were all siblings who lived together in an apartment in 9 Compton, California, apartment G. The apartment was a two-story unit with a fenced and gated patio. Directly inside the front door was a living 10 room area. An internal staircase to the second floor was on the far wall 11 across from the front door. A small bathroom was located in the far corner, near the staircase. The apartment complex was in the territory of 12 the Nutty Blocc Crip gang. Ike was a member of the gang. Izell, 13 Champagne, Frank and Keon were all affiliated with the gang.

14 Harris, [Petitioner] and Grissett were all members of the Nutty Blocc 15 gang. Champagne had known Harris and Grissett since childhood. Harris’s moniker was Ju-Ju; Grissett’s moniker was Chop-Chop.[16] 16 Champagne was also close with Jazzmine Harris, a blood relative of 17 Harris.[17] Izell had also known [Petitioner] for about 10 years; [Petitioner]’s moniker was “Mike Dog.” 18

19 B. The Shooting 20 On March 9, 2014, Champagne threw a party with Harris at the Gaston 21 family apartment to celebrate the birthday of a friend of Harris, pay off 22 14 The California Court of Appeal provided what appears to be identical factual summaries in 23 Petitioner’s first two appeals, and a procedural summary, but no factual summary, in Petitioner’s 24 third appeal. See Harris, 2017 WL 4857007, at *2–*6; Harris, 2018 WL 1960474, at *2–*6; Dunn, 2020 WL 4691737, at *1–2. The first appeal was vacated when the state supreme court granted 25 review. After an independent review of the trial record, the undersigned finds the summary in Petitioner’s second appeal generally accurate. Certain instances of conflicting testimony are noted 26 where it is relevant to Petitioner’s claims. 27 15 To avoid confusion, the siblings will be referred to by their first names. 16 bills, and raise money for the Gaston family to move. Over 100 people 1 attended the party, including members of the Nutty Blocc and Santana 2 Blocc gangs. Many of the Gaston siblings were present, including Ike, Izell, Frank and Keon. Many of Harris’s relatives and friends attended, 3 including his brothers Darryl, Derrell, Darnell, sisters Darnesha and 4 Samiaa, a cousin, and friends Rita Richardson and Jazmin Lopez.

5 The party was disrupted when Grissett started scaring people by stating 6 he was going to shoot up the party. Champagne told him to stop. Later, Grissett began disparaging other gangs saying “f[uck] different gangs,” 7 “f[uck] Fronthood” and Santana gangs.[18] At this point, Champagne told 8 Grissett she was cancelling the party and she began yelling “the party’s over,” “everybody . . . go home.” She told Harris she was shutting down 9 the party. Harris told Champagne they were “going to shut down 10 nothing,” and told Ike “you better tell [Champagne] she ain’t shutting down nothing.” 11

12 The verbal dispute escalated into a series of physical altercations, culminating in a gun battle. The first physical confrontation occurred at 13 the apartment’s gated patio. When Harris blocked Champagne’s entry 14 through the patio gate, she pushed him to enter. Then, as Champagne went into the apartment, Harris and Ike began fighting on the patio. 15 Harris threw the first punch at Ike and missed; Ike then punched Harris, 16 knocking Harris to the ground. The fight turned into a melee, with five to six Nutty Blocc affiliates, including Grissett, joining the attack on Ike. 17 Grissett escalated the fight by swinging a knife, stabbing Ike. Frank 18 attempted to defend his brother Ike by pushing the attackers away. After the fight on the outside patio, Ike was woozy, stumbling and bleeding 19 heavily from his head. His brothers and cousins carried him into the 20 apartment.

21 The second physical confrontation ensued inside the apartment. Harris 22 challenged Ike to fight again by stating “you got to catch my fade again.” Harris accused Ike of stabbing him, and lifted his arm to show a bleeding 23 cut. For the first time in the incident, a gun appeared. In his hand, Ike 24 held a gun pointing up, and he began waving it in a circular motion.[19] Keon tried, without success, to take the gun away from Ike; Champagne 25

26 18 The People’s gang expert testified that the Fronthood and Santana gangs were not Nutty Blocc’s enemies. 27 19 Keon recalled seeing Ike holding a .44-caliber revolver before Ike was carried to the stairs and ran up the stairs and called the police. After the verbal challenge, another 1 physical fight broke out in the living room involving Harris, his brothers 2 and Grissett, battling Ike’s brothers Izell and Keon. Grissett again swung a knife, cutting Izell above his right elbow. Izell and Frank were able to 3 push Ike halfway up the internal staircase, away from the fight. Ike was 4 bleeding profusely and semi-conscious. Frank forced some of the partygoers out of the apartment, including Harris and Grissett, and locked 5 the door. 6 The quarrel did not end. [Petitioner], another Nutty Blocc gang member, 7 joined the conflict for the first time. When [Petitioner] yelled20 from 8 outside the apartment, “Jazzmine, open the door, [bitch],” Jazzmine [Harris’s relative] opened the door. [Petitioner] and then Harris entered 9 and each fired multiple shots, [Petitioner] shooting first,21 towards the 10 staircase bearing Ike and his siblings Izell, Champagne, Keon and Frank. None of the siblings shot back. Ike was shot in the chest and front 11 shoulder; the chest shot was fatal. 12 C. The Investigation 13 14 The night of the shooting, witnesses and bystanders were uncooperative with law enforcement. Ike’s family members did not immediately tell law 15 enforcement what they knew about the shooting because they did not 16 want to be snitches or were scared for their lives. Indeed, Keon talked to the police at the hospital after the shooting but lied about his name and 17 birthday because he was nervous and scared. That same night, Izell went 18 with the police to the station but did not cooperate or identify the shooters because the shooters were active gang members and he thought he and 19 his family could get hurt.

20 21 22 23 24 20 Petitioner does not concede that he was the person who yelled from outside the apartment. Dkt. 25 1 at 14 (“… when Dunn allegedly knockd [sic] on the front door and demanded entry”), 15 (“Someone, perhaps Dunn, knocked on the front door and asked Jazzmine … to open the door”). 26 While Champagne, Keon, and Izell all testified that they recognized Petitioner as the speaker, RT at 27 1027, 1324, 1705, Frank did not recognize the speaker’s voice, RT at 2244. 21 1 Forensic evidence suggested a “gun battle.”[22] The ballistic evidence was consistent with two people standing at or near the front door of apartment 2 G, shooting into the apartment, one shooting a nine-millimeter handgun, 3 the other a .32-caliber handgun.[23] Additional spent casing, bullet and bullet fragments found on the patio outside the fence suggested that 4 someone shot a nine-millimeter handgun from the walkway towards 5 apartment G.[24] The evidence was also consistent with another shooter firing a revolver from inside the apartment from an area near the front 6 bathroom, using a cabinet as cover and firing towards the front door.[25] 7 Finally, a bag of .44-caliber Smith & Wesson Special live rounds, and a single live round were found at the bottom of the stairs, and a holster for 8 a large frame revolver was found in the upstairs bedroom. 9 The criminalist that examined the ballistic evidence from the crime scene 10 and the bullet recovered from Ike’s body opined that all three 9-millimeter 11 casings marked R.P., were Remington Peters brand, and had been fired from the same firearm; all three .32-caliber cartridge cases stamped C.B.C., 12 were Magtech brand, and had been fired from a second gun; the bullet 13 fragments recovered from the exterior crime scene were all nine- millimeter luger caliber, and had been fired from the same gun (although 14 he could not determine whether that was the same gun that had fired the 15 nine-millimeter bullets or the gun that had fired the .32-caliber bullets). The bullet extracted from Ike’s body was a .32-caliber bullet. 16

17 Harris was arrested on March 31, 2014 at an apartment in Compton, and Grissett was later arrested on June 5, 2014 at same location. On June 5, 18

19 22 Blood was found on the patio, inside the apartment near the front door, on the landing area, on the stair railing, on the wall coming down the stairs, the upstairs hallway, and in the living room; the 20 highest concentration of blood was on the stairs. 21 23 Ballistic evidence was found around and inside the apartment. One .32-caliber shell casing stamped C.B.C. was located in front of the front door across from apartment G, two more .32- 22 caliber C.B.C. shell casings were just inside the front door, and two 9-millimeter R.P. shell casings 23 were in the apartment, one under the front door. 24 Ballistic evidence was found outside apartment G. A spent nine-millimeter R.P. casing was 24 located on the sidewalk in front of a nearby apartment; impact marks suggested that the shooter had 25 been standing near the casing, and was firing towards apartment G. Another spent projectile that had struck the sidewalk suggested an additional bullet travelling towards apartment G. A bullet 26 lodged in a fence surrounding the patio, suggested another bullet travelling towards apartment G. Three additional bullet strikes and three holes in the fence suggested at least three more bullets fired 27 towards apartment G. the police recovered a box of ammunition stamped “R.P.” and Grissett’s 1 identification at that apartment. When [Petitioner] was arrested on June 2 5, police seized gang-related items, namely, a hat, jacket and shirt bearing the Yankees insignia, and a phone book with gang monikers. 3

4 D. Gang Evidence 5 Los Angeles County Sheriff’s Detective Scott Lawler testified as a gang 6 expert, and described the Nutty Blocc Crips as a gang with 230–240 members, engaged in gun possession, shootings, narcotics sales, and 7 witness intimidation. Their common color is blue and they identify themselves with New York Yankees merchandise, and the letters “NY.” 8 There is a hierarchy of gang members. [Petitioner] is a high-ranking Nutty 9 Blocc member; Harris and Grissett are members.[26] 10 Fear and respect are important concepts in gang culture. Gangs must be 11 feared by rival gang members and instill fear in the community to operate 12 as a gang. If a gang member is disrespected, this would be seen as weakness, thus a disrespected gang member would be expected to retaliate 13 in a more aggressive manner: if “he was slapped, he’d have to punch; if he was punched, he’d have to stab; if he was stabbed, he’d have to shoot.” 14 Shooting and killing someone who disrespected a gang member would be 15 considered “putting in work for the gang” and would earn respect among fellow gang members. A shooting of a fellow gang member who had acted 16 disrespectfully would benefit the individual shooter by raising his status 17 within the gang by creating fear and respect, and would benefit the gang by instilling fear and respect by enemy gangs, recruiting youths to the gang, 18 and facilitating the expansion of the gang’s territory. 19 E. Harris’s Evidence 20

21 1. Forensic evidence 22 Criminalist Marc Scott Taylor, an expert on gunshot residue (GSR), 23 examined GSR collected from Izell the night of the shooting, and found GSR on both hands, indicating that Izell either fired a weapon, was in the 24 vicinity of a fired weapon, or came in contact with another source of GSR. Taylor also reviewed the coroner’s findings regarding Ike and concluded 25 the particles recovered from Ike’s hands very likely came from a gunshot. 26 27 26 Taylor explained the production of GSR. When a gun is fired, the 1 chemicals in the primer explode in a puff of smoke, dispersing tiny 2 particles, which are deposited on the hands of the shooter and nearby objects and people. It can also be transferred to a person touching the 3 gun fired or touching the gunshot wound, or touching a wall with a bullet 4 strike. GSR dissipates over time, normally lasting no more than five to seven hours. 5

6 GSR is more likely to get on another person in a confined place. If multiple guns are being fired in a room, GSR may be deposited on a 7 person standing within five feet of a shooter. The presence of GSR does 8 not indicate who fired first.

9 2. Ballistic evidence 10 Bullet strikes were found on a building across the courtyard from the 11 Gaston residence. Theoretically, if someone was shooting from inside the Gaston residence, they could have fired those shots, “shooting high and 12 wild.” 13 3. Harris’s testimony 14 15 Harris testified. He grew up in the Nutty Blocc area, and associated with the Nutty Bloccs since high school. He was not a member of the gang 16 and his tattoos were not gang-related. He had known [Petitioner] since 17 he was 10 years old and Grissett his whole life. He knew “Mike Dog” [Petitioner] and “Chop-Chop” Grissett as associates of Nutty Blocc. 18 Harris had known Champagne and Izell since high school; both were members of Nutty Blocc. He had previously met Ike at a party. 19

20 Champagne offered to host a party for Harris’s friend. Harris arrived at the party after 10:00 p.m. with his brothers Derrell and Darnell and a 21 cousin. A third brother Darryl arrived separately. Soon after Harris 22 arrived, he spoke to Ike who appeared “probably buzzed” and was not acting normally. The partygoers were a mixture of gang and non-gang 23 members. 24 Harris went outside to help Champagne with Grissett who had been 25 walking around “banging on people.” Champagne was yelling that she 26 wanted to shut down the party. Ike came outside and argued with Champagne about shutting the party down before he had made money 27 back for the drinks and food purchased for the party. A fight began on gonna fight.” Ike hit Harris in the back of the head; Harris turned around 1 and shoved Ike against the wall. Ike bit Harris on his right shoulder. 2 When Harris tried to yank away, he fell on his back and Ike, swinging, landed on top of Harris. He did not see Grissett with a knife, did not 3 know whether Grissett joined the fight and could not tell if Ike was 4 bleeding. Ike was pulled off Harris and Ike said that he was going to get his gun. Harris got up and told his cousin and some other women to leave 5 because Ike was getting a gun. 6 Harris left, but returned to the party to look for his brothers. He walked 7 into the dimly[ ]lit apartment through an open door, and saw Ike, in the 8 middle of the stairway with one of his brothers, and a group of people at the bottom of the stairs. When Ike began waving a long revolver, Harris 9 ran toward the dining area. Gunshots went off from the living room area, 10 by the stairs. Harris could not tell if Ike was firing his gun, whether anyone in the bathroom area at the base of the stairs was firing a gun, or the path 11 of the bullets. Also, Harris did not see [Petitioner] that night. Harris 12 denied that there was a second fight inside the living room and ever telling Ike “‘I want to catch your fade.’” Harris also denied possessing, pointing 13 or firing a handgun at the party. 14 After the gunshots stopped, Harris waited a few seconds, ran towards the 15 gate, and saw his brother Darryl, with a gunshot wound to his right 16 shoulder, in the bushes next to the patio.

17 4. Partygoer’s evidence 18 Rita Richardson went to the party with Harris’s sister Darnesha, arriving 19 at about 8:00 p.m. At some point, there was a commotion, she and others ran inside the apartment, and the door was closed. As Rita was kneeling 20 in the corner near the bottom of the stairs, the door opened, some people 21 ran out, and the door was closed again. She then was pushed into a corner near a bathroom, the front door opened again, and a man, who she later 22 identified as Ike, came in waving a big gun, struggling to hold on to it. 23 Another man was trying to get the gun away. Ike fell onto her legs, the gun fell, and the man who had been trying to take the gun picked it up. 24 Harris was not in the residence at this time. Rita ran out of the house, and 25 saw Harris standing outside, shirtless. She heard a gunshot as she stood in front of another apartment, ran to the parking area, heard another 26 gunshot, jumped the complex fence, and then ran out of the complex to 27 the street. Harris and his brother, who was bleeding, were outside on the street. Darryl Slaughter, Harris’s brother, arrived at the party about 10:00 p.m. 1 While inside the apartment, he heard a commotion from the patio area, 2 went outside, heard yelling and then heard 12 to 15 gunshots. Panicking, he ran away from the party and was shot in the upper back. Darryl fell 3 into a bush and then Harris picked him up and carried him to the street. 4 That evening, Darryl never saw Harris with a gun or shooting, nor did he see [Petitioner] at the party or with a gun. 5

6 Harris’s friend, Jazmin Lopez, arrived at the party about 9:30 p.m. At some point when she was on the patio, she noticed a woman yelling about 7 a situation that had happened. No more than 15 minutes later, a man 8 pushed Harris, the two began a fistfight, and more than 10 people began fighting. She then left and sat in her parked car, and within 10 minutes 9 Harris walked out onto the street with his brother who had been shot. 10 Darnesha, Harris’s older sister, arrived at about 9:00 or 9:30 p.m. Inside, 11 she saw Izell dancing, armed with a gun in his waistband. She heard a 12 commotion outside, went outside where she saw Ike and Harris. She went back in, the front door closed, and then reopened, there was another 13 commotion, someone said “go” and she left. Once outside, around the 14 corner from the unit, she heard shots coming from an unknown direction and ran away. Harris was not with her at the time of the shooting. She 15 did not see [Petitioner] at the party. 16 Samiia Farris, Harris’s stepsister, arrived at about 10:00 p.m. About an 17 hour later, she saw a group of people fighting on the patio. She did not see Harris involved in the fight. As she ran out to the complex entrance, 18 she heard gunshots. Harris and Darryl were running a few feet behind. 19 She did not see [Petitioner] at the party.

20 F. [Petitioner]’s evidence 21 [Petitioner] called witnesses who impeached prosecution witnesses with 22 prior statements or challenged the adequacy of the police investigation. 23 1. Gunshot residue evidence 24 Debra Kowal, a criminalist with the Los Angeles County Coroner’s 25 Office, analyzed the GSR kit collected from Ike. She explained that when 26 a gun is discharged, particles are produced either made up of lead, barium and antimony (“three-component particles”), lead and barium or lead and 27 antimony (“two-component particles”), or just lead (a “single-component 1 particle”). She found several consistent particles[27] of GSR recovered from Ike’s right hand and “many” recovered from his left hand; 2 accordingly Ike may have discharged a firearm, or had his hands in the vicinity of a firearm that had been discharged or received the particles 3 from an environmental source. She would expect to find GSR around the 4 wound of a person shot by someone standing 20 feet away. In a 15.5-foot by 19-foot room where multiple guns had been fired, she would expect to 5 see GSR possibly “on everyone in a room that size.” Hypothetically, if 6 Ike had fired a .44-caliber handgun, she would expect to see combinations of all three components, two of the three components, or a single 7 component. Also, bagging hands is an appropriate way to preserve 8 evidence. She also examined Izell’s GSR kit and found particles characteristic of GSR. The positive GSR tests for Ike and Izell do not 9 necessarily mean that Ike or Izell had fired a weapon. 10 11 Harris, 2018 WL 1960474, at *2–*6. 12 IV. 13 PETITIONER’S CLAIMS FOR RELIEF 14 Petitioner presents the following five (5) claims: 15 1. The trial court erred by instructing the jury that a lawful occupant of a home 16 has the right to use deadly force to protect people and property from an 17 intruder (Claim One); 18 2. The trial court erred by instructing the jury that a person does not have a 19 right to self-defense if he provokes a fight or quarrel with the intent to create 20 an excuse to use force (Claim Two); 21 3. The trial court’s failure to instruct the jury with CALCRIM No. 522 violated 22 Petitioner’s constitutional right to have the jury fully instructed on all lesser- 23 included offenses (Claim Three); 24 25 26

27 27 A “consistent” particle of GSR would be one of the two-component particles, or a single- 1 4. The trial court violated Petitioner’s constitutional right to have the jury 2 instructed on lesser-included offenses when it failed to instruct the jury on 3 manslaughter based on a heat of passion (Claim Four); and 4 5. The trial court violated Petitioner’s constitutional rights when it denied his 5 request to call a toxicologist to prove the victim’s state of mind (Claim Five). 6 Dkts. 1 at 5–7, 11–26; 14 at 2–5. 7 Respondent contends Petitioner’s claims fail on their merits.28 Dkt. 11 at 2–3, 8 13–14, 18–28, 32–46. 9 V. 10 STANDARD OF REVIEW 11 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 12 a federal court may not grant habeas relief on a claim adjudicated on its merits in state 13 court unless the adjudication: 14 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 15 Supreme Court of the United States; or 16 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court 17 proceeding. 18 28 U.S.C. § 2254(d). 19 “Clearly established Federal law” for purposes of § 2254(d)(1) consists of “the 20 holdings, as opposed to the dicta, of th[e] [United States Supreme] Court’s decisions” 21 in existence at the time of the state court adjudication. Williams v. Taylor, 529 U.S. 22 362, 412 (2000). However, “circuit court precedent may be ‘persuasive’ in 23 demonstrating what law is ‘clearly established’ and whether a state court applied that 24 law unreasonably.” Maxwell v. Roe, 628 F.3d 486, 494 (9th Cir. 2010). 25 A state court decision rests on an “unreasonable application” of federal law for 26 purposes of § 2254(d)(1) where a state court identifies the correct governing rule, but 27 28 1 unreasonably applies that rule to the facts of the particular case. Andrews v. Davis, 2 944 F.3d 1092, 1107 (9th Cir. 2019) (citing Williams, 529 U.S. at 407–08). “It is not 3 enough that a federal habeas court concludes ‘in its independent judgment that the 4 relevant state-court decision applied clearly established federal law erroneously or 5 incorrectly.’” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 76 (2003)). “The state 6 court’s application of clearly established law must be objectively unreasonable.” 7 Lockyer, 538 U.S. at 75. 8 Overall, AEDPA established “a difficult to meet ... and highly deferential 9 standard for evaluating state-court rulings, which demands that state-court decisions 10 be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 11 (2011) (internal citation and quotation marks omitted). “That deference, however, 12 ‘does not by definition preclude relief.’” Andrews, 944 F.3d at 1107 (citing Miller-El 13 v. Cockrell, 537 U.S. 322, 340 (2003)). 14 Where the last state court disposition of a claim is a summary denial, this Court 15 must review the last reasoned state court decision addressing the merits of the claim 16 under AEDPA’s deferential standard of review. Maxwell, 628 F.3d at 495; see also 17 Berghuis v. Thompkins, 560 U.S. 370, 380 (2010); Ylst v. Nunnemaker, 501 U.S. 797, 18 803–04 (1991). 19 Here, the California Court of Appeal’s April 26, 2018 opinion on direct review 20 stands as the last reasoned decision with respect to Claim One. See Harris, 2018 WL 21 1960474, at *8–*10. Hence, that claim will be reviewed under AEDPA’s deferential 22 standard of review for claims “adjudicated on the merits.” 28 U.S.C. § 2254(d); 23 Harrington v. Richter, 562 U.S. 86, 99 (2011). 24 25 26 27 1 The California Supreme Court rejected Claims Two29 through Five30 on 2 procedural grounds only. Lodg. H, L. Accordingly, Respondent argues Claims Two 3 through Five are procedurally defaulted. Dkt. 11 at 2, 13, 28–32. However, because 4 Petitioner’s claims are easily resolved on the merits, while the procedural default 5 arguments are much more complex, in the interest of judicial economy, the Court 6 considers the claims on the merits rather than addressing the procedural default 7 issues.31 See Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Franklin v. Johnson, 290 8 F.3d 1223, 1232 (9th Cir. 2002). 9 10 11 29 Prior to the state supreme court’s rejection of Claim Two, the superior court denied habeas relief on that claim because the jury instruction at issue was a correct statement of the law, and for the 12 procedural reason that the claimed instructional error could have been, but was not raised on appeal. Lodg. D. Respondent contends the Court should apply AEDPA deference to the merits portion of 13 the trial court’s denial. Dkt. 11 at 13, 20. As further explained below, the Court will consider the trial court’s order, but, in an abundance of caution, will review the claim de novo. See Hicks v. 14 Covello, 2021 WL 2458784, *3 (C.D. Cal. Apr. 6, 2021) (declining to apply AEDPA deference to superior court decision denying claims both as procedurally barred and on the merits because 15 supreme court did not address merits of claims but instead rejected them on purely procedural 16 grounds). 30 Respondent agrees that de novo review of Claims Three through Five is appropriate. Dkt. 11 at 17 13, 20–21. 18 31 In their Objections, Respondent cites an unpublished Ninth Circuit case, John v. McEwen, 777 F. 19 App’x 193 (9th Cir. 2019), to argue that the Court must address the procedural default issue before issuing a Certificate of Appealability. Dkt. 17. at 2. Though John is not binding precedent, the 20 Court will briefly address procedural default out of an abundance of caution. Here, it is not clear that Petitioner’s claims are procedurally defaulted. When a state court 21 applies multiple procedural bars to multiple claims but does not indicate which procedural bar is 22 applied to which claim, there can be no procedural default in federal court unless every procedural bar cited constitutes an adequate and independent ground to preclude federal habeas review. 23 Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000). 24 Here, the California Supreme Court denied the state petition with two (2) citations: (1) In re Clark, 5 Cal. 4th 750, 767–69 (1993) (courts will not entertain habeas corpus claims that are 25 successive); and (2) In re Dixon, 41 Cal. 2d at 759 (courts will not entertain habeas corpus claims that could have been, but were not, raised on appeal). Lodg. L. 26 Respondent satisfied their burden with respect to the Dixon bar by citing to the Supreme 27 Court’s holding that the cited Dixon bar is adequate to bar federal review. Johnson v. Lee, 578 U.S. 605, 606 (2016). However, Respondent has failed to satisfy their burden with respect to the Clark 1 When employing this procedure, the federal habeas court reviews claims not 2 addressed on the merits de novo rather than applying AEDPA’s deferential standard 3 of review. Cone v. Bell, 556 U.S. 449, 472 (2009); Lewis v. Mayle, 391 F.3d 989, 996 4 (9th Cir. 2004). Under de novo review, the petitioner still bears the burden of 5 establishing that he is “in custody in violation of the Constitution or laws or treaties 6 of the United States.” 28 U.S.C. § 2254(a); Johnson v. Zerbst, 304 U.S. 458, 468–69 7 (1938). The Court will also review such claims, when appropriate, with reference to 8 the Court of Appeal’s decision and the trial court’s orders and rulings. See Cone, 556 9 U.S. at 472; Frantz v. Hazey, 533 F.3d 724, 737–39 (9th Cir. 2008) (en banc) (even 10 when a state court does not address a constitutional issue, where the reasoning of the 11 state court is relevant to resolution of the constitutional issue, that reasoning must be 12 part of a federal habeas court’s consideration); Williams v. Rhoades, 354 F.3d 1101, 13 1106 (9th Cir. 2004) (federal habeas court may consider reasoning of state trial court 14 where relevant to analysis); Gonzalez v. Johnson, 2020 WL 4808939, at*8 n.7 (C.D. 15 Cal. July 6, 2020) (de novo review is guided by Frantz); Williams v. Montgomery, 2018 16 WL 6184899, at *8 (C.D. Cal. Oct. 24, 2018) (under Frantz, “review is informed by 17 the California Court of Appeal’s decision, to the extent that the federal claim is tied to 18 that decision”). 19 VI. 20 DISCUSSION 21 A. JURY INSTRUCTION CLAIMS 22 In Petitioner’s first four (4) claims for relief, he alleges challenges to the jury 23 instructions given at trial, and to the trial court’s failure to give other instructions. 24 These claims are subject to the same general principles of federal habeas law. 25 /// 26 /// 27 1 1. Applicable law 2 To merit habeas relief based on an erroneous jury instruction, a petitioner must 3 show that “the ailing instruction by itself so infected the entire trial that the resulting 4 conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citation 5 omitted); see also Waddington v. Sarausad, 555 U.S. 179, 191 (2009); Henderson v. 6 Kibbe, 431 U.S. 145, 154 (1977). Instructional errors must be considered in the 7 context of the instructions as a whole and the trial record. McGuire, 502 U.S. at 72; 8 Cupp v. Naughten, 414 U.S. 141, 147 (1973). “Where the alleged error is the failure 9 to give an instruction the burden on petitioner is ‘especially heavy,’” Hendricks v. 10 Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992) (as amended) (quoting Kibbe, 431 U.S. 11 at 155), because “[a]n omission, or an incomplete instruction, is less likely to be 12 prejudicial than a misstatement of the law.” Kibbe, 431 U.S. at 155. Additionally, 13 habeas relief is warranted only where the error had “substantial and injurious effect or 14 influence in determining the jury’s verdict.” Hedgpeth v. Pulido, 555 U.S. 57, 58, 61– 15 62 (2008) (per curiam) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)); see 16 also Clark v. Brown, 450 F.3d 898, 905 (9th Cir. 2006) (as amended). 17 2. Claim One: right-to-eject-trespasser instruction 18 In Claim One, Petitioner contends that the trial court erred by instructing the 19 jury that a lawful occupant of a home has the right to use deadly force to protect 20 people and property from an intruder. Petitioner contends there was no factual basis 21 to support the instruction, and giving the instruction unfairly relieved the prosecution 22 of its burden of proving he did not act in self-defense or an unreasonable belief for 23 self-defense. He explains that he was “ever present” when the party stopped and he 24 paid to attend the party like everyone else, making him a “party goer and not an 25 ‘intruder.’” Petitioner references CALCRIM Nos. 3475 and 3476. Dkt. 1 at 5, 11–19; 26 Dkt. 14 at 2. 27 /// 1 a. Background and state court decision 2 The California Court of Appeal provided the following background regarding 3 Petitioner’s claim:

4 [. . .] The modified version of CALCRIM No. 3475 the trial court gave 5 the jury was phrased as follows: “The lawful occupant of a home may request that a trespasser leave the home. If the trespasser does not leave 6 within a reasonable time and it would appear to a reasonable person that 7 the trespasser poses a threat to the home or the occupants, the lawful occupant may use reasonable force to make the trespasser leave. [¶] 8 Reasonable force means the amount of force that a reasonable person in 9 the same situation would believe is necessary to make the trespasser leave. [¶] If the trespasser resists, the lawful occupant may increase the amount 10 of force he uses in proportion to the force used by the trespasser and the 11 threat the trespasser poses to the property. [¶] When deciding whether the lawful occupant used reasonable force, consider . . . what a reasonable 12 person in a similar situation with similar knowledge would have believed. 13 If the lawful occupant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The right of a lawful occupant to defend 14 himself and his property is a relevant consideration in determining 15 whether a defendant may prevail when he seeks to negate malice aforethought by asserting the affirmative defense of imperfect self- 16 defense. If the [ ] lawful occupant has a right to use force to defend 17 himself in his home, then [Petitioner] has no right of self-defense, imperfect or otherwise.” ([Emphasis] added.)[32] 18

19 The trial court further instructed with CALCRIM No. 3476: “The possessor of real property may use reasonable force to protect that 20 property from imminent harm. A person may also use reasonable force 21 to protect the property of a family member or guest from immediate harm. [¶] Reasonable force means the amount of force that a reasonable person 22

23 32 The court referenced People v. Watie (2002) 100 Cal.App.4th 866, 878 (cited in the use notes to CALCRIM No. 3475), to support the proposition that the right to defend one’s home may negate a 24 defendant’s claim of imperfect self-defense. Specifically, the trial court quoted “the right of a victim 25 to defend himself and his property is a relevant consideration in determining whether a defendant may prevail when he seeks to negate malice afore thought [sic ] by asserting the affirmative defense 26 of imperfect [self-]defense. [¶] If [the victim] had a right to use force to defend himself in his home, then defendant has [sic ] no right of self-defense, imperfect or otherwise. So that’s the 27 language I’m intending to put in based on the case[.]” ([Emphasis] added.) This language remains a in the same situation would believe is necessary to protect the property 1 from imminent harm. [¶] When deciding whether the possessor of real 2 property used reasonable force, consider all the circumstances as they were known to and appeared to him and consider what a reasonable 3 person in a similar situation with similar knowledge would have believed. 4 If the possessor of real property’s beliefs were reasonable, the danger does not need to have actually existed.” 5 6 Harris, 2018 WL 1960474, at *9. The state appellate court then rejected Petitioner’s claim as follows: 7

8 The trial court did not deprive [Petitioner] of his self-defense defense by giving the modified versions of CALCRIM Nos. 3475 and 3476. The 9 instructions do not misstate the law. (See People v. Watie, supra, 100 10 Cal.App.4th at p. 878 [“If [victim] had a right to use force to defend himself in his home, then defendant had no right of self-defense, 11 imperfect or otherwise.”].) Nor did the instruction compel the jury to find 12 that [Petitioner] was a trespasser. Rather, the instructions merely summarized the legal principles that the jury should apply if it believed 13 [Petitioner] was a trespasser when he entered the house on the night he 14 killed Ike. In a separate instruction, the trial court told the jury that “[s]ome of [the] instructions may not apply, depending on your findings 15 about the facts of the case. Do not assume just because I give a particular 16 instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the 17 facts as you find them.” Thus, if the jury found that [Petitioner] was not 18 a trespasser, the jury would have understood that the modified CALCRIM Nos. 3475 and 3476 instructions did not apply. 19

20 Nor did the instructions lower the prosecution’s burden of proof. Neither CALCRIM No. 3475 nor CALCRIM No. 3476 specifically address or 21 allocate the burden of proof. The trial court instructed the jury in 22 CALCRIM Nos. 103 and 220: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a 23 defendant guilty beyond a reasonable doubt. Whenever I tell you the 24 People must prove something, I mean they must prove it beyond a reasonable doubt.” The court reminded the jury of the People’s burden 25 26 27 1 of proof in the instructions on self-defense,[33] first degree murder,[34] and voluntary manslaughter.[35] Finally, the prosecutor explicitly 2 acknowledged that she had to prove that [Petitioner] was not acting in 3 self-defense.

4 Even though the instructions did not direct the jury to find that he was a 5 trespasser, [Petitioner] argues CALCRIM Nos. 3475 and 3476 undermined his defense because they permitted the jury to find he was a 6 trespasser; in [Petitioner]’s view, there was no substantial evidence on 7 which the jury could so find. After reviewing the record, we do not share [Petitioner]’s view. There was evidence, that although Harris had been 8 invited to the party, the invitation was revoked when Champagne yelled “the party’s over” and told everyone to go home. Defendants’ permission 9 to stay was certainly revoked when Frank forced some of the partygoers, 10 including Harris and Grissett, out of the apartment and locked the door. [Petitioner] and Harris were only able to obtain re-entry when [Petitioner] 11 screamed for Harris’s cousin to “open the door, bitch.” This evidence 12 was sufficient to deserve consideration by the jury as to whether [Petitioner] was in fact a trespasser. (See People v. Williams (2015) 61 13 Cal.4th 1244, 1263 [“‘[s]ubstantial evidence’” that warrants jury 14 instruction is “‘evidence sufficient to “deserve consideration by the 15 jury”’”].)[36]

16 33 The trial court instructed the jury in CALCRIM No. 505 (Justifiable Homicide: Self–Defense): 17 “[Petitioner] is not guilty of murder or manslaughter if he was justified in killing someone in self- defense. . . . [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that 18 the killing was not justified. If the People have not met this burden, you must find [Petitioner] not guilty of murder or manslaughter.” 19 34 The trial court instructed the jury in CALCRIM No. 521 (First Degree Murder [Pen. Code, 20 § 189]): “The People have the burden of proving beyond a reasonable doubt that the killing was first 21 degree murder rather than a lesser 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 degree murder.” 22 35 The trial court instructed the jury in CALCRIM No. 571 (Voluntary Manslaughter: Imperfect Self–Defense or Imperfect Defense of Another-Lesser Included Offense [Pen. Code, § 192] ): “The 23 People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find [Petitioner] not guilty 24 of murder.” 25 36 Insofar as [Petitioner] argues that there was insufficient evidence to support CALCRIM No. 3476 regarding the right to defend property, any error is harmless as the instruction was repetitive of 26 CALCRIM No. 3475. Moreover, as noted, the jury was instructed that some of the instructions 27 might not apply, and directed to follow the instructions that apply to the facts found. (See CALCRIM No. 200, cited in footnote 15, ante.) On this record, reversal is not required because it 1 Harris, 2018 WL 1960474 at, *9–*10. 2 b. Analysis 3 As noted above, Claim One is subject to AEDPA’s deferential standard of 4 review. For the purposes of determining “clearly established Federal law” under 5 AEDPA, McGuire and its progeny stand for “the broad proposition that an 6 erroneous jury instruction can rise to the level of constitutional error if it ‘so infected 7 the entire trial that the resulting conviction violates due process.’” Brewer v. Hall, 378 8 F.3d 952 (9th Cir. 2004) (quoting McGuire, 502 U.S. at 72). The Court of Appeal’s 9 rejection of Petitioner’s arguments that (1) CALCRIM No. 3475 was factually 10 unsupported and (2) CALCRIM Nos. 3475 and 3476 lowered the prosecution’s 11 burden of proof was not contrary to the relevant principle established in McGuire. 12 First, as the state court explained, there was evidence that Petitioner, along with 13 the other partygoers, was a trespasser, thus warranting CALCRIM No. 3475. After 14 Grissett insulted rival gangs and threatened to “shoot up [the] party,” Champagne told 15 everyone that the party was over. RT at 1007–08, 1009 (“I was saying we [were] going 16 to shut down the party”), 1010, 1313–14 (witness agreeing that Champagne told him 17 she wanted to shut down the party, or heard her saying that she wanted to shut it 18 down), 2234 (witness “heard [Champagne] saying she wanted to shut the party 19 down”), 2418, 2431. While Ike was bleeding and “woozy” inside the apartment, 20 Frank pushed many of the attendees out of the apartment, and he closed and locked 21 the front door. RT at 1023–24, 1319–20, 1703–04 (“[Frank] got everybody -- we all 22 got everybody out the door, and Frank closed the door”), 2234, 2243 (“whoever was 23 in the house, they [had] to stay in the house”; “whoever was out the house, they 24 [were] out the house”), 2254–55). The jury could have reasonably inferred from this 25 evidence that Ike and his siblings clearly communicated to Petitioner and others that 26 the party had ended and that they no longer had permission to re-enter the apartment. 27 1 Accordingly, given the evidence that could support a finding that Petitioner was a 2 trespasser, the trial court’s decision to instruct the jury with CALCRIM No. 3475 3 could not have “so infected” the trial that Petitioner’s resulting conviction violated 4 due process. 5 Second, as the court noted, neither instruction, on its face, purported to 6 allocate the burden of proof. See, e.g., Camacho v. Asuncion, 2020 WL 8251400, *10 7 (C.D. Cal. Nov. 13, 2020) (“nothing in CALCRIM 3475 created a mandatory 8 presumption or impermissibly lessened the prosecutor's burden of proof”; collecting 9 similar cases). In fact, numerous other instructions repeatedly explained the burden 10 to the jury, and the prosecutor defense counsel reiterated the concept to the jury. See 11 Harris, 2018 WL 1960474, at *10; RT at 3950–51, 3958, 3966–67, 3977, 4203–04, 12 4241, 4246, 4250–51, 4269–70, 4278, 4280–82, 4284–85, 4289–90, 4296–97. 13 Moreover, the jury was specifically instructed that some instructions may not apply, 14 depending on its findings about the facts of the case. RT at 4268. As explained by 15 the state court, CALCRIM Nos. 3475 and 3476 merely summarized the legal 16 principles that the jury should apply “if” it believed Petitioner was a trespasser or Ike 17 was acting in defense of property. See Harris, 2018 WL 1960474, at *9 (emphasis in 18 original). Therefore, both in isolation and when “considered in the context of the 19 instructions as a whole and the trial record,” CALCRIM Nos. 3475 and 3476 did not 20 effectively lower the prosecution’s burden of proof such that Petitioner’s conviction 21 violated due process. See McGuire, 502 U.S. at 72 22 Relatedly, any possible error in giving the instructions was likely harmless. 23 Even if there was no evidence that Petitioner was a trespasser or that Ike acted to 24 protect property, it is presumed that the jury would have followed the instruction that 25 some instructions would not apply depending on the jury’s findings. RT at 4268; see 26 Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) (the Supreme Court “presumes that 27 jurors, conscious of the gravity of their task, attend closely [to] the particular language 1 of, and follow the instructions given them”); Martinez v. Horel, 2010 WL 2104664, 2 *18 (C.D. Cal. Apr. 20, 2010) (to the extent an instruction was inapplicable to 3 petitioner’s case, there was no prejudice because jury was presumed to follow 4 instruction to “[d]isregard any instruction which applies to facts determined by you 5 not to exist”). 6 Further, there was also evidence from which the jury could infer that Petitioner 7 did not shoot and kill in self-defense. Izell, Champagne, and Keon testified that 8 Petitioner started shooting as soon as he came into the apartment after the front door 9 was unlocked. RT at 1038, 1326, 1333, 1708, 1710–12; Dkt 1 at 11 (“there was 10 testimony to support the theory [Petitioner] entered the residence with a gun in his 11 hand and immediately shot Isaac Gaston”). Also, the siblings testified that no shots 12 were fired toward Petitioner at any time. RT at 1039, 1330–31, 1712, 2191, 2258, 13 2295. Given the support for the theory that Petitioner did not kill Ike in self-defense, 14 there is no reasonable probability that the jury would have returned a more favorable 15 verdict even if it had not been instructed with CALCRIM Nos. 3475 and 3476. See 16 Brecht, 507 U.S. at 639 (finding harmless error in part because “the State’s evidence 17 of guilt was, if not overwhelming, certainly weighty”); Harden v. Lizarraga, 2019 WL 18 12379550, *2 (C.D. Cal. Sept. 8, 2019) (petitioner did not meet habeas burden of 19 showing harmful instructional error in light of testimony against him). 20 Hence, the California Court of Appeal’s rejection of Petitioner’s instructional- 21 error claim was not “contrary to, or . . . an unreasonable application of, clearly 22 established Federal law,” and any error would have been harmless. See 28 U.S.C. 23 § 2254(d)(1); Brecht, 507 U.S. at 639. Accordingly, habeas relief is not warranted on 24 Claim One. 25 3. Claim Two: provocation instruction 26 In Claim Two, Petitioner contends that the trial court erred by instructing the 27 jury that a person does not have a right to self-defense if he provokes a fight or 1 quarrel with the intent to create an excuse to use force, under CALCRIM No. 3472. 2 Dkt. 1 at 5–6, 20–23; Dkt. 14 at 2–3. 3 a. Background and state court decision 4 The trial court instructed the jury with CALCRIM No. 3472: “A person does 5 not have the right to self defense if he provokes a fight or quarrel with the intent to 6 create an excuse to use force.” RT at 4286. 7 The jury was also instructed with CALCRIM No. 3471, which stated in relevant 8 part: [I]f the defendant used only non[-]deadly force and the opponent 9 responded with such sudden and deadly force, [that] the defendant could 10 not withdraw from the fight, then defendant had the right to defend himself with deadly force and was not required to try to stop fighting or 11 communicate the desire to stop to the opponent or give the opponent a 12 chance to stop fighting. 13 RT at 4286. 14 The prosecutor cited CALCRIM No. 3472 and argued:

15 So when [Petitioner] and [Harris] returned to Ike’s house with the 16 intent to fight or shoot, that’s provoking. You don’t get [t]o go to somebody’s house with the intent to beat the you know what out of 17 them, or fire a gun at them. Then when they pull a gun at you to protect 18 themselves claim self-defense. That’s not how the law works. People are allowed to defend themselves in their home. 19 20 RT at 3937. 21 Petitioner’s counsel did not address self-defense in his argument. Instead, 22 counsel focused on attacking the credibility of the Prosecution’s witnesses and argued 23 that there was no credible evidence that Petitioner committed the crimes or “that he 24 was even there.” RT at 4003–04. He did note that there was a “gun battle,” and that 25 if the jury believed Petitioner was part of that gun battle, but it didn’t believe the 26 prosecution’s “rendition of what happened,” then they could reasonably conclude it 27 was manslaughter instead of murder. Id. However, counsel did not otherwise argue 1 that Petitioner acted in self-defense or for the jury to consider any lesser offenses, and 2 in fact explicitly noted “[he] was not asking for that.” Id. 3 The superior court rejected Petitioner’s claim on habeas review because “giving 4 [of] the jury instruction, Cal Crim 3472- this is a correct statement of the law,” and for 5 the procedural reason that the claimed instructional error could have been, but was 6 not raised on appeal. Lodg. D. Thereafter, the state supreme court denied relief 7 solely on procedural grounds. Lodg. H. 8 b. Analysis 9 As an initial matter, the state superior court’s conclusion that the instruction 10 was correct under state law is binding on this Court, even on de novo review. See 11 Bradshaw, 546 U.S. at 76; Gonzalez, 394 F. App’x at 415–16; McNeely v. Sherman, 12 2021 WL 1391562, *4 (N.D. Cal. Apr. 13, 2021) (state court’s “rejection of 13 petitioner’s interpretation of state law and its holding that CALCRIM No. 3472 14 correctly stated California law are interpretations of state law that bind the federal 15 court in habeas review”); see also, e.g., Miller v. Baldwin, 723 F. App’x 408, 410 (9th 16 Cir. 2018) (federal habeas court bound by state courts’ determinations of state law, 17 even on de novo review); Allen v. Montgomery, 2020 WL 5887015, *12 (C.D. Cal. 18 July 28, 2020) (even though review of petitioner’s habeas claim was de novo, federal 19 court bound by state court’s determination under state law). 20 Moreover, the instruction did not deprive Petitioner of his self-defense theory. 21 Petitioner essentially asks this Court to read CALCRIM NO. 3472 in isolation. Doing 22 so, the instruction appears to preclude self-defense where a defendant provoked a 23 fight in order to create a reason to use force. RT at 4286. However, a federal court 24 may not review an instruction “in artificial isolation,” but must consider the 25 instruction “in the context of the overall charge” to the jury. Middleton v. McNeil, 26 541 U.S. 433, 437 (2004); McGuire, 502 U.S. at 72. When CALCRIM No. 3472 is 27 read together with the instruction that immediately preceded it, CALCRIM No. 3471, 1 such as in the instance where an opponent responded with such force that withdrawal 2 was not possible. RT at 4285–86. Indeed, the trial court instructed the jury to “pay 3 careful attention to all of these instructions and consider them together.” RT at 4267. 4 Accordingly, in consideration of the overall instructional charge to the jury, Petitioner 5 is not entitled to habeas relief. See McNeil, 541 U.S. at 437; McGuire, 502 U.S. at 72; 6 Kenney v. Brazelton, 2017 WL 11480151, *9 (N.D. Cal. Dec. 18, 2017) (“[T]he trial 7 court's decision to give the challenged instructions did not deprive petitioner of his 8 right to a fair trial. Neither CALCRIM No. 3471 nor CALCRIM No. 3472 precluded 9 the jury from finding that petitioner acted in self-defense, imperfect or otherwise. 10 Rather, they stated only that under specified circumstances, petitioner could not 11 legitimately claim self-defense.”) 12 Finally, even if Petitioner could establish that there was error, he has failed to 13 show prejudice. As noted, counsel did not argue self-defense; instead, he argued 14 “straight acquittal” because witnesses lie and there was no credible evidence Petitioner 15 committed the crimes or was there. RT at 4004. Given counsel’s failure to press the 16 self-defense argument, there is no reasonable probability that the jury would have 17 returned a more favorable verdict, but for the inclusion of CALFRIM No. 3472. See 18 Brecht, 507 U.S. at 639; Harden, 2019 WL 12379550, at *2; Duenas, 2017 WL 19 5608082, at *12. 20 Hence, Petitioner has failed to establish constitutional error for which federal 21 habeas relief can be granted, and any assumed instructional error would have been 22 harmless. Habeas relief is not warranted on Claim Two. 23 4. Claims Three and Four: lesser-included instructions 24 In Claims Three and Four, Petitioner alleges the trial court’s failure to give 25 lesser-included instructions violated his constitutional fair trial rights. In Claim Three, 26 Petitioner challenges the trial court’s failure to instruct the jury with CALCRIM No. 27 522, regarding provocation. Dkt. 1 at 6, 24; Dkt. 14 at 3. In Claim Four, Petitioner 1 570, regarding the lesser-included offense of manslaughter based on a heat of passion. 2 Dkt. 1 at 6, 25; Dkt. 14 at 3. 3 a. Background and state court decision 4 CALCRIM No. 522 (Provocation: Effect on Degree of Murder) provides:

5 Provocation may reduce a murder from first degree to second degree 6 [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you 7 conclude that the defendant committed murder but was provoked, 8 consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding 9 whether the defendant committed murder or manslaughter.] [¶] 10 [Provocation does not apply to a prosecution under a theory of felony murder.] 11 12 Harris, 2018 WL 1960474, at *10 n.22. 13 Neither Petitioner’s counsel, nor Harris’s counsel, specifically requested 14 CALCRIM No. 522. On direct appeal, Harris alleged his attorney was ineffective for 15 failing to request the instruction, and the state appellate court rejected the claim. 16 Harris, 2018 WL 1960474, at *10. Petitioner later raised the claim on his state habeas 17 proceedings, and the state supreme court denied relief on procedural grounds only. 18 Lodg. L. 19 CALCRIM No. 570 (Voluntary Manslaughter: Heat of Passion—Lesser 20 Included Offense) provides:

21 A killing that would otherwise be murder is reduced to voluntary 22 manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. 23 The defendant killed someone because of a sudden quarrel or in the heat 24 of passion if: 1. The defendant was provoked; 25 2. As a result of the provocation, the defendant acted rashly and under 26 the influence of intense emotion that obscured (his/her) reasoning or judgment; 27

AND

3. The provocation would have caused a person of average disposition 1 to act rashly and without due deliberation, that is, from passion rather 2 than from judgment. Heat of passion does not require anger, rage, or any specific emotion. It 3 can be any violent or intense emotion that causes a person to act without 4 due deliberation and reflection. In order for heat of passion to reduce a murder to voluntary 5 manslaughter, the defendant must have acted under the direct and 6 immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is 7 not sufficient. Sufficient provocation may occur over a short or long 8 period of time. It is not enough that the defendant simply was provoked. The 9 defendant is not allowed to set up (his/her) own standard of conduct. 10 You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was 11 sufficient, consider whether a person of average disposition, in the same 12 situation and knowing the same facts, would have reacted from passion rather than from judgment. 13 [If enough time passed between the provocation and the killing for a 14 person of average disposition to “cool off” and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary 15 manslaughter on this basis.] 16 The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat 17 of passion. If the People have not met this burden, you must find the defendant not guilty of murder. 18 19 Judicial Council of California Criminal Jury Instruction, CALCRIM No. 570. 20 Harris’s counsel requested the jury be instructed on heat of passion under 21 CALCRIM No. 570. RT at 3674. The trial court considered the instruction as to 22 both defendants and ruled there was no evidence of a “sudden heat or passion” as to 23 either. RT at 3692–93; Harris, 2018 WL 1960474, at *6 n.15. Later, the trial court 24 provided a lengthy discussion distinguishing the cases relied on by counsel, and 25 reiterated its ruling that there was no evidence as to either defendant to support the 26 instruction, and, specifically as to Petitioner, “there was nothing . . . [t]here was no 27 evidence to show that he acted under any type of heat of passion or whatnot.” RT at 1 been waived. Harris, 2018 WL 1960474, at *6 n.15. Petitioner later raised the claim 2 on state habeas review, and the state supreme court rejected it on procedural grounds 3 only. Lodg. L. 4 b. Additional relevant federal law 5 The U.S. Supreme Court has never held that a defendant in a noncapital case is 6 entitled to a lesser-included offense instruction. Beck v. Alabama, 447 U.S. 625, 638 7 n.14 (1980); Bortis v. Swarthout, 672 F. App’x 754 (9th Cir. 2017) (“There is no 8 Supreme Court precedent establishing that a state trial court is required to instruct on 9 lesser included offenses in noncapital cases.”). Furthermore, the Ninth Circuit held 10 that a state court’s failure to instruct on a lesser included offense in a noncapital case 11 does not present a federal constitutional question cognizable in a federal habeas 12 proceeding. Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). 13 However, under the Due Process Clause, a petitioner’s right to a fair trial 14 includes the opportunity to present a complete defense. California v. Trombetta, 467 15 U.S. 479, 485 (1984). In Mathews, the Supreme Court held that as a general 16 proposition, a defendant is entitled to “an instruction as to any recognized defense for 17 which there exists evidence sufficient for a reasonable jury to find in his favor.” 18 Mathews v. United States, 485 U.S. 58, 63 (1988). The Ninth Circuit views these 19 claims—where the petitioner challenges a trial court’s failure to instruct on the 20 defense’s theory of the case—as distinct from claims challenging a failure to sua 21 sponte instruct on lesser included offenses. See Solis, 219 F.3d at 929. In fact, the 22 Ninth Circuit has held that a trial court’s failure to instruct the jury on a reasonably- 23 supported defense violates clearly established federal law. See Bradley v. Duncan, 315 24 F.3d 1091, 1098–1100 (9th Cir. 2002) (citing Conde v. Henry, 198 F.3d 734, 739 (9th 25 Cir. 1999)). The failure to instruct on a defense theory rises to the level of 26 constitutional error only if “the theory is legally sound and the evidence in the case 27 makes [the theory] applicable.” Clark, 450 F.3d at 904–05 (citation omitted). 1 had a “substantial and injurious effect or influence in determining the jury’s verdict.” 2 Bradley, 315 F.3d at 1099 (quoting Brecht, 507 U.S. at 637). 3 c. Analysis 4 As an initial matter, the trial court’s failure to sua sponte instruct the jury on 5 lesser-included offenses in Petitioner’s case is not cognizable on federal review 6 because Petitioner’s case was noncapital. See, e.g., Solis, 219 F.3d at 929. 7 Accordingly, to succeed on Claims Three or Four, Petitioner must show that his right 8 to present a complete defense was violated by the trial court’s failure to instruct on his 9 defense theory of provocation or heat-of-passion.37 10 Here, there is at least some evidence that Petitioner was provoked. Multiple 11 witnesses testified that Ike brandished a gun at Petitioner and Harris during their 12 confrontation in the apartment. RT at 1031–35, 1226, 1328, 1334, 2256. Champagne 13 testified that neither Harris nor Dunn had guns in their hands during the initial 14 confrontation. Id. at 1225–26. Furthermore, the investigating Deputy could not 15

16 37 Respondent also contends that Claims Three and Four are Teague barred because they would require a new rule of constitutional law be announced. Dkt. 11 at 21–24; see Teague v. Lane, 17 489 U.S. 288. The Court does not address this argument with respect to Claim Four because the Claim clearly fails on the merits, even if not barred by Teague. 18 In their Objections, Respondent also argues that the Court must address the Teague issue 19 with respect to Claim Three before issuing a Certificate of Appealability. Dkt. 17. Claim Three, however, is not necessarily Teague-barred. In Teague, the Supreme Court held that a new rule of 20 constitutional law cannot be applied retroactively on federal collateral review to upset a state conviction or sentence, unless the new rule forbids criminal punishment of primary, private 21 individual conduct or is a “watershed” rule of criminal procedure. 489 U.S. at 310–12. 22 As noted above, at the time Petitioner’s conviction became final, the Supreme Court had already held that a trial court’s failure to instruct the jury on a reasonably-supported defense violates 23 clearly established federal law. Mathews v. United States, 485 U.S. 58, 63 (1988); see Bradley, 315 24 F.3d at 1098–1100 (citing Matthews for the proposition that “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable 25 jury to find in his favor” and recognizing that the Ninth Circuit has applied the standard to habeas petitions). 26 Accordingly, Petitioner’s claim that the trial court’s failure to instruct the jury on provocation 27 violated his due process rights would not necessarily be Teague-barred if Petitioner could show that provocation was a reasonably-supported defense, rather than simply a lesser-included offense. 1 determine who shot first. Id. at 2530. There was also evidence that Petitioner was 2 not provoked. Though Ike was holding a gun, he was bleeding, woozy, and unable to 3 stand. RT at 1031–35. Furthermore, other witnesses testified that Petitioner began 4 shooting immediately after the door was opened. See, e.g., RT at 1326, 1708. Still, a 5 reasonable jury might have found that Petitioner was provoked by Ike’s initial 6 brandishing, or even firing, of the gun. 7 The problem with Petitioner’s claims, however, is that neither provocation nor 8 heat of passion were related to Petitioner’s theory of defense. As noted above, 9 Petitioner’s trial counsel explicitly avoided arguing for lesser offenses in closing 10 argument. Trial counsel only noted that if the jury believed Petitioner was part of that 11 gun battle, but it didn’t believe the prosecution’s “rendition of what happened,” then 12 they could reasonably conclude it was manslaughter instead of murder, but that “[he] 13 was not asking for that.” RT at 4003–04. Furthermore, counsel directly told the trial 14 court that “to be honest . . . it’s not my intention to get up and argue heat of passion . 15 . . nor . . . to argue very much self-defense[.]” RT at 3684. In response, and in ruling 16 on the heat of passion instruction, the trial court stated, “this is not even coming 17 close.” RT at 3685. Indeed, Petitioner’s trial counsel did not even request either 18 instruction at issue.38 The trial court’s failure to instruct the jury using CALCRIM 19 Nos. 522 and 570 could not have violated Petitioner’s right to a complete defense 20 where the instructions were unrelated to Petitioner’s defense theory. 21 Trial counsel’s failure to argue for lesser-included offenses also makes it 22 difficult for Petitioner to establish that any assumed error would have not been 23 harmless. Any instructions on provocation and heat of passion would likely have had 24 little to no impact on the jury’s determination where Petitioner’s own trial counsel 25 26 38 The Court does not suggest that counsel’s failure to request an instruction, by itself, precludes 27 Petitioner from succeeding on his claims. Counsel’s failure to request the instructions is cited for 1 appeared to discourage the jury from considering lesser offenses in his closing 2 argument. 3 Accordingly, habeas relief is not warranted on Claims Three and Four. 4 B. EXCLUSION OF EVIDENCE CLAIM 5 In Claim Five, Petitioner contends that the trial court violated his constitutional 6 right to a fair trial when it denied his request to call a toxicologist to prove the victim’s 7 state of mind. Dkt. 1 at 6. 8 1. Background and state court decision 9 Prior to trial, the prosecution filed a motion to exclude the results of a 10 toxicology test performed on Ike after his death. RT at 4. Petitioner’s counsel argued 11 that the toxicology report was relevant because it explained that Ike’s drifting “in and 12 out of consciousness” could have been caused by drugs instead of his head wound. It 13 further explained why Ike was “agitated” and “anxious,” why he struck Harris in the 14 earlier fight, and why he retrieved a gun. RT at 6–7, 787–89, 1511–12. Harris’s 15 counsel argued that it was relevant to Harris’s self-defense claim because it showed 16 Ike’s “erratic behavior.” RT at 789–90. The prosecutor stated that Ike’s “somewhat 17 unconscious” state of mind was relevant but countered that how that state of mind 18 came to be was irrelevant. RT at 791. 19 To assist with deciding the issue, the trial judge had the toxicologist the defense 20 wanted to call, John Treuting, testify in a California Evidence Code § 402 hearing.39 21 Treuting testified that Ike would have been under the influence of PCP; that PCP 22 causes bizarre reactions; that PCP is a hallucinogen; that PCP can give someone 23 “superhuman strength”; that the combination of drugs in Ike’s system would have 24 disrupted his normal brain function; and that someone under the influence of PCP 25 26

27 39 California courts conduct 402 hearings outside the presence of the jury to decide preliminary 1 may react disproportionately to what they believe to be a threat. RT at 1522–27, 2 1536. 3 After Treuting’s testimony, the trial judge asked defense counsel for an offer of 4 proof as to why it would be relevant. RT at 1541–43. The court ultimately ruled that 5 defense counsel had not provided an adequate offer of proof to permit the testimony. 6 RT at 1582–83. 7 Petitioner later raised the claim on state habeas review, and the state supreme 8 court rejected it on procedural grounds only. Lodg L. 9 2. Additional relevant federal law 10 The exclusion or admission of evidence under state evidentiary rules generally 11 does not present a federal question. McGuire, 502 U.S. 62, 67–68 (1991) (state 12 evidentiary ruling does not give rise to a cognizable federal habeas claim unless the 13 ruling violated a petitioner’s due process right to a fair trial); Rhoades v. Henry, 638 14 F.3d 1027, 1034 n.5 (9th Cir. 2011). 15 As noted, the Due Process Clause and Sixth Amendment, “guarantee[]criminal 16 defendants ‘a meaningful opportunity to present a complete defense.’” Crane v. 17 Kentucky, 476 U.S. 683, 690 (1986) (quoting Trombetta, 467 U.S. at 485). 18 Nevertheless, “‘[a] defendant’s right to present relevant evidence is not unlimited, but 19 rather is subject to reasonable restrictions,’ such as evidentiary and procedural rules.” 20 Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2008) (quoting United States v. Scheffer, 21 523 U.S. 303, 308 (1998)). Well-established rules of evidence permit trial judges to 22 exclude evidence if its probative value is outweighed by certain other factors, such as 23 unfair prejudice, irrelevance, confusion of the issues, or potential to mislead the jury. 24 See Holmes v. South Carolina, 547 U.S. 319, 326 (2006) (citations omitted); see also 25 Cudjo v. Ayers, 698 F.3d 752, 766 (9th Cir. 2012). The Supreme Court has noted 26 “[o]nly rarely have we held that the right to present a complete defense was violated 27 by the exclusion of defense evidence under a state rule of evidence.” Nevada v. 1 Moreover, even if a state court’s evidentiary decision constitutes error under 2 the federal constitution, habeas relief is not automatic. Rather, the claim is reviewed 3 under a harmless error standard. Mays v. Clark, 807 F.3d 968, 979–81 (9th Cir. 2015). 4 As mentioned, an error cannot lead to habeas relief “unless it results in ‘actual 5 prejudice’” that had a “substantial and injurious effect or influence in determining the 6 jury’s verdict” under Brecht, 507 U.S. at 637. Mays, 807 F.3d at 980. Habeas relief is 7 required when “the record is so evenly balanced that a conscientious judge is in grave 8 doubt as to the harmlessness of an error.” Gautt v. Lewis, 489 F.3d 993, 1016 (9th 9 Cir. 2007). 10 3. Analysis 11 Here, Petitioner has failed to show he is entitled to federal habeas relief. 12 To the extent Petitioner challenges the exclusion of evidence under state law, 13 such a claim does not implicate the federal Constitution. See McGuire, 502 U.S. at 14 67–68; Rhoades, 638 F.3d at 1034; Binns v. Allison, 2013 WL 3200503, *10 (C.D. Cal. 15 June 24, 2013) (“[T]o the extent petitioner contends that the trial court erroneously 16 excluded the toxicologist’s testimony under California law, petitioner is not entitled to 17 federal habeas relief.”). The Petition itself presents the issue in a single, run-on 18 sentence that fails to provide any argument or citation to relevant authorities.40 His 19 glancing reference to “a fair trial” and the Sixth Amendment, is insufficient to convert 20 the claim into a federal issue. Little, 449 F.3d at 1083 n.6; Johnson, 117 F.3d at 110; 21 Blackledge, 431 U.S. 63, 75 n.7. 22 Even if cognizable, Petitioner has failed to show he is entitled to federal relief 23 for reasons similar to those discussed above. As noted, the self-defense theories were 24 not promoted by the defense. Furthermore, there was no evidence, and Petitioner 25 does not allege, he knew Ike was intoxicated. Without more, Petitioner has not 26

27 40 In this claim, Petitioner cites Exhibit A, pages 23–32, attached to his petition. Dkt. 1 at 6. Those 1 shown that the toxicologist’s testimony would have been relevant to his defense. 2 Accordingly, Petitioner has not shown the trial court’s failure to allow the testimony 3 prevented him from presenting a complete defense, nor has Petitioner shown he was 4 prejudiced by the trial court’s decision. Petitioner’s claim does not raise a “grave 5 doubt” about the verdict that require habeas relief. Gautt, 489 F.3d at 1016; Brecht, 6 507 U.S. at 637. 7 VII. 8 EVIDENTIARY HEARING 9 Petitioner requests an evidentiary hearing, but only as to Claims One and Two. 10 Dkt. 14 at 3. However, because he has failed to demonstrate the state record received 11 and reviewed by the Court is insufficient to resolve those claims, the request should 12 be denied. Pinholster, 563 U.S. 170 (federal court’s habeas review ordinarily “is 13 limited to the record that was before the state court that adjudicated the claim on the 14 merits”); Schrirro v. Landrigan, 550 U.S. 465, 474 (2007). 15 VIII. 16 CERTIFICATE OF APPEALABILITY 17 Under 28 U.S.C. § 2253(c)(2), a Certificate of Appealability may issue “only if 18 the applicant has made a substantial showing of the denial of a constitutional right.” 19 The Supreme Court has held that this standard means a showing that “reasonable 20 jurists could debate whether (or, for that matter, agree that) the petition should have 21 been resolved in a different manner or that the issues presented were ‘adequate to 22 deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483– 23 84 (2000). The Court finds that Petitioner has met the requisite standard with respect 24 to Claim Three. Thus, it is recommended that a certificate of appealability be 25 GRANTED. 26 /// 27 /// 1 IX. 2 RECOMMENDATION 3 IT IS THEREFORE RECOMMENDED that the District Court issue an 4 | Order: 5 (1) accepting this Report and Recommendation; 6 (2) DENYING an evidentiary hearing; 7 (3) GRANTING a Certificate of Appealability; and 8 (4) directing that Judgment be entered DENYING the Petition and dismissing 9 this action with prejudice. 10 11 12 13 | Dated: October 20, 2021 JAX 14 ON Se

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