1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL VILKIN, Case No.: 18cv433-L-AGS

12 Petitioner,

ORDER (1) OVERRULING

13 v. OBJECTIONS TO REPORT AND

RECOMMENDATION; AND (2)

14 ROBERT NEUSCHMID, Warden, et al.,

DENYING PETITION

15 Respondents. 16 17 Petitioner Michael Vilkin, a state prisoner represented by counsel, filed a petition 18 for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for first 19 degree murder. (Doc. no. 1 ("Petition").) The Petition was referred to United States 20 Magistrate Judge Andrew G. Schopler for a report and recommendation pursuant to 28 21 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). After Petitioner supplemented his 22 Petition, Respondent filed a response, and Petitioner filed a traverse. The Magistrate 23 Judge issued a report and recommendation (doc. no. 10 ("Report and Recommendation" 24 or "R&R"), recommending to deny the Petition. Petitioner objected. (Doc. no. 10 25 ("Objections").) Respondent did not respond to the Objections. For the reasons which 26 follow, the Report and Recommendation is adopted, Petitioner's Objections are overruled, 27 and the Petition is denied. Certificate of appealability is denied. 28 / / / / / 1 In reviewing a Magistrate Judge's Report and Recommendation, the District Court 2 "shall make a de novo determination of those portions of the report . . . to which 3 objection is made," and "may accept, reject, or modify, in whole or in part, the findings 4 or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Petitioner 5 objected to the Report and Recommendation in its entirety. 6 I. BACKGROUND 7 Petitioner shot his neighbor John Upton. When Upton's girlfriend Evelyn Zeller 8 approached Upton's body shortly thereafter, Petitioner pointed his gun at her and told her 9 to move away. Petitioner was convicted of first-degree murder and assault with a 10 firearm. The jury also found that Petitioner personally discharged a firearm when he shot 11 Upton, and personally used a firearm to assault Zeller. In total, he was sentenced to a 12 term of 64 years to life.1 13 A. Summary of Relevant Evidence 14 At trial, the jury heard nearly six days of testimony, including Petitioner's. In 2008 15 Petitioner purchased an undeveloped lot in Encinitas, which he planned to develop and 16 sell. To that end, he spent several hours almost every day cutting down brush and trees. 17 In 2011, Petitioner's neighbor John Bonanno rented his house to Upton and Zeller. Upton 18 disapproved of vegetation clearing on Petitioner's property. Although the interactions 19 between Upton and Petitioner were initially cordial, the relationship gradually became 20 hostile. 21 According to Petitioner, the turning point was in spring of 2012, when he was 22 clearing brush on his property close to Upton's house. Upton became angry. Petitioner 23 felt verbally assaulted because Upton was a "big man" with a "big voice" and his body 24 25 26 1 The factual and procedural background is set out in detail in the Report and 27 Recommendation. (R&R at 2-18 (quoting People v. Vilkin, case no. D067753, slip op. (Cal. Ct. App. Sept. 2, 2016) (doc. no. 8-22, "Opinion").) Unless otherwise stated, all 28 1 language was threatening. (RT at 960-61; see also id. at 968.) Upton said he needed 2 privacy and told Petitioner not to approach his house. (Id. at 970-71.) In response to this 3 exchange, Petitioner decided not to cut brush in that area, but elsewhere on his property. 4 Nevertheless, Upton would approach Petitioner approximately once a week to 5 protest his brush clearing in a hostile manner. Although Upton did not make any verbal 6 threats of bodily harm, Petitioner perceived his body language and tone of voice as 7 threatening. Upton cursed at Petitioner and sometimes called him names using foul 8 language. Petitioner testified he was concerned that Upton might "snap." (Id. at 967.) 9 He called the sheriff's department to complain that Upton did not let him clear brush or 10 even walk on his own property. 11 Bonanno witnessed an exchange between Petitioner and Upton in the summer or 12 fall of 2012. He testified Petitioner's activity was making Upton "nuts." Upton's 13 demeanor at the time was "elevated," and his voice was loud. (RT at 642, 644.) 14 Petitioner was visibly angry with Upton, repeatedly clinching his fist while holding a 15 shovel in the other hand as he moved closer to Bonanno and Upton during the exchange. 16 Petitioner testified about another confrontation. He was smoothing the road on his 17 property after dark in October 2012, when Upton approached him to approximately 30 18 feet. Petitioner saw a "short black pistol" in Upton's left hand by his side. (RT at 988.) 19 When Petitioner told Upton that he would not continue working on the road, Upton left. 20 (Id.) After seeing the gun, Petitioner felt that "something serious is going on," however, 21 he did not call law enforcement because he believed that Upton had a right to carry a gun 22 on his "rented property" and because Upton did not point the gun at Petitioner or make a 23 "specific threat." (Id. at 989.) Petitioner recalled a prior conversation with the sheriff's 24 department: "I remember that unless there is a specific threat, the sheriff department will 25 not do anything." (Id.) 26 Petitioner purchased a gun. On October 31, 2012, he again called the sheriff's 27 department and spoke to Deputy Sheriff Scott Hill. He asked if there were any laws that 28 prevented him from carrying a gun on his own property, and explained he was having a 1 property dispute with his neighbor. Petitioner told Deputy Hill that he had purchased a 2 gun because he felt threatened by Upton. According to Deputy Hill, as Petitioner 3 described his interactions with Upton, they did not explain Petitioner's concern for his 4 safety or his firearm purchase. 5 Petitioner had researched firearms on the internet. In August 2012, he legally 6 purchased a .22 caliber revolver because he was concerned about Upton's behavior. In 7 October 2012, he legally purchased a .44 magnum after he determined that the .22 caliber 8 revolver "would not stop a big guy like John Upton." (RT at 991-92.) Petitioner thought, 9 "he could come to me in the evening and who knows what he would do to me." (Id. at 10 992.) He "was afraid that one day it would be a deadly confrontation." (Id.) 11 Deputy Hill told Petitioner he could not give him legal advice. He suggested 12 Petitioner contact an attorney and told him it was a bad idea to carry a weapon when one 13 is expecting an argument. A week later, Petitioner ran into sheriff's deputies in the street 14 and approached them with the same inquiry because "a week before – [he] did not get 15 what [he] wanted." (RT at 981.) One of the deputies was Deputy Hill, who gave 16 Petitioner the same information again. 17 Petitioner took his gun with him "all the time" when he was on his property 18 because he was concerned about his safety. (RT at 998-99.) He kept it loaded in its case 19 together with ammunition and a video camera. (Id. at 998-1000.) He explained he 20 carried the camera "in case Mr. Upton does something, I would record it." (Id. at 1000.) 21 On one occasion in November 2012, Petitioner was clearing brush late at night 22 close to Upton's house. Upton approached him and told him to stop, because the brush 23 provided a privacy screen. When Petitioner agreed to trim only dead branches, Upton 24 went back inside. Nevertheless, in the morning all vegetation in that area was cut to the 25 ground. Zeller and Upton approached Petitioner. Upton was upset that Petitioner did not 26 keep his promise and yelled at him. Zeller, who witnessed the exchange, testified that 27 Upton "used foul language and was verbally intense." (RT at 349.) Petitioner, who was 28 also upset, cursed and yelled back at Upton. The exchange ended with Upton and Zeller 1 walking away. Zeller's impression was that Petitioner was not afraid of Upton, because 2 he yelled back and stood his ground. 3 Petitioner hired Sampo Engineering to do a boundary survey in connection with his 4 plan to construct a road. Vince Sampo visited the property in November 2012. Petitioner 5 showed him his gun and told him he was "very concerned" about Upton and "need[ed] a 6 weapon for self-protection." (RT at 1000.) Sampo testified that Petitioner "said 7 something to the effect of . . . I would rather spend my life in prison than . . . get blown 8 away or get shot." (Id. at 584 (ellipses added).) 9 In December 2012, Jesse Owens of Sampo Engineering visited Petitioner's 10 property to locate monuments marking the boundaries. Owens and Petitioner could not 11 locate the monuments along the boundary with Bonanno's property due to vegetation. 12 Nevertheless, Owens determined that Bonanno's wall was encroaching, and informed 13 Petitioner. He asked Petitioner to clear a small area close to Upton's house to help locate 14 the markers at the next visit. 15 Despite weekly confrontations with Upton in early 2013, Petitioner continued to 16 clear the brush. Petitioner described the hostility at the time to be at "a maximum level." 17 (RT at 1003.) 18 On March 21, 2013, Petitioner called the sheriff's department because Owens 19 needed some brush cleared to locate the monuments, and Petitioner wanted a deputy 20 present to avoid a confrontation with Upton. Deputy Marshall Abbott responded. 21 Petitioner told Deputy Abbott he felt threatened by Upton, that Upton had yelled at him 22 and they had arguments about Petitioner's brush clearing. At Owens's request, Deputy 23 Abbott contacted Upton to move his car, as the car was parked where the monument 24 likely was located. Upton complied. 25 Owens described Upton as "very angry" when he came out of his house. (RT at 26 1226.) He screamed and cursed at Petitioner for approximately 15 minutes, including 27 profanities, while Petitioner remained calm. (Id. at 1227, 1228.) 28 / / / / / 1 Deputy Abbott testified that Upton appeared calm but frustrated. He complained 2 about Petitioner's brush clearing. Deputy Abbott told him that Petitioner could cut brush 3 on his own property. Petitioner approached while Deputy Abbott was speaking to Upton 4 and said something that upset Upton. "Mr. Upton got pretty angry and began pointing at 5 Mr. Vilkin and said, don't come any closer to me you [profanities]." (RT at 714.) 6 Deputy Abbott diffused the situation, told them he could not stay all day to prevent 7 a fight, instructed them to stay separated and call the sheriff's department if there is a 8 problem. According to Owens, Deputy Abbott spoke with Petitioner and told him that 9 what he had heard from Upton at that time did not legally constitute a threat. He told 10 Upton to avoid a physical confrontation. Upton replied something to the effect that he 11 was not "stupid enough" or that "it wasn't worth it to him to get in any sort of trouble." 12 (RT at 1231.) 13 After Deputy Abbott left, Petitioner and Owens continued unimpeded with their 14 work. Petitioner also had workers cut brush in the same area a day or two later and had 15 no trouble with Upton. (RT at 1028-29.) 16 On March 27, 2013, Petitioner nailed a no-parking sign to a large tree near Upton's 17 house because he intended to cut the trees and brush in the area where Upon and Zeller 18 parked their cars.2 The incident occurred next day. When Petitioner arrived on the 19 property with two workers, the sign was gone. Upton's and Zeller's cars were parked 20 under the tree Petitioner intended to cut. Petitioner told his workers he had a "bad 21 neighbor who is very hostile," but that he had a gun, and, if a man came out of the house, 22 they should come to Petitioner, who would "deal with it." (RT at 1022.) When the 23 workers started their work, Petitioner left to stand a distance away and hide because he 24 was afraid of Upton. (Id. at 1029, see also id. at 1030-33.) He was "very concerned" that 25 / / / / / 26 27 28 1 Upton "might do something . . . very dangerous." (Id. at 1031.) He was holding the gun 2 case in his hand. (Id. at 1034.) 3 Petitioner could see Upton's porch from where he was standing. He was wearing 4 his computer glasses. When asked about it, he explained: 5 [Petitioner:] In case if there is a shoot-out, which I was afraid it might [. . .] happen. Right or wrong, [. . .] I feared him. And I would 6 change to computer glasses . . . And you can say I was ready for a shoot-out. 7 [Mr. Uyar:] And this was every time you went to the Lone Jack 8 property, at least after you purchased the .44 magnum pistol -- or almost 9 every time?

10 A. Yes. [. . .] 11 12 (RT at 1184-85 (omissions and alterations indicated by brackets).) 13 A few minutes after he saw Upon come out of his house, Petitioner put his gun in 14 his waistband because he "was getting ready for eventual confrontation that might 15 happen" and he covered it up with his shirt. (RT at 1034, 1066, 1074, 1130.) Petitioner 16 did not want Upton to see his gun because he did not want Upton to call 911. (Id. at 17 1101.) Although Petitioner always brought his gun when he was on his property, he kept 18 it in its case. He believed this occasion was different: 19 . . . he removed the sign. The cars are still there. It shows he's defiant. He has not complied, and he is likely to get involved in 20 confrontation [sic] with me. 21 And I am cutting the bushes in front of his house, which he did not allow me to do, and the confrontation was likely, given that he's not 22 complying. 23 24 (Id. at 1166-67 (brackets added).) 25 Upton came out. He asked the workers if they were going to cut the trees close to 26 his house and if he should move the cars. Petitioner then heard Upton say, "give me a 27 few minutes," as Upton looked at Petitioner and started walking toward him. (RT at 28 1038.) Petitioner did not want to have eye contact with Upton "because it could provoke 1 him," and he saw Upton look at the tools on the ground, including an axe or a pic, as he 2 was walking slowly toward Petitioner. (Id. at 1039-41; see also id. at 1134-36.) He was 3 standing with his arms folded over the gun in his waistband. (Id. at 1136-37.) 4 According to Petitioner, as Upton walked toward him, Upton yelled, "Get the fuck 5 out of here," in a threatening voice. (RT at 1042.) He looked "enraged." (Id.) At that 6 point Petitioner "cocked [his] revolver." (Id.) They had an angry exchange of words. 7 (Id. at 1043; see also id. at 1137-39.) Although Upton did not verbally threaten 8 Petitioner, Petitioner felt threatened by Upton. (Id. at 1139.) He explained: 9 [Petitioner:] I was feeling both angry and in fear of him.

10 [Mr. Berkon:] What were you afraid of? 11 A. I was afraid that he, being an unpredictable person, he could come 12 and harm me. 13 Q. Did you see anything in his hands? 14

15 [¶]

16 A. When he was about 10 feet away, I saw a pistol in his right hand. 17 [¶] 18

19 Q. How did that make you feel?

20 A. It was . . . It was like one second . . . and I pulled out my revolver 21 and shot him.

22

23 (RT at 1043-44 (ellipses in original, brackets added).) Petitioner testified Upton held the 24 gun in his right hand at his side, pointed at the ground, and did not point it at Petitioner 25 because Petitioner "would not allow him." (Id. at 1109; see also id. at 1103.) Petitioner 26 explained why he did not warn Upton he was armed: 27 / / / / / 28 1 Mr. Berkon: Do you think you would have had time to brandish only . . . Meaning point your gun at Mr. Upton . . . and protect yourself if that 2 didn't work? 3 [¶] 4

5 Petitioner: Well, I cannot say -- only this way -- I saw the pistol and after that it was automatic, another second and the shot was placed. I did not 6 have time to think anything, it was automatic. 7 [¶] 8

9 Because I saw a pistol in the hand of a mad man, and there was no thinking involved, it was just automatic. 10

11 (RT at 1161-62 (ellipses in original, brackets added); see also id. at 1044.) 12 The first shot was in the stomach. (RT at 1044.) Petitioner testified why this was 13 not enough: 14 [Petitioner:] I did not know if it hit him or not, but he made a couple more steps toward me. 15

16 [¶]

17 [Mr. Berkon:] What did you do next? 18 A. It went through my mind that he was wearing a bullet vest. And I 19 screamed "Stop," I looked up, and shot him in the head. (Indicating.) 20 [¶] 21

22 Q. Did you hit him the second shot [sic]?

23 A. Obviously. He fell. 24 25 (RT at 1044-45; see also id. at 1046, 1071-72; 1140.) When questioned about the two 26 shots, Petitioner, who is a Russian immigrant, testified he shot the way he was trained in 27 the Russian military. (Id. at 1047 ("I have been trained to shoot specially in Russian 28 / / / / / 1 military."); id. at 1048 ("I fired the way I have been trained.").) He testified he was in 2 shock after filing the shots. 3 The workers witnessed the confrontation. They saw Upton came out of his house. 4 He told them he would move the cars. Both workers described him as calm, not yelling 5 or cursing. 6 One of the workers, Macario Mendoza Matias, did not see Upton holding anything 7 in his hands. He saw Upton walking toward Petitioner. According to Matias, Upton said 8 to Petitioner, "Can you do me a favor?" (RT at 121.) Upton was not yelling and did not 9 appear angry. He walked slowly. Shortly thereafter, Matias heard a gunshot. 10 The other worker, Fredy Alva Rodriguez, was carrying away the branches Matias 11 had cut. To do this, he passed Upton about three times in close proximity. Although 12 Rodriguez saw and heard Upton talking to Petitioner, he did not understand all the words 13 because he does not speak English. According to Rodriguez, Upton was not yelling and 14 did not appear angry when he spoke to Petitioner, and he was not moving. On the other 15 hand, Petitioner was moving his hands side to side nervously. Rodriguez heard Petitioner 16 say "Fucking shit" to Upton. (RT at 194.) Petitioner appeared angry at the time. 17 Rodriguez did not see Upton make any motions to suggest he was going to attack 18 Petitioner. When Rodriguez heard the first shot, he was some distance away from Upton. 19 He testified that Petitioner fired the second shot when Upton was on the ground. 20 Zeller heard the gunshots and came out of the house. She saw Petitioner talking on 21 his phone. When she saw Upton's body, Petitioner pointed his gun at her and told her to 22 not come any closer. Zeller ran away. 23 Petitioner called 911 and told the dispatcher he had just shot his neighbor. He 24 waited for the deputies to arrive and directed them to Upton's body. The deputies 25 retrieved Petitioner's gun case, which contained the .44 magnum, ammunition, and a 26 video camera. Under Upton's body they found a black cell phone. During subsequent 27 investigation, the deputies found a .40 caliber pistol and a box of ammunition in the 28 / / / / / 1 nightstand in Upton's bedroom, which did not appear to have been fired. Zeller testified 2 that Upton had shown her the gun several months before. 3 B. Summary of Procedural Background 4 At trial Petitioner claimed he shot Upton in self-defense because he erroneously 5 thought he saw a gun in Upton's hand. Based on the testimony of his expert Dr. 6 Raymond Murphy and his own testimony, Petitioner argued that he mistook Upton's cell 7 phone for a gun because he was experiencing the fight-or-flight syndrome due to Upton's 8 aggressive and threatening behavior over the previous year. Among other things, the jury 9 was instructed on the perfect and imperfect self-defense. On the prosecutor's request, the 10 jury was also given a contrived self-defense instruction. The jury found Petitioner guilty. 11 The judgment was affirmed on appeal. (Opinion at 48).) The petition for review by 12 California Supreme Court was summarily denied. (Doc. no. 8-24.) 13 Petitioner petitions this Court for federal habeas relief. He presents four claims in 14 support of the argument that his federal constitutional rights were violated: (1) 15 ineffective assistance of counsel because counsel did not move for a mistrial when the 16 prosecutor asked Dr. Murphy if he had previously referred to the fight-or-flight defense 17 strategy as a fad; (2) insufficient evidence for the contrived self-defense instruction; (3) 18 ineffective assistance of counsel for failure to object to the contrived self-defense 19 instruction; and (4) cumulative effect of the errors. 20 II. DISCUSSION 21 Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a 22 federal court may not grant habeas relief unless the state court's adjudication of the 23 petitioner's claim (1) “was contrary to . . . clearly established Federal law, as determined 24 by the Supreme Court;” (2) “involved an unreasonable application of” such law; or (3) 25 “was based on an unreasonable determination of the facts in light of the evidence 26 presented in the state court proceeding.” 28 U.S.C. § 2254(d). 27 As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling . . . was so lacking in 28 1 justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. 2

3 Harrington v. Richter, 562 U.S. 86, 103 (2011). In making this determination, the court 4 looks to the last reasoned state court decision to address the claim. Martinez v. Ryan, 926 5 F.3d 1215, 1223 (9th Cir. 2019). The last reasoned state court decision is the appellate 6 Opinion. 7 A. Reference to Fad 8 Petitioner claims his counsel was ineffective in violation of the Sixth Amendment 9 because he failed to move for a mistrial after the prosecutor asked Dr. Murphy if he had 10 previously termed the fight-or-flight defense strategy a fad. The prosecutor was referring 11 to Dr. Murphy's testimony outside the jury's presence at a motion in limine hearing: 12 [Mr. Uyar:] Of those six times that you testified on fight-or-flight, including the 402 hearings, can you give me a timeframe? Is that over your 13 entire 38-year career, or is that within, say, five years, ten years? 14 [Dr. Murphy:] Gosh, you're asking for guesses . . . Um, probably 15 ten years . . . 16 I think things like fight-or-flight go through fads in terms of testimony on them. 17

18 Q. Are we in a fight-or-flight fad now?

19 A. I think so, yes. 20 Q. What makes you say that? 21

22 A. Well, I've had a number of requests for information on fight-or- flight, or possible testimony on fight-or-flight. 23

24 (RT at 256-57 (alternations on brackets, ellipses in original).) On further questioning, Dr. 25 Murphy explained: 26 [Mr. Berkon:] This concept of a fad, now you didn't mean to suggest that fight-or-flight is somehow not a legitimate syndrome by suggesting it's a 27 fad? 28 1 [Dr. Murphy:] Oh, no, not at all. I think my implication was that defense strategies change. . . . 2

3 (RT at 264 (brackets and ellipsis added).) 4 The court denied the prosecutor's motion in limine and admonished him not to refer 5 to the defense strategy as a fad in the presence of the jury. (See id. at 1206.) 6 Nevertheless, the prosecutor brought out the reference in front of the jury: 7 [Mr. Uyar:] You mentioned phases of acceptability when you were describing whether -- or how this defense is being used currently. Is that 8 what you meant – you were saying "phases of acceptability"? 9 A. Yeah, I think so. 10

11 Q. And I believe you previously even termed it as a fad?

12 A. "Fad" in the sense of a defense strategy. 13 14 (RT at 1204 (brackets added).) The judge immediately called counsel to side bar and 15 then addressed the jury: 16 The Court: All right, ladies and gentlemen, there was a question asked as to whether or not this was considered a fad. 17 A fad can have different contexts, it can have different meanings. 18 What I am telling you is that the context within which it was used in this case is inappropriate. That was an inappropriate question for the people to 19 ask, and it gave an inappropriate -- left an inappropriate impression with the 20 jury. Therefore, you are to disregard that question, you are to disregard the answer, and you're not to consider it in any way in your considerations of 21 this case. 22 23 (Id. at 1205.) On re-direct, Petitioner's counsel asked Dr. Murphy to explain: 24 [Mr. Berkon:] . . . Just to make sure something is cleared up, Dr. Murphy: This fight-or-flight syndrome we've been talking about, it's an 25 accepted, valid phenomenon; is that fair to say? 26 A. Yeah, I think so. It's a physiological response that can be 27 validated. . . . 28 1 [¶]

2 Q. . . . And it's been studied . . . as you testified, for almost a hundred 3 years?

4 A. That's right. 5 Q. . . . [T]he frequency that fight-or-flight syndrome is used in 6 criminal trials over the course of your 38 years, have you seen that there are 7 times when it's not used as much, it varies in frequency?

8 A. Like patterns of use? 9 Q. Yes. 10

11 A. Yeah, sure.

12 Q. But that doesn't minimize or mitigate the fact that the phenomenon 13 exists?

14 A. Oh, no, probably has nothing to do with the phenomenon itself. 15 16 (RT at 1211-12 (brackets and ellipses added).) 17 Petitioner argues his counsel should have moved for a mistrial, and that in failing 18 to do so, he "was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 19 Amendment." Harrington, 562 U.S. at 104. He contends the state court's decision to the 20 contrary warrants habeas relief. 21 To prevail on a claim for ineffective assistance, Petitioner "must show both that 22 counsel's performance was deficient, and that he suffered prejudice due to counsel's 23 deficiency" in violation of Strickland v. Washington, 466 U.S. 668 (1984). Martinez, 926 24 F.3d at 1226 (quoting Strickland, 466 U.S. at 687). 25 In analyzing and rejecting the claim, the state appellate court applied People v. 26 Maury, 30 Cal.4th 342, 389 (2003), and People v. Weaver, 26 Cal.4th 876, 925-26 (2001), 27 both of which rely on Strickland. (Opinion at 43-46.) On habeas review, this Court does 28 not review the defense counsel's conduct de novo under Strickland but reviews the state 1 appellate court's decision under AEDPA's deferential standard of review. Harrington, 2 562 U.S. at 101. 3 Under § 2254(d), a habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it 4 must ask whether it is possible fairminded jurists could disagree that those 5 arguments or theories are inconsistent with the holding in a prior [Supreme Court] decision . . .. 6

7 Id. at 102. "The pivotal question is whether the state court's application of the Strickland 8 standard was unreasonable." Id. at 101. 9 "Surmounting Strickland's high bar is never an easy task. . . . Even under de novo 10 review, the standard for judging counsel's representation is a most deferential one." 11 Harrington, 562 U.S. at 105 (internal quotation marks and citations omitted, emphasis in 12 original). When, as here, Strickland's and AEDPA's deferential standards "apply in 13 tandem, review is doubly so." Id. (internal quotation marks and citations omitted). 14 "Strickland does not guarantee perfect representation, only a reasonably competent 15 attorney." Harrington, 562 U.S. at 110 (internal quotation marks and citations omitted). 16 [T]he standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant 17 proceedings, knew of materials outside the record, and interacted with the 18 client, with opposing counsel, and with the judge. It is all too tempting to second-guess counsel's assistance after conviction or adverse sentence. 19

20 Id. at 105 (internal quotation marks and citations omitted). 21 The success of Petitioner's self-defense arguments did not hinge on Dr. Murphy's 22 testimony. Dr. Murphy testified about the fight-or-flight syndrome only in general terms 23 and could not testify about Petitioner's state of mind. (See RT at 269-76 (in limine 24 ruling), 1195 (Dr. Murphy).) The success of Petitioner's defense depended on whether 25 the jury believed that Petitioner's prior confrontations with Upton rendered him so fearful 26 that he experienced the fight-or-flight syndrome when Upton approached him, which 27 caused him to mistake Upton's phone for a gun. As the judge noted in ruling on the 28 prosecutor's in limine motion: 1 . . . I don't really think it's going to be the fight-or-flight that's going to carry the day, it's going to be whether or not -- how they perceive the 2 circumstances under which this incident occurred. 3 4 (RT at 276; see also id. at 270 (court), 273 (court), 1195 (Dr. Murphy).) Given the 5 judge's observation and the immediate curative instruction, it was unlikely that a motion 6 for mistrial, even if made, would have been granted. See People v. Jennings, 53 Cal.3d 7 334, 380 (1991). 8 "There are . . . countless ways to provide effective assistance in any given case." 9 Harrington, 562 U.S. at 106 (internal quotation marks and citations omitted). Instead of 10 making a futile motion, defense counsel focused on diffusing the "fad" reference on 11 redirect. He then called two witnesses to bolster the credibility of Petitioner's testimony 12 that he feared Upton. Owens, who witnessed a confrontation between Upton and 13 Petitioner a week before the incident, testified to Upton's anger toward Petitioner. (RT at 14 1214-37.) Duane Byram, Zeller's former husband who shared child custody with her, 15 testified about Upton's bullying behavior toward him. (RT at 1237-63.) In closing, 16 Petitioner's counsel vigorously advocated for Petitioner. He marshalled the evidence in 17 support of self-defense, and bolstered the credibility of Petitioner's testimony that he shot 18 Upton out of fear, without thinking, because he was experiencing the fight-or-flight 19 syndrome. (See RT at 1439-72 (closing).) It was not unreasonable for the state appellate 20 court to conclude that counsel provided adequate representation under Strickland. 21 If the counsel's representation were found to be deficient, Petitioner would also 22 have to show prejudice. "With respect to prejudice, a challenger must demonstrate a 23 reasonable probability that, but for counsel's unprofessional errors, the result of the 24 proceeding would have been different." Harrington, 562 U.S. at 104 (internal quotation 25 marks and citations omitted). In this regard, 26 [T]he question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt 27 might have been established if counsel acted differently. Instead, Strickland 28 asks whether it is reasonably likely the result would have been different. 1 This does not require a showing that counsel's actions more likely than not altered the outcome, but the difference between Strickland's prejudice 2 standard and a more-probable-than-not standard is slight and matters only in 3 the rarest case. The likelihood of a different result must be substantial, not just conceivable. 4

5 Id. at 111-12 (internal quotation marks and citations omitted). 6 Petitioner contends he was prejudiced. The prejudice inquiry involves 7 consideration of counsel error in the context of the evidence introduced at trial. See 8 Martinez, 926 F.3d at 1233; Rowland v. Chapell, 876 F.3d 1174, 1185 (9th Cir. 2017). 9 The jury heard nearly six days of testimony from more than twenty witnesses, 10 observed their demeanor, and evaluated their credibility. Several of the witnesses saw 11 Petitioner's interactions with Upton in the months leading to and on the day of the 12 incident. Petitioner testified about it for a day and a half, including that he feared Upton, 13 felt threatened by him, and shot him without thinking out of fear for his life. (See RT at 14 939-1186.) 15 Much of the evidence contradicts self-defense. It does not show that Petitioner 16 was afraid of Upton and describes Upton immediately before the incident as calm rather 17 than angry and threatening. Parts of Petitioner's own testimony support the prosecution's 18 theory that Upton's murder was premeditated. It would not be unreasonable to conclude 19 that the jury did not believe Petitioner, and that the outcome of the trial had little, if 20 anything, to do with Dr. Murphy's general explanation of the fight-or-flight syndrome. It 21 was therefore not unreasonable for the state court to conclude that Petitioner was not 22 prejudiced by his counsel's failure to move for a mistrial. 23 In light of the record, the state appellate court was not unreasonable in finding that 24 Petitioner did not make a sufficient showing in support of his ineffective assistance claim 25 under Strickland. Petitioner's first claim is therefore rejected. 26 B. Contrived Self-Defense 27 Petitioner next contends that the trial court deprived him of his due process right to 28 present a complete defense when it granted the prosecutor's request for a contrived self- 1 defense instruction. The trial court gave the instruction titled "Right to Self-Defense May 2 Not Be Contrived," which stated, 3 A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force. 4

5 (RT at 1382.) Petitioner contends the instruction should not have been given because it 6 was not supported by substantial evidence. He further argues that the instruction negated 7 his self-defense, thus depriving him of due process. See California v. Trombetta, 467 8 U.S. 479, 485 (1984). Finally, he claims that his counsel's failure to object to the 9 instruction amounted to ineffective assistance of counsel. 10 The prosecution's theory of contrived self-defense was that Petitioner provoked the 11 incident by setting up the circumstances where a violent confrontation with Upton would 12 occur and used it to shoot Upton seemingly in self-defense. (See, e.g., RT at 1436.) The 13 state appellate court found that the instruction was supported by sufficient evidence, and 14 therefore also concluded that counsel was not ineffective. (Opinion at 46-48.) 15 Petitioner argues that the state court misapplied California law of contrived self- 16 defense. (Objections at 22 ("Both the Court of Appeal and the R&R are incorrect 17 because they are based on a fundamental misunderstanding of the doctrine of contrived 18 self-defense.").) Although Petitioner concedes that the instruction as given "contains a 19 correct statement of the law" (id. at 23; cf. Jud. Council of Cal., Crim. Jury Instr. No. 20 3472), he argues that under California law, the doctrine applies only if the defendant's 21 provocation is itself a crime. (Objections at 29 ("contrived self-defense must be based on 22 wrongful conduct amounting to a crime").) 23 Review of this issue is limited by AEDPA. 28 U.S.C. § 2254(d). 24 [I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a 25 federal court is limited to deciding whether a conviction violated the 26 Constitution, laws, or treaties of the United States.

27

28 1 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, this Court expresses no 2 opinion whether the state appellate court's understanding of contrived self-defense was 3 correct. 4 Petitioner further claims that as interpreted by state court, the contrived self- 5 defense instruction eviscerated his defense, thus depriving him of due process. See 6 Trombetta, 467 U.S. at 485 ("Under the Due Process Clause of the Fourteenth 7 Amendment, . . . criminal defendants [must] be afforded a meaningful opportunity to 8 present a complete defense."). He argues that if the provocation itself need not be a 9 crime, then any act, even a lawful act, would deprive a defendant of self-defense. 10 (Objections at 31.) This argument does not take into account all of the instruction as 11 given. The instruction applies only if a defendant "provokes a fight or quarrel with the 12 intent to create an excuse to use force." (RT at 1382 (emphasis added).) Because the 13 application of the instruction is limited to provocations intended to create an excuse for 14 use of force, i.e., set up the circumstances to create a self-defense, it was not 15 unreasonable for the state court to hold that the instruction did not deprive Petitioner of 16 due process. The state court's conclusion was therefore not “contrary to . . . clearly 17 established Federal law, as determined by the Supreme Court” and did not involve "an 18 unreasonable application of" such law. 28 U.S.C. § 2254(d)(1). 19 Finally, Petitioner argues that his due process rights were violated because the 20 instruction was not supported by sufficient evidence. The state appellate court found that 21 substantial evidence was adduced at trial to support the instruction. (Opinion at 47-48.) 22 This finding was not unreasonable. 23 Substantial evidence supports the conclusion that Petitioner provoked the incident, 24 which he had been anticipating for some time. Petitioner carried a loaded gun and wore 25 computer glasses every time he went to his property. (RT at 1184-85 ("In case if there is 26 a shoot-out, which I was afraid it might . . . happen.").) A week before the incident, when 27 Owens was trying to locate a boundary monument where Upton and Zeller parked, 28 Petitioner called the sheriff's department for protection. He told Deputy Abbott he 1 wanted to avoid a confrontation. Petitioner was especially concerned about a 2 confrontation on the day of the incident because Upton had removed the no-parking sign 3 and parked in the same spot as the week before, when Deputy Abbott responded to 4 Petitioner's call. Petitioner proceeded with the work anyway. He parked his car where he 5 could return to it without passing Upton's house (id. at 1089), observed from a distance 6 and put a loaded gun in his waistband to be ready to shoot. By proceeding on that day, he 7 created what he termed a "special occasion" (id. at 1035) he knew would provoke a fight 8 or a quarrel with Upton. 9 Substantial evidence further supports the conclusion that Petitioner provoked the 10 confrontation with intent to create an excuse to shoot Upton and claim self-defense. He 11 testified that Upton's hostility escalated because Upton "saw that there was no 12 punishment for him." (Id. at 969.) Petitioner purchased a powerful revolver especially 13 with Upton's large size in mind. When he came to his property on the day of the incident, 14 he was "ready for a shoot-out." (RT at 1184.) He did not shoot Upton before, because 15 Upton did not approach him. (Id. at 1159 ("He did not come to me . . . so that [sic] I had 16 not reason to shoot him.").) On the day of the incident, he provoked Upton to approach 17 him. Although he knew Upton was especially likely to get angry, Petitioner did not call 18 the sheriff's department for protection as he did the week before. This supports the 19 inference that Petitioner did not want protection but an excuse to shoot Upton. Petitioner 20 did not take any other measures to avoid shooting Upton and did not warn him he was 21 armed. (Id. at 1130 ("I did not want to give him an opportunity to see the handgun.").) 22 Instead, he "got ready for a shoot-out" (id. at 1184) and shot to kill when Upton 23 approached him (id. at 1070 ("I know how to shoot.")). 24 Based on the record, the state court finding was not “based on an unreasonable 25 determination of the facts in light of the evidence presented in the state court 26 proceeding.” 28 U.S.C. § 2254(d)(2). Petitioner's second claim alleging violation of due 27 process is therefore rejected. 28 1 Petitioner's third claim for ineffective assistance of counsel is derivative of his 2 second claim. Because the contrived self-defense instruction was supported by 3 substantial evidence and did not violate Petitioner's due process rights, his counsel's 4 failure to object did not constitute ineffective assistance under Strickland. See Boag v. 5 Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a meritless argument does 6 not constitute ineffective assistance.”).) Accordingly, Petitioner's third claim is also 7 rejected. 8 C. Cumulative Effect 9 Finally, Petitioner contends that the cumulative effect of the claimed errors 10 violated his right to a fair trial under the Due Process Clause. See Chambers v. 11 Mississippi, 410 U.S. 284, 302 (1973). 12 The Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting 13 criminal trial fundamentally unfair. . . . The cumulative effect of multiple 14 errors can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant reversal. 15

16 Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers). On federal habeas 17 review, cumulative error warrants relief only where "the combined effect of the errors 18 had a 'substantial and injurious effect or influence on the jury's verdict.'” Id. (quoting 19 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). 20 The cumulative error doctrine assumes a finding of multiple errors. On appeal, the 21 state court concluded that it did not find any errors, therefore the cumulative error 22 doctrine was inapplicable. (Opinion at 48 n.8.) This Court has rejected all of Petitioner's 23 individually claimed constitutional errors. Furthermore, based on the evidence presented 24 to the jury, the claimed errors, whether or not individually rising to the level of a 25 constitutional violation, did not have a substantial and injurious effect on the verdict. In 26 the absence of any error, the state appellate ruling of no cumulative error does not 27 warrant habeas relief under 28 U.S.C. § 2254(d)(1). Accordingly, Petitioner's final claim 28 is rejected. 1 Hl. CONCLUSION 2 For the foregoing reasons, Petitioner's Objections are overruled, the Report and 3 || Recommendation is adopted as modified herein, and the Petition is denied. 4 IV. CERTIFICATE OF APPEALABILITY 5 Petitioner requested a certificate of appealability under 28 U.S.C. § 2253(c). A 6 || certificate of appealability may issue "only if the applicant has made a substantial 7 || showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When, as here, 8 a district court has rejected the constitutional claims on the merits, the 9 showing required to satisfy § 2253(c) 1S straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's 10 assessment of the constitutional claims debatable or wrong. 11 12 || Slack v. Daniel, 529 U.S. 473, 484 (2000). Upon consideration of Petitioner's claims for 13 || purposes of certificate of appealability, the request is denied. 14 IT IS SO ORDERED. 15 16 || Dated: September 12, 2019 pee ep? 18 H . James Lorenz, 19 United States District Judge

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