Unpublished Disposition, 936 F.2d 577 (9th Cir. 1990)

No. 90-16123.

United States Court of Appeals, Ninth Circuit.

Before HUG and POOLE, Circuit Judges, and ATKINS^**  District Judge.

MEMORANDUM^*** 

* Marvin C. Harris appeals, pro se, from the district court's denial of his Petition for Writ of Habeas Corpus. A jury in a California state court convicted appellant of second-degree murder and found that he used a deadly weapon in committing the crime. On June 26, 1984, the trial court sentenced him to prison for the term of sixteen (16) years to life.

After denial of a Motion for New Trial, appellant appealed to the California Court of Appeal, which affirmed the judgment in an unpublished opinion on January 31, 1986. Appellant petitioned for review to the California Supreme Court. On May 21, 1986, the state's highest court denied review on direct appeal without comment. Appellant's state Petition for Writ of Habeas Corpus was denied in the Court of Appeal on September 11, 1989. The state Supreme Court denied review of the state habeas denial on November 11, 1990. Appellant has exhausted available state remedies with respect to the claims to the district court. See 28 U.S.C. § 2254(b), (c); Picard v. Connor, 404 U.S. 270, 276 (1971).

On December 13, 1989, appellant filed his Petition for Writ of Habeas Corpus in the Federal District Court for the Northern District of California. Appellant appeals from the district court's denial of that petition on June 27, 1990. We affirm.

The evidence upon which the jury based its verdict is set forth in the California state appellate court's unpublished order. Defendant was convicted of the December 26, 1980, stabbing death of Cecil Marzett, a nephew of defendant's wife, Rosie Harris. The stabbing occurred at approximately 1:30 a.m. after a day of Christmas celebration which involved a certain amount of drinking by defendant, his wife and the victim, and many comings and goings at the Harris apartment. Defendant, who had only been married some five months to Rosie, had spent the day with his parents and siblings at the home of a sister. Upon returning to his apartment at approximately 7:30 p.m., he appeared irritable. During the course of the evening he entered and left the apartment several times.

At about 12:45 a.m. defendant once more returned to his apartment. By this point in the evening the apartment contained Veatrice Buckley, Rosie Harris' daughter by a previous marriage, and Cecil, Rosie's nephew whom she thought of as a son, as well as Rosie Harris herself. Defendant was dressed in a one-piece snow or ski suit which was equipped with various zippered pockets. Veatrice testified that she saw the handle of what she assumed was a knife protruding from one of those pockets.

Defendant came into the living room and announced to his wife that he would like to talk to her. Defendant then headed toward the master bedroom. Despite urging from Veatrice not to comply, Rosie Harris, followed by Cecil, did go into the bedroom. Defendant protested Cecil's presence. Initially, Cecil refused to leave, and warned defendant not to be disrespectful to his Aunt Rosie. The warning was accompanied by Cecil's pointing a finger in defendant's face. Rosie urged Cecil to leave the bedroom.

As Cecil turned to leave the bedroom, Veatrice saw defendant stab Cecil in the upper abdomen. Rosie, who had had her back to the two men, turned in time to see defendant making jabbing gestures toward Cecil. Cecil then attempted to flee toward the kitchen. As he did so Rosie saw defendant strike at Cecil another time.

The autopsy revealed Cecil had suffered an eight-inch-deep wound to his abdomen, another wound which glanced off the bone in his upper left arm and more minor injuries to his left hand and wrist. The abdominal wound had a "notch" at its base consistent, in the view of the pathologist, with repeated movements of the weapon.

The knife was recovered later in the morning of December 26 1980, after defendant had turned himself into the police and told them where he had thrown it. According to Rosie, the knife was not a kitchen knife from the defendant's apartment, nor was it the small paring knife which defendant habitually kept by his bed where he ate many meals.

The issues raised may be summarized as follows:

(1) Did the trial court err by denying Harris' pretrial motion to set aside the Information?

(a) Is this issue procedurally defaulted?

(b) Does it state any federal claim?

(2) Did sufficient evidence of malice support Harris' conviction for second-degree murder?

(3) Did the trial court err by denying Harris' new trial motion and if so, does this issue state any federal claim?

The district court has jurisdiction to consider and decide the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The district court's order denying the Petition for Writ of Habeas Corpus, filed June 27, 1990, is final and disposed of all claims raised by appellant. The district court certified the case for appeal on July 27, 1990. On July 10, 1990, appellant filed a timely notice of appeal. Fed. R. App. P. 4(a). Accordingly, this court has jurisdiction to hear the appeal. See 28 U.S.C. § 2253.

This court reviews de novo a district court's decision on a Petition for Writ of Habeas Corpus. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 4874 U.S. 870 (1987). We review for clear error any factual findings made by the district court in deciding the Petition. Hayes v. Kinchloe, 784 F.2d 1434, 1436 (9th Cir. 1986), cert. denied, 484 U.S. 871 (1987).

Appellant advances the following contentions: (1) that the state court improperly denied his pretrial Motion to Set Aside the Information; (2) that the evidence was insufficient to support his conviction for second-degree murder; and (3) that the trial court improperly denied his Motion for New Trial.

Appellant takes issue with the denial of his section 995 motion to dismiss which was based on the contention that the evidence at the preliminary hearing was insufficient to establish probable cause to support the Information charging him with murder. Appellant claims that inconsistencies and ambiguities in testimony at the preliminary hearing about various facts rendered the testimony inadequate as evidence to establish probable cause. Appellant appealed this issue to the Court of Appeal of the State of California. The state appellate court found that Harris' failure to seek a pretrial writ (the means by which to raise a preliminary-hearing non-jurisdictional irregularity under California state law) waived his right on appeal to complain of error in the denial of the section 995 motion.

The Supreme Court of California has limited a court's power to reverse judgments in the context of direct appeals based on irregularities at a preliminary hearing:

Henceforth irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. The right to relief without any showing of prejudice will be limited to pretrial challenges or irregularities.

People v. Pompa-Ortiz, 612 P.2d 941, 947 (Cal.1990). Since deficiency of evidence at the preliminary hearing is not a "fundamental" jurisdictional defect, People v. Alcala, 685 P.2d 1126, 1139 (Cal.1984), the burden rests with appellant Harris to show that the alleged pretrial error denied him a fair trial or otherwise caused him prejudice. Pompa-Ortiz, 612 P.2d at 947.

The state appellate court found ample trial evidence to support appellant's conviction and concluded that Harris had suffered no prejudice from any possible error at his preliminary hearing. While we agree with the state appellate court's conclusions, we need not reach those issue as we find there exists a procedural default precluding federal habeas review. See Harris v. Reed, --- U.S. ----, 109 S. Ct. 1038, 1042-45 (1989) (holding that federal claimant's procedural default precludes federal habeas corpus review, like direct review, only if the last state court rendering judgment rests judgment on procedural default). The state appellate court's order affirming Harris' judgment of conviction "clearly and expressly" stated its judgment rests on a state procedural bar when it concluded that Harris had waived his right on appeal to complain of error in denying the section 995 motion. Therefore, this court is precluded from reviewing this claim absent a showing of cause and prejudice. See id. at 1042. No such cause or prejudice has been shown.

In addition, Harris, a state prisoner has not demonstrated a federal claim on the merits. A state prisoner can obtain federal habeas corpus relief only if he is held in violation of the Constitution, or of the laws and treaties of the United States. Engle v. Isaac, 456 U.S. 107, 119 (1982). Since there is no constitutional right to a preliminary hearing, see Gerstein v. Pugh, 420 U.S. 103, 125 n. 26 (1975), there exists no federal claim on the merits of this issue.

The substance of appellant's sufficiency argument is that he acted in the heat of passion and in self-defense, and that the presumption of malice is overcome. Accordingly, he argues that he was guilty of no more than voluntary manslaughter. We review the sufficiency of the evidence to support a state conviction challenged in a federal habeas corpus proceeding according to the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979): "the critical inquiry ... must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Id. at 318 (footnote omitted). The relevant inquiry is not whether the court itself believes the evidence at trial established guilt beyond a reasonable doubt, but whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact, could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (citations omitted) (emphasis in original).

Applying this constitutionally mandated standard to the facts of this case results in affirmance on this issue. The state appellate court's rejection of this claim presents persuasive analysis. In treating the applicable principles and conflicts in the evidence, the state appellate court observed the following:

Defendant challenges his conviction on the grounds that it is not supported by substantial evidence. In reviewing a conviction challenged for lack of evidentiary support, an appellate court reviews the record as a whole in a light most favorable to the judgment below to determine whether that record possesses evidence which is reasonable, credible and of solid value, in sum, substantial evidence, upon which a trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal. 3d 557, 578.)

Defendant argues that there was ample evidence before the jury to establish that he acted under provocation and thus lacked the requisite malice to be guilty of second degree murder. In circumstances where a killing occurs as the result of "a sudden quarrel or heat of passion," provocation will negate the element of malice essential to a murder conviction and reduce the crime to voluntary manslaughter. ( [Penal Code] Sec. 192, subd. (a); People v. Sedeno (1974) 10 Cal. 3d 703, 719.) Because malice is presumed whenever the circumstances of a killing suggest an intent to kill, the existence of provocation or heat of passion must be affirmatively demonstrated. (Ibid.; People v. Williams (1969) 71 Cal. 2d 614, 624.) No specific conduct is required to establish provocation and verbal provocation may be sufficient. (People v. Berry (1976) 18 Cal. 3d 509, 515.)

The crucial inquiry is whether "defendant's reason was, at the time of his act, ... disturbed or obscured by some passion ... to such an extent as would render ordinary men of average disposition liable to act rashly or without undue deliberation and reflection, and from this passion rather than from judgment." (People v. Logan (1917) 175 Cal. 45, 49.) This reasonable man standard is embodied in CALJIC No. 8.42 (1979 rev.), which was given to the jury.

There was conflicting evidence about defendant's mood before the stabbing occurred. Rosie Harris and her daugther both testified that defendant seemed upset on Christmas Day. Defendant's mother and sister, however, testified that he was in a good mood all Christmas Day, which continued until he was dropped off at his home around 7:30 p.m. By the time defendant invited his wife to come into the bedroom at about 1:30 a.m., he was not shouting but he did appear angry.

Immediately prior to the stabbing the victim [Cecil Marzett] exchanged words with defendant, pointing a finger in defendant's face and telling defendant that he should be respectful toward Rosie Harris. Cecil also warned defendant that unless he acted properly Cecil would take him "out of the game." Before the stabbing Cecil had responded to Rosie Harris' entreaties that he leave the bedroom and had turned to walk away.

Here there was adequate evidence from which the jury could infer that a reasonable man would not respond to a verbal admonition, even one delivered in his own home from a close family associate, with deadly physical violence. There was no substantial evidence of provocation, and there was substantial evidence from which the jury could infer that defendant acted with malice.

Defendant also contends that the element of malice necessary for conviction of second-degree murder was negated here by his having acted in the honest but unreasonable belief that he needed to defend himself from Cecil.

An honest but unreasonable belief that it is necessary to defend oneself will negate the mental element of malice necessary for murder and reduce the offense to manslaughter. (People v. Flannel (1979) 25 Cal. 3d 668, 674.) The jury was so instructed.

Defendant argues that he was honestly frightened by Cecil, who at 6' 5", was substantially taller than he. There was evidence, however, that defendant actually invited Cecil to accompany him and Rose Harris to their bedroom. Once Cecil had warned defendant not to be disrespectful toward Rosie he then turned and began to leave the room. In light of Cecil's departure from the room the jury could have rejected as incredible defendant's contention that he was honestly fearful for his own safety at Cecil's hands.

(omissions in original).

The law in this circuit is well settled that this court does not have authority to review a state's application of its own laws. Jackson v. YLST, 921 F.2d 882, 885 (9th Cir. 1990). Instead, this court's function is "to determine whether the prisoner's constitutional or other federal rights have been violated." Id. (citing Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984)). Since Harris has not demonstrated the presence of a constitutional issue, this claim must be rejected.

On the only tenable federal issue, the sufficiency of evidence, both the state appellate court and district court properly rejected the appellant's claim. The district court is AFFIRMED.