Williams v. Fox

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8                     UNITED STATES DISTRICT COURT                        
9                    NORTHERN DISTRICT OF CALIFORNIA                      
10                                                                         
     RODNEY WILLIAMS,                                                     
11                                     Case No.  18-04859 EJD (PR)         
               Petitioner,                                                
12                                     ORDER DENYING PETITION FOR          
           v.                         WRIT OF HABEAS CORPUS;              
13                                     DENYING CERTIFICATE OF              
                                      APPEALABILITY; DIRECTIONS           
14    ROBERT W. FOX, Warden,           TO CLERK                            
15              Respondent.                                                
16                                                                         

17        Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 
18   challenging his state conviction.  The Court found the petition, Dkt. No. 1, “Petition”, 
19   stated cognizable claims which merited an answer from Respondent.  Dkt. No. 11.  
20   Respondent filed an answer on the merits.  Dkt. No. 15, “Answer.”  Despite a notice and 
21   opportunity to do so, Petitioner failed to file a traverse.  See generally, Dkt.  For the 
22   reasons set forth below, the Petition for a Writ of Habeas Corpus is DENIED. 
23                            I.  BACKGROUND                               
24        On March 21, 2016, Petitioner was found guilty by a jury in San Mateo County 
25   Superior Court (“trial court”) of second-degree murder, with the personal use of a deadly 
26   and dangerous weapon, and the infliction of great bodily harm upon his victim.  See Pet. at 
27   1-2.  Petitioner was sentenced to a term of 31 years to life in prison.  See id. at 1. 
1        On December 12, 2017, the California Court of Appeal (“state appellate court”) 
2   affirmed the judgment in a reasoned opinion.  See Ans., Ex. F; see also People v. Williams, 
3   No. A148797, 2017 WL 6334240 (Cal. Ct. App. Dec. 12, 2017).  The California Supreme 
4   Court summarily denied a petition for review on March 21, 2018.  See Pet., Ex. A.     
5        Petitioner filed the instant habeas petition on August 10, 2018. 
6                        II.  STATEMENT OF FACTS                          
7        The following facts are taken from the opinion of the state appellate court on direct 
8   appeal:                                                               
              The prosecution charged Williams with murder (§ 187, subd.  
9             (a)) and alleged he personally used a deadly and dangerous  
              weapon (§ 12022, subd. (b)(1)) and personally inflicted great 
10             bodily injury (§ 1203.075, subd. (a)).  The operative information 
              alleged Williams had two prior strike convictions (§ 1170.12, 
11             subd. (c)(2)).                                              

12             Prosecution Evidence                                        
              Williams worked with Neil Lewis.  In early June 2015, Lewis 
13             was shot and his left leg was “completely shattered.”  After 
              about two weeks, Lewis returned to work, but he walked with a 
14             limp and “it was hard for him to put pressure on” his left leg.  
              Lewis was “in constant pain” after the shooting.            
15                                                                         
              On July 7, 2015, Victor A., his wife, and his daughter arrived at 
16             an office building in Burlingame.  Before going inside, Victor 
              smoked a cigarette behind the building.  As Victor smoked, his 
17             wife called to him, saying two people were fighting.  Victor 
              came to the lobby and saw two men fighting in front of the  
18             building.  Victor’s daughter also witnessed the fight.  A taller, 
              heavier man—later identified as Williams—was “dominating”   
19             Lewis, “trying to force him to the ground.”  With his palms 
              facing out, Lewis tried, unsuccessfully, “to defend himself.”  
20             Williams punched Lewis, who tried to “cover his face to not get 
              ... hit.”  Williams forcefully lifted Lewis in the air and threw 
21             him, causing Lewis to fall to the ground.  Then Williams hit 
              Lewis four or five times.                                   
22                                                                         
              Lewis did not punch Williams, and he did not put his hands  
23             around Williams’s neck.  Instead, Lewis tried to back away from 
              Williams, to avoid getting hit.  Eventually, Lewis was unable to 
24             get up.  Williams got into a car and drove to a nearby parking 
              lot, where he told a man he had been “jumped” by “some of his 
25             co-workers.”  Williams’s T-shirt was bloody, and he had blood 
              on his hand.  The man asked Williams whether he needed an   
26             ambulance or the police, and William[s] said “no.”  Williams 
              went into the bathroom, took off his T-shirt, and wiped off the 
27             blood.  The man could see Williams’s face and torso; there were 
              no cuts, injuries, scratches, or blood.                     
1             Shortly after Williams left, Lewis lost consciousness.  He died 
              from “complications of multiple sharp force injuries.”  Lewis 
2             had “seven stab wounds and four cuts.”  One of the wounds—  
              which  was  four  inches  deep—entered  Lewis’s  chest  and 
3             penetrated his left lung.  Another “extremely serious” wound 
              penetrated Lewis’s heart and by itself would have been fatal.  
4             Another wound would have disabled the use of Lewis’s hand   
              “very significantly” and was consistent with Lewis “grasp[ing] 
5             a knife blade in trying to defend [him]self against it.”  The 
              majority of Williams’s wounds were consistent with defensive 
6             wounds.                                                     

7             Williams was arrested in Sacramento in late July 2015.  When 
              he was arrested, Williams did not have any injuries or scars. 
8                                                                         
              Defense Evidence                                            
9             Williams testified that he began working with Lewis in July 
              2014.  They had a cordial relationship.  In 2015, Williams was 
10             dating two women, including K.M., who had previously worked 
              with Lewis.  In May 2015, Williams was having “trust issues” 
11             with K.M. and saw “a number calling her phone consistently.”  
              Williams learned it was Lewis who had been calling K.M., so he 
12             asked Lewis, “‘What’s going on here? Is there anything I need 
              to know about?’”  Lewis told Williams he was just checking in 
13             with K.M.  A few days later, Williams sent Lewis a text saying 
              “Bruh, I’m all ears” because Lewis had indicated he wanted to 
14             talk.  The two men talked and Lewis assured Williams there was 
              nothing to worry about.  Williams felt the issue was resolved. 
15                                                                         
              In June 2015, Williams learned Lewis had been shot.  After  
16             Lewis returned to work, Williams approached him, to “see how 
              he was doing.”  Lewis was sitting in the passenger seat of a car; 
17             the “driver had a gun on his lap.”  William[s] asked Lewis, 
              “‘How are you doing?’”  Lewis responded by asking Williams  
18             if he still associated with a street gang called the 500 Boys.  
              Williams  said  no,  but  he  interpreted  the  question  as  an 
19             accusation  that  he  “had  some  type  of  involvement  with 
              [Lewis’s] shooting.”                                        
20                                                                         
              When Williams saw Lewis in early July 2015, Lewis was not   
21             friendly: he “turned up his lip ... like, I’m not cool.”  The two 
              men got into a “kind of heated” argument.  On July 7, 2015, 
22             Williams and Lewis worked together.  At the end of the evening, 
              when Williams said goodbye, Lewis “mugg[ed]” him, as if to  
23             tell Williams he was “not cool.”  The two men exchanged words, 
              and Williams asked Lewis, “‘You know, what is this going to 
24             come to? ... What is going to be the end of this?’”  In response, 
              Lewis  said:  “‘Go  around  the  corner  and  handle  it  now.’”  
25             Williams thought Lewis meant they “were going to go around  
              the corner, maybe a fistfight, argue or something.”  Williams’s 
26             “perception” of the comment was: “let’s go around the corner 
              and fight it out.”  Williams thought there “was going to be a 
27             fight.”                                                     
              Williams followed Lewis’s car toward an office building in  
1             Burlingame.  Lewis got out of the car “aggressively” and then 
              “grabbed at his waist a little bit.”  Williams—who thought Lewis 
2             might have “had a weapon, a gun or something”—kept driving.  
              As  Williams  drove,  Lewis  “threw  something  at  the  car.”  
3             Williams stopped driving, got out of the car, and said, “‘What’s 
              up?’”  Lewis came toward Williams “at a fast pace, and he raised 
4             his hand,” which held a knife.  [FN 2.]  Williams was scared. 

5                  [FN 2: Over Williams’s hearsay objection, the          
                   court allowed several prosecution witnesses to         
6                  testify on rebuttal regarding statements Lewis         
                   made before the incident.  Lewis’s brother, and        
7                  his best friend, testified Lewis did not carry a       
                   knife.  The day before he died, Lewis told his         
8                  best friend that he had “some problems with a          
                   guy at work” over a girl, and that the “guy called     
9                  his phone a lot, ... threatening him,” but that        
                   Lewis  “wasn’t  worried  about  it.”    Lewis’s        
10                  girlfriend testified on rebuttal that Lewis said he    
                   had an issue “with a guy at work” and that when        
11                  he returned to work after the shooting, the two        
                   had a confrontation and they had “squared up.”         
12                  Lewis called the guy a “fuckboy” and a “little,        
                   short, ugly guy.” Lewis also said, “‘I’ll fuck his     
13                  little ass up.’”]                                      

14             Williams grabbed Lewis’s “hand with the knife” and the two  
              men began to “tussle.”  The knife fell to the ground and Williams 
15             and Lewis fought “over possession” of it.  Williams picked up 
              the knife, and Lewis “rushed back in at [him],” trying to swat 
16             the knife from Williams’s hand.  Then Lewis “wrapped his    
              hands around [Williams’s] neck and started to choke” him.  At 
17             that point, Williams tried to stab Lewis’s arm so Lewis would 
              release the choke hold.  When this was unsuccessful, Williams 
18             swung the knife wildly to “save” himself.  Somehow, Lewis   
              “ripped” the knife out of Williams’s hand; then the knife “ended 
19             up ... in front of the building.”  The two men “pull[ed] at each 
              other, trying to keep each other away from the knife.”      
20                                                                         
              Williams  retrieved  the  knife  and  put  it  in  his  pocket.    As 
21             Williams approached his car, Lewis “snatched ... back” at him.  
              Ultimately,  Lewis  told  Williams  he  did  not  want  to  fight 
22             anymore.  Lewis appeared tired, but not injured.  Williams left, 
              but he did not call the police.  Williams did not know he stabbed 
23             Lewis 11 times.                                             

24             Jury Instructions, Verdict, and Sentence                    
              The court instructed the jury on first and second degree murder, 
25             and  with  voluntary  manslaughter  based  on  imperfect  self-
              defense (CALCRIM Nos. 500, 520, 521, 571).  Additionally, the 
26             court instructed the jury on self-defense (CALCRIM No. 505), 
              i.e. that a defendant can act in lawful self-defense if “[t]he 
27             defendant used no more force than was reasonably necessary to 
              defend against that danger.”  It further instructed the jury that 
              “[t]he defendant is only entitled to use that amount of force that 
1             a reasonable person would believe is necessary in the same  
              situation.  If the defendant used more force than was reasonable, 
2             the killing was not justified,” and that “[a] defendant is not 
              required to retreat.  He ... is entitled to stand his ... ground and 
3             defend himself ... and, if reasonably necessary, to pursue an 
              assailant until the danger of death or great bodily injury has 
4             passed.  This is so even if safety could have been achieved by 
              retreating.”                                                
5                                                                         
              The court also instructed the jury with CALCRIM No. 3472, that 
6             “[a] person does not have the right to self-defense if he ... 
              provokes a  fight or quarrel with the intent to create an excuse to 
7             use force.” (CALCRIM No. 3472.)  [FN 3.]  Finally, the court 
              instructed the jury with CALCRIM No. 3474, which provides:  
8             “The right to use force in self-defense continues only as long as 
              the danger exists or reasonably appears to exist.  When the 
9             attacker no longer appears capable of inflicting any injury, then 
              the right to use force ends.”                               
10                                                                         
                   [FN  3:  Defense  counsel  objected  to  the           
11                  instruction, claiming it was “not based on any         
                   evidence  presented  at  the  trial.”    At  an        
12                  unreported conference, the court and the parties       
                   discussed jury instructions.  Then, at a reported      
13                  hearing, the court noted the instructions it would     
                   deliver,  and  that  CALCRIM  No.  3471  was           
14                  “withdrawn.”    CALCRIM  No.  3471  was  not           
                   among  the  jury  instructions  requested  by  the     
15                  prosecutor.]                                           

16             The prosecutor urged the jury to convict Williams of first degree 
              murder.  According to the prosecutor, William’s version of the 
17             incident was that Williams  “didn’t intend to kill him.  He just 
              wanted to settle this thing.  That [Lewis] brought the knife, and 
18             that ... [Williams] was able to disarm [Lewis] and things went 
              horribly awry.... [¶]  But remember this.  Again, this is an 
19             instruction from the Judge.  A person does not have the right to 
              self-defense if he provokes the fight or quarrel with the intent to 
20             create an excuse to use force.  That’s what we have here. [¶]  
              What did ... Williams do?  He stopped, got out of the car,  
21             confronted the victim, and now he is saying self-defense. [¶]  
              You do not have a right to provoke a quarrel in order to use that 
22             defense.”    The  prosecutor  also  urged  the  jury  to  reject  a 
              voluntary manslaughter verdict.                             
23                                                                         
              In his closing, defense counsel argued Williams was not guilty 
24             because he acted in “legal self-defense.”  According to counsel, 
              the two men “agreed to meet ... and when they did Mr. Williams 
25             was surprised by the presence of the knife. [¶] ...  [Williams] 
              wasn’t expecting to see the knife ... he wasn’t expecting to be 
26             accosted with a knife.”  Counsel argued the evidence supported 
              a “justifiable response to the attack ....  The choking absolutely 
27             put him in imminent peril of death, and he responded with just 
              enough force to escape that death.”                         
1             On  rebuttal,  the  prosecutor  urged  the  jury  to  conclude 
              Williams’s “story of ... agreeing to this fight” did not make 
2             sense.  According to the prosecutor, it “[d]oesn’t make sense that 
              these two guys are going to settle their matter with what’s pretty 
3             serious, getting shot, with fisticuffs.  Does that make any sense?  
              And they’re going to do it ... during work hours in broad daylight 
4             in a public place where people are going to and from their cars.  
              They’re actually planning this.  We’re going to go around the 
5             corner and settle our differences ... we’re going to go do it in 
              front of this commercial building.”                         
6                                                                         
              The jury convicted Williams of second degree murder (§ 187, 
7             subd. (a)) and found true the allegation he personally used a 
              deadly and dangerous weapon (§ 12022, subd. (b)(1)).  The trial 
8             court found Williams’s prior convictions true, struck one prior 
              pursuant to People v. Superior Court (Romero) (1996) 13 Cal. 
9             4th 497 and sentenced Williams to 31 years to life in state prison. 
10   Williams, 2017 WL 6334240, at *1–4.                                   
11                            III.  DISCUSSION                             
12   A.   Legal Standard                                                   
13        This Court may entertain a petition for a writ of habeas corpus “in behalf of a 
14   person in custody pursuant to the judgment of a State court only on the ground that he is in 
15   custody in violation of the Constitution or laws or treaties of the United States.”  28 U.S.C. 
16   § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).  The writ may not be granted with 
17   respect to any claim that was adjudicated on the merits in state court unless the state 
18   court’s adjudication of the claim:  “(1) resulted in a decision that was contrary to, or 
19   involved an unreasonable application of, clearly established Federal law, as determined by 
20   the Supreme Court of the United States; or (2) resulted in a decision that was based on an 
21   unreasonable determination of the facts in light of the evidence presented in the State court 
22   proceeding.”  28 U.S.C. § 2254(d).                                    
23        “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 
24   court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 
25   of law or if the state court decides a case differently than [the] Court has on a set of 
26   materially indistinguishable facts.”  Williams v. Taylor, 529 U.S. 362, 412-13 (2000).  The 
27   only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the 
1   holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court 
2   decision.  Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004).  
3   While circuit law may be “persuasive authority” for purposes of determining whether a 
4   state court decision is an unreasonable application of Supreme Court precedent, only the 
5   Supreme Court’s holdings are binding on the state courts and only those holdings need be 
6   “reasonably” applied.  Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other 
7   grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).                    
8        “Under the ‘unreasonable application’ clause, a federal habeas court may grant the 
9   writ if the state court identifies the correct governing legal principle from [the Supreme 
10   Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s 
11   case.”  Williams, 529 U.S. at 413.  “Under § 2254(d)(1)’s ‘unreasonable application’ 
12   clause, . . . a federal habeas court may not issue the writ simply because that court 
13   concludes in its independent judgment that the relevant state-court decision applied clearly 
14   established federal law erroneously or incorrectly.”  Id. at 411.  A federal habeas court 
15   making the “unreasonable application” inquiry should ask whether the state court’s 
16   application of clearly established federal law was “objectively unreasonable.”  Id. at 409.  
17   The federal habeas court must presume correct any determination of a factual issue made 
18   by a state court unless the petitioner rebuts the presumption of correctness by clear and 
19   convincing evidence.  28 U.S.C. § 2254(e)(1).                         
20        Here, as noted above, the California Supreme Court summarily denied Petitioner’s 
21   petitions for review.  See supra at 2; Pet., Ex. A.  The state appellate court, on direct 
22   review, addressed the claims in the instant petition.  Ans., Ex. F.  The state appellate court 
23   thus was the highest court to have reviewed the claims in a reasoned decision, and it is that 
24   decision that this Court reviews herein.  See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 
25   (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).    
26        The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, 
27   there is a heightened level of deference a federal habeas court must give to state court 
1   decisions.  See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam); Harrington v. 
2   Richter, 131 S. Ct. 770, 783-85 (2011); Felkner v. Jackson, 131 S. Ct. 1305 (2011) (per 
3   curiam).  As the Court explained:  “[o]n federal habeas review, AEDPA ‘imposes a highly 
4   deferential standard for evaluating state-court rulings’ and ‘demands that state-court 
5   decisions be given the benefit of the doubt.’”  Id. at 1307 (citation omitted).  With these 
6   principles in mind regarding the standard and limited scope of review in which this Court 
7   may engage in federal habeas proceedings, the Court addresses Petitioner’s claims. 
8   B.   Claims and Analysis                                              
9         Petitioner raises the following grounds for federal habeas relief:1 that by failing to 
10   instruct the jury on CALCRIM 3471 (“the CALCRIM 3471 Instruction”), the trial court 
11   (1) erred as a matter of California law, see Pet., Ex. B at 11-16 and 22-26; that the failure 
12   to give the CALCRIM 3471 Instruction also (2) violated Petitioner’s right to due process, 
13   see id. at 17, 19-22; and (3) that Petitioner’s counsel was ineffective in failing to request 
14   the CALCRIM 3471 Instruction, see id. at 18.  Petitioner argues that the trial court also (4) 
15   violated his due process by failing to sua sponte instruct the jury on voluntary 
16   manslaughter, see id. at 27-33.  Petitioner challenges hearsay statements admitted at trial, 
17   contending that the admission of these statements (5) erred as a matter of California law, 
18   thus violating his due process, see id. at 34-35; (6) violated Petitioner’s rights under the 
19   Confrontation Clause, see id. at 35; and (7) allowed the jury to hear improper bad character 
20   evidence in violation of Petitioner’s right to due process, see id. at 36.  Finally, Petitioner 
21   claims (8) cumulative error, see id. at 37.                           
22        Because these claims relate to the same facts, the Court will first address 
23   Petitioner’s claims regarding the omission of the CALCRIM 3471 Instruction (Claims 1-
24   3).  Next the Court will address Petitioner’s claim related to the omission of a jury 
25                                                                         

26   1 Although the Court’s screening order identified only four claims, see Dkt. No. 11 at 2, a 
    closer reading of the Petition reveals that Petitioner stated multiple claims for each 
27   perceived error, stating eight claims in total.  As the Court concludes that Petitioner is not 
    entitled to relief for any of these claims, Respondent is not prejudiced by the Court’s 
1   instruction on voluntary manslaughter (Claim 4).  The Court will then address Petitioner’s 
2   claims regarding the admission of hearsay statements (Claims 5-7).  Finally, the Court will 
3   address Petitioner’s claim of cumulative error (Claim 8).             
4        1.   Claims Related to the CALCRIM 3471 Instruction              
5        As noted, supra, Petitioner contends that the trial court should have given the 
6   CALCRIM 3471 Instruction.  Petitioner argues that by failing to do so, the trial court  
7   (1) erred as a matter of California law, and (2) violated Petitioner’s right to due process.  
8   Petitioner also argues (3) that Petitioner’s counsel was ineffective in failing to request the 
9   CALCRIM 3471 Instruction.                                             
10        The state appellate court rejected Petitioner’s arguments, finding that the jury was 
11   able to consider Petitioner’s self-defense claim:                     

12             Williams  contends  the  court  erred  by  failing  to  sua  sponte 
              instruct the jury with CALCRIM No. 3471.  That instruction  
13             provides: “A person who [engages in mutual combat or who    
              starts a fight] has a right to self-defense only if: [¶] (1) [he] 
14             actually and in good faith tried to stop fighting; ... [¶] (2) [he] 
              indicated by word or by conduct to [his] opponent, in a way that 
15             a reasonable person would understand that [he] wanted to stop 
              fighting and that [he] had stopped fighting[; and] (3) [he] gave 
16             [his] opponent a chance to stop fighting.  [¶]  If the defendant 
              meets these requirements, [he] then had a right to self-defense if 
17             the opponent continued to fight.”                           

18             When the person claiming self-defense was engaged in mutual 
              combat, CALCRIM No. 3471 also provides: “[However, if the   
19             defendant  used  only  nondeadly  force,  and  the  opponent 
              responded with such sudden and deadly force that the defendant 
20             could not withdraw from the fight, then the defendant had the 
              right to defend [himself] with deadly force and was not required 
21             to try to stop fighting [,] communicate the desire to stop to the 
              opponent[, or give the opponent a chance to stop fighting].]  [¶]  
22             [A fight is mutual combat when it began or continued by mutual 
              consent or agreement.  That agreement may be expressly stated 
23             or  implied  and  must  occur  before  the  claim  to  self-defense 
              arose.]”                                                    
24                                                                         
              Williams  contends  he  was  entitled  to  CALCRIM  No.  3471 
25             because he and Lewis agreed to engage in mutual combat.  A  
              trial court must instruct the jury on all general principles of law 
26             that are “‘“closely and openly connected to the facts and that are 
              necessary for the jury’s understanding of the case,”‘“ provided 
27             the instruction is supported by substantial evidence.  (People v. 
              Burney (2009) 47 Cal.4th 203, 246.)  We assume for the sake of 
              argument  substantial  evidence  supports  the  conclusion  that 
1             Lewis and Williams “consented or intended to fight before the 
              claimed  occasion  for  self-defense  arose.”    (People  v.  Ross 
2             (2007) 155 Cal. App. 4th 1033, 1046–1047; People v. Tufunga 
              (1999) 21 Cal. 4th 935, 944 [doubts as to sufficiency of evidence 
3             warranting an instruction should be resolved in the defendant’s 
              favor].)                                                    
4                                                                         
              Williams argues the court’s erroneous failure to instruct the jury 
5             with CALCRIM No. 3471 “deprived [him] of the right to have  
              the jury correctly evaluate his use of self-defense.”  According 
6             to  Williams,  the  court  should  have  instructed  the  jury  with 
              CALCRIM Nos. 3471 and 3472 “in tandem” because “a person    
7             who starts a fight with non-deadly force, as [Williams] did here, 
              does not forfeit the right to self-defense if his opponent is the 
8             first person to use deadly force.  Instead, if the initial attacker 
              does not start the fight with deadly force, he may regain the right 
9             to self-defense, if his opponent is the first to use deadly force 
              and uses it suddenly.”                                      
10                                                                         
              To  determine  whether  the  failure  to  instruct  the  jury  was 
11             prejudicial, we briefly discuss the two jury instructions.  Under 
              CALCRIM  No.  3471,  a  defendant  who  engages  in  mutual 
12             combat, or who starts a fight, ordinarily has a right to self-
              defense only where three criteria are satisfied: (1) the defendant 
13             “actually  and  in  good  faith  tried  to  stop  fighting;”  (2)  the 
              defendant communicated to his opponent the intent to cease  
14             fighting and that he had stopped fighting; and (3) the defendant 
              gave his “opponent a chance to stop fighting.”  (CALCRIM No. 
15             3471; see also People v. Ramirez (2015) 233 Cal. App. 4th 940, 
              946, fn. 1 (Ramirez ).)  But the defendant need not try to stop 
16             fighting—or communicate the desire to stop fighting—where   
              the opponent suddenly resorts to deadly force in response to the 
17             defendant’s  nondeadly  attack.    (Ramirez,  at  p.  946,  fn.  1.) 
              “CALCRIM No. 3471 charges a jury to make a preliminary      
18             determination of whether the defendant had the right to use 
              force  to  defend  himself  when  the  defendant  and  the  victim 
19             engaged in mutual combat, or when the defendant was the initial 
              aggressor.”  (People v. Johnson (2009) 180 Cal. App. 4th 702, 
20             711 (Johnson ).)                                            

21             CALCRIM No. 3472, entitled “Right to Self–Defense: May Not  
              Be Contrived,” states: “A person does not have the right to self-
22             defense if he ... provokes a fight or quarrel with the intent to 
              create an excuse to use force.”  The import of this instruction is 
23             that “‘self-defense is not available to a person who seeks a 
              quarrel with the intent to create a real or apparent necessity of 
24             exercising self-defense.’”  (People v. Enraca (2012) 53 Cal. 4th 
              735, 761.) CALCRIM No. 3472 “is a correct statement of law.”  
25             (People  v.  Eulian  (2016)  247  Cal.  App.  4th  1324,  1334 
              (Eulian).)                                                  
26                                                                         
              CALCRIM  No.  3472,  however,  does  not  apply  to  every  
27             defendant who initiates a fight and subsequently claims self-
              defense.  Instead, CALCRIM No. 3472 “applies to a subset of 
              individuals who not only instigate a fight, but do so with the 
1             specific intent that they contrive the necessity for their acting 
              thereafter in ‘self-defense,’ and thus justify their further violent 
2             actions.... [T]his instruction applies, and the right to self-defense 
              is lost, only if an initial aggressor commences combat for the 
3             intended purpose of provoking a violent reaction so that he or 
              she can then retaliate with further violence, whether deadly force 
4             or  nondeadly  force,  under  the  guise  of  self-defense.    The 
              defendant’s intent is measured at the time the fight or quarrel is 
5             provoked.”  (Ramirez, supra, 233 Cal. App. 4th at p. 954, italics 
              added (dis. opn. of Fybel, J.).)                            
6                                                                         
              In other words, CALCRIM No. 3472 pertains to a situation    
7             where the defendant starts a fight with a forbidden purpose: to 
              create an excuse to use force.  (Ramirez, supra, 233 Cal. App. 
8             4th  at  p.  955  [CALCRIM  No.  3472  contains  a  “scienter 
              requirement” that the defendant contrived a situation to use 
9             force]; People v. Hinshaw (1924) 194 Cal. 1, 26 [instruction 
              recognizes principle that self-defense is “ ‘not available’ “ where 
10             the defendant “ ‘has sought a quarrel with the design to force a 
              deadly issue and thus, through his fraud, contrivance or fault, to 
11             create  a  real  or  apparent  necessity  for  making  a  felonious 
              assault’ “].)                                               
12                                                                         
              “CALCRIM No. 3472 instructs that even if initial aggressors or 
13             mutual combatants satisfy the requirements of CALCRIM No.   
              3471, they are not permitted to assert the right to self-defense if 
14             they  initially  engaged  in  that  activity  for  the  purpose  of 
              contriving  the  opportunity  to  engage  in  further  violence  in 
15             response  to  their  adversary’s  reaction.”    The  scienter 
              requirement in CALCRIM No. 3472—”with the intent to create  
16             an  excuse  to  use  force”—distinguishes  that  instruction  “in 
              substance and purpose from CALCRIM No. 3471.”  (Ramirez,    
17             supra, 233 Cal. App. 4th at p. 957 (dis. opn. of Fybel, J.).) 

18             Here, the court’s failure to instruct the jury with CALCRIM No. 
              3471  did  not—as  Williams  contends—negate  a  self-defense 
19             theory.  The court delivered several self-defense instructions, 
              including justifiable homicide (CALCRIM No. 505), voluntary 
20             manslaughter: imperfect self-defense (CALCRIM No. 571), and 
              when the right to use force in self-defense ends (CALCRIM No. 
21             3474).    These  instructions  did  not  preclude  the  jury  from 
              considering Williams’s testimony on his right to self-defense, 
22             nor did they prevent the jury from finding Williams acted in 
              perfect or imperfect self-defense.  (See Johnson, supra, 180 Cal. 
23             App. 4th at pp. 708, 711 [“the trial court’s instructions assumed 
              that defendant had not lost [the] right” to self-defense, even 
24             where the court instructed the jury with CALCRIM No. 3472,  
              but not CALCRIM No. 3471].)  [FN 4.]                        
25                                                                         
                   [FN 4:  Nor did the court’s failure to instruct the    
26                  jury  with  CALCRIM  No.  3471  lessen  the            
                   prosecution’s  burden  of  proof.    The  court        
27                  instructed the jury on malice (CALCRIM No.             
                   520),  the  presumption  of  innocence,  and  the      
                   prosecutor’s burden of proof (CALCRIM Nos.             
1                  103, 220).]                                            

2             Assuming the Chapman standard applies, we are convinced any 
              error in failing to instruct the jury with the following language 
3             in  CALCRIM  No.  3471  was  harmless  beyond  a  reasonable 
              doubt: “if the defendant used only non-deadly force and the 
4             opponent responded with such sudden and deadly force that the 
              defendant could not withdraw from the fight, then the defendant 
5             had the right to defend [himself] with deadly force and was not 
              required to try to stop fighting [or] communicate the desire to 
6             stop to the opponent[, or give the opponent a chance to stop 
              fighting].”  Williams testified the two men agreed to have a fist 
7             fight, and Lewis rushed at him with a knife.  As Williams and 
              Lewis fought for control of the knife, Lewis choked Williams, 
8             who tried to “save” himself by stabbing Lewis.  In closing  
              argument, defense counsel argued Lewis and Williams agreed  
9             to meet, and when they did, Lewis surprised Williams with a 
              knife and a struggle ensued.  Counsel argued the stabbing was a 
10             “justifiable response to the attack.”                       

11             Thus, the question presented to the jury was whether Williams 
              exercised his right to self-defense in a reasonable manner when 
12             he  stabbed  Lewis  11  times—that  is,  whether  he  reasonably 
              believed he was in danger and that force was necessary to defend 
13             himself, and whether he used no more force than reasonably  
              necessary.  (See Johnson, supra, 180 Cal. App. 4th at p. 711; see 
14             also Eulian, supra, 247 Cal. App. 4th at pp. 1334–1335.)  The 
              court instructed the jury to determine whether Williams acted in 
15             reasonable self-defense, just as it would have had the court 
              instructed the jury with CALCRIM No. 3471.  (Johnson, at p. 
16             711.)  In returning a verdict of second degree murder, the jury 
              rejected Williams’s implausible self-defense claim and found 
17             beyond a reasonable doubt he did not have even an unreasonable 
              belief in the need for self-defense.  Under the circumstances, the 
18             court’s failure to instruct the jury with CALCRIM No. 3471 was 
              harmless beyond a reasonable doubt.  (See People v. Salas   
19             (2006) 37 Cal. 4th 967, 984, 983 [failing to instruct on an 
              affirmative  defense  not  prejudicial  even  under  the  “more 
20             rigorous Chapman test” where, “[i]n light of the prosecution’s 
              evidence, ... no reasonable jury would believe [the defendant’s] 
21             testimony”]; People v. Moon (2005) 37 Cal. 4th 1, 32 [assumed 
              error  in  failing  to  instruct  the  jury  was  harmless  under  the 
22             Watson and Chapman standards].)                             

23             Williams’s reliance on the majority opinion in Ramirez, supra, 
              233 Cal. App. 4th 940 does not alter our conclusion.  In that case, 
24             two codefendants provoked a fistfight with rival gang members. 
              (Id. at p. 944.)  One defendant testified that during the fight, a 
25             rival gang member pulled out what appeared to be a gun, so the 
              defendant  pulled  out  his  own  gun  and  shot  the  rival  gang 
26             member.  (Id. at p. 945.)  The trial court instructed the jury with 
              CALCRIM Nos. 3471 and 3472 (Id. at pp. 945, 948) and with a 
27             modified version of CALCRIM No. 571, which told the jury the 
              principle  of  imperfect  self-defense  could  not  be  invoked  if, 
              among other things, a defendant invited “‘a physical assault.’”  
1             (Id.  at  p.  952.)    During  closing  arguments,  the  prosecutor 
              repeatedly argued, based on the language of CALCRIM No.     
2             3472, that even if the jury believed the defendants sought to 
              provoke  only  a  fistfight,  their  intent  to  use  force—even  a 
3             nondeadly fistfight—meant they forfeited any claim of self- 
              defense.    (Id.  at  pp.  943,  945–946.)    The  jury  found  the 
4             defendants guilty of first degree murder.  (Id. at p. 943.) 

5             The  Ramirez  majority  reversed  the  first  degree  murder 
              convictions.  It determined that giving CALCRIM Nos. 3471   
6             and  3472,  in  combination  with  the  prosecutor’s  repeated 
              misstatement of the law in closing arguments, “prevented the 
7             jury  from  considering  their  self-defense  claim.”    (Ramirez, 
              supra, 233 Cal. App. 4th at p. 945.)  Ramirez is distinguishable.  
8             Here, the court did not give CALCRIM No. 3471, and the      
              prosecutor did not make repeated and “forceful” misstatement 
9             about the law of self-defense.  (Id. at pp. 952, 950.)  Nor did the 
              court deliver a modified version of CALCRIM No. 571.  The   
10             prosecutor referred to CALCRIM No. 3472 only once during    
              closing argument.  Beyond that, the prosecutor did not argue 
11             Williams was precluded from claiming self-defense, only that 
              the jury should not interpret the evidence to justify Williams’s 
12             entitlement to self-defense.  [FN 5.]  And as discussed above, 
              defense  counsel  argued  Williams  acted  in  self-defense.    In 
13             contrast to Ramirez, the jury was not prevented from considering 
              Williams’s self-defense claim.                              
14                                                                         
                   [FN 5: Williams’s reliance on People v. Vasquez        
15                  (2006)  136  Cal.  App.  4th  1176,  is  also          
                   misplaced.  In that case, the court refused to         
16                  instruct the jury on imperfect self-defense. Here,     
                   the  jury  was  instructed  on  imperfect  self-       
17                  defense.]                                              
18   Williams, 2017 WL 6334240, at *4–7.                                   
19             a.  Claim 1 is not cognizable.                              
20        Claim 1, that the trial court’s decision not to give the CALCRIM 3471 Instruction 
21   violated California law, is not cognizable because it is based on state, rather than federal, 
22   law.                                                                  
23        A challenge to a jury instruction solely as an error under state law does not state a 
24   claim cognizable in federal habeas corpus proceedings.  See Estelle v. McGuire, 502 U.S. 
25   62, 71-72 (1991)); see also Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (state law 
26   determination that arsenic trioxide is a poison as a matter of law, not element of crime for 
27   jury determination, not open to challenge on federal habeas review).  Nor does the fact that 
1   a jury instruction was inadequate by Ninth Circuit direct appeal standards mean that a 
2   petitioner who relies on such an inadequacy will be entitled to habeas corpus relief from a 
3   state court conviction.  See Duckett v. Godinez, 67 F.3d 734, 744 (9th Cir. 1995) (citing 
4   Estelle, 502 U.S. at 71–72).                                          
5        Indeed, the Supreme Court has repeatedly held that the federal habeas writ is 
6   unavailable for violations of state law or for alleged error in the interpretation or 
7   application of state law.  See Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011); Estelle, 
8   502 U.S. at 67-68; Engle v. Isaac, 456 U.S. 107, 119 (1982); Peltier v. Wright, 15 F.3d 
9   860, 861-62 (9th Cir. 1994); see, e.g., Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 
10   2006) (claim that state supreme court misapplied state law or departed from its earlier 
11   decisions does not provide a ground for habeas relief); Moore v. Rowland, 367 F.3d 1199, 
12   1200 (9th Cir. 2004) (per curiam) (state’s violation of its separation-of-powers principles 
13   does not give rise to a federal due process violation); Stanton, 146 F.3d at 728 (state law 
14   determination that arsenic trioxide is a poison as a matter of law and not an element of the 
15   crime for jury determination is not open to challenge on federal habeas review); Franklin 
16   v. Henry, 122 F.3d 1270, 1272-73 (9th Cir. 1997) (court was bound by state court finding 
17   that a violation of state law had occurred, but still had to consider whether the violation 
18   amounted to a federal constitutional error).                          
19         Because Petitioner’s first claim is based purely on state law of which the 
20   interpretation or application is not cognizable in federal habeas, see Swarthout, 131 S. Ct. 
21   at 861-62; Estelle, 502 U.S. at 67-68, it is not cognizable.          
22             b.  Claim 2 fails because Petitioner’s due process rights were not 
23               violated.                                                 
24        Claim 2, that the trial court’s failure to give the CALCRIM 3471 Instruction 
25   prevented the jury from considering Petitioner’s theory of self-defense and thereby 
26   deprived Petitioner of due process, fails because the absence of the CALCRIM 3471 
27   Instruction did not prevent the jury from considering Petitioner’s theory. 
1        A state trial court’s refusal to give an instruction does not alone raise a ground 
2   cognizable in a federal habeas corpus proceeding.  See Dunckhurst v. Deeds, 859 F.2d 
3   110, 114 (9th Cir. 1988).  The error must so infect the trial that the defendant was deprived 
4   of the fair trial guaranteed by the Fourteenth Amendment.  See id.  Also, the omission of 
5   an instruction is less likely to be prejudicial than a misstatement of the law.  See Walker v. 
6   Endell, 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).  Thus, 
7   a habeas petitioner whose claim involves a failure to give a particular instruction bears an 
8   “‘especially heavy burden.’”  Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) 
9   (quoting Henderson, 431 U.S. at 155.).  The significance of the omission of such an 
10   instruction may be evaluated by comparison with the instructions that were given.  
11   Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. 
12   at 156); see id. at 972 (due process violation found in capital case where petitioner 
13   demonstrated that application of the wrong statute at his sentencing infected the 
14   proceeding with the jury’s potential confusion regarding its discretion to impose a life or 
15   death sentence).                                                      
16        The instruction may not be judged in artificial isolation but must be considered in 
17   the context of the instructions as a whole and the trial record.  See Estelle, 502 U.S. at 72.  
18   A habeas petitioner is not entitled to relief unless the instructional error “‘had substantial 
19   and injurious effect or influence in determining the jury’s verdict.’” Brecht v. 
20   Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 
21   776 (1946)).  In other words, state prisoners seeking federal habeas relief may obtain 
22   plenary review of constitutional claims of trial error but are not entitled to habeas relief 
23   unless the error resulted in “actual prejudice.” Id. (citation omitted). 
24        Here, considering the instructions as a whole, Petitioner’s right to due process was 
25   not violated.  First, the state appellate court found that there was no state-law error because 
26   the CALCRIM 3471 Instruction was not required under California law.  See Williams, 
27   2017 WL 6334240, at *6 (rejecting petitioner’s argument that the instruction was required 
1   under People v. Ramirez, 233 Cal. App. 4th 940, 946 (2015)).  The state appellate court’s 
2   determination is binding on this court.  See Menendez v. Terhune, 422 F.3d 1012, 1029 
3   (9th Cir.2005) (state court’s determination that, under state law, insufficient evidence 
4   warranted a defense instruction, was dispositive of instructional error claim).  Because 
5   there was no error, Petitioner has failed to show that the absence of the CALCRIM 3471 
6   Instruction by itself so infected the entire trial that the resulting conviction violates due 
7   process.  See Estelle, 502 U.S. at 71-72 (stating the standard); see also Seagrave v. Gomez, 
8   974 F.2d 1343 (9th Cir. 1992) (“There is no reasonable likelihood that the jury applied the 
9   instructions in a manner that violated the Constitution. . . .  First, the court’s instruction 
10   was a correct statement of state law.”) (citation omitted); see also Fernandez v. Beard, No. 
11   C 13-04671 BLF (PR), 2015 WL 417181, at *7 (N.D. Cal. Jan. 27, 2015) (rejecting habeas 
12   claim predicated on a jury instruction where, inter alia, the jury instruction was correct). 
13        Second, even if the trial court had erred in denying the requested instruction, the 
14   error did not have a substantial and injurious effect or influence in determining the jury’s 
15   verdict.  See Brecht, 507 U.S. at 637; Calderon v. Coleman, 525 U.S. 141, 146-47 (1998).  
16   The state appellate court found that the jury could have considered Petitioner’s testimony 
17   regarding his right to self-defense, notwithstanding the absence of the CALCRIM 3471 
18   Instruction.  See Brecht, 507 U.S. at 637 (“These instructions did not preclude the jury 
19   from considering Williams’s testimony on his right to self-defense, nor did they prevent 
20   the jury from finding Williams acted in perfect or imperfect self-defense.”).  The state 
21   appellate court also found that the jury could reasonably have “rejected [Petitioner’s] 
22   implausible self-defense claim” that he “exercised his right to self-defense in a reasonable 
23   manner when he stabbed [the victim] 11 times.”  Williams, 2017 WL 6334240, at *6.  The 
24   Court agrees.  Because, in giving CALCRIM Instruction 3472, “[t]he [trial] court 
25   instructed the jury to determine whether Williams acted in reasonable self-defense, just as 
26   it would have had the court instructed the jury with CALCRIM No. 3471,” id., the given 
27   instructions and the missing CALCRIM 3471 Instruction were duplicative.  Therefore, it 
1   cannot be said that the jury would have reached a different verdict had they been given the 
2   CALCRIM 3471 Instruction as well.  Accordingly, the Court finds that the failure to give 
3   the CALCRIM 3471 Instruction did not have a substantial and injurious effect or influence 
4   in determining the jury’s verdict.  See Brecht, 507 U.S. at 637.  Petitioner is not entitled to 
5   habeas relief based on harmless error.  See Calderon, 525 U.S. at 146-47. 
6        Because the trial court does not appear to have erred in declining to give the 
7   CALCRIM 3471 Instruction, and because any error would have been harmless, the state 
8   appellate court’s denial of this claim was not contrary to, or an unreasonable application 
9   of, clearly established Supreme Court law.                            
10             c.  Claim 3 fails because counsel was not ineffective for failing to request 
11               the CALCRIM 3471 Instruction.                             
12        Claim 3, that trial counsel was ineffective in failing to ask the judge to give the 
13   CALCRIM 3471 Instruction, fails because Petitioner was not prejudiced by the lack of this 
14   instruction.                                                          
15        In order to prevail on a Sixth Amendment claim for ineffectiveness of trial counsel, 
16   Petitioner must establish two things.  First, he must establish that counsel’s performance 
17   was deficient, i.e., that it fell below an “objective standard of reasonableness” under 
18   prevailing professional norms.  Strickland v. Washington, 466 U.S. 668, 687-88 (1984).  
19   Second, he must establish that he was prejudiced by counsel’s deficient performance, i.e., 
20   that “there is a reasonable probability that, but for counsel’s unprofessional errors, the 
21   result of the proceeding would have been different.”  Id. at 694.  A court need not 
22   determine whether counsel’s performance was deficient before examining the prejudice 
23   suffered by the defendant as the result of the alleged deficiencies.  Id. at 697.   
24        A “doubly” deferential judicial review is appropriate in analyzing ineffective 
25   assistance of counsel claims under § 2254.  See Cullen v. Pinholster, 131 S. Ct. 1388, 
26   1410-11 (2011); Harrington, 131 S. Ct. at 788 (same); Premo v. Moore, 131 S. Ct. 733, 
27   740 (2011) (same).  The general rule of Strickland, i.e., to review a defense counsel’s 
1   effectiveness with great deference, gives the state courts greater leeway in reasonably 
2   applying that rule, which in turn “translates to a narrower range of decisions that are 
3   objectively unreasonable under AEDPA.”  Cheney v. Washington, 614 F.3d 987, 995 (9th 
4   Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).  When  
5   § 2254(d) applies, “the question is not whether counsel’s actions were reasonable.  The 
6   question is whether there is any reasonable argument that counsel satisfied Strickland’s 
7   deferential standard.”  Harrington, 131 S. Ct. at 788.  Under a “doubly” deferential judicial 
8   review, the state appellate court did not unreasonably apply Strickland in rejecting 
9   Petitioner’s argument.   See Pinholster, 131 S. Ct. at 1410-11; Harrington, 131 S. Ct. at 88.   
10        Petitioner’s argument that trial counsel should have requested different jury 
11   instructions fails.  First, as noted above, the state appellate court found that the jury was 
12   able to consider Petitioner’s self-defense theory, and defense counsel was able to put a 
13   self-defense argument to the jury.  See supra at 16; see also Williams, 2017 WL 6334240, 
14   at *7.  Because the CALCRIM 3471 Instruction would have been duplicative, counsel was 
15   not ineffective in failing to request it.  See United States v. Bosch, 914 F.2d 1239, 1248 
16   (9th Cir. 1990) (finding that, where a jury instruction would have been duplicative, counsel 
17   was not ineffective for failing to request it).                       
18        Second, even if counsel’s failure to request the CALCRIM 3471 Instruction had 
19   been ineffective, Petitioner has not shown that “the result of the proceeding would have 
20   been different” had the CALCRIM 3471 Instruction been given.  As the state appellate 
21   court noted, the jury reasonably “rejected [Petitioner’s] implausible self-defense claim” 
22   that he “exercised his right to self-defense in a reasonable manner when he stabbed [the 
23   victim] 11 times.”  Williams, 2017 WL 6334240, at *6.  As Respondent notes, “there was 
24   not only overwhelming evidence presented at trial to support the jury’s verdict of murder, 
25   but the evidence belied petitioner’s claim of self-defense.”  Ans. at 13-14.  Specifically, 
26   three witnesses testified that Petitioner did not act in self-defense, see id. at 14 (citing 
27   record), the autopsy suggested that the victim’s wounds were defensive, see id. (same), and 
1   Petitioner sustained no injuries, see id. (same).  Petitioner has not cited any evidence to 
2   undercut this overwhelming evidence of guilt, nor made any argument that would render 
3   his self-defense argument plausible.  Accordingly, Petitioner has not shown the result of 
4   the proceeding would have been different had counsel requested the CALCRIM 3471   
5   Instruction, and so has not shown he was prejudiced by counsel’s decision. 
6        For these reasons, Petitioner is not entitled to relief on Claims 1-3. 
7        2.   Claim Related to the Voluntary Manslaughter Instruction     
8        As noted, supra, Petitioner contends that the trial court should have given a sua 
9   sponte instruction on the heat of passion theory of voluntary manslaughter.  See Pet., Ex. B 
10   at 27-32.  Petitioner argues that by failing to do so, the trial court violated Petitioner’s right 
11   to due process (Claim 4).  See id.  The state appellate court rejected Petitioner’s claim as 
12   follows:                                                              
              Next, William[s] argues the court erred by failing to instruct the 
13             jury on the heat of passion theory of voluntary manslaughter.  A 
              trial court has a sua sponte duty to instruct the jury on all lesser 
14             included offenses supported by substantial evidence.  (People v. 
              Breverman (1998) 19 Cal. 4th 142, 148–149, 162.)  Voluntary 
15             manslaughter is a lesser included offense of murder.  (Id. at p. 
              154.)  “‘[W]hen the defendant acts in a “sudden quarrel or heat 
16             of passion” (§ 192, subd. (a)),’” the defendant is deemed to have 
              acted without malice, even if he intended to kill.  (People v. 
17             Blakeley (2000) 23 Cal. 4th 82, 87–88.)  Thus, a killing “‘upon 
              a sudden quarrel or heat of passion’” can negate the malice 
18             element  of  murder  and  reduce  the  offense  to  voluntary 
              manslaughter.  (Breverman, at p. 163.)                      
19                                                                         
              “Although section 192, subdivision (a), refers to ‘sudden quarrel 
20             or heat of passion,’ the factor which distinguishes the ‘heat of 
              passion’  form  of  voluntary  manslaughter  from  murder  is 
21             provocation.  The provocation which incites the defendant to 
              homicidal conduct in the heat of passion must be caused by the 
22             victim  [citation],  or  be  conduct  reasonably  believed  by  the 
              defendant to have been engaged in by the victim.  [Citations.]  
23             The  provocative  conduct  by  the  victim  may  be  physical  or 
              verbal, but the conduct must be sufficiently provocative that it 
24             would cause an ordinary person of average disposition to act 
              rashly or without due deliberation and reflection.  [Citations.]  
25             ‘Heat of passion arises when “at the time of the killing, the 
              reason of the accused was obscured or disturbed by passion to 
26             such an extent as would cause the ordinarily reasonable person 
              of average disposition to act rashly and without deliberation and 
27             reflection, and from such passion rather than from judgment.”‘“  
              (People v. Lee (1999) 20 Cal.4th 47, 59.)                   
1             According to Williams, his trial testimony presented “a classic, 
              textbook  example  of  provocation”  warranting  the  heat  of 
2             passion instruction.  We disagree.  Williams testified Lewis 
              “mugg[ed]” him and suggested they “handle” things around the 
3             corner.  He also testified Lewis got out of his car in an aggressive 
              manner, threw something at Williams’s car, and came toward  
4             him with a knife.  Williams claimed he swung the knife wildly 
              and stabbed Lewis to “save” himself.  The thrust of Williams’s 
5             testimony “was self-defense—both reasonable self-defense (a 
              complete defense to the criminal charges), and unreasonable or 
6             imperfect self-defense (a partial defense that reduces murder to 
              manslaughter).”  (People v. Moye (2009) 47 Cal. 4th 537, 554 
7             (Moye ).)                                                   

8             Williams’s narrative of the events did not suggest he was under 
              the influence of a strong passion when he killed Lewis.  (Moye, 
9             supra,  47  Cal.  4th  at  p.  552.)    The  standard  for  requiring 
              instruction on heat of passion voluntary manslaughter is not 
10             “‘“any  evidence,  no  matter  how  weak,”‘“  but  evidence 
              “‘“substantial enough to merit consideration” by the jury.’”  (Id. 
11             at p. 553.)  Here, the evidence did not support an instruction on 
              voluntary manslaughter based on heat of passion.  (Id. at p. 551.) 
12             “In the face of [Williams]’s own testimony, no reasonable juror 
              could conclude [he] acted ‘“‘rashly or without due deliberation 
13             and  reflection,  and  from  this  passion  rather  than  from 
              judgment’”‘“ when he responded to Lewis approaching him     
14             with a knife by stabbing Lewis 11 times.  (Id. at p. 553.)  

15             As our high court has explained, “[a] trial court has a duty to 
              instruct on general principles of law that are ‘closely and openly 
16             connected to the facts before the court and that are necessary for 
              the  jury’s  understanding  of  the  case.’    [Citation.]    But  no 
17             principle of law required the trial judge below to disregard the 
              evidence in order to find that the jury should consider whether 
18             defendant subjectively killed in the heat of passion, when no 
              substantial evidence supported that theory of manslaughter, and 
19             the evidence actually introduced on the point—the defendant’s 
              own testimony—was to the contrary.”  (Moye, supra, 47 Cal. 4th 
20             at p. 554.)  Williams’s reliance on People v. Barton (1995) 12 
              Cal. 4th 186 does not alter our conclusion.  That case—where 
21             the victim acted “‘berserk’” and tried to run the defendant’s 
              daughter’s car off the road—is distinguishable.  (Id. at p. 202.) 
22                                                                         
              Assuming the court erred by failing to instruct the jury on a heat 
23             of passion theory of voluntary manslaughter, any “such error 
              was harmless as it is not reasonably probable [Williams] would 
24             have obtained a more favorable outcome had the jury been so 
              instructed.”  (Moye, supra, 47 Cal. 4th at p. 555–556.)  As 
25             discussed above, the jury rejected Williams’s claim of self-
              defense, and there was no “independent evidence remaining to 
26             support his further claim that he killed in the heat of passion, and 
              no  direct  testimonial  evidence  from  [Williams]  himself  to 
27             support an inference that he subjectively harbored such strong 
              passion, or acted rashly or impulsively while under its influence 
              for reasons unrelated to his perceived need for self-defense.”  
1             (Id. at p. 557.)                                            
2   Williams, 2017 WL 6334240, at *7–8.                                   
3        In some circumstances, failure to give requested instructions violates due process.  
4   Specifically, the U.S. Supreme Court has held that in a capital case, where the evidence 
5   supports a verdict on a lesser-included offense, failure to instruct a jury on that lesser-
6   included offense constitutes a violation of due process.  Hopper v. Evans, 456 U.S. 605, 
7   610–11 (1982); Beck v. Alabama, 447 U.S. 625, 634–38 (1980).  However, the Supreme 
8   Court has limited application of that rule to the capital context.  In 1973, the Court 
9   explained that it “ha[d] never explicitly held that the Due Process Clause of the Fifth 
10   Amendment guarantees the right of a defendant to have the jury instructed on a lesser 
11   included offense.”  Keeble v. United States, 412 U.S. 205, 213 (1973).  When the Court 
12   later held that due process requires giving such an instruction in capital cases, the Court 
13   made clear that it was “not decid[ing] whether the Due Process Clause would require the 
14   giving of such instructions in a noncapital case.”  Beck, 447 U.S. at 638 n.14.  In fact, the 
15   Ninth Circuit, “has declined to find constitutional error arising from the failure to instruct 
16   on a lesser included offense in a noncapital case.”  Turner v. Marshall, 63 F.3d 807, 819 
17   (9th Cir. 1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 
18   1999) (en banc).  The failure of a state trial court to instruct on lesser-included offenses in 
19   a noncapital case does not present a federal constitutional claim.  See Solis v. Garcia, 219 
20   F.3d 922, 929 (9th Cir. 2000); Windham v. Merkle, 163 F.3d 1092, 1105–06 (9th Cir. 
21   1998).  Respondent’s argument that Claim 4 “does not present a federal constitutional 
22   question,” Ans., Ex. B at 15, is thus correct.                        
23        Even if this claim presented a constitutional question, it would fail.  As discussed, 
24   supra, this Court must presume that the state appellate court was correct in finding 
25   insufficient evidence to support the voluntary manslaughter instruction.  See Menendez, 
26   422 F.3d at 1029-30.  Here, as the state appellate court found after thorough analysis, 
27   Petitioner presented no evidence to warrant a heat-of-passion voluntary manslaughter 
1   instruction.  See Williams, 2017 WL 6334240, at *7-8 (rejecting claim); see also id. at 8 
2   (““there was no ‘independent evidence remaining to support [Williams’s] further claim 
3   that he killed in the heat of passion, and no direct testimonial evidence from [Williams] 
4   himself to support an inference that he subjectively harbored such strong passion, or acted 
5   rashly or impulsively’”) (first two emphases added).  Nor was Petitioner entitled to a heat-
6   of-passion voluntary manslaughter instruction under “the defendant’s right to adequate 
7   jury instructions on his or her theory of the case.”  Solis, 219 F.3d at 929.  As the state 
8   appellate court found, Petitioner’s theory, and Petitioner’s direct testimony, leaned toward 
9   a self-defense theory rather than a heat-of-passion theory.  See Williams, 2017 WL 
10   6334240, at *8.  Because Petitioner did receive jury instructions regarding his (self-
11   defense) theory of the case, any failure to instruct on heat-of-passion voluntary 
12   manslaughter thus did not deprive Petitioner of his right to jury instructions on his theory. 
13        Finally, as the state appellate court found, even if the trial court had erred in failing 
14   to sua sponte instruct on heat-of-passion voluntary manslaughter (which it did not), any 
15   error was harmless.  See id. at *8.  With no evidence suggesting Petitioner acted in the heat 
16   of passion, and significant evidence that Petitioner acted deliberately when he stabbed his 
17   victim 11 times, the record before the jury tilted in favor of finding that Petitioner acted 
18   with premeditation and deliberation, not rashness.  Petitioner has introduced no evidence, 
19   and it seems unlikely considering the record, that “the result of the proceeding would have 
20   been different” had an instruction on heat-of-passion voluntary manslaughter been given. 
21        Accordingly, Petitioner has not shown entitlement to habeas relief on Claim 4. 
22        3.   Claims Related to the Admission of Hearsay                  
23        As noted, supra, Petitioner contends that the trial court erred in admitting hearsay 
24   statements.  Petitioner argues that in doing so, the trial court (5) erred as a matter of 
25   California law, thus violating his due process; (6) violated Petitioner’s right to confront his 
26   accusers under the Confrontation Clause; and (7) violated Petitioner right to due process 
27   by allowing the jury to hear improper bad character evidence.         
1        The state appellate court rejected Petitioner’s challenge to the admission of the 
2   hearsay statements:                                                   

3             Williams claims the court erred by admitting statements Lewis 
              made to family and friends before the homicide.             
4                                                                         
              A.  Background                                              
5             After the defense completed its case-in-chief, the prosecutor 
              moved to admit statements made by Lewis to two close friends, 
6             his girlfriend, and to his brother, pursuant to Evidence Code 
              section 1250.  The prosecutor argued Lewis’s state of mind, and 
7             his  attitude  toward  Williams,  were  at  issue  because:  (1) 
              Williams claimed he stabbed Lewis in self-defense; and (2)  
8             Williams testified he believed Lewis thought he was involved 
              the June 2015 shooting and that Lewis was seeking revenge for 
9             that  shooting.    The  prosecutor  explained  the  “point  of  this 
              testimony” was to show Williams “lied on the stand” about his 
10             issue with Lewis and that “the only issue [between the two men] 
              was with the girl at work.”  Over defense counsel’s objection, 
11             the court determined the evidence came within Evidence Code 
              section 1250, and was relevant to rebut the defense claim that 
12             Lewis’s  problem  with  Williams  related  to  the  June  2015 
              shooting.                                                   
13                                                                         
              Lewis’s  friend,  his  girlfriend,  and  his  brother  testified  on 
14             rebuttal.    Lewis’s  friend  testified  Lewis  said  “he  had  some 
              problems with a guy at work.”  Lewis “said the dude don’t like 
15             him because ... he [thought] ... that [Lewis] was talking to a girl 
              that the guy is talking to.”  Lewis also said “he wasn’t worried 
16             about it.”  Lewis’s girlfriend testified Lewis said had an issue 
              “with a guy at work,” and the issue was about “[a] girl.”  Lewis 
17             and his girlfriend discussed the June 2015 shooting; Lewis never 
              said he suspected the guy at work was involved.  Lewis’s brother 
18             testified Lewis mentioned having an issue “with a guy at work.”  
              Lewis’s brother understood the issue was “about a girl.”  When 
19             Lewis and his brother discussed the June 2015 shooting, Lewis 
              did not say he was suspicious the guy from work “had anything 
20             at all do to with the shooting.”                            

21             The court instructed the jury that Lewis’s statements were not to 
              be considered for their truth, but only as evidence of Lewis’s 
22             state of mind when he made those statements.  The court also 
              instructed the jury on limited purpose evidence (CALCRIM No. 
23             303).                                                       

24             B.  Any Assumed Error in Admitting Lewis’s Statements       
              Was Harmless                                                
25             Williams  claims  the  prosecution’s  rebuttal  evidence  did  not 
              come  within  Evidence  Code  section  1250.    “Hearsay  is  a 
26             statement made other than while testifying as a witness, which 
              statement is offered in the trial to prove the truth of the matter 
27             asserted in the statement.”  (Rufo v. Simpson (2001) 86 Cal. App. 
              4th 573, 591, italics and fn. omitted.)  “Evidence Code section 
              1250, which authorizes the admission of out-of-court statements 
1             to prove the declarant’s state of mind, permits the admission of 
              such evidence only if the declarant’s state of mind ‘is itself an 
2             issue in the action’ or if the evidence ‘is offered to prove or 
              explain acts or conduct of the declarant.’”  (People v. Riccardi 
3             (2012) 54 Cal. 4th 758, 814–815, abrogated on another point in 
              People v. Rangel (2016) 62 Cal. 4th 1216.)                  
4                                                                         
              We need not decide whether the court properly admitted the  
5             testimony under the state of mind hearsay exception, because 
              any assumed error in admitting that testimony was harmless.  
6             (People  v.  Becerrada  (2017)  2  Cal.  5th  1009,  1027.)    The 
              testimony “was minor in light of the case as a whole.”  (Id. at 
7             pp.  1027–1028.)    And,  as  discussed  above,  the  evidence 
              supporting guilt was strong.  (People v. O’Malley (2016) 62 Cal. 
8             4th 944, 1008–1009 [erroneous admission of evidence under   
              Evidence  Code  section  1250  “was  harmless”];  People  v. 
9             Jablonski (2006) 37 Cal. 4th 774, 821 [evidence erroneously 
              admitted pursuant to Evidence Code section 1250 was harmless 
10             “in light of the overwhelming evidence of defendant’s guilt”].) 
11   Williams, 2017 WL 6334240, at *8-9.                                   
12             a.  Claim 5 fails because Petitioner’s due process was not violated. 
13        Petitioner’s first challenge to the admission of the victim’s statements is that those 
14   statements were hearsay, and their admission in contravention of evidence rules violated 
15   his due process.                                                      
16        It is well-settled law that rulings on evidentiary matters by a state trial court, even if 
17   erroneous, may only be used as a basis for relief under Section 2254 if the ruling “renders 
18   the state proceedings so fundamentally unfair as to violate due process.” Spivey v. Rocha, 
19   194 F.3d 971, 977–78 (9th Cir. 1999) (citing Hill v. United States, 368 U.S. 424, 428 
20   (1999)).  A ruling to admit evidence by a state trial court only renders the state proceedings 
21   fundamentally unfair when “there are no permissible inferences the jury may draw from 
22   the evidence . . . .”  Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (emphasis 
23   added).  Moreover, even evidence admitted for which there are no permissible inferences 
24   must also “be of such a quality as necessarily prevents a fair trial.” Id. (quotations 
25   omitted).                                                             
26        Here, there were clearly permissible inferences to be drawn from the victim’s 
27   statements.  A key argument in Petitioner’s defense was that he acted in self-defense to the 
1   victim’s aggression.  See Williams, 2017 WL 6334240, at *2–3 (summarizing defense 
2   counsel’s argument that the victim rushed at Petitioner and Petitioner was scared, and that 
3   Petitioner stabbed the victim in order to save himself).  By introducing the victim’s 
4   statements, the prosecution was able to show that the victim had no motive to attack 
5   Petitioner, rebutting Petitioner’s argument of self-defense.  See id. at *8-9 (summarizing 
6   prosecutor’s argument that the victim’s statements showed the victim’s state of mind).  In 
7   addition, the statements were relevant to impeach Petitioner’s testimony.  See id. at *8. 
8        Moreover, even if there were not at least two permissible inferences to be drawn 
9   from the victim’s statements, the Court must consider whether the error had a “substantial 
10   and injurious effect or influence in determining the jury’s verdict.”  Brecht, 507 U.S. at 
11   637.  In this case, it did not because as the state appellate court found, “the evidence 
12   supporting [Petitioner’s] guilt was strong.”  Williams, 2017 WL 6334240, at *9.  As noted 
13   above, three eyewitnesses saw the murder and testified that Petitioner did not act in self-
14   defense, see Ans. at 14 (citing record), the autopsy suggested that the victim’s wounds 
15   were defensive, see id. (same), and Petitioner sustained no injuries, see id. (same).  
16   Considering this “strong” evidence of Petitioner’s guilt, any error in admitting the victim’s 
17   out-of-court statements did not have a “substantial and injurious effect” on the verdict.  
18   See Dillard v. Roe, 244 F.3d 758, 769–70 (9th Cir. 2001), amended on denial of 
19   reh’g (May 17, 2001) (“Even if we assume, without deciding, that the trial court 
20   [committed constitutional error], that ruling could not have had a ‘substantial and injurious 
21   effect or influence in determining the jury’s verdict.’ . . .  There was an abundance of 
22   other, uncontradicted evidence that Dillard had suffered the convictions alleged.”) 
23   (citations omitted).  Based on the foregoing, the state appellate court’s rejection of 
24   Petitioner’s fifth claim was reasonable and is therefore entitled to AEDPA deference.  
25   Accordingly, this claim is DENIED.                                    
26                                                                         
27                                                                         
1             b.  Claim 6 fails because Petitioner’s Confrontation Clause right was not 
2               violated.                                                 
3        Petitioner’s sixth claim is that the admission of the victim’s out-of-court statements 
4   violated his Sixth Amendment right to confront his accusers.  See Pet., Ex. B at 35 (“The 
5   improper admission of this hearsay - - both actual and implied - - violated the state and 
6   federal confrontation clauses.  Calif. Const. Art I, §§ 15, 16; U.S. Constitution, 6th and 
7   14th Amendments”).  For the reasons stated below, the Court finds that Petitioner’s Sixth 
8   Amendment confrontation right was not violated.                       
9        The Confrontation Clause of the Sixth Amendment provides that in criminal cases 
10   the accused has the right to “be confronted with the witnesses against him.”  U.S. Const. 
11   amend. VI.  The federal confrontation right applies to the states through the Fourteenth 
12   Amendment.  Pointer v. Texas, 380 U.S. 400, 403 (1965).  The ultimate goal of the 
13   Confrontation Clause is to ensure reliability of evidence, though it is a procedural rather 
14   than a substantive guarantee.  See Crawford v. Washington, 541 U.S. 36, 61 (2004).  It 
15   commands not that evidence be reliable, but that reliability be assessed in a particular 
16   manner: by testing in the crucible of cross-examination.  Id.; see Davis v. Alaska, 415 U.S. 
17   308, 315–16 (1974) (noting a primary interest secured by the Confrontation Clause is the 
18   right of cross-examination).  The Clause thus reflects a judgment, not only about the 
19   desirability of reliable evidence, but about how reliability can best be determined.  
20   Crawford, 541 U.S. at 61; see, e.g., United States v. Medjuck, 156 F.3d 916, 919 n.1 (9th 
21   Cir. 1998) (noting that the Confrontation Clause serves to ensure that witnesses will testify 
22   under oath, to force witnesses to undergo cross-examination, and to permit the jury to 
23   observe the demeanor of witnesses).                                   
24        However, the Confrontation Clause only applies to out-of-court testimonial 
25   statements offered for the truth of the matter asserted, i.e., “testimonial hearsay.”  See 
26   Crawford, 541 U.S. at 51 (emphasis added).   If a hearsay statement is not testimonial in 
27   nature, then it “is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 
1   813, 821 (2006).  Here, the trial court appears to have concluded that the victim’s 
2   statements were hearsay, but subject to a hearsay exception.  See Williams, 2017 WL 
3   6334240, at *8 (explaining that the statements were admitted pursuant to California 
4   Evidence Code § 1250); see also Cal. Evid. Code § 1250 (contained in the chapter entitled 
5   “Exceptions to the Hearsay Rule”).  Accordingly, the Court will not examine whether the 
6   victim’s statements were hearsay but will skip to the inquiry of whether the victim’s 
7   statements were testimonial in nature, and thus subject to the Confrontation Clause. 
8        The “primary purpose” test establishes whether a statement is testimonial.  Ohio v. 
9   Clark, 135 S. Ct. 2173, 2179 (2015).  Under this test, statements are testimonial: (1) “when 
10   they result from questioning, ‘the primary purpose of [which was] to establish or prove 
11   past events potentially relevant to later criminal prosecution,’” and (2) “when written 
12   statements are ‘functionally identical to live, in-court testimony,’ ‘made for the purpose of 
13   establishing or proving some fact’ at trial.”  Lucero v. Holland, 902 F.3d 979, 989 (9th Cir. 
14   2018) cert. denied, 139 S. Ct. 1180 (2019) (citations omitted).  When the primary purpose 
15   of taking an out-of-court statement is to create an out-of-court substitute for trial 
16   testimony, the statement is testimonial hearsay and Crawford applies.  See Michigan v. 
17   Bryant, 562 U.S. 344, 358 (2011) (explaining the primary purpose inquiry).  When that 
18   was not the primary purpose, “the admissibility of a statement is the concern of state and 
19   federal rules of evidence, not the Confrontation Clause.”  Id.        
20        “The ‘primary purpose’ of a statement is determined objectively.”  United States v. 
21   Rojas-Pedroza, 716 F.3d 1253, 1267 (9th Cir. 2013).  Thus “‘the relevant inquiry is not the 
22   subjective or actual purpose of the individuals involved in a particular encounter, but rather 
23   the purpose that reasonable participants would have had, as ascertained from the 
24   individuals’ statements and actions and the circumstances in which the encounter 
25   occurred.’”  Id. (quoting Bryant, 562 U.S. at 360).  The testimonial intent of the speaker 
26   must be evaluated in context, and part of that context is the questioner’s identity.  Lucero, 
27   902 F.3d at 990 n.5.                                                  
1        Here, the victim’s statements were non-testimonial, and therefore not subject to the 
2   Confrontation Clause.  First, the statements were non-testimonial as a matter of law 
3   because they were not made to law enforcement personnel, or to persons the victim 
4   believed were working with law enforcement.  “No Supreme Court authority has held that 
5   statements made to someone other than law enforcement personnel are testimonial.” 
6   Schubert v. Warner, 605 F. App’x 688 (9th Cir. 2015) (finding that statements to a family 
7   friend were non-testimonial).  See also Saechao v. Oregon, 249 F. App’x 678, 679 (9th 
8   Cir. 2007) (a conversation “between two friends, without any active participation by a 
9   government official” was non-testimonial); cf. Bryant, 562 U.S. at 359 n.3 (“Davis 
10   explicitly reserved the question ‘whether and when statements made to someone other than 
11   law enforcement personnel are “testimonial.’” Ibid.  We have no need to decide that 
12   question in this case either because Covington’s statements were made to police 
13   officers.”).  Here, the persons to whom the victim made his statements were “two close 
14   friends, his girlfriend, and [] his brother.”  Williams, 2017 WL 6334240, at *8; see also 
15   Pet., Ex. B at 34 (identifying the witnesses to whom the victim spoke as “Kenya Bishop 
16   (Lewis’s girlfriend), Melvin Boyd, Delvone Jones, and Lewis’[s] brother Michael Lewis”).  
17   There is no argument, and nothing in the record, to suggest that any of these persons are in 
18   law enforcement.  See generally, Pet.; see also, Ans., Exs. A-B.  As none of these 
19   witnesses were members of or working for law enforcement, the victim could not have had 
20   testimonial intent in making the challenged statements.  See Crawford, 541 U.S. at 51 
21   (describing “statements made unwittingly to an FBI informant” as non-testimonial, 
22   because of the declarant’s ignorance of the witness’s role).          
23        Second, the circumstances surrounding the conversations in which the victim made 
24   these statements show that the statements were non-testimonial.  The United States 
25   Supreme Court has explained that “[s]tatements to friends and neighbors about abuse and 
26   intimidation” are not testimonial.  Giles v. California, 554 U.S. 353, 376 (2008); see also. 
27   Bryant, 562 U.S. at 381 (“For an out-of-court statement to qualify as testimonial, the 
1   declarant must intend the statement to be a solemn declaration rather than an unconsidered 
2   or offhand remark; and he must make the statement with the understanding that it may be 
3   used to invoke the coercive machinery of the State against the accused. . . .  That is what 
4   distinguishes a narrative told to a friend over dinner from a statement to the police.”) 
5   (Scalia, J., dissenting); United States v. Palamarchuk, 791 F. App’x 658, 662 (9th Cir. 
6   2019) (“a conversation between friends over dinner” is non-testimonial); Lara v. Allison, 
7   617 F. App’x 769, 770 (9th Cir. 2015) (“statements [made] during an unprompted, 
8   informal conversation between coworkers at their place of employment” are non-
9   testimonial); Williams v. Adams, 447 F. App’x 829, 831 (9th Cir. 2011) (statements made 
10   to family members are non-testimonial).  There is no suggestion in the record that the 
11   victim believed his statements to friends, his girlfriend, and his family would be “used to 
12   invoke the coercive machinery of the State.”  Bryant, 562 U.S. at 381.  Instead, the record 
13   reveals that the above statements were made during casual conversation.  For example, the 
14   victim told his friend Mr. Boyd that the victim “had some problems with a guy at work” 
15   regarding “a girl that the guy is talking to,” but that the victim “wasn’t worried about it.”  
16   Ans., Ex. B at 972:15-973:6.  The victim told Mr. Boyd this while the two were in Mr. 
17   Boyd’s bedroom, and Mr. Boyd was doing pushups.  See Ans., Ex. B at 971:17-972:16.  
18   Discussing work problems with a friend, in the friend’s bedroom, while the friend 
19   exercises, does not suggest the victim intended to make a “solemn declaration.”  See 
20   Bryant, 562 U.S. at 381 (describing the type of statement and intent that would be 
21   testimonial).  Similarly, the victim told Ms. Bishop about his problems with the Petitioner 
22   “[a]ny time he came from work and he was on the same shift with that person.”  Ans., Ex. 
23   B at 1002:10-12.  This appears to be normal griping to a partner about an irritating 
24   coworker, rather than an attempt “to invoke the coercive machinery of the State.”  Bryant, 
25   562 U.S. at 381.  Likewise, the victim “mentioned [] a few times” to his brother, Mr. 
26   Lewis, that “he was having an issue with a guy at work,” “basically about a girl.”  Ans., 
27   Ex. B at 1012:23-1013:11.  There is no indication that the victim intended a conversation 
1   with his brother to be testimonial.  See Williams, 447 F. App’x at 831 (statements made to 
2   family are non-testimonial); see also Schubert, 605 F. App’x 688 (finding that statements 
3   to a family friend were non-testimonial).  Viewed objectively, the circumstances 
4   surrounding these conversations make clear that the victim was speaking with friends and 
5   family in an ordinary fashion, not attempting to create a record with law enforcement. 
6        Accordingly, the victim’s statements to friends, his girlfriend, and his family were 
7   not testimonial in nature.  Because these statements were not testimonial, the 
8   Confrontation Clause does not apply.                                  
9        Finally, even if the Confrontation Clause applied to any of the statements at issue, 
10   Confrontation Clause claims are still subject to harmless error analysis.  United States v. 
11   Nielsen, 371 F.3d 574, 581 (9th Cir. 2004); see also United States v. Allen, 425 F.3d 1231, 
12   1235 (9th Cir. 2005).  For purposes of federal habeas corpus review, the standard 
13   applicable to violations of the Confrontation Clause is whether the statement had an actual 
14   and prejudicial effect upon the jury.  See Hernandez v. Small, 282 F.3d 1132, 1144 (9th 
15   Cir. 2002) (citing Brecht, 507 U.S. at 637 (1993)).  Here, as the state appellate court found,  
16   “the evidence supporting [Petitioner’s] guilt was strong.”  Williams, 2017 WL 6334240, at 
17   *9.  As noted above, three eyewitnesses saw the murder and testified that Petitioner did not 
18   act in self-defense, see Ans. at 14 (citing record), the autopsy suggested that the victim’s 
19   wounds were defensive, see id. (same), and Petitioner sustained no injuries, see id. (same).  
20   Considering this “strong” evidence of Petitioner’s guilt, any error in admitting the victim’s 
21   out-of-court statements would have been harmless.                     
22        Because the victim’s challenged statements were non-testimonial, and in any event 
23   their admission was harmless, Petitioner is not is not entitled to relief on his Confrontation 
24   Clause claim.  Accordingly, Petitioner’s sixth claim is DENIED.       
25             c.  Claim 7 fails because Petitioner’s due process was not violated. 
26        Petitioner’s seventh claim is that the admission of the victim’s out-of-court 
27   statements violated his right to due process because it allowed the jury to consider 
1   “improper bad character evidence.”  Pet., Ex. A at 36 (“[Admission of the hearsay] also 
2   was improper bad character evidence in violation of the due process clause of the 5th and 
3   14th Amendments.”).  Petitioner does not specify what evidence of his “bad character” 
4   was put before the jury.  See generally, Pet., Ex. A.                 
5        In any event, habeas relief is not warranted here because no remediable federal 
6   constitutional violation occurred.  First, a petitioner’s due process rights concerning the 
7   admission of propensity evidence is not clearly established for purposes of review under 
8   AEDPA, the Supreme Court having reserved this issue as an “open question.”  Alberni v. 
9   McDaniel, 458 F.3d 860, 866–67 (9th Cir. 2006); accord Mejia v. Garcia, 534 F.3d 1036, 
10   1046 (9th Cir. 2008) (reaffirming Alberni).  Second, the Supreme Court “has not yet made 
11   a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due 
12   process violation sufficient to warrant issuance of the writ.”  Holley v. Yarborough, 568 
13   F.3d 1091, 1101 (9th Cir. 2009).  Third, any claim that the state court erred in admitting 
14   the evidence under state law is not remediable on federal habeas review.  See Bradshaw v. 
15   Richey, 546 U.S. 74, 76 (2005).                                       
16        Finally, even if the admission of the victim’s statements was an error of 
17   constitutional dimension – which it is not – the Court must consider whether the error had 
18   a “substantial and injurious effect or influence in determining the jury’s verdict.”  
19   Brecht, 507 U.S. at 637.  In this case, as repeatedly discussed above, there was “strong” 
20   evidence of Petitioner’s guilt, showing that Petitioner did not act in self-defense.  Any 
21   error in admitting the victim’s statements did not have a “substantial and injurious effect” 
22   on the verdict.  See Dillard, 244 F.3d at 769–70, amended on denial of reh’g (May 17, 
23   2001) (“Even if we assume, without deciding, that the trial court [committed constitutional 
24   error], that ruling could not have had a ‘substantial and injurious effect or influence in 
25   determining the jury’s verdict.’ . . .  There was an abundance of other, uncontradicted 
26   evidence that Dillard had suffered the convictions alleged.”) (citations omitted.  
27   Accordingly, Petitioner’s seventh claim is DENIED.                    
    1          4.     Cumulative Error Claim 
    2          As his eighth claim, Petitioner argues the cumulative effect of the constitutional 
    3  ||  errors violated his right to a  fair trial.  Pet., Ex. A at 37.  In some cases, although no single 
    4  ||  error warrants reversal, the cumulative effect of several errors may prejudice a defendant 
    5    so much that his conviction must be overturned.  Alcala v. Woodford, 334 F.3d 862, □□□□ 
    6  || 95 (9th Cir. 2003).  However, where there is no constitutional error existing, nothing can 
    7  |} accumulate to the level of a constitutional violation.  Hayes v. Ayers, 632 F.3d 500, 524 
    8  || (9th Cir. 2011).  Similarly, there can be no cumulative error if there has not been more than 
    9  || one error.  United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012). 
   10          Here, there were no constitutional errors and, therefore, nothing can accumulate to 
   11  ||  the level of a constitutional violation. 
    12                                  IV.  CONCLUSION 
   13          After a careful review of the record and pertinent law, the Court concludes that the 
S   14  || Petition for a Writ of Habeas Corpus must be DENIED. 
3    15          Further, a Certificate of Appealability is DENIED.  See Rule 11(a) of the Rules 
    16  || Governing Section 2254 Cases.  Petitioner has not made “a substantial showing of the 
5   17  || denial of a constitutional right.”  28 U.S.C. § 2253(c)(2).  Nor has Petitioner demonstrated 
5   18  || that “reasonable jurists would find the district court’s assessment of the constitutional 
   19  || claims debatable or wrong.”  Slack v. McDaniel, 529 U.S. 473, 484 (2000).  Petitioner may 
   20  || not appeal the denial of a Certificate of Appealability in this Court but may seek a 
   21  || certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate 
   22  || Procedure.  See Rule 11(a) of the Rules Governing Section 2254 Cases. 
   23          The Clerk shall terminate any pending motions, enter judgment in favor of 
   24  || Respondent, and close the file. 
   25          IT ISSO ORDERED. 

   21                                              United States District  Judge 
   28 
         ee                     32