MEMORANDUM DECISION

JAMES K. SINGLETON, JR., Senior District Judge.

Charles Cameron Quillin, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Quillin is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the Sierra Conservation Center. Respondent has answered, and Quillin has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On September 28, 2011, Quillin was charged with the murder of his friend Matthew Smith. The information additionally alleged as an enhancement that Quillin had personally discharged a firearm during the commission of the offense and caused great bodily injury. Quillin denied the charges and enhancement and proceeded to a jury trial on April 3, 2012. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Quillin and the evidence presented at trial:

People v. Quillin, No. C071297, 2014 WL 2738849, at *1-3 (Cal. Ct. App. Jun. 17, 2014).

At the conclusion of trial, the jury found Quillin guilty of first-degree murder and also found true the weapon use enhancment. The trial court subsequently sentenced Quillin to an aggregate term of 50 years to life imprisonment, consisting of an indeterminate term of 25 years to life imprisonment for murder and a consecutive 25 years to life imprisonment for the firearm use enhancement.

Through counsel, Quillin appealed his conviction, arguing that: 1) the court erroneously instructed the jury as to voluntary intoxication; 2) the court abused its discretion and violated Quillin's rights against self-incrimination when it ruled that it would not give a self-defense instruction unless Quillin testified; 3) the self-defense instructions as given were erroneous; and 4) the court erred in its instruction regarding jurors submitting their own questions and failed to inquire when some questions posed by jurors demonstrated bias. The Court of Appeal unanimously affirmed the judgment against Quillin in a reasoned, unpublished opinion issued on June 17, 2014. Quillin, 2014 WL 2738849, at *9. Quillin petitioned for review of Claims 1, 2, and 4, which the California Supreme Court summarily denied on September 17, 2014.

Quillin then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on April 7, 2015. See 28 U.S.C. § 2244(d)(1)(A).

II. GROUNDS/CLAIMS

In his pro se Petition before this Court, Quillin raises the instructional error and compelled testimony claims he unsuccessfully raised in his petition for review in the California Supreme Court. First, he argues that the trial court failed to properly admonish jurors concerning the submission of juror questions and failed to make an inappropriate inquiry when some jurors submitted questions suggesting partiality. He next avers in Ground 2 that the trial court violated his right to self-incrimination when it refused to give self-defense instructions unless he testified. Finally, Quillin contends that the trial court erroneously instructed the jury on voluntary intoxication and that counsel was ineffective for failing to request the proper instruction.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

IV. DISCUSSION

Ground 1. Jurors' Submission of Questions

Quillin first argues that the trial court erred by failing to properly admonish the jurors when instructing them that they could submit questions to ask the witnesses2 and failing to inquire when some jurors' questions demonstrated bias. The trial court recounted the following background to this claim:

Quillin, 2014 WL 2738849, at *7-8.

Quillin claims that the instruction as given was an abuse of discretion because it "did not caution jurors not to feel slighted or disappointed if his or her question was not asked, did not tell jurors not to speculate why a question was not asked or speculate what the answer might have been, and, most importantly, did not caution jurors to keep in mind in framing their questions that they were not advocates for one side or the other." Id. at *8. That language appears in CALCRIM No. 106,3 which was not given in this case.

Because jury instructions in state trials are typically matters of state law, federal courts are bound by a state appellate court's determination that a jury instruction was not warranted under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that the Supreme Court has repeatedly held that "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). An instructional error, therefore, "does not alone raise a ground cognizable in a federal habeas proceeding." Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).

A challenged instruction violates the federal constitution if there is a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380 (1990). The question is whether the instruction, when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471 U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the "almost invariable assumption of the law that jurors follow their instructions"); see Francis, 471 U.S. at 323-24 & n.9 (discussing the subject in depth).

It is well-established that not only must the challenged instruction be erroneous but it must violate some constitutional right, and it may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the constitution and that the category of infractions that violate "fundamental fairness" is very narrowly drawn. Id. at 72-73. "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process clause has limited operation." Id. Where the defect is the failure to give an instruction, the burden is even heavier because an omitted or incomplete instruction is less likely to be prejudicial than an instruction that misstates the law. See Henderson, 431 U.S. at 155. In those cases, the inquiry is whether the trial court's refusal to give the requested instruction "so infected the entire trial that the resulting conviction violates due process." See id. at 156-57; Estelle, 502 U.S. at 72. Moreover, even if the trial court's failure to give the instruction violated due process, habeas relief would still not be available unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); California v. Roy, 519 U.S. 2, 5 (1996).

Under these guidelines, the Court cannot find the state courts' rejection of Quillin's claim unreasonable or contrary to Federal law. As an initial matter, even if the court abused its discretion, that fact would not warrant federal habeas relief. Although the Ninth Circuit has suggested that an abuse of discretion may also amount to a constitutional violation, see Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc), the Supreme Court has never held that abuse of discretion is an appropriate basis for granting federal habeas relief.4 Indeed, quite to the contrary, the Supreme Court has strongly suggested that, while abuse of discretion is an appropriate standard on direct review, in a federal habeas proceeding it is not. Renico v. Lett, 559 U.S. 766, 772-73 (2010) ("It is not even whether it was an abuse of discretion for her to have done so-the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was "an unreasonable application of . . . clearly established Federal law."" (quoting § 2254(d)(1))).

Moreover, an independent review of the instruction, as given, supports the Court of Appeal's conclusion that the concerns addressed by CALCRIM No. 106 were adequately covered by the court's instruction. As the Court of Appeal reasonably concluded:

Quillin, 2014 WL 2738849, at *9 (citation omitted).

Because a fair reading of the instructions in their entirety supports that Quillin's concerns were adequately covered, Quillin fails to show that the trial court erred, much less that the instructions as given "infected the entire trial," Henderson, 431 U.S. at 155, or had a "substantial and injurious effect or influence in determining the jury's verdict," Brecht, 507 U.S. at 637. Quillin's instructional error claim therefore must fail.

Quillin fares no better with respect to his related claim that the trial court failed to investigate when some of the jurors' questions demonstrated bias. According to Quillin, five questions that certain juror submitted showed that those jurors were no longer functioning in the role of impartial judges of the facts, and the trial court had a duty to investigate whether there was good charge to discharge those jurors. But because the state appellate court found Quillin's claim forfeited under California's contemporaneous objection rule, Quillin, 2014 WL 2738849, at *9, the claim is procedurally defaulted from federal habeas review, Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). The Ninth Circuit has repeatedly recognized and applied the California contemporaneous objection rule in affirming denial of a federal habeas petition on grounds of procedural default where there was a complete failure to object at trial. See, e.g., Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004). Because the state appellate court held that the claim was forfeited under California's contemporaneous objection rule, the claim is procedurally defaulted and thus without merit on federal habeas review as well.5

Ground 2. Compelled Testimony

Quillin next contends that the trial court violated his right against self-incrimination when it refused to give a self defense instruction unless Quillin testified. The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." Minnesota v. Murphy, 465 U.S. 420, 426 (1984). However, as the Supreme Court has acknowledged:

Murphy, 465 U.S. at 427 (quoting United States v. Monia, 317 U.S. 424, 427 (1943)).

The record here reflects that Quillin took the stand voluntarily after having been advised that he had the constitutional right not to do so, and thus was completely voluntary. To the extent that he felt obliged to testify in order to obtain a lesser-included-offense jury instruction, that fact does not amount to compulsion under the Fifth Amendment. See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 286 (1998) ("A defendant whose motion for acquittal at the close of the government's case is denied must then elect whether to stand on his motion or to put on a defense. . . . In each of these situations, there are undoubted pressures—generated by the strength of the government's case against him—pushing the criminal defendant to testify. But it has never been suggested that such pressures constitute `compulsion' for the Fifth Amendment." (internal citation omitted)).

To the extent that Quillin claims he is entitled to relief because the trial court committed error or otherwise abused its discretion under state law with respect to the jury instructions, such claim raises only issues of state law that are not cognizable in a federal habeas corpus proceeding. Moreover, a review of the record in the instant case reveals no error, much less due process violation, in the trial court's refusal to given the instruction when initially requested because there was insufficient evidence to support them at that time. See Solis v. Garcia, 219 F.3d 922, 929-30 (9th Cir. 2000) (no due process violation arises from the failure to instruct the jury on a lesser included offense where the requested instruction is not supported by the evidence). As the Court of Appeal reasonably explained:

Quillin, 2014 WL 2738849, at *5-6 (citation omitted).

The determination of the Court of Appeal is both reasonable and fully supported by the record. Consequently, the Court of Appeal's rejection of this instructional error claim is neither contrary to nor an unreasonable application of federal law, and Quillin is not entitled to federal habeas relief on the claim either.

Ground 3. Voluntary Intoxication Error/Ineffective Assistance of Counsel

Finally, Quillin contends that the jury instruction on voluntary intoxication erroneously precluded the jury from considering Quillin's intoxication on any issue but specific intent to kill and that trial counsel was ineffective for acceding to the defective instruction. According to Quillin, the trial court should have instructed the jury that voluntary intoxication could be used to negate premeditation and deliberation, and defense counsel was ineffective for failing to request that pinpoint instruction. The California Court of Appeal considered and rejected this claim on direct appeal as follows:

The court instructed on voluntary intoxication as follows:

Quillin, 2014 WL 2738849, at *3-4.

Quillin's claims relating to the voluntary intoxication instruction also must fail on federal habeas review. First, as previously discussed, a federal court "will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman, 501 U.S. at 729-30. As aforementioned, the Ninth Circuit has recognized and applied California's contemporaneous objection rule in affirming denial of a federal petition on grounds of procedural default where there was a complete failure to object at trial. See Paulino, 371 F.3d at 1092-93 (state appellate court's conclusion that trial counsel's consent to jury instructions at trial was a clear and express waiver, and thus defendant's federal claim challenging any instructions was procedurally barred). Similarly, this Court is bound by the California law enunciated in Saille that such pinpoint instruction must have been requested, and thus the Court cannot find unreasonable the Court of Appeal's determination that the trial court was not sua sponte required to give it. See Bradshaw, 546 U.S. at 76; see also Williams, 52 F.3d at 1480-81.

Second, the Court of Appeal's determination that Quillin suffered no prejudice from defense counsel's failure to request the pinpoint instruction is neither unreasonable nor contrary to Federal law. To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that appellate counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).

Here, Quillin fails to show prejudice. As the Court of Appeal explained, "[b]y finding [Quillin] guilty of murder, the jury rejected the theory that he was so intoxicated that he did not form the specific intent to kill. It is inconceivable that the jury would have found that he could form the specific intent to commit the crime but determine, based on the same intoxication, evidence that he was too intoxicated to premeditate and deliberate." Quillin, 2014 WL 2738849, at *4. Accordingly, Quillin is not entitled to relief on this ground in any event.

V. CONCLUSION AND ORDER

Quillin is not entitled to relief on any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) ("To obtain a certificate of appealability, a prisoner must `demonstrat[e] that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" (quoting Miller-El, 537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.

The Clerk of the Court is to enter judgment accordingly.