ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

JON S. TIGAR, District Judge.

Chad Andrew Larsen, a California prisoner, has filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed an answer to the petition, and Petitioner has filed a traverse. The matter is now before the court for consideration of the merits of the habeas petition. For the reasons discussed below, the petition is denied.

I. BACKGROUND

On September 9, 2008, the Humboldt County District Attorney filed an information charging Petitioner and his father, Dennis Larsen, with conspiracy to commit murder, Cal. Penal Code § 182(a)(1). Clerk's Transcript on Appeal ("CT")1 at 631-32. Petitioner was charged separately with two counts of solicitation to commit murder; one count was later dismissed by the district attorney prior to trial. CT at 631-33, 1137.

Pursuant to a plea agreement, Dennis Larsen pled no contest to one count of solicitation to commit murder and was granted probation. Reporter's Transcript ("RT")2 at 851. On March 25, 2010, following a jury trial, Petitioner was found guilty of conspiracy to commit murder and solicitation to commit murder. CT at 1238-45. Petitioner was sentenced to a term of 25 years to life for the conspiracy charge, and to a term of 9 years for the solicitation charge, to run concurrently with the sentence for conspiracy. 3 CT at 1323-26.

Petitioner directly appealed the judgment in the California Court of Appeal. Docket No. 5, Ex. D. On April 30, 2012, in a reasoned opinion, the California Court of Appeal affirmed the judgment. Docket No. 5, Ex. G. On August 8, 2012 the California Supreme Court denied the petition for review. Docket No. 5, Ex. I.

The instant petition was filed on October 22, 2013.

II. STATEMENT OF FACTS

The following background facts describing the crime and evidence presented at trial are from the opinion of the California Court of Appeal3:

People v. Larsen, 205 Cal.App.4th 810, 814-22 (Cal. Ct. App. 2012).

III. DISCUSSION

A. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Additionally, habeas relief is warranted only if the constitutional error at issue had a "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 532 U.S. 782, 795 (2001) (internal quotation marks omitted).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's jurisprudence. "[C]learly established Federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. "A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous." Mitchell v. Esparza, 540 U.S. 12, 17 (2003).

B. Instructional Error

Petitioner argues that the trial court erred in refusing to instruct the jury with California Criminal Jury Instruction ("CALCRIM") No. 3428 (Mental Impairment: Defense to Specific Intent or Mental State); refusing to instruct the jury on entrapment as to his father, Dennis Larsen; and refusing to instruct the jury that Dennis's plea of no contest was not conclusive proof that Petitioner was guilty of conspiracy.

1) Standard

Due process requires that "`criminal defendants be afforded a meaningful opportunity to present a complete defense.'" Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Therefore, a criminal defendant is entitled to adequate instructions on the defense theory of the case. Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnapping where such instruction was supported by the evidence). The defendant is not entitled to have jury instructions raised in his or her precise terms where the given instructions adequately embody the defense theory. See United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979).

A state trial court's refusal to give an instruction does not by itself raise a ground cognizable in a federal habeas corpus proceedings. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. Id.

Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973) and Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). The question is "whether, under the instructions as a whole and given the evidence in the case, the failure to give the requested instruction rendered the trial so fundamentally unfair as to violate federal due process." Id. at 746 (citing Cupp, 414 U.S. at 147).

The omission of an instruction is less likely to be prejudicial than a misstatement of the law. See Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (citing Henderson, 431 U.S. at 154). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "`especially heavy burden.'" Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson, 431 U.S. at 155). The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156).

A habeas petitioner is not entitled to relief unless the instructional error "`had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The proper question in assessing harm in a habeas case is, "`Do I, the judge, think that the error substantially influenced the jury's decision?'" O'Neal v. McAninch, 513 U.S. 432, 436 (1995). If the court is convinced that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand. Id. at 437. If, on the other hand, the court is not fairly assured that there was no effect on the verdict, it must reverse. Id. In the "narrow circumstance" in which the court is in "grave doubt" about whether the error had substantial and injurious effect or influence in determining the jury's verdict, it must assume that the error is not harmless and the petitioner must win. Id. at 436, 438; see, e.g., id. at 436-44 (relief granted because record so evenly balanced that conscientious judge in grave doubt as to harmlessness of error); Chambers v. McDaniel, 549 F.3d 1191, 1200-01 (9th Cir. 2008) (granting habeas relief based upon "grave doubt" as to harmlessness of erroneous first-degree murder instruction on premeditation, where error went to "very heart of the case" and evidence against petitioner was not so great that it precluded a verdict of second-degree murder).

2) Analysis — Mental Impairment Jury Instruction

Petitioner's defense to the crimes was that he lacked the intent to kill due to his Asperger's Syndrome. He stated that the plans to kill Jane Doe were part of a role-playing game initiated and controlled by Wallace, and that Petitioner's participation in this game was due to his Asperger's Syndrome. The trial court refused Petitioner's request for the mental impairment pinpoint instruction, CALCRIM No. 3428, stating that the evidence did not support the instruction. Petitioner claims that the failure to give CALCRIM No. 3428 deprived him of his right to present a defense and to due process.

The California Court of Appeal set forth the relevant legal standards and denied Petitioner's claim, finding that the trial court did not commit reversible error when it failed to instruct on mental disorder:

Larsen, 205 Cal. App. 4th at 822-34.

Petitioner claims that it is reasonably likely that without the pinpoint instruction the jury believed that Petitioner's mental impairment could not be used to negate the formation of the necessary mental state. The record does not support Petitioner's claim. As the California appellate court correctly notes, the instructions given did not misstate the law, nor did they prevent the jurors from considering Petitioner's mental impairment defense. Larsen, 205 Cal. App. 4th at 830. The jury instructions clearly stated that the prosecution needed to prove that Petitioner intended for murder to be committed, both for the conspiracy charge and the solicitation charge. RT at 2162 and 2164-65. The jury instructions also acknowledged Petitioner's mental impairment defense by instructing the jurors that they should not discount the testimony of a person with a cognitive or mental impairment solely because of the disability or impairment, id. at 2155-56, and by instructing the jurors how they should evaluate the expert testimony on Asperger's Syndrome that had been provided by Catherine Silver, id. at 2156. In addition, Petitioner was able to present a defense emphasizing his mental impairment. Silver testified that Petitioner's Asperger's Syndrome pre-dated his criminal offenses, id. at 1801-02, that Petitioner was susceptible to manipulation and eager to please others, id. at 1809-10, and that Petitioner regularly engaged in role-playing games, id. at 1808-09. Petitioner testified at length about his involvement in role-playing games, id. at 1577-95; role playing with Wallace, id. at 1601-05, 1612-15, and 1650-70; and how the alleged plot to kill Jane Doe was merely a role-playing game based upon plots in his favorite comic books, id. at 1690-99. The testimony presented and the jury instructions both afforded Petitioner a meaningful opportunity to present his defense that his Asperger's Syndrome made it likely that he had been participating in a role-playing game and did not have the necessary intent for conspiracy or solicitation to commit murder. Petitioner has not shown that the omission of a pinpoint jury instruction on mental disorder had a substantial and injurious effect or influence in determining the jury's verdict. Brecht, 507 U.S. at 647. Accordingly, the state court decision rejecting Petitioner's claim was not contrary to, or an unreasonable application of, clearly established federal law. See Duckett, 67 F.3d at 745.

Moreover, there was no prejudicial error under Brecht. As the California appellate court noted, there was significant evidence of Petitioner's guilt, unrelated to manifestations of his Asperger's Syndrome. Other inmates who were not engaged in role-playing games with Petitioner testified that Petitioner had solicited their assistance in killing Jane Doe. RT at 647-51, 714, 733. There were detailed plans and drawings related to the plot created by Petitioner. Petitioner's father purchased shovels, suspecting that the shovels were to be used to cover up the killing of Jane Doe. RT at 835, 838. The state court denial of this claim was a reasonable determination of the facts in light of the evidence presented in the state court proceedings.

Petitioner argues that he was entitled to a jury instruction on whether Dennis was entrapped and to a corresponding direction that if Dennis was found not guilty of conspiracy by reason of having been entrapped, then the jury should find Petitioner not guilty.

The California Court of Appeal denied Petitioner's claim as follows:

Exhibit G at 27-29.

Due process does not require that an instruction be given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982). The state court reasonably concluded that the evidence did not support a jury instruction on whether Dennis was entrapped. Under California law, as explained by the court of appeal, the test for determining entrapment is whether the acts of the law enforcement agent are "likely to induce a normally law-abiding person to commit the offense." People v. Barraza, 23 Cal.3d 675, 689-90 (Cal. 1979). Dennis suspected that Petitioner was setting up a hit on Jane Doe, RT at 835, but still followed Wallace's directions and provided shovels and $500 to Wallace, RT at 838 and 840. In addition, Dennis testified that he entered a plea of nolo contendere (no contest plea) to solicitation of murder in the context of this case. RT at 851. Under California law, "the legal effect of [nolo contendere] plea . . . shall be the same as that of a plea of guilty for all purposes." Cal. Penal Code § 1016(3); see also United States v. Anderson, 625 F.3d 1219, 1220 (9th Cir. 2010) ("a plea of nolo contendere is the functional equivalent of a guilty plea") (internal quotation marks omitted). The evidence does not support a jury instruction on whether Dennis was entrapped. Petitioner has therefore failed to demonstrate that the state court's denial of this claim was either an unreasonable application of federal authority or on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. This claim is denied.

4) Analysis — Instruction Regarding Dennis's Guilty Plea

Petitioner argues that the trial court should have instructed that, as a matter of law, the fact that Dennis pled guilty to one count of solicitation of murder was not conclusive evidence that Dennis had actually solicited murder and that even if the jury found that Dennis had solicited murder, this did not require the jury to conclude that Dennis was also guilty of conspiracy to commit murder.

The California Court of Appeal denied Petitioner's claim as follows:

IV. The Failure to Give an Instruction on Dennis's Plea.

Exhibit G at 29-30.

The state appellate court's denial of this claim was a reasonable determination of the facts in light of the evidence presented in the state court proceedings. As discussed above in Section B.3, Dennis pled guilty to solicitation of murder and the evidence supported a finding that Dennis participated in the conspiracy. Nor was the state appellate court's denial of this claim an unreasonable application of federal authority. Due process entitles a defendant to adequate instructions on the defense theory of the case. See Conde, 198 F.3d at 739. As the state appellate court pointed out, the ultimate issue was the guilt or innocence of the defendant. The defense theory of the case was that Petitioner's plot to kill Jane Doe was purely imaginary and was part of a role-playing game initiated and controlled by Wallace. As discussed above in Section B.2, the jury was adequately instructed on the defense theory of the case.

Finally, the failure to instruct the jury that Dennis's no contest plea to solicitation did not imply that Dennis was guilty of conspiracy did not result in prejudicial error under Brecht. There was evidence that Dennis had engaged in a conspiracy and that Petitioner intended to kill Jane Doe. Dennis suspected that Petitioner was setting up a hit on Jane Doe, but still followed Wallace's directions and provided shovels and $500 to Wallace. Petitioner had previously solicited other inmates to kill Jane Doe and there were detailed drawings and plans regarding the plot. This claim is denied.

C. Evidentiary Error

Petitioner argues that the trial court erred by excluding certain defense evidence relevant to his mental impairment.

1) Standard

"[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (alternation in original and internal quotation marks omitted); see also Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (holding that due process does not guarantee a defendant the right to present all relevant evidence). This latitude is limited, however, by a defendant's constitutional rights to due process and to present a defense, rights originating in the Sixth and Fourteenth Amendments. See Holmes, 547 U.S. at 324. "While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Id. at 325-26; see Egelhoff, 518 U.S. at 42 (holding that the exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"). But "at times a state's rules of evidence cannot be mechanistically applied and must yield in favor of due process and the right to a fair trial." Lunbery v. Hornbeak, 605 F.3d 754, 762 (9th Cir. 2010) (finding California's application of its evidentiary rules to exclude hearsay testimony that bore persuasive assurances of trustworthiness and was critical to the defense violated right to present evidence). The defendant, not the state, bears the burden to demonstrate that the principle violated by the evidentiary rule "is so rooted in the traditions and conscience of our people as to be ranked as fundamental." Egelhoff, 518 U.S. at 47 (internal quotation marks omitted).

2) Analysis

The California Court of Appeal denied Petitioner's claim as follows:

II. The Exclusion of Mental Impairment Defense Evidence.

Exhibit G at 26-27.

Petitioner's defense was that Wallace deliberately set up Petitioner in order to reduce Wallace's sentence; Petitioner's Asperger's Syndrome made him especially susceptible to manipulation by Wallace; and the plot to kill Jane Doe was merely part of an elaborate role-playing game using the plots from comic books and details from Petitioner's life. The trial court reasonably excluded evidence regarding whether other inmates might have manipulated Petitioner and evidence regarding Ekker's impression of Wallace as having a tenuous connection to the issue of Petitioner's mental state and as more confusing than probative. Petitioner's manipulation by and fear of other inmates — and even of Wallace — does not preclude Petitioner from forming the intent to kill Jane Doe and plotting to achieve that goal. Similarly, the fact that his psychological disabilities were evident to those around him and that his Asperger's Syndrome condition dates back to his childhood do not mean he could not form the intent to kill Jane Doe. This claim is denied.

D. Recusal Error

Petitioner argues that the Humboldt County District Attorney's Office had an actual conflict of interest and that the trial court therefore erred in denying his post-verdict, pre-sentencing motion to recuse the entire Humboldt County District Attorney's Office.

The California Court of Appeal denied Petitioner's claim as follows:

V. The Denial of Defendant's Request to Recuse the District Attorney's Office.

Exhibit G at 30-32.

Petitioner has not identified any clearly established Supreme Court precedent requiring recusal of an entire prosecutor's office on these facts — i.e., where the district attorney released a sensational ad regarding the defendant's case after the jury reached its verdict but before the defendant was sentenced. In light of the absence of Supreme Court authority, it cannot be said that the state court's denial of this claim was contrary to, or an unreasonable application of, clearly established federal law. Williams, 529 U.S. at 412-13.

Furthermore, Petitioner has failed to demonstrate that the failure to recuse the Humboldt County District Attorney's Office negatively affected his sentence. Petitioner was sentenced to 25 years to life on the conspiracy to commit murder charge, and the maximum sentence of nine years for the solicitation to commit murder charge, which was to run concurrently with his other sentence. CT at 1323-24. The 25 years to life sentence for conspiracy to commit murder was statutorily mandated, Cal. Penal Code §§ 182(a) and 190(a), and not within the discretion of the judge. The sentence for solicitation did not greatly effect the maximum term that Petitioner would receive. Furthermore, the record does not indicate that the District Attorney's Office exhibited any bias with regard to Petitioner's sentencing. CT at 1270 and RT at 2235. The prosecutor did not submit a statement of aggravation, and the probation department recommended that Petitioner serve the middle term of six years for the solicitation charge.

Finally, the Court finds no merit in Petitioner's claim that the Humboldt County District Attorney had a financial interest in the outcome of the trial that rendered Petitioner's trial fundamentally unfair. Petitioner argues that the district attorney's reelection campaign committee made significant expenditures on the television advertisement and that Petitioner's acquittal would have resulted in the campaign committee having wasted a large portion of its "warchest." Petitioner provides no evidence to support this allegation, and the financial interest is too attenuated to raise concern. See, e.g., Gallego v. McDaniel, 124 F.3d 1065, 1079 (9th Cir. 1997) (Prosecutor's direct pecuniary interest in the outcome of a case that has an impact on the prosecutor's decision whether or not to enforce a particular statute may have constitutional ramifications) (citing Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50 (1980)). Moreover, as discussed above, there is no evidence that the television advertisement negatively affected this sentence. See id. (no prosecutorial misconduct will be found absent a showing of prejudice).

This claim is denied.

E. Certificate of Appealability

The federal rules governing habeas cases brought by state prisoners require a district court that issues an order denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 11(a).

A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, Petitioner has not made such a showing, and, accordingly, a certificate of appealability will be denied.

IV. CONCLUSION

For the reasons stated above, the petition for a writ of habeas corpus is DENIED, and a certificate of appealability is DENIED.

The Clerk shall enter judgment in favor of Respondent and close the file.

IT IS SO ORDERED.