McNeely v. Sherman

Background

Joe McNeely, a California prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his state-court convictions. In 2015, an Alameda County Superior Court jury found McNeely and his co-defendant, Don Poston, guilty of murdering Lionel Fluker, attempting to murder each other, and possessing a firearm as a felon. The jury also found firearm-related allegations true. McNeely was sentenced to 72 years to life in state prison. The California Court of Appeal affirmed, the California Supreme Court denied review, and McNeely’s later state-court habeas petitions were unsuccessful.

The events arose from a confrontation at an Oakland gas station on April 5, 2013. After an argument, McNeely slapped Poston and tried to trip him. McNeely appeared to reach for a gun or magazine, and Poston shot McNeely six times. McNeely then loaded his gun, chased Poston, and fired eight shots. The bullets did not hit Poston, but one killed Lionel Fluker. Both men claimed self-defense.

Claims and Analysis

The court reviewed the claims under the Antiterrorism and Effective Death Penalty Act, which limits federal relief when a state court has already decided a claim. Relief generally requires showing that the state decision unreasonably applied clearly established United States Supreme Court law or rested on an unreasonable determination of the facts.

Joint trial. McNeely argued that trying him and Poston together violated due process because their self-defense theories conflicted and each blamed the other. The court held that no clearly established federal law required separate trials in state court merely because co-defendants presented opposing defenses. It also agreed that the defenses were not necessarily mutually exclusive: the jury could have found that both men acted in self-defense. The court further found that the charges arose from the same incident and that much of the evidence would have been admissible in separate trials. McNeely therefore did not show that the joint trial made his trial fundamentally unfair.

Self-defense jury instruction. McNeely argued that California jury instruction CALCRIM No. 3472 misstated California self-defense law. The court held that this state-law argument could not support federal habeas relief. It also explained that the California Court of Appeal’s interpretation of California law bound the federal court and that the state court had concluded the instruction correctly stated state law in this case.

Ineffective assistance concerning the instruction. McNeely argued that trial counsel should have objected to CALCRIM No. 3472. The court rejected the claim because an objection based on the alleged state-law error would have been meritless. The court also rejected McNeely’s related claim that appellate counsel was ineffective for failing to raise the issue.

Evidence of Poston’s prior arrests. McNeely challenged the exclusion of evidence concerning Poston’s prior arrests for marijuana sales. He argued that the evidence supported his theory that Poston shot him to protect a drug-selling territory and could be used to impeach Poston. The court held that the state court’s evidentiary ruling did not conflict with clearly established Supreme Court precedent. In addition, the court found that excluding the evidence did not have a substantial and injurious effect on the verdict because Poston’s motive did not determine whether McNeely acted in self-defense, and the evidence supporting McNeely’s self-defense theory was weak.

Cumulative prejudice. McNeely argued that the combined effect of the alleged errors violated due process. The court rejected this claim because it found no constitutional error and concluded that any error in excluding the arrest evidence was harmless.

Suppressed video and alleged false testimony. McNeely argued that prosecutors failed to disclose surveillance footage from additional gas-station cameras and knowingly presented false testimony from a police officer and an eyewitness. The court found no evidence that undisclosed footage existed, depicted the incident, favored McNeely, or was suppressed. The record showed that the defense knew about the additional cameras and could have sought the footage. The court also found no proof that the officer’s testimony was false or that the prosecutor knew it was false, and no proof that the eyewitness testified falsely.

Ineffective assistance concerning video evidence. McNeely argued that trial counsel failed to investigate additional surveillance footage, investigate alleged perjury, or present additional footage to the jury. The court found no evidence that counsel failed to investigate; counsel had questioned an officer about the additional camera and presented footage from a Mills College camera. The court also found no indication that additional footage existed or would have helped McNeely. Because McNeely did not show deficient performance or a reasonable probability of a different result, the court rejected these claims and the related claim against appellate counsel.

Sentence-enhancement claim. McNeely moved to withdraw his sentence-enhancement claim because he acknowledged that he had not exhausted it in state court. The court granted that motion. The withdrawn claim therefore was not a basis for relief.

Disposition

The court denied the amended petition. It also denied a certificate of appealability because it concluded that reasonable jurists would not find its assessment of the constitutional claims debatable or wrong. The clerk was directed to enter judgment for Sherman and close the file. McNeely may seek a certificate of appealability from the U.S. Court of Appeals.