Petition for Writ of Certiorari — Michael Eugene Wyatt, Petitioner v. John Sutton, Warden

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

_______________________________________

MICHAEL EUGENE WYATT, Petitioner,

v.

JOHN SUTTON, Respondent

_______________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_______________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________

MARY E. POUGIALES

1 Blackfield Drive, # 111

Tiburon, CA 94920

(415) 847-6379

Counsel of record for Petitioner

QUESTION PRESENTED

Did the Ninth Circuit improperly disregard and/or overlook United State

Supreme Court and Ninth Circuit precedent that required it to defer to

California state law to define each element of the offense, specifically in this

case what kind of evidence California law requires to prove premeditation and

deliberation?

LIST OF PARTIES

The Solicitor General of the United States and petitioner Michael Eugene

Wyatt are the parties to the case.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ………………………………………

iii

OPINIONS BELOW ………………………………………………..

1

JURISDICTION …………………………………………………….

2

CONSTITUTIONAL and STATUTORY PROVISIONS ………………………

2

STATEMENT OF THE CASE …………………………………………………

3

Procedural History ……………………………………………………………

3

Evidence at Trial ………………………………………………………………

5

REASONS FOR GRANTING THE PETITION ………………………………….

7

ARGUMENT…………………………………………………………….

9

The Ninth Circuit has failed to follow mandates from this Court,

and its own directly applicable precedent governing habeas review

for sufficiency of the evidence of first-degree murder.

CONCLUSION …………………………………………………………… 16

INDEX TO THE APPENDICES

APPENDIX A: Ninth Circuit Court of Appeals Order Denying

Petition for Rehearing and Rehearing En Banc, Wyatt v. Sutton, Case No.

20-15203, filed February 1, 2021.

APPENDIX B: Unpublished Opinion of the Ninth Circuit Court of Appeals

affirming denial of habeas petition, Wyatt v. Sutton, Case No. 20-15203,

filed December 24, 2020.

i

APPENDIX C: United States District Court, Northern District of California,

Order Denying Petition for Writ of Habeas Corpus, Wyatt v. Sutton, Case

No. 18-cv-06588, filed December 5, 2019.

APPENDIX D: California Court of Appeal, First Appellate District,

Opinion affirming Judgment and Sentence, People v. Wyatt, Case No.

A144872, filed April 5, 2018.

PROOF OF SERVICE

ii

TABLE OF AUTHORITIES

CASES

PAGE

Boyer v. Belleque, 659 F.3d 957 (9th Cir. 2011) …………………..

14, 15

Chien v. Shumsky, 373 F.3d 978 (9th Cir. 2004)…………………….

15

Colman v. Johnson, 566 U.S. 650 (2012)…………………………… 5, 10, 11

Garcia v. Carey, 395 F.3d 1099 (9th Cir. 2005)………………………...

15

Jackson v. Virginia, 443 U.S. 30 (1979)…………………………….. 9, 10, 14

MacDonald v. Hedgepeth, 907 F.3d 1212 (9th Cir. 2018)……….............

14

Marshall v. Rodgers, 133 S.Ct. 1446 (2003)………………………………

10

Marshall v. Taylor, 395 F.3d 1058 (9th Cir. 2005)…………………………. 10

People v. Anderson, 70 Cal.2d 15 (1968)………………………… 10, 11, 12, 13

People v. Boatman, 221 Cal.App.4th 1253 (2014) ……………………..

12, 13

People v. Craig, 49 Cal.2d 313 (1957) …………………………………….

13

People v. Granados, 49 Cal.2d 490 (1957) …………………………............

13

People v. Motherwell,195 Cal.App.2d 545 (1961) ……………………. ……. 13

People v. Perez, 2 Cal.4th 1117 (1992) ………………………………………. 13

People v. Rowland, 134 Cal.App.3d 1 (1982) …………………………..

13

United States v. Gay, 967 F.2d 32 (9th Cir. 1992)…………………………. 10

iii

STATUTES

United States Code, Title 28

§ 1254(1) ……………………………………………………

2

§ 1291………………………………………………………..

2

California Penal Code

§ 187 …………………………………………………………

3

CONSTITUTIONAL PROVISION

Fifth Amendment ………………………………………………................. 2, 16

Sixth Amendment …………………………………………………………..2, 16

Fourteenth Amendment ………………………………………………………………….. 2, 16

SUPREME COURT RULES

Rule 10 (c) ……………………………………………………………

iv

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Michael Wyatt respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Ninth Circuit that affirmed the

order of the district court denying his federal habeas petition. He filed the petition

following his conviction for firs- degree murder in California state court, a judgment that

was affirmed on direct appeal by the California Court of Appeal. He is in the custody of

the California Department of Corrections serving a 56-year prison term.

OPINIONS BELOW

The Ninth Circuit affirmed the district court’s order denying petitioner’s habeas

petition in an unpublished Memorandum Opinion issued December 24, 2020. Wyatt v.

Sutton, Case No. 20-15203. Attached as Appendix B. The issue certified for appeal was

whether constitutionally sufficient evidence of premeditation and deliberation supported

the first-degree murder verdict. Petitioner’s Petition for Rehearing and Rehearing En

Banc was denied on February 1, 2021. Attached as Appendix A.

The United States District Court, Northern District of California, denied

petitioner’s underlying habeas petition in Wyatt v. Sutton, Case No. 18-cv-06588, order

filed December 5, 2019. The petition raised several issues, one of which was the

sufficiency of the evidence supporting the firstdegree murder conviction, specifically the

elements of premeditation and deliberation. Attached as Appendix C. The district court

certified that single issue for appeal to the Ninth Circuit.

The California Court of Appeal Opinion on direct appeal affirmed petitioner’s

conviction for first-degree murder in an unpublished decision following jury trial in the

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Superior Court of Alameda County. People v. Wyatt, Case No. A144872 filed April 5,

2018. Attached as Appendix D. The state appellate court rejected petitioner’s claim that,

inter alia, there was insufficient evidence of premeditation and deliberation to support a

first-degree murder conviction.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

The Ninth Circuit had jurisdiction pursuant to 28 U.S.C. § 1291. The Ninth

Circuit denied petitioner’s request for rehearing and rehearing en banc on

February 1, 2021.

CONSTITUTIONAL and STATUTORY PROVISIONS

No person shall be . . . deprived of life, liberty, or property,

without due process of law[.]

United States Constitution, Am. 5.

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury[.]

United States Constitution, Am. 6.

No State shall . . . deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

United States Constitution, Am. 14.

2

STATEMENT OF THE CASE

I. Procedural History

Petitioner was charged by Information filed July 24, 2013, in Alameda

County Superior Court with a single count of murder, in violation of Penal

Code § 187(a). A jury convicted petitioner of first-degree murder, and found

that he used a deadly weapon. Petitioner was sentenced to a total term of 56

years in prison.

He appealed his conviction to the state court of appeal raising

multiple claims of error, including the insufficiency of the evidence of

premeditation and deliberation. App. D at p. 5. The California Court of

Appeal rejected the claim:

Based on the evidence of motive, the manner of the killing, and

Wyatt’s conduct after Nobles’ death, there was substantial evidence

that the murder of Nobles was perpetrated with premeditation and

deliberation – even without consideration of [the 1995 homicide].

App. D at p. 7.

This opinion identified the motive as “to get Nobles to stop” his

“annoying” behavior; it described the manner of killing as “multiple stab

wounds to the chest.” App. D at p. 6. The state court concluded that these

two factors alone provided sufficient evidence that petitioner “had weighed

3

the considerations and decided to end Nobles’ life.” App. D at p. 7.

In addition, the state court concluded that it was reasonable for the

jury to have drawn the inference that petitioner’s “callousness toward

Nobles’ body” after the homicide proved “not only his state of mind after

the stabbing, but his state of mind toward Nobles before and during the

stabbing, consistent with his deliberative decision to end Nobles’ life.”

App. D at p7. It approved the admission of a 17-year-old homicide and

petitioner’s false statements to the police days after the Nobles’ homicide as

probative of petitioner’s state of mind before and during the killing. App. D

at p. 10-11.

Petitioner’s underlying federal habeas petition was denied by the district

court on December 5, 2019, with a certification for appeal of the single issue

of whether sufficient evidence supported the verdict of first -degree murder.

App. C. On review, the Ninth Circuit affirmed he district court’s denial of

the because “[t]he state court’s decision was a reasonable application of the

law and based on a reasonable determination of the facts[.]” App. B at p. 2.

The opinion cited AEDPA’s double deference standard, to find the state

court’s “evidentiary inferences” were not “objectively unreasonable.” Id.

The Court explicitly stated that it would not consider California case law

4

relevant to the elements of premeditation and deliberation but would instead

conduct its evidentiary review as “purely a matter of federal law,” citing

Colman v. Johnson, 566 U.S. 650, 655 (2012). Id.

II. The Evidence at Trial1

James Nobles died from multiple stab wounds inflicted by petitioner.

An autopsy revealed several blunt force injuries, including a bruise to the

right eye, a laceration on the right side of the nose, and a bruise on the right

arm. There were superficial incised wounds on Nobles’ face, neck, and

lower right leg, as well as six deeper stab wounds – two in the chest, one in

the neck, one near the jawline, and two in the leg. The two chest wounds

penetrated his left lung, causing nearly instantaneous death. App. D at p. 2.

Petitioner, the only eyewitness, at first denied any knowledge of

Nobles’ whereabouts, but eventually confessed and said he killed Nobles

during a fight. App. D at pp. 2-4. He told police that he became friends

with Nobles, who moved in with him in mid-2010, and who was paying the

rent on the apartment. Nobles suffered from schizophrenia and sometimes

would “go off the deep end” but eventually came back around and was

normally “a gentle, easy-goin’ guy [who] would not harm a fly.” He

1

This summary is drawn from Appendix D at pp. 1-5.

5

claimed that Nobles “flipped out,” that he tried and failed to subdue Nobles

and “the next thing you know, it just got outta hand and I lost it.”

Two weeks before the homicide, Nobles started acting out every day

with constant movement or incessant babbling. In the early morning of

Sunday, February 5, 2012, Nobles became upset about a text petitioner had

received and started “acting real bad.” Ptitioner’s requests of Nobles to calm

down, were ineffective. The behavior disrupted petitioner’s sleep throughout

the night. When petitioner woke on Sunday morning, Nobles seemed fine

but the bizarre behavior began again during the day.

“Words, there was a lot of movements . . . constant – he would get up

and then he would write on the floor and then he would kick. It was just a lot

of – I – I mean it may seem petty. You know, but it was just a lot of

irritation. Just – just talking and you know and just moving around. . . . It

just didn’t – it just didn’t let up.”

Things “came to boil” that afternoon. Petitioner duct-taped Nobles’

hands in front of his body, and put duct tape over his mouth. He also put

Nobles in a corner and placed a mattress over him. Nobles readily freed

himself with help from petitioner, but then “started back at his theatrics

again.” When Nobles refused to leave, petitioner grabbed him by the

6

shoulders and shook him; Nobles began kicking and hitting back. Petitioner

then grabbed a container of clear blue, non-toxic cleaning liquid and threw

the liquid in Nobles’s face. When Nobles continued struggling, petitioner

punched him in the chin and the right eye. Nobles went to the bathroom and

returned “tryin’ to swing and tryin’ to grab.” Petitioner grabbed a small

“folding-knife” and, in “panic” and “rage,” stabbed Nobles twice in the

chest. Petitioner heard a “poof” as the air exited Nobles’ lungs. Nobles fell

down and rapidly died. Petitioner’s attempts at chest compressions were

ineffective because of the punctured lung.

Petitioner did not consider calling 911. Roughly 12 hours later, under

cover of darkness, petitioner moved Nobles’ body to the nearby BART

tracks. He told police that he threw the knife down a nearby gutter, where

they were able to retrieve it, and also threw out some clothing.

Petitioner admitted to the officers that he “went too far” and stated

repeatedly that Nobles did not deserve what happened to him. When asked if

he premeditated the homicide, he responded “No, no, no, I didn’t.”

REASONS FOR GRANTING THE PETITION

This Petition presents an important question of federal law pursuant to

Supreme Court Rule 10 (c) that affects all similarly-situated defendants

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accused by the state of first-degree murder. The Ninth Circuit failed to

apply this Court’s well-established precedents that required, first, that in

reviewing a challenge to the sufficiency of the evidence it defer to

California’s statutory and case law to define the elements of first-degree

murder, here deliberation and premeditation.; and, second, that it decide the

issue consistently with its own applicable precedent. These are critically

important principles of federal law that were disregarded ere. Only review

by this Court can correct this injustice.

Fundamental fairness calls for this Court to grant certiorari in order to

ensure that petitioner is provided the same due process protections that this

Court and the Ninth Circuit itself have historically mandated and that other

similarly situated defendants convicted of first-degree murder have enjoyed,

and because of which many similarly-situated defendants have obtained

habeas relief that reduced their convictions from first- to second-degree

murder.

Without this Court’s grant of review, this prosecution will end with

petitioner condemned to serve out an unduly lengthy prison term knowing

that he was convicted on the basis of evidence that both California and Ninth

Circuit precedents have rejected repeatedly as being insufficient to prove

8

deliberation and premeditation. He will be in prison long past the time of

similarly-situated defendants. This is manifestly unjust.

ARGUMENT

The Ninth Circuit has failed to follow mandates from this

Court, and its own directly applicable precedent governing

habeas review for sufficiency of the evidence of first-degree

murder.

The central flaw in the Ninth Circuit’s ruling that calls for review and

reversal by this Court is its conclusion that California’s case law – which

would have compelled granting of the writ – was irrelevant to its review.

This Court and multiple Ninth Circuit cases explicitly hold directly to the

contrary. The Ninth Circuit relied on exactly the same trial evidence that the

district court and the California Court of Appeal relied on, evidence that

California’s jurisprudence, discussed at length below, has long and soundly

rejected as inadequate as a matter of law to prove premeditation or

deliberation.

Clearly established authority of this Court required the Ninth Circuit

to review the claim of insufficient evidence “with explicit reference to the

substantive elements of the criminal offense as defined by state law," not in

a selective disregard of it. (Emphasis added.) Jackson v. Virginia, 443 U.S.

9

30, 32, n. 6 (1979). This Court reiterated that mandate in the very case the

Ninth Circuit inaccurately cited to justify its failure to follow that clear

mandate here, Colman v. Johnson, 566 U.S. 650, 655 (2012): “Under

Jackson federal courts must look to state law for ‘the substantive elements of

the criminal offense.’ “

This Court has also directed the Ninth Circuit to follow its law-of-thecircuit and “look to circuit precedent to ascertain whether it has already held

that the particular point in issue is clearly established by Supreme Court

precedent.” Marshall v. Rodgers, 133 S.Ct. 1446,1450 (2003). When a prior

three-judge panel has held that a principle is clearly established Supreme

Court law, we are bound by the earlier panel’s decision.” Marshall v. Taylor,

395 F.3d 1058, 1061, n. 15 (9th Cir. 2005); United States v. Gay, 967 F.2d

322, 327 (9th Cir. 1992).

The California Supreme Court more than five decades ago established

the framework for evaluating sufficiency of the evidence offered to prove

the elements of premeditation and deliberation. People v. Anderson,70

Cal.2d 15, 25 (1968). Anderson identified the following as key

characteristics: first and foremost, planning activity (which every reviewing

court agreed did not exist here); second, motive if and when combined with

10

evidence of either planning or a manner of killing than is more than “`mere

unconsidered or rash impulse hastily execute'”; and, third, a manner of

killing “so particular and exacting that the defendant must have intentionally

killed according to a `preconceived design' to take his victim's life in a

particular way for a `reason' which the jury can reasonably infer from facts

of [planning or motive].” Anderson, supra 26-27. [While later state court

decisions describe Anderson as “guidance,” they have without exception all

hewed to Anderson’s analytical structure, as the Ninth Circuit recognized

here.]

The Ninth Circuit purported to follow Anderson in this case, but then

explicitly elected to disregard the actual holding of Anderson, as well as its

progeny, as well as its own Circuit precedent. This necessarily brought it

into direct conflict with this Court’s clearly established precedent in Jackson

and Colman, supra.

These were the Ninth Circuit’s findings of determinative fact, all of

which the district court and the California Court of Appeal relied on also,

and all of which have been long-rejected by California’s case law as

inadequate to meet the state definition of the elements of premeditation and

deliberation:

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Motive: petitioner engaged in an “increasingly violent attempt to

quiet his . . . roommate.” App. B at p. 2.

Manner of killing: petitioner’s “decision to grab and then plunge, a

knife into Nobles’s chest, multiple times” was “a method sufficiently

particular and exacting” to prove a “preconceived design” to kill. App. B at

pp. 2. [Note: Anderson found such evidence relevant only to proving intent

to kill, and inadequate to prove the additional first-degree elements of

premeditation or deliberation.]

Post-murder conduct: after the murder petitioner failed to seek

medical aid for the victim, waited 12 hours to dispose of the body under

cover of darkness, and lied to police and family about the victim’s

whereabouts. App. B at p. 2.

Prior killing: petitioner, 17 years earlier, shot and killed an

acquaintance in a dispute over a debt.

Under the following California case law, all of that evidence, except

the 17-year-old homicide, is inherently inadequate to support the inference

of more than intent to kill, and should have been excluded from the calculus:

The passage of time in which to theoretically reflect is inadequate.

People v. Boatman, 221 Cal.App.4th 1253, 1270 (2014).

12

Annoyance, anger, or any other emotional mood motivating the

violent act. Such evidence instead establishes the lack of deliberation and

premeditation. Boatman, supra at 1268.

An attack such as occurred here, explosive and inflicting both severe

and superficial wounds, proves no more than a “mere unconsidered or rash

impulse.” Anderson, supra aat 25 27; People v. Perez, 2 Cal.4th 1117, 1228

(1992).

An explosive attack, rather than the kind of cold, calculated attack

indicative of premeditation and deliberation, is inadequate. Anderson, supra

at 30.

The brutality of an attack or the infliction of multiple acts of violence,

is inadequate. Anderson, supra at 25.

Post hoc attempts to cover up the killing, or lying to family or police

after the killing is irrelevant and inadequate. Anderson, supra at 32, 33-34;

People v. Granados, 49 Cal.2d 490, 497-498 (1957)

Mistreatment of the victim’s body after death is inadequate.

Anderson, supra at 21-22; People v. Craig, 49 Cal.2d 313 (1957), 316;

People v. Motherwell,195 Cal.App.2d 545 (1961); People v. Rowland, 134

Cal.App.3d 1 (1982).

13

Consistently with this Court’s mandate to look to state law to define

the elements of an offense, and consistently deferring to California state case

law for that purpose regarding the elements of premeditation and

deliberation, the Ninth Circuit has previously on habeas review reduced

first-degree murder convictions to second degree on far more egregious

circumstances than those that existed here. The Circuit’s own jurisprudence

Routinely looked to the many California cases discussed above that clarified

what evidence simply cannot support a reasonable inference of

premeditation and deliberation. Several Ninth Circuit panels have hewed to

the state court’s case law for that purpose, as Jackson mandated, including:

MacDonald v. Hedgepeth, 907 F.3d 1212, 1218, 1222 n 4 (9th Cir.

2018), reversing the district court’s denial of a writ citing Jackson and

applying California case law to define elements and to evaluate relevance

and sufficiency of evidence.

Boyer v. Belleque, 659 F.3d 957, 965 (9th Cir. 2011), analyzed the

challenged element “as it has been defined and interpreted by the state of

Oregon,” holding that Oregon’s state law “clearly establishes the principle”

to be applied in analyzing the constitutional sufficiency of evidence.

14

Garcia v. Carey, 395 F.3d 1099, 1104 (9th Cir. 2005) looked to state

case law to determine “the kind of evidence that can support a finding of the

requisite [element].” (Emphasis added.). Here, also, petitioner challenged

the kind of evidence admitted at his trial as being insufficient as a matter of

law under the state court’s definition. The panel erred in failing to follow

this precedent.

Chien v. Shumsky, 373 F.3d 978, 984-985 (9th Cir. 2004) properly

asked what the Ninth Circuit failed to ask here: “how California case law

courts would evaluate the facts for sufficiency.”

Thus, a well-trod path pointed the Ninth Circuit to California’s case

law to define and interpret the elements of premeditation and deliberation

They set out a principle firmly embedded in its own precedent: similar facts

should lead to same results Boyer, supra at 968. Where, as here, the state’s

courts have determined that that there are kinds of evidence that simply

cannot rationally support an inference of premeditation and deliberation, the

convictions have been reduced to second degree. That should have

happened here. Only review by this Court will ensure that it does.

15

CONCLUSION

For these reasons, Michael Eugene Wyatt respectfully requests that

this Court grant certiorari to review the merits of his claim that he was

wrongly denied his Fifth, Sixth, and Fourteenth Amendment rights to be

convicted of first-degree murder only upon constitutionally sufficient

evidence of premeditation and deliberation.

Dated: February 20, 2021

Respectfully submitted,

/s/. Mary E. Pougiales

MARY E. POUGIALES

Counsel for Petitioner

Michael Eugene Wyatt

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