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Lyons v. Vannoy

United States District Court, E.D. Louisiana

May 14, 2018

TRENT LYONS
v.
DARREL VANNOY

         SECTION: “A” (3)

          REPORT AND RECOMMENDATION

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

         Petitioner, Trent Lyons, is a state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On October 26, 2012, he was convicted of second degree murder under Louisiana law.[1] On January 14, 2013, he was sentenced to a term of life imprisonment without benefit of probation, parole, or suspension of sentence.[2] On January 31, 2014, the Louisiana Fifth Circuit Court of Appeal affirmed his conviction and sentence.[3] The Louisiana Supreme Court then denied his related writ application on November 7, 2014, [4] and his motion for reconsideration on January 16, 2015.[5]

         On or about March 16, 2015, petitioner filed an application for post-conviction relief with the state district court.[6] That application was denied on August 24, 2015.[7] His related writ applications were then likewise denied by the Louisiana Fifth Circuit Court of Appeal on November 3, 2015, [8] and by the Louisiana Supreme Court on September 23, 2016.[9]

         On May 22, 2017, petitioner filed the instant federal application seeking habeas corpus relief.[10] The state thereafter filed a response conceding that the application was timely but arguing that petitioner's claims do not warrant relief.[11]

         I. Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).

         As to pure questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it “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)(2); see also 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).

         As to pure questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision on the merits of such a claim unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Courts have held that the “‘contrary to' and ‘unreasonable application' clauses [of § 2254(d)(1)] have independent meaning.” Bell, 535 U.S. at 694.

         Regarding the “contrary to” clause, the United States Fifth Circuit Court of Appeals has explained:

A state court decision is contrary to clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the [United States] Supreme Court's cases. A state-court decision will also be contrary to clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the [United States] Supreme Court and nevertheless arrives at a result different from [United States] Supreme Court precedent.

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation marks, ellipses, brackets, and footnotes omitted).

         Regarding the “unreasonable application” clause, the United States Supreme Court has held: “[A] state-court decision is an unreasonable application of our clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 134 S.Ct. 1697, 1706 (2014). However, the Supreme Court cautioned:

Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. Thus, if a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision. AEDPA's carefully constructed framework would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.

Id. (citations and quotation marks omitted). Therefore, when the Supreme Court's “cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quotation marks and brackets omitted). The Supreme Court has also expressly cautioned that “an unreasonable application is different from an incorrect one.” Bell, 535 U.S. at 694. Accordingly, a state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (“Importantly, ‘unreasonable' is not the same as ‘erroneous' or ‘incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable.”).

         While the AEDPA standards of review are strict and narrow, they are purposely so. As the United States Supreme Court has held:

[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (citations omitted; emphasis added); see also Renico v. Lett, 559 U.S. 766, 779 (2010) (“AEDPA prevents defendants - and federal courts - from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”).

         The Supreme Court has expressly warned that although “some federal judges find [28 U.S.C. § 2254(d)] too confining, ” it is nevertheless clear that “all federal judges must obey” the law and apply the strictly deferential standards of review mandated therein. White v. Woodall, 134 S.Ct. 1697, 1701 (2014).

         II. Facts

         On direct appeal, the Louisiana Fifth Circuit Court of Appeal summarized the facts of this case as follows:

On October 18, 2011, Wilbert Decou and defendant engaged in an altercation stemming from an incident between defendant and Desmond Parker, the son of Decou's girlfriend, which had occurred on the previous evening.
On the date of the incident, defendant approached Decou and asked him if he wanted to fight. Defendant then went back in the direction from which he came. Decou went inside his house, and then returned wearing gloves and appeared prepared for a fight. Decou had cut the fingers off of his gloves. Decou was also wearing a shirt.
Defendant returned, told Decou to come on and fight and stated that he fights for a living. Decou put his arms up in a defensive position, and then, Decou and defendant began throwing fists at each other. The fight was witnessed by two men, Warren Mosley and Otis Gary, and also by Desmond Parker. According to Gary, not less than four or five punches passed between defendant and Decou.
During the three minute fight, Decou caused defendant to move backwards. Once defendant realized that Decou was really fighting back and was unafraid, defendant pulled out a military knife with a seven to eight inch blade. When defendant pulled the knife, Decou ran towards the street. After it appeared that defendant was gaining ground, Decou turned around. Decou raised his hands in an unsuccessful attempt to block the knife or in an attempt to swing at defendant. As soon as defendant caught up with Decou, he jammed Decou under his arm with a knife, and Decou dropped down to his knees in the street. According to Gary, defendant said, “I told you I was an ‘f-ing' killer, now look you see, ” while standing over Decou. According to Mosley, after the defendant stabbed Decou, he stated that this is what he did for a living.
Parker testified that he thought Decou was knocked out and had only lost the fight. After he walked towards Decou to help him up, he saw a pool of blood coming from Decou's side. Parker removed his own shirt and used it to put pressure on Decou's wound to stop the bleeding. As Parker and a nurse from across the street performed CPR and attempted to revive Decou, Parker saw defendant running away. Defendant later returned to the scene, but then again left.
Thomas Evans, a forensic death investigator for the JPSO and a paramedic, was one of the responders to the scene. At trial, he testified that his responsibilities were to identify the body, notify the family, and locate and document any wounds, property, clothing, and evidence to relay to the pathologist. He noticed a penetrating wound to the deceased's right chest. After searching the deceased's clothing and body, he found a pocket knife and metal wrapped in electrical tape in the deceased's right front pocket. The pocket knife was folded, closed, void of blood and was returned to the deceased's family. Also, Evans removed cloth gloves, which were not weighted, from the deceased's hands. In addition, the deceased was shirtless, and a shirt was found underneath the body.
The defense disputed Mr. Mosley and Mr. Gary's version of events. Randon Brown testified at trial on behalf of the defense that Decou had been like a second father to him for 10 years, and he would see him every day. According to Brown, after the dispute between defendant, and Parker and his mother had been resolved, Decou said that he and defendant were going to fight every day and that he would “f* * * that n* * * * * up.” Then, Decou prepared to fight by putting on gloves, removing his shirt and switching his slippers for tennis shoes.
After defendant pulled up in his driveway and exited his car, defendant and Decou began fighting in the middle of the street. Brown testified that he witnessed Decou pull the knife out of his back pocket, and that he, Brown, knew it was a knife because he saw the glare. When Decou pulled out the knife, defendant grabbed his arm and wrestled with him. Then, Decou was on the ground, and defendant walked away moving toward him. Brown testified that as defendant walked towards him, he saw that defendant did not have anything in his hand. He also saw that defendant had cuts on his arm and his eye was bleeding. Brown testified that he was telling the truth and was not testifying because he did not like Decou. Brown stated that he did not want to come forward at first because he was stuck in the middle and Decou was his family and a friend. He explained that he was testifying under subpoena and if he had a choice he would not have come.
The day after the incident, defendant accompanied by his sisters and girlfriend, met with an attorney located at Tulane Avenue and Broad Street. Defendant's girlfriend, Cindy Armstead, testified that defendant's arms were cut and swollen, and his face was swollen. She stated that the defendant did not have those marks before the fight. In her opinion, the wounds appeared to be stab wounds and appeared to be fresh, although she also admitted that there was scabbing. She further stated that defendant kept repeating that Decou had wanted to fight. After pictures of defendant were taken at the law office, he voluntarily turned himself into at the Jefferson Parish jailhouse and was booked with second degree murder.
Autopsy results revealed that Decou died as a result of a single stab wound to the chest which resulted in lethal injury to his heart and pulmonary artery. The wound was consistent with a single-edged blade like a kitchen knife, and it was unable to be determined whether or not the blade was serrated. The stab wound was more than two inches in length and six inches in depth.[12]

         III. Petitioner's Claims[13]

         A. Prosecutorial Misconduct/Brady

         Petitioner claims that the prosecutor engaged in misconduct by failing to disclose material favorable evidence to the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). In the state post-conviction proceedings, the district court denied that claim, holding:

Petitioner claims that the State failed to disclose evidence that witness Gary sought inducements for his testimony at trial. However, petitioner fails to provide any evidence in support of this claim. Petitioner fails to state with any particularity the factual basis for relief. LSA-C.Cr.P. art. 926(3). On the showing made, this claim will be denied.[14]

         Petitioner thereafter sought review by the Louisiana Fifth Circuit Court of Appeal. That court likewise denied relief, holding:

[R]elator alleged that the State failed to disclose evidence that the witness, Otis Gary, sought inducements in exchange for his trial testimony against relator. Again, the district court, citing La. C.Cr.P. art. 926(B)(3), found that “petitioner fails to provide any evidence in support of this claim. Petitioner fails to state with any particularity the factual basis for relief.”
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. The State's constitutional duty to disclose favorable evidence is not breached unless the omission is sufficiently significant to result in the denial of the defendant's right to a fair trial. State v. Jacobs, 99-991 (La. 5/15/01), 803 So.2d 933, 948, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002).
Even though the State does not possess or have knowledge of evidence, it is not necessarily absolved of its responsibilities under Brady because the prosecutor has a duty to learn of any favorable evidence known to the police and others acting on the government's behalf in the case. State v. Louviere, 00-2085 (La. 9/4/02), 833 So.2d 885, 896, cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003). The State is not obligated, however, to furnish a defendant with information he already has or can obtain with reasonable diligence. Louviere, 00-2085 at 14, 833 So.2d at 897.
There is no Brady violation where a defendant had knowledge of the essential facts permitting him to take advantage of any exculpatory information or when the evidence is available to defendant, and therefore, the information cannot be found to have been suppressed by the State. Rather, the court indicated that Brady proscribes when there is a withholding of favorable and material evidence from the defense. State v. Hobley, 98-2460, p. 25 (La. 12/15/99), 752 So.2d 771, 786 n.10, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000).
Our review of this writ application reveals that relator's allegation of a Brady violation is vague and conclusory. First, in the instant matter, relator does not specifically allege which, if any, information was not known to him or his trial counsel prior to trial. Further, as to his specific claim that Mr. Gary sought an inducement in exchange for his trial testimony, relator has failed to provide any evidence of inducements sought or given in exchange for testimony. We find no error in the district court's ruling ….[15]

         The Louisiana Supreme Court then likewise denied relief, holding: “Relator … fails to show the state withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).”[16]

         The AEDPA places severe limitations on this Court's review of the state court's decision rejecting petitioner's Brady claim. The United States Fifth Circuit Court of Appeals has explained:

Under AEDPA, [a federal court] do[es] not decide de novo whether a state prisoner has sufficiently proven a Brady violation. See Yarborough v. Alvarado, 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (“We cannot grant relief under AEDPA by conducting our own independent inquiry into whether the state court was correct as a de novo matter.”); Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc) (“We have no authority to grant habeas corpus relief simply because we conclude, in our independent judgment, that a state supreme court's application of [federal law] is erroneous or incorrect.”). Rather, [a federal court] decide[s] whether the state court's Brady determination resulted in a decision that is contrary to, or involved an unreasonable application of, clearly established federal law. Busby v. Dretke, 359 F.3d 708, 717 (5th Cir. 2004).

Dickson v. Quarterman, 462 F.3d 470, 477-78 (5th Cir. 2006).

         As noted, in the last reasoned state court opinion addressing petitioner's claim, the Louisiana Supreme Court correctly identified Brady as the clearly established federal law governing petitioner's claim. Because the state court correctly identified controlling precedent and because petitioner has not pointed to (and the undersigned's research has not found) a United States Supreme Court case with materially indistinguishable facts reaching a contrary result, this Court need only determine whether the state court's application of Brady was “unreasonable.” For the following reasons, it was not.

         The United States Supreme Court has held:

A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused. This Court has held that the Brady duty extends to impeachment evidence as well as exculpatory evidence, and Brady suppression occurs when the government fails to turn over even evidence that is known only to police investigators and not to the prosecutor.

Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (internal citations and quotation marks omitted). Therefore, to prevail on a Brady claim, a petitioner “must show that (1) the state withheld evidence, (2) the evidence was favorable to the accused, and (3) the evidence is material to guilt or punishment.” DiLosa v. Cain, 279 F.3d 259, 262-63 (5th Cir. 2002).

         Petitioner argues that the state suppressed impeachment evidence, i.e. information that Otis Gary sought the state's assistance in resolving an outstanding criminal matter in exchange for his testimony at petitioner's trial. However, the record conclusively disproves that claim. This issue was explored in great detail at the time Gary testified at trial. At the commencement of his testimony, Gary testified that he had an outstanding traffic attachment but understood that he would receive no assistance from the state on that matter in exchange for his testimony.[17] On cross-examination, he then denied that he had asked the state for assistance with respect to the attachment. However, at that point in Gary's testimony, the prosecutor stated that Gary had in fact requested assistance, although such assistance was denied. The prosecutor further noted that he had previously provided that same information in a letter to defense counsel, although defense counsel denied reading the letter.[18] The parties eventually entered into the following stipulation concerning the matter in the presence of the jury:

MR. SCHLEGEL [the prosecutor]:
Your Honor, the State will offer the following stipulation. An attachment was issued by a judge in Second Parish Court, Parish of Jefferson, on March 14th, 2012, under Case Number S836062, for the arrest of Otis Gary.
Does the defense accept?
MR. REGAN [defense counsel]:
Yes.
MR. SCHLEGEL:
Otis Gary requested assistance from Mr. Scott Schlegel regarding the above attachment, but that request was denied by Mr. Schlegel. Mr. Gary was specifically told that he would receive nothing in exchange for his testimony. Does the defense accept that stipulation?
MR. REGAN:
I accept that stipulation.[19]

         Because it is clear that the information at issue, i.e. that Gary unsuccessfully sought the state's assistance with respect to his own criminal matters in exchange for his testimony in petitioner's case, was relayed to the defense prior to or, at the very latest, at trial, there is no basis for concluding that the state court decision denying petitioner's Brady claim constituted an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. On the contrary, “[t]he Supreme Court has never expressly held that evidence that is turned over to the defense during trial has been ‘suppressed' within the meaning of Brady.” Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008) (emphasis added).[20]

         In that petitioner has failed to demonstrate that the state court's decision denying his Brady claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1), this Court should defer to the state court's decision and likewise deny the claim.

         B. Right to Present a Defense/Right to Cross-Examination

         Petitioner next claims that the trial court denied him his right to present his defense by unduly hampering his ability to cross-examine Desmond Parker. In the state post-conviction proceedings, petitioner presented this as two separate but related claims. The district court denied relief, first addressing the purported denial of petitioner's right to present a defense and holding:

Petitioner fails to state with any particularity the factual basis for relief. LSA-C.Cr.P. art. 926(3). As the State points out in its response, petitioner references a portion of the transcript describing the victim's violence with the witness's mother, and not of the incident resulting in the charged offense. This is not relevant to the case at hand. Petitioner fails to show how counsel was presented [sic] from presenting overt, hostile or violent acts of the victim towards the defendant.
Furthermore, the record, as well as the appellate decision, reflects that defense counsel did in fact present evidence supporting the defense's theory of self-defense. The court finds no merit to this claim.[21]

         As to the remaining aspects of the claim, the district court then continued:

Petitioner fails to state with any particularity the factual basis for relief. LSA-C.Cr.P. art. 926(3). Petitioner claims that the trial court erred in limiting defense counsel's cross-examination of Desmond Parker in regards to the victim's violence and overt acts. However, as the State points out, the portions of the transcript which are referenced by petitioner refer to the testimony of Warren Mosely, not Desmond Parker. Petitioner fails to provide any evidence in support of this claim, and fails to show any prejudice. On the showing made, this claim will be denied.[22]

         Petitioner thereafter sought review by the Louisiana Fifth Circuit Court of Appeal. Likewise treating this as two separate claims, that court also denied relief. The Court of Appeal first held:

In its August 24, 2015 ruling, the district court considered relator's argument that the trial court erred in denying him the right to present his theory of self-defense and present the victim's violent propensities and overt acts toward him. Again, the district court, citing La. C.Cr.P. art. 926(B)(3), denied his claim on the basis that relator failed to state with any particularity the factual basis for relief. Further, the district court noted that the record, as well as the appellate decision, reflected that trial counsel did present evidence supporting defense's theory of self-defense.
Here, we find that relator has failed to demonstrate how the district court erred in its denial of his claim that the trial court prevented him from presenting his self-defense theory. Thus, we denied relief.[23]

         The Court of Appeal then continued:

Again, regarding this claim, the district court, citing La. C.Cr.P. art. 926(B)(3), found that relator failed to state with any particularity the factual basis for relief and denied relief. In denying this claim, the district court stated: “However, as the State points out, the portions of the transcript which are referenced by petitioner refer to Warren Mosely, and not Desmond Parker. Petitioner fails to provide any evidence in support of this claim, and fails to show any prejudice.”
Our review of the writ application and its attachments reveal that relator has failed to demonstrate how the district court erred in its denial of his claim that he was denied his right to confront his accusers and cross-examine the State's witnesses. Thus, we deny relief.[24]

         The Louisiana Supreme Court then also denied relief, holding that petitioner's claim was “repetitive and/or unsupported. La.C.Cr.P. art. 930.2; La.C.Cr.P. art. 930.4.”[25]

         To be entitled to federal habeas relief, petitioner must show that the foregoing state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). For the following reasons, it is clear that he has not made that showing.

         The United States Supreme Court has held: “Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); accord Boyer v. Vannoy, 863 F.3d 428, 451 (5th Cir. 2017).

         However, the United States Supreme Court has expressly noted:

While the Constitution thus 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.

Holmes v. South Carolina, 547 U.S. 319, 326 (2006).

         Here, petitioner claimed self-defense, and he argues that he was unduly hampered in his ability to pursue that defense by the trial court's rulings curtailing the cross-examination of Desmond Parker.

         To the extent that petitioner is contending that he was thwarted in his effort to have the jury made aware of evidence indicating that Decou, not petitioner, was the initial aggressor in this incident, that contention is clearly rebutted by the record. On both direct-examination and cross-examination, Parker testified extensively concerning the incident, and several parts of his testimony indicated that Decou instigated the confrontation and was the aggressor in the incident. Specifically, Parker testified:

(1) Prior to the incident, petitioner apologized for wrongly accusing Parker's mother of interfering in petitioner's personal business, and Parker was satisfied with that apology.[26]
(2) The following day, Decou stated that he was not satisfied with the apology, and he prepared to fight petitioner.[27]
(3) Parker then witnessed the ensuing altercation and saw petitioner punch Decou, causing him to fall.[28]
(4) Parker went to Decou and saw blood “squirting out of his side.”[29]
(5) Petitioner, who had briefly left, then returned to Decou, but Parker told petitioner to move away.[30]
(6) Parker speculated that Decou was “high” from smoking marijuana prior to the incident.[31]
(7) Decou had a “bad temper” and was “frequently” in fights.[32]

         It is therefore clear that the defense was not deprived of the opportunity to make the jurors aware that Decou's actions provoked the altercation which resulted in his death.[33]

         To the extent that petitioner is also contending that the trial court improperly limited in his attempt to elicit evidence that the victim had a propensity for violence, that contention is likewise meritless. As already noted, Parker testified that Decou had a “bad temper” and was “frequently” in fights. Moreover, although the trial court sustained the prosecutor's objection to a question concerning whether Decou had ever been convicted of violence against Parker's mother, that ruling was proper. On that issue, the transcript reflects the following exchange during the cross-examination of Parker:

Q. … And if I could ask you about [Decou], one more thing, I mean [Decou] and your mother had an on and off relationship, right?
A. Yes.
Q. In fact, [Decou] had been convicted of beating your mom up.
MR. SCHLEGEL:
Objection.
THE COURT:
Sustained.
MR. REGAN:
Note my objection.
MR. SCHLEGEL:
I ask that it be stricken.
THE COURT:
Stricken from the record.
MR. REGAN:
Can we - may we approach?
(Whereupon the following proceedings were held at ...

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