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February 10, 2004.

JUAN A. MERCED, Petitioner,

The opinion of the court was delivered by: CHARLES BREYER, District Judge


Petitioner Juan A. Merced ("Merced") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Merced was convicted by a jury for attempted premeditated murder of a peace officer involving the personal use of a firearm and being a post — convicted felon in possession of a firearm. After finding true allegations that Merced had eight prior felony convictions, the trial court sentenced Merced to state prison for a total term of sixty — five years to life. The California Court of Appeal affirmed the judgment. The California Supreme Court denied review. Upon receipt of Merced's petition, the court issued an order to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause, and petitioner filed a timely traverse. Having reviewed the memoranda submitted by the parties, the Court DENIES petitioner's writ of habeas corpus. Page 2


  Merced was first tried in February and March 1999. His first trial was declared a mistrial after the jury was unable to reach a unanimous verdict. Merced was retried beginning in June 1999. At his second trial, Merced was convicted on the attempted murder and possession of a firearm charges. At the beginning of the second trial, the parties stipulated that all rulings on pretrial motions in the first trial would be apply in the second trial. None of the petitioner's claims for habeas relief arise out of the first trial. Therefore, except for that part of the record relating to the first trial court's denial of Merced's pretrial motion to strike his prior convictions, this Court was not required to review the first trial.

 I. Uncontested Testimony

  On September 24, 1996, Officer Christopher Crabtree was on patrol. He noticed a black male, around twenty — five to thirty years — old, five — feet — ten — inches to six feet tall, about 200 pounds wearing a thick blue puffy jacket and a blue cap, walking with another man near Niles Market in Oakland. A bottle in one hand and a cup in the other, the man appeared to be drinking. Crabtree saw him brush up against a lady with small children. He stopped and got out of his patrol car to investigate. He asked the man for identification. The man handed him a Gold Star check — cashing card with a name, "Juan Merced," and a picture. Crabtree radioed police dispatch that he was "Code Four," indicating he did not need assistance. Then, seeing the man reach under his shirt, Crabtree grabbed at the area where the man was reaching. He felt a gun. Failing to wrest it away, Crabtree backed up and reached for his own gun. As he did so, the man said "Don't do it, motherfucker" several times, pointed his gun at Crabtree, and pulled the trigger. The gun misfired. Crabtree sought cover behind his patrol car. The man fired at him, grazing his head. They exchanged gunfire — and the man fled. Crabtree saw him run down 23rd Avenue and turn left on East 15th Street, but then lost sight of him. He went back to his car. He picked up the check — cashing card, which was laying on the ground where he had dropped it. He radioed in the name on the card, "Juan Merced," and a description of the suspect.

  Shortly after hearing shots, Sophia Jones, who lived in an apartment building at 2312 Page 3 East 15th Street, saw Merced run into her building. A friend, Tamika Madison, who had been in Jones' apartment on the second floor, came out and told Jones that Merced wanted her and that he had a gun. The police subsequently surrounded the building. Officer Mark Neely was shown the Gold Star check — cashing card by another officer. He, then, entered the building. He went to Jones' apartment on the second floor and knocked on the door. A shirtless Merced answered. He told Neely his name was Reggie Freeman. When the officer asked him if he knew "Juan Merced," he said "Juan" was his brother. After comparing the photograph on the card to Merced, Officer Neely arrested him. The officer also picked up a shirt, which matched the description of clothing that the man who shot Officer Crabtree had been described as wearing. During a subsequent search of the apartment, officers found a single. 38 caliber bullet laying on a child's bed and a. 38 caliber revolver in a closet. The revolver contained five spent casings and one live cartridge with a dent in the primer. Subsequent tests determined that a bullet retrieved from Officer Crabtree's car had been fired from the gun found in the apartment. A gunshot residue test of Merced's hands indicated that he had either apparently fired a weapon, or handled a weapon that had gunshot residue on it, or was near a weapon that was discharged that deposited the gunshot residue on his hands.

  Maletia Luckett lives on the third floor of the same building as Jones. On September 24, she heard gunshots. At the time, she was in her apartment with her boyfriend, Phillip Williams, and his fourteen year — old brother, Joel Williams. A few minutes after she heard the gunshots, she left her apartment and went downstairs. She saw Merced sitting in front of Jones' apartment on the second floor. He was perspiring and looking worried. He was wearing a dark sweatshirt with his ponytail laying in the hood. After looking outside for her son, Luckett returned to her apartment. As she went upstairs, she saw Merced again. He was still outside of Jones' apartment. Police subsequently came to Luckett's apartment. They entered and searched it. Phillip and Joel Williams were handcuffed and taken to the police station for questioning. They were tested for gunshot residue and released. Traces of gunshot residue were found on Joel's hands. No traces were found on Phillip's hands. At Page 4 Merced's trial, Luckett testified that Joel was in the bathroom in her apartment at the time she heard the gunshots.

  While Merced was in jail, he sent a letter to his wife. The letter was intercepted by the Alameda County Sheriffs's Department. It read:
Hello Luv. I need you to find or get a male to read the following to that misfit who is testifying on me. Don't make the call from the house and give no names! Be sure to destroy this when finished. (Home No. . . . /Work No. . . .)
Listen up, there is a guy who works at Niles Market that is lying on this black guy that is in jail on a cop shooting. If the black guy goes to jail or is convicted we will get the entire family!! When you go to trial you had better tell the jury that the black guy didn't shoot the cop, a Mexican did!!
Luv, read it just like that: I used the term black instead of Afrikan because it's common knowledge that I use it ("Afrikan"). Do this from a pay phone that's not close or near the house. Be sure to flush/burn this paper when you finish, and baby, let this punk know that we aint bull shitte!! Use a male that I've never spoke with over the phone and make sure you can trust him. Luv You.
II. Contested Eyewitness Testimony

  The prosecution presented three eyewitnesses who identified Merced as the man who shot Officer Crabtree. First, Emiliano Valenzuela testified that, just as he was leaving Niles Market, he heard shots and saw a man carrying a gun running away. Later that day, he picked a picture of Merced out of a photo lineup. At Merced's preliminary hearing, Valenzuela could not identify Merced in the courtroom. At trial, he testified that after the shooting (but before the photo lineup) he had seen the police take Merced out of the apartment building in handcuffs. Second, the day after the incident, Officer Crabtree picked Merced's photo out of a photo lineup. At trial, he testified that he was "absolutely positive" Merced was the man who pulled the gun on him. Finally, Mick Hara, the manager of Niles Market, testified that, shortly before the shooting, he saw Merced and another man buy brandy in his store; that he later saw the appellant talking to Officer Crabtree; and that, after hearing shots, he saw Merced, with a gun, running away from the scene. On the day of the shooting, Hara picked Merced's photo out of a photo lineup shown to him by the police. At trial, he testified that although he had at first indicated he was "75 percent" certain that the Page 5 person in the photo he picked out was the right man, he became "a hundred percent" certain. Hara also described a watch that Merced was wearing. Both Crabtree and Hara described the shooter as having had a distinctive ponytail.

  The prosecution also called Wanda Brannon, a branch manager for Gold Star Check Cashing. She testified that a check — cashing card had been issued to Juan Merced. Based on the data card and customer maintenance record for that card, she said it had never been reported lost or stolen.

  The defense challenged the eyewitness identifications of Merced. Crabtree and Hara picked Merced's picture out of the photo lineup after viewing his picture on the check — cashing card. The defense contended, without offering any substantiation, that Merced had lost his card. On the day of the shooting, Crabtree told another officer that the person who shot him was a "light — skinned male Hispanic or even Puerto Rican." At trial, Hara described the suspect as appearing light — skinned and gave inconsistent testimony about the color of the suspect's shirt.

  Carles Buie testified for the defense. Buie watched the shooting from a phone booth forty feet away. He said he did not get a clear view of the shooter's face, but the shooter was "definitely taller than the defendant." Under cross — examination, Buie, who does not wear glasses, reluctantly acknowledged that he needs glasses to see far away. He also admitted having been convicted of three prior felonies. The defense also elicited testimony from Sophia Jones that a person by the name of "Boogie," who was "tall, not really slim, kind of big boned, long hair, high yellow — light skin complected" and had a "long pony tail braid," hung out on 23rd Avenue. In closing, the defense noted that "the defendant (Merced) is not light complected." Conflicting testimony was also presented concerning the color and type of shirt the shooter was wearing and whether it was the shirt that police found in Jones' apartment at the time of Merced's arrest.

 III. The Verdict

  The jury asked to see Merced's Gold Star check — cashing card, the data card and customer maintenance record for that card, two photo lineups used to identify Merced, and Page 6 three pictures of Joel Williams.

  The jury found Merced guilty of attempted premeditated murder of a peace officer involving the personal use of a firearm and being a post — convicted felon in possession of a firearm. The trial judge sentenced Merced to consecutive sentences of twenty — five years to life for attempted murder of a peace officer plus a ten — year aggravated term for use of a firearm; twenty — five years for being a felon in possession of a gun; and a five — year term for having a felony prior felony conviction. In total, Merced was sentenced to sixty — five years to life.

  Petitioner appealed his conviction to the California Court of Appeal, which affirmed in December 2001. He then appealed to the California Supreme Court, which denied his petition for 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).

  The 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." Id. § 2254(d).

  "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 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. Page 7

  "[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.

  The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. See Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Clark, 331 F.3d at 1069.


 I. Exclusion of Prospective Juror

  Petitioner claims that his Fifth, Sixth, and Fourteenth Amendment rights to Due Process and a Fair Trial were violated when the trial court excused prospective juror Andrew Black based on his statement that he believed in the concept of jury nullification.

  Question No. 64 on the jury questionnaire asked: "Is there any matter that has not been covered by this questionnaire that you feel you should mention at this time that might affect your ability to be a fair and impartial juror in this case?" Black answered: "I recognize and believe injury nullification where appropriate." The trial court subsequently asked Black: "If you are selected on this jury, and if I instructed you as to the law that implies [sic: applies] in the state of California and it went against your conscience for whatever reason, is it reasonable for me to assume that you would not follow the law as I dictate it to you?" Black answered: "It's reasonable for you to assume that." Based on that answer, the trial court excused Black. The trial court explained: ". . . he's not inclined to follow the Court's instructions that he must follow if he's selected as a juror. He has a right not to, but I have a Page 8 right not to let him sit if he's going to engage injury nullification." Reporter's Transcript ("RT"), 93-94. Defendant objected. Id — at 95.

  On appeal, petitioner renewed his objections. The Court of Appeal noted that the California Supreme Court had recently "held that a juror may be removed from a jury if it appears `in the record "as a demonstrable reality" that the juror is refusing to deliberate or follow the law in an effort to exercise the naked power known as jury nullification. . . ." People v. Merced, No. A088418, slip op. at 5 (Cal. Ct. App. Dec. 2. 2001) (citing People v. Williams, 25 Cal.4th 441, 461 (2001) and People v. Cleveland, 25 Cal.4th 466, 474-475 (2001)). Petitioner argued that the "demonstrable reality" standard should have been applied in reviewing the trial court's decision to excuse prospective juror Black. The Court of Appeal found "[t]here is nothing in either People v. Williams or People v. Cleveland that suggests the Supreme Court intended to impose the `demonstrable reality standard' upon both situations [the excusal of a juror during trial and the excusal of a prospective juror before trial], thus overturning the well — established rule that the excusal of a prospective juror for cause will be overturned only if abuse of discretion is found." Merced, slip op. at 6. The Court of Appeal held that, in excusing Black, the trial court did not abuse its discretion:
The trial court here could have viewed Mr. B.'s answer — "It's reasonable for you to assume that" — as fair warning that the prospective juror might not follow the law as instructed by the court. That answer, on top of Mr. B.'s volunteered belief in jury nullification, was more than an adequate basis on which the court could decide that seating Mr. B. would present an unacceptable risk that yet a third trial might be required. Mr. B.'s answer is more than an adequate basis for finding no abuse of discretion. The same result is allowed under the federal standard, i.e., "that a prospective juror may be excused if the juror's voir dire responses convey a `definite impression' [citation] that the juror's views "would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"
Id. (quoting People v. Holt. 15 Cal.4th 619, 650-651 (1997).

  The California Court of Appeal rejected, "as fraught with practical perils," Id. at 7, petitioner's argument that, because Black's response was not sufficiently unambiguous to identify him as a potential nullifier in this specific case, the trial court was obligated to follow up and explore Black's views with respect to the particulars of the case. The Court of Appeal also suggested that doing so would be contrary to law: Page 9

[T]o give a prospective juror a thumbnail sketch of the case — based on evidence not yet heard and often not known to the court at that time — and then ask whether that scenario would cause the person to nullify is in plain effect asking a juror to prejudge the case. That is not only contrary to statute and entrenched practice . . . it amounts to misconduct for a sitting juror.
Id. at 7 (citations omitted).

  On habeas review, this Court is restricted to considering whether the Court of Appeal's ruling was contrary to, or involved an unreasonable application of, clearly established federal law. Liberally construed, Merced offers three grounds for his claim that the exclusion of ...

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