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March 31, 2004.

SUSAN L. HUBBARD, Respondent

The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge


This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.


  Petitioner was convicted by a jury of battery and carjacking. He was sentenced to prison for eleven years. As grounds for habeas relief he asserts that: (1) his due process rights were violated because the carjacking statute is vague; and (2) his Miranda*fn1 rights were violated.

  Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.

  Appellant was convicted of battering and taking a car from a young man named Raymond Nadonza. Page 2

Appellant had known Nadonza for many years. He was friends with Nadonza's father Wilfredo, and when Nadonza was about 13 years old, appellant left some guns with Wilfredo. A couple of years later, Nadonza took the guns, went to Mission Street in San Francisco, and sold them. Understandably, the incident upset appellant greatly.
Appellant's anger came to a head about eight years later. On May 14, 1998, Nadonza was at home with a friend named Racho when Nadonza saw appellant park his Mercedes near the garage. A woman was with appellant. Nadonza knew appellant wanted his guns back, so he closed the garage door, hid behind a couch, and told Racho to tell appellant that he was not at home.
Appellant came to the door and asked Racho about Nadonza. Racho said he was not at home. Appellant told Racho to have Nadonza contact him. Racho than left.
Appellant did not leave. Instead, he called to Nadonza and told him to come out. Nadonza did so. As soon as Nadonza emerged, appellant began punching him. He knocked Nadonza to the ground, picked up a tripod, and began to stab him. The legs on the tripod were equipped with small spikes and Nadonza sustained injuries to his hands and face.
Appellant told Nadonza to stand, and than to lie on the ground. At one point, appellant reached behind his back as if to pull out a gun. Appellant threatened to "blow [Nadonza's] brains out" and told him he was "going to spend the rest of [his] life in a cemetery/' Nadonza begged for mercy and told appellant that he was sorry. As appellant paced around the room, Nadonza told appellant he would get the guns back. Appellant said he would give Nadonza one week. Nadonza said he would only need two days.
Appellant picked up a set of keys that were on a table in the kitchen and asked who owned the car in the garage. Nadonza said it belonged to a friend. Appellant said he would take the car, a Honda, as collateral. He said that if Nadonza went to the police, he would kill him.
Appellant then left. Either he or the woman who was with him, drove the Honda away. Appellant was arrested near his home in San Francisco. later that same day.
Ex. 6 (opinion of court of appeal) at 1-2.


 A. Standard of review

  The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood. 114 F.3d 1484, 1499-1500 (9th Cir.), Page 3 cert. denied 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2001), while the second prong applies to decisions based on factual determinations, Miller — El v. Cockrell 123 S.Ct. 1029, 1041 (2003).

  A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only 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 Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry). 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review 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." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 409.

  "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller — El. 123 S.Ct. at 1041. This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Sumner v. Mata. 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, Page 4 1087 (9th Cir.), amended. 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. Id.

  Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state — court proceeding." Miller — El 123 S.Ct. at ...

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