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September 12, 2005.

CK PLILER, Warden, Respondent.

The opinion of the court was delivered by: VAUGHN WALKER, District Judge


On July 15, 1996, petitioner James Broadway ("Broadway") was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara ("superior court") of one count of first degree attempted murder and two counts of assault with a firearm. Doc #25 (Respondent CK Pliler ("Pliler") Opp) at 2. The jury found further that Broadway committed the crimes for the benefit of a criminal street gang. On January 9, 1997, the superior court sentenced Broadway to a total state prison term of 17 years to life — an indeterminate term of 15 years to life for attempted murder; a determinate term of three years for the assault counts running concurrently; and a two-year street gang enhancement. Id.

On May 12, 1999, the California Court of Appeal, Sixth Appellate District ("court of appeal") issued an order to show cause returnable in the superior court on Broadway's petition for a writ of habeas corpus. Ex D4 ("Order to Show Cause"). Specifically, Broadway claimed that the prosecution withheld "favorable and material impeachment information." Id.

  On July 16, 1999, the court of appeal affirmed the superior court's conviction on direct appeal. Ex B12 ("App Ct Affirm") at 30. The court of appeal, however, modified Broadway's term to 15 years to life because it found that Cal Penal Code § 186.22(b) did not allow a gang enhancement term to be added to a 15 years to life prison sentence. Id. The California Supreme Court denied Broadway's petition for review on October 22, 1999.

  On November 17, 2000, after holding a hearing pursuant to the court of appeal's order to show cause, the superior court rejected Broadway's habeas corpus petition claim that the prosecution failed to disclose favorable evidence. Ex C5 ("Superior Ct Rej"). The court of appeal and California Supreme Court denied Broadway's habeas corpus petition on April 8, 2002, and November 13, 2002, respectively.

  Broadway filed a federal petition for a writ of habeas corpus under 28 USC § 2254 on December 18, 2003, Doc #1 ("Broad Pet"), and an amended petition on May 26, 2004, Doc #9 ("Broad Amend Pet"). After this court issued an order to show cause, Doc #10, Pliler filed an answer, Doc #24, and opposition memorandum, Doc #25 ("Pliler Opp"), on April 28, 2005. Broadway did not file a traverse.


  The court of appeal summarized the facts of the case as follows:
On January 27, 1996, Andre Smith, Tiagmal "Maurice" Bagsby and Fred Gordon attended a talent show at San Jose's Independence High School (IHS). Smith is a member of the Cartel Crips gang (CC) previously known as C-Mob. There was evidence that Bagsby and Gordon were Crips "wannabes" who associated with Crips, and Bagsby acknowledged he had heard of the CC and Family Gangster Crips (FGC).
As Bagsby, Gordon and Smith left the show between 10 and 11:30 pm, Bagsby got into a verbal confrontation with defendant Broadway, who was standing by a Cutlass automobile parked near a dark mini-van. Defendants Broadway, Williams, Tyson, and Holmes, who were part of a group standing near those two vehicles, were identified as members of Mount Pleasant Hoods (MPH), a Blood gang. Once a member of the Crip gang C-Mob, Broadway had "flip-flopped" to MPH.
As he passed within approximately 25 feet of the group, Bagsby heard Broadway say, "that's the little crab, Maurice." Bagsby, who knew "crab" was a "derogatory" term used by Bloods to disrespect Crips, asked if Broadway "had a problem," because he felt Broadway's comment had been made in a way that challenged a fight. Gordon and Smith overheard the derogatory term directed towards Bagsby, and Smith reported that he also heard people within Broadway's group saying "MP Hood" and "Blood." Smith thought Bagsby "was getting into it with the slobs [derogatory term for a Blood]."
After his verbal interaction with Broadway, Bagsby saw Holmes open the Cutlass trunk and start "digging for something" inside it. Bagsby backed up and fearfully told Gordon and Smith that "we got some funk," which meant "something [was] about to happen." Bagsby testified Broadway looked like he wanted to fight, and Gordon said it was "like a stare down." Holmes, Tyson, and Williams entered the Cutlass as Broadway got into its driver's seat. The Cutlass then exited the IHS gate and turned right onto Jackson Avenue. Bagsby, Gordon and Smith walked out the same gate and turned right. They then saw the Cutlass return on the opposite side of Jackson, "flying down the street" at over 30 miles per hour with somebody shooting at them from the car. While someone shouted something about "MP Hoods," two shots were fired from the driver's side window. Bagsby testified the shots could have come from the back seat. As Bagsby, Gordon and Smith ran and ducked, Smith was shot in the leg. Bagsby and Gordon helped Smith to Bagsby's home across the street from the back side of IHS. Bagsby then called 911. That night, Bagsby told Officer Lee that the car involved in the shooting had "slowed down" before the shots were fired towards the sidewalk near the IHS parking lot. Smith testified he did not know who fired the shots but he earlier had said either Williams or Broadway was the shooter because "when [he] got shot, [he] [had] seen [Williams's] car."
Ameena Wilson, a Blood gang associate and friend of Tyson, was with defendants in the IHS lot after the show with Monica Mitchell, who was a friend of Holmes. Wilson, who was driving her mother's burgundy mini-van, did not see any altercation involving defendants that night. After defendants left the lot, she and Mitchell drove to Tyson's house to visit him. Holmes also was there. The girls stayed about an hour and then left with Holmes. Mitchell, who said she did not see or hear anything regarding a shooting near IHS that night, acknowledged that calling someone believed to be a Crip a "crab" would constitute "fighting words."
Sometime after 11:30 pm, Officer Morales of San Jose's Violent Crime Enforcement Team located the maroon mini-van reported to be associated with the IHS shooting in front of Tyson's house. The van was kept under surveillance until it left Tyson's street about an hour later. At that point, Officer Chrisman stopped the van and identified Wilson as the driver. There was a second female in front, and Holmes was in the rear. Chrisman searched the van and found a loaded, .25 caliber handgun underneath an infant seat next to Holmes.
Smith testified Tyson was a member of MPH, that he and Tyson were enemies, and that Broadway used to be in the Crip "hood" to which Smith belongs. Prior to the shooting, Smith had been involved in a fight with Williams. Smith said he fought with Williams at that time because he was drunk and because Williams is "a slob," i.e., "a Blood. The opposite, the other side" from being a Crip, which is what Smith was.
Detective Dunson, the lead investigator on this case and an expert in African American San Jose street gangs, specifically the Bloods and Crips, testified there is a "longtime rivalry" between the Bloods and the Crips and that this IHS drive-by shooting occurred due to a rivalry between the Blood MPH members and the CC, FGC, and Seven Tree Crips (STC). Dunson said this rivalry particularly involved Smith and Williams and that this IHS shooting was motivated in part by Smith's having "disrespected" Williams in front of Williams's girlfriend and relatives as well as by the confrontation in the IHS parking lot. Dunson opined that the shooting was committed for the benefit of, and in association with, members of the MPH Blood gang, for "reputation and retaliation," to promote, further and assist that gang's criminal conduct. He identified Tyson, Holmes, and Broadway as "hard core" MPH members, and noted that Williams was an MPH associate. Dunson identified Smith as a CC member, and Bagsby and Gordon as associates of STC and FGC.
Both Dunson and Detective Boyd, another criminal street gang expert, testified to previous altercations involving MPH and San Jose Crips gangs. They described (1) a September 1992 Crip party, during which a group of MPH members drove by and shot towards the residence, striking a female Crip associate several times, (2) a subsequent act of witness intimidation in which a male who saw the shooting at the 1992 party and his girlfriend were intimidated by MPH members, (3) a May 1994 incident in which MPH members shot at a Crip and yelled Blood slogans and (4) a June 1994 "payback" homicide committed by Crips, in which Crips were chased and killed someone they erroneously believed was an MPH member.
Dunson interviewed Smith, Bagsby, and Tyson. Smith believed it was the driver who had shot from the Cutlass. Bagsby said he was arguing with Broadway, and he saw Broadway drive the Cutlass out of the IHS lot. Tyson admitted he was an MPH member and described previous altercations between MPH and FGC.
A week after the shooting, Williams came to the police station and was interviewed by Dunson. Williams said he saw the confrontation in the IHS lot on January 27[, 1996]. He said someone else drove his Cutlass out of the lot but had pulled over and switched positions with Williams, who had been the front passenger. Williams was driving northbound on Jackson toward IHS trying to get to the freeway when he heard two shots fired from the rear of the car. Williams consented to a search of his Cutlass; on the front passenger seat floorboard Dunson found a .38 caliber shell casing similar to a .38 shell casing that had been found shortly after the shooting on the median across from IHS. When Dunson interviewed Broadway, Broadway admitted getting into a confrontation with Bagsby in the IHS lot. Broadway said when Holmes went to get a "deuce five" or "twenty-five caliber" handgun in the trunk, he felt "it was a good time to leave," so he jumped into the driver's seat of the Cutlass and drove out of the lot. He had the keys to the Cutlass because he had driven it to IHS. Broadway said he "thought he was too drunk to drive" so he had pulled over and someone else started driving. As they drove past the school, he heard two shots being fired and ducked down in the car.
App Ct Affirm at 3-7 (footnotes omitted).


  A federal writ of habeas corpus 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." 28 USC § 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 US 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.

  "[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 USC § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412; Clark v. Murphy, 331 F3d 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 ...

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