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
The court of appeal summarized the facts of the case as
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
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
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
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
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 ...