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September 28, 2005.

S.J. RYAN, Warden, et al., Respondents.

The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge

Petitioner Tashion Williams ("Williams" or "Petitioner") challenges his San Diego Superior Court conviction in case number CD150358 with a habeas corpus petition, pursuant to 28 U.S.C. § 2254. The Court submits this Report and Recommendation to United States District Judge Napoleon Jones, Jr. pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

The Court has considered the Petition, Respondent's Answer, Petitioner's Traverse and all the supporting documents submitted by the parties. Based upon the documents presented in this case, and for the reasons set forth below, the Court recommends the Petition be DENIED.


  The following statement of facts is taken from the California Court of Appeal opinion, People v. Johnson, et al.,*fn1 No. D038107, slip op. (Cal.Ct.App. Jan. 7, 2003). This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).

Before noon on December 10, 1995, Honey George went to a taco shop with her boyfriend and victim Eddie Hamilton. Hamilton told George that "he owed somebody a lot of money," he was "real scared," and he "had to get off this side of town."
While George was sitting outside the taco shop, defendants approached her and asked whether she had seen Hamilton that day. George told the two men that Hamilton was in the taco shop. Williams and Johnson, who appeared agitated, then separated and walked down two different streets leading from the taco shop; they were "moving kind of fast." Approximately 15 or 20 minutes later, Hamilton was found stabbed to death near the taco shop.
At trial, several eyewitnesses testified as to what occurred during those 15 or 20 minutes. [Fn.1 Although these eyewitnesses described the conduct of the perpetrators, they did not specifically identify the defendants. However, the fact the defendants were the individuals who committed these acts was established through each of the eyewitness descriptions and defendants' later statements to police officers.] After leaving the taco shop, Hamilton walked towards a nearby trolley stop. Several minutes later, Williams and Johnson walked in the same direction, and then they suddenly both jumped and ducked behind a ledge. From behind the ledge, Williams "peeped around" the corner and watched as Hamilton returned and walked past the ledge. Williams and Johnson then "jump [ed] out at" Hamilton, and Williams "swung" at Hamilton. Williams and Johnson appeared angry at Hamilton and exchanged words with him. Hamilton started backing up with his hands in a defensive position, and then took off running down the street and alongside the trolley tracks. Williams and Johnson ran after Hamilton. Williams was "right on him," but Johnson was not running as fast and did not keep up with the other two.
As Williams was closing in on Hamilton, Williams had a large knife in his hand. Hamilton tripped and fell over a curb, and then lay on his back holding his hands up in the air with his palms facing outward in a defensive motion. Williams then "pounced" on Hamilton and, with an overhand motion, stabbed him deep in the stomach. At the time, Johnson was about 15 to 20 feet behind.
After Williams stabbed Hamilton, Hamilton staggered onto the middle of the street, holding his stomach. Williams and Johnson stood about 10 to 20 feet from Hamilton, waited for Hamilton to fall down, and then turned and walked away together side by side. As they were walking, Williams threw a knife over a fence. Williams and Johnson then "pick[ed] up more speed and took off" running around the corner.
A police officer who responded to a 911 call found Hamilton with a bruise to his lower abdomen area and his intestines partially exposed. Hamilton died shortly thereafter. The stab wound cut into Hamilton's small bowel, severed his abdominal aorta and nicked his spine. A knife containing Hamilton's blood was found in the location where witnesses described Williams having thrown the knife. Later, police officers seized from Williams's home a knife sheath and a newspaper article reporting the stabbing.
Four years later, on November 30, 1999, Williams was arrested on misdemeanor warrants, and was interviewed by police officers about the Hamilton stabbing. After waiving his Miranda rights, Williams admitted seeing Hamilton at the taco shop on the day of the murder. He initially said he saw Hamilton and another man fight outside the taco shop, but denied any involvement in the fight. Williams later revised his story, and stated that Hamilton was jealous of him, and pulled out a knife and began to swing at him and Johnson. A man named Kilo came to their aid and tried to take the knife away from Hamilton, and Kilo eventually stabbed Johnson.
Police officers also interviewed Johnson that same day. During that interview, Johnson said he was with Williams the day of the stabbing and that he confronted Hamilton at the taco shop because Hamilton owed him about $50. They got into a fight, but when Hamilton pulled out a knife, Johnson left the area and went home. Johnson did not know a person named Kilo and was not aware that Hamilton had been stabbed until much later.
Two months later, on January 27, 2000, police officers conducted another interview with Williams. After Williams waived his Miranda rights, Williams admitted stabbing Hamilton, but claimed he did so in self-defense. In this version, Williams stated that Hamilton began to argue with Williams. Hamilton rushed him and Johnson. Hamilton then pulled a knife on Williams, and Hamilton chased Williams and Johnson. Finally, they stopped running and Williams grabbed the knife from Hamilton, and inadvertently stabbed Hamilton. Williams threw the knife and ran.
Defendants were tried in a single trial with two different juries. The prosecution's theory at trial was that Williams stabbed Hamilton, and Johnson was liable on an aider and abettor theory. Although most of the evidence was presented to both juries, Williams's statements to the police were admitted only to the Williams jury and Johnson's statements to the police were admitted only to the Johnson jury. The court jointly instructed the juries, but closing arguments were made separately to each jury and each jury deliberated separately.
During his closing argument, Johnson's attorney admitted — consistent with Johnson's statements to the police — that on the day of the murder Johnson and Williams were the individuals who confronted Hamilton and that they did so to collect the money that Hamilton owed them. Johnson's attorney argued, however, that Johnson was not aware Williams had a knife and did not know or intend that Williams would fatally stab Hamilton. During his closing argument, Williams's attorney argued that Williams was not the person who stabbed Johnson, and urged the jury to find that Williams's admissions during police questioning were false because they were involuntary and coerced.
(Lodgment No. 5 at 2-6.) III. PROCEDURAL BACKGROUND

  On May 26, 2000 the San Diego County District Attorney's Office filed an Information charging Williams with murder (Cal. Penal Code § 187(a)), and conspiracy to commit murder (Cal. Penal Code § 182(a)(1)). (Lodgment No. 2, Vol. 1 at 1-2.) It was further alleged that in the course of the murder, Williams had personally used a deadly weapon (Cal. Penal Code § 12022(b)). (Id. at 1-3.) The Information also contained a "lying-in-wait" special circumstance allegation (Id. § 190.2). (Id.)

  A jury trial began on January 24, 2001. (Id., Vol. 2 at 343.) Williams and his co-defendant, Darnell Johnson, were tried together, but with separate juries. (See Lodgment No. 12, Vol. 2 at 15.) On February 9, 2001, the jury found Williams guilty of murder and found true the deadly weapon and lying-in-wait allegations. (Lodgment No. 2, Vol. 2 at 362-63, Vol. 3 at 559, 565.) The jury acquitted Williams of conspiracy to commit murder. (Id., Vol. 3 at 556.) On May 18, 2001, the trial court sentenced Williams to life in prison without the possibility of parole. (Id. at 603.)

  Williams appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One raising several claims. (Lodgment No. 3.) In one claim, Williams argued his second statement to police was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and should have been suppressed. He argued that his requests to speak to his father during questioning amounted to an invocation of his Miranda rights. (Id. at 19-28.) The Court of Appeal affirmed Williams's conviction in an unpublished opinion on January 7, 2003 (Lodgment No. 5), and denied his petition for rehearing on January 30, 2003. (Lodgment No. 7.)

  Williams filed a petition for review to the California Supreme Court on February 11, 2003, raising the same claims he had brought before the court of appeal. (Lodgment No. 8.) The supreme court denied the petition without comment or citation on March 26, 2003. (Lodgment No. 9.) On February 20, 2004, Williams filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment No. 10.) In his petition, Williams claimed his January 27, 2000 statement to police ("second statement") should have been suppressed because it was obtained in violation of the Fifth, Sixth and Fourteenth Amendments. He also argued he received ineffective assistance of trial and appellate counsel. (See id.) The court denied the petition without comment or citation on December 15, 2004. (Lodgment No. 11.)

  Williams filed his federal habeas corpus petition in this Court on December 30, 2004 [Doc. No. 1]. Respondent filed an Answer to the Petition on June 8, 2005 [Doc. No. 10]. Petitioner filed his Traverse on July 5, 2005 [Doc. No. 12]. In response to this Court's request, Respondent filed a Supplemental Lodgment on September 1, 2005. [Doc. No. 15].


  Title 28, United States Code, § 2254(d), sets forth the following scope of review for federal habeas corpus claims:
d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d)(1)-(2) (West Supp. 2004).
  To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets § 2254(d)(1) as follows:
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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams, 529 U.S. at 412-13; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. at 75-76); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law.


  In his Petition, Williams raises four claims:*fn2 (1) His second statement to police was obtained in violation of his Sixth Amendment right to counsel and Miranda; (2) The admission of his second statement to police was involuntary and therefore obtained in violation of due process; (3) He received ineffective assistance of trial counsel in violation of his Sixth Amendment rights; and (4) He received ineffective assistance of appellate counsel, also in violation of his Sixth Amendment rights. (See Pet. at 6-9.)

  A. Admission of January 27, 2000 Statements

  In claims one and two, Williams argues that the statement he made during his January 27, 2000 interview ("second statement") with police should have been suppressed at trial because it was obtained in violation of the Sixth, Fifth and Fourteenth Amendments. (See ...

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