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November 3, 2005.

STUART RYAN, Warden, Respondent.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge


Petitioner Ernesto Vargas, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus challenging his state court conviction. Petitioner contends he was denied his constitutional right to due process and to present a meaningful defense. Respondent has lodged the state court record and has filed a Return to the Petition. Petitioner has also filed a Traverse. Respondent argues the Petition should be denied because petitioner has not established the underlying state court decisions are either contrary to, or based on an unreasonable application of, clearly established federal law. For the reasons outlined below, it is recommended the Petition be DENIED with prejudice.

Procedural History

  In a seven count amended information, petitioner was charged with attempted robbery, assault with a firearm, making a criminal threat, burglary, and false imprisonment by violence. These charges included allegations petitioner personally used and discharged a firearm. Petitioner was also charged with being a felon in possession of ammunition and a firearm, and with committing the above-listed offenses while released from custody on bail pending a final judgment on an earlier offense. In addition, the amended information alleged three prior felonies, with one, a robbery, which qualified as a serious felony prior and a strike under California's Three Strikes Law. (Lodgment No. 5, People v. Vargas, slip op. No. SCD175175 (Cal.Ct.App., 4th Dist. Div. 1, Sept. 28, 2004, at 1-2.) Prior to trial, petitioner pled guilty to being a felon in possession of ammunition and being a felon in possession of a firearm. Petitioner also admitted that he had been released on bail and that his prior robbery conviction qualified as a serious prior felony and a strike. (Lodgment No. 5, at 2-3.) A jury convicted petitioner of all remaining counts and found true the allegations petitioner personally and intentionally used and discharged a firearm. (Lodgment No. 5, at 3.) The trial court sentenced petitioner to an aggregate term of thirty-two years and four months in state prison. According to the California Court of Appeal's unpublished opinion, the sentence included "a consecutive 20-year term based on the jury's finding that he intentionally and personally discharged a firearm." (Lodgment No. 5, at 3.) Thus, a key issue at trial was whether petitioner intentionally discharged a firearm.

  Petitioner's direct appeal was denied by the California Court of Appeal on September 28, 2004 and by the California Supreme Court on December 15, 2004. (Lodgment Nos. 5 and 7.) Respondent does not contend that the Petition is untimely or that petitioner's claim is unexhausted or procedurally barred.


  The following facts are taken from the California Court of Appeal's unpublished opinion on direct appeal:*fn1

On the night of June 4, 2003, Refugio Renteria was working as the closing manager at the Acapulco Restaurant in Old Town, San Diego. He closed the restaurant around 9:00 p.m. and let his last employee out around 11:00 p.m. He then went to his office to complete his paperwork.
While inside his office, Renteria heard something hit the wall. He then opened the door and asked twice, `Is anybody there?' Hearing no answer, Renteria walked out toward the kitchen area continuing to ask if anyone was there. Renteria saw [petitioner] standing about 12 feet away holding a shotgun and wearing a black shirt, black jeans and a face mask. As soon as Renteria saw [petitioner] he said `Oh, God,' and began to run. [Petitioner] cocked his shotgun, shouted "stop motherfucker," and ran after Renteria. Renteria slipped on a doormat, hit his knee on a wall and fell to the floor. [Petitioner] approached from behind, pointed the shotgun at Renteria, and said, `Stop motherfucker. I'm gonna kill you.' At this time [petitioner] had his hand on the trigger of the shotgun and was standing three to four feet away from Renteria. [Petitioner] was wearing light tan gloves and a black homemade facemask, and was carrying a blue backpack.
Renteria replied, `Take it easy. Don't do anything crazy. I'll give you anything you want. Don't do anything crazy.' While holding the shotgun with two hands, [petitioner] dropped the backpack on the ground and ordered Renteria to get on his knees, go to the office, and give him the money.
Renteria got on his knees and began to crawl towards the office, but [petitioner] then ordered Renteria to stop, take everything out of his pockets and put it on the floor. Renteria obeyed, placing his wallet, daytimer, keys, and money on the floor. [Petitioner] then ordered Renteria to stay on his knees and go to the office and give him the money. Again [petitioner] warned, `don't do anything or I'm gonna kill you, you motherfucker.' Renteria proceeded on his knees to the office. When Renteria arrived at the office door, [petitioner] poked Renteria hard on the back with the barrel of the shotgun and told him, `Hurry up you motherfucker. I need my money. I don't have time.' Renteria then stated, `You know what? Don't do anything crazy. I'll give you the money. Take it easy.' [Petitioner] replied, `Well, hurry up, motherfucker, or you're gonna fucking die.'
With [petitioner] still immediately behind him, Renteria crawled across the office to the safe. As Renteria attempted to open the safe, [petitioner] kept the shotgun pressed against his shoulder and stated, `I know who you are. I know what kind of car that you drive. I'm gonna kill you, you motherfucker,' and told Renteria, `You know what? You're not coming out of this restaurant alive.' Renteria again asked [petitioner] to take it easy and assured him he would get his money.
In response, [petitioner] took his left hand off the shotgun and threw one of the office phones and a fax machine to the ground destroying them both. [Petitioner] continued to press the shotgun against Renteria's shoulder with his right hand. [Petitioner] then moved so he could destroy the second phone in the office. In doing so, [petitioner] went around to the front of Renteria, and moved the barrel of the shotgun from Renteria's shoulder to the left part of Renteria's chest, just above his heart. At this time [petitioner] was still holding the shotgun with only his right hand with his finger on the trigger. When [petitioner] reached to destroy the phone, Renteria grabbed the barrel of the shotgun with his left hand and pulled it from left to right across his chest. The shotgun immediately fired. The shot missed Renteria and hit a pile of garments.
Renteria kept his hand on the barrel of the shotgun and the two men struggled for control of the gun. During the struggle, [petitioner] again stated `I'm gonna kill you, motherfucker.' Renteria pinned [petitioner] against a wall, hit him three times in the face and head, and [petitioner] fell to the floor unconscious. Renteria then grabbed the shotgun and called the police who arrived five to six minutes later. When Renteria heard the police sirens, [petitioner] began to regain consciousness. [Petitioner] made a movement with his right hand, and Renteria believed [petitioner] was reaching for a gun in his back pocket. Renteria kicked [petitioner] in the stomach and said, `Don't move motherfucker. Stay there or I'm gonna kill you.' Shortly after this, two police officers entered the restaurant. . . .
(Lodgment No. 5, People v. Vargas, slip op. No. SCD175175 (Cal.Ct.App., 4th Dist. Div. 1, Sept. 28, 2004), at 4-6.)


  I. Scope of Review.

  The Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Williams v. Taylor, 529 U.S. 420, 429 (2000); Lindh v. Murphy, 521 U.S. 320, 326-327 (1997). Under AEDPA, a federal habeas petition cannot be granted with respect to any claim adjudicated on the merits in state court unless the adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of clearly established federal law; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. ยง 2254(d) (West 2005).

  "A federal habeas court may issue the writ under the `contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002), citing Williams v. Taylor, 529 U.S. at 405-406. "The court may grant relief under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Id. The Supreme Court has also held that "[t]he `unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). See also Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002); Bell v. Cone, 535 U.S. at 698-699. "The state court's application of clearly established law must be objectively unreasonable." Andrade, 538 U.S. at 75.

  According to the Supreme Court, "objectively unreasonable" is not the same as "clear error," because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. In other words, "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." Id. at 76. See also Chia v. Cambra, 360 F.3d 997, 1002-1008 (9th Cir. 2004) (finding the state court's application of clearly established federal law was "objectively unreasonable" pursuant to Andrade); Clark v. Murphy, 331 F.3d 1062, 1071 (9th Cir. ...

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