The opinion of the court was delivered by: NITA STORMES, Magistrate Judge
REPORT AND RECOMMENDATION re PETITION FOR WRIT OF HABEAS CORPUS
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
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 According to the California Court of Appeal's unpublished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
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.)
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. § 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. ...