The opinion of the court was delivered by: Charles R. Breyer United States District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a state prisoner incarcerated at California State Prison, Los Angeles County, has filed a pro se petition for a writ of habeas corpus under 29 U.S.C. § 2254 claiming instructional error and ineffective assistance of appellate counsel.
A jury in the Superior Court of the State of California in and for the County of Santa Clara found petitioner and his co-defendant Adam Leroy Caris guilty of conspiracy to commit murder and first degree murder. The jury also found petitioner guilty of grand theft and found true allegations that Caris had suffered a prior serious felony conviction and served three prior prison terms for purposes of sentence enhancements. On March 6, 1998, the trial court sentenced petitioner to 25 years to life and Caris to 25 years to life plus seven years. On May 31, 2002, the California Court of Appeal, Sixth Appellate District, affirmed the judgment of the trial court. On August 21, 2002, the Supreme Court of California denied review.
Petitioner then unsuccessfully sought collateral relief from the state courts. On September 3, 2003, his petition for a writ of habeas corpus was denied in a reasoned opinion given by the Santa Clara County superior court. The petition was subsequently denied by the California Court of Appeal on January 14, 2004 and the Supreme Court of California on December 1, 2004. On January 12, 2005, petitioner filed this instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on April 15, 2005, the court found that the petition, when liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer on June 14, 2005. Petitioner filed a traverse on July 13, 2005.
The California Court of Appeal summarized the facts of the case as follows: On September 27, 1993, at 2:21 a.m., San Jose Police Officer Bridgette Blahut found the body of Paul Farfan in Watson Park. Farfan had been shot five times. Farfan was a drug dealer and member of the Northern Structure, a prison and street gang subsidiary of the Nuestra Familia prison gang. Farfan's parole officer told police officers that Farfan's girlfriend was Jessica Salazar. Officers traced her to the Arena Hotel where Oliverez, Jeannette Alarcon (Oliverez's wife), and another person were also staying. Officers found Farfan's pouch inside Alarcon's purse.
Inside the pouch were two guns, ammunition, and a small amount of methamphetamine. Officers found a large amount of dust on Alarcon's Geo Prizm automobile that was consistent with the dirt in Watson Park. They also found Caris's fingerprints in three places on the car. The car's tire tread pattern was consistent with patterns near the crime scene. A bloodstain on the seat of the car was consistent with Farfan's blood. A dent in the door frame was consistent with the bullet strike. In the trunk, officers found two pairs of bloodstained athletic socks that were similar to socks belonging to Oliverez, a pair of Reebok shoes with bloodstained shoelaces, and a pair of Nike shoes. The sizes of the shoes were different and consistent with the different sizes worn by Oliverez (the Reebok shoes) and Caris (the Nike shoes). Police found a paper in the car that had Farfan's telephone number written on it and another paper that had Caris's address written on it.
Oliverez told police that, between 11:00 p.m. and midnight on the night of the murder, he had borrowed Alarcon's car, driven to Farfan's brother's home, picked up Farfan, and drove to WatsonPark to drink and talk. He added that he and Farfan stayed in the park for 20 minutes and, afterward, he drove to an apartment, dropped off Farfan, and returned to the Arena Hotel. Robert Romero told the police that Caris had told him that he, Caris, had shot Farfan five times after he, Caris, and Oliverez had set Farfan up to be killed. Jesus Avila testified that Caris had told him in jail that he, Caris, had killed Farfan because Farfan was disrespecting Jerry Salazar by "messing with" with [sic] Salazar's wife. Caris was a member of the Northern Structure. Oliverez was either a member or sympathizer of the gang. The People's theory was that Farfan's murder was a "gang hit" that was ordered by Chente Arroyo because Farfan and Manuel Nanez had spent drug profits instead of sending the profits to incarcerated gang members. Arroyo was under a murder indictment with other members of the Northern Structure. He was the highest ranking Nuestra Familia and Northern Structure member in custody. The Grand Jury agreed with the People's theory and the indictment alleged that Oliverez and Caris had committed the murder in association with a criminal street gang for purposes of 10-year sentence enhancements. As a result, at trial, the People introduced general evidence about the organization and activities of Nuestra Familia and Northern Structure and specific evidence about the involvement and activities in gang business of Farfan, Oliverez, Caris, and others. The jury, however, found the gang enhancement allegations not true. Caris testified in his own defense and related the following. Caris joined the Northern Structure in 1986 while he was in prison. On the evening of the murder, Oliverez called him and asked whether he wanted to party with Salazar's wife and Farfan.
Oliverez picked him up in the Geo Prizm. Farfan was in the car. The three drove to Milpitas. Oliverez and Farfan argued in the front seat. The three encountered police near their destination and, because Farfan indicated that he possessed a gun, drove back to San Jose and Watson Park. Oliverez and Farfan escalated their argument. The three got out of the car. Caris walked 30 feet away to urinate. When he turned to walk back to the car, he saw Oliverez and Farfan struggling. He then heard a gunshot and saw a flash. He heard more shots and saw Oliverez holding a gun. Oliverez was pulling Farfan out of the car. Farfan called to Caris to help get Oliverez away. Farfan jumped out of the car and ran around to the front. Oliverez followed . Caris saw the two on the ground, heard shots, and saw a flash. Oliverez broke free, stepped away, and shot Farfan. Caris started to run away but Oliverez exclaimed that there had been a green light (murder contract) on Farfan because of Farfan's relationship with Salazar's wife. Caris got into the car on the driver's side and crawled to the passenger side. Oliverez drove Caris to his girlfriend's home.
Caris cried and told his girlfriend that Oliverez shot Farfan. Oliverez did not testify in his own defense. After the prosecution's rebuttal case, however, Oliverez testified in surrebuttal. He related the following. Oliverez and Farfan decided to party on the evening of the murder. Oliverez picked up Farfan in the Geo Prizm. Farfan was carrying a black duffel bag. They drove to Milpitas. They encountered police near their destination and, because Farfan indicated that he possessed a gun, drove back to San Jose and picked up Caris. The three drove to Watson Park. Oliverez exited the car to go urinate. As he walked back to the car, he heard a gunshot. He saw Caris jumping from the driver's side of the car.
He heard another shot and saw Farfan run away. Caris chased after Farfan and shot him again. [Caris] came back to the car with a gun in his hand. [Caris] ordered [Oliverez] to drive out of the park. In the car, Caris exclaimed that Farfan "had it coming, fuck with my old lady." Oliverez dropped Caris off at Caris's home and drove to the Arena Hotel. He took Farfan's black pouch into the hotel and left Caris's shoes in the trunk. People v. Caris, No. H018246, 2002 Cal. App. Unpub. LEXIS 1767, *2-7 (Cal. Ct. App. May 31, 2002).
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The writ 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 U.S.C. § 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 U.S. 362, 412-13 (2000). "Under the 'reasonable 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. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established 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 U.S.C. § 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 F.3d 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 the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
Petitioner presents eights claims for relief to the court. Petitioner's first claim is that the trial court committed prejudicial error by failing to give a modified instruction for CALJIC 3.18. Petitioner's seven remaining claims cite ineffective assistance of appellate counsel for failing to raise various issues: (1) the trial court committed a reversible error for failing to sever the trial of petitioner and co-defendant Caris, (2) the trial court abused its discretion by admitting co-defendant's hearsay statement, (3) post trial counsel was ineffective in challenging the verdict based upon insufficiency of the evidence, (4) prosecutorial misconduct based on the prosecution's knowing use of perjured testimony, (5) prosecutorial misconduct based on the prosecution's ...