The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Pending before the Court are Donnell Lavernt Robinson, Jr.'s ("Petitioner") application for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 (doc. 1), Respondent's Answer (doc. 15), and Petitioner's Reply, which he labeled "Traverse" (doc. 23). For the reasons discussed below, Petitioner's application is denied.
On October 26, 2001, a Kern County Superior Court jury convicted Petitioner of second degree murder for the killing of Clifford Edison, Jr., conspiracy to commit first degree murder, and assault with a firearm on Wynnessa Lane. The jury also found that Petitioner personally used a firearm during each crime. He was sentenced to twenty-five years to life for the conspiracy charge, and a consecutive ten year term for the enhancement; as to the second degree murder charge, he was sentenced to fifteen years to life, along with a consecutive ten year term for the enhancement; as to the assault with a firearm charge, he was sentenced to four years, with a consecutive five year term for the enhancement. The sentences relating to the second degree murder and assault convictions, along with the corresponding enhancement sentences, were stayed.
Petitioner appealed. The California Court of Appeal's Fifth Appellate District summarized the underlying facts of Petitioner's crimes as follows:*fn2
At approximately 2:30 p.m. on May 30, 2001, Clifford Edison, Jr. and his girlfriend, Wynnessa Lane, were at their house on South Chester in Bakersfield when they heard a knock on the door. Lane was in the bathroom and Edison called out that he wondered who was there. Edison began to open the door but it flew open, and five men with guns "busted in." The men had masks and bandanas over their faces. [¶] Lane testified that four gunmen attacked Edison, and punched and kicked him. One of the men beating Edison held an unusual gun, which was small, appeared to have two handles, and had a chrome tip. Lane testified the fifth man held a gun to her head, told her to sit on the floor, and did not hit her. Lane testified this gunman didn't act as forceful or violent as the men who were beating Edison, and he almost seemed to be pleading with her to cooperate and get on the floor. He was wearing a ski mask with a hole near the nose, but Lane could still see the man's eyes, nose, eyebrows, and mustache hairs. Lane could also see the bumps of the man's French braids. He was wearing a white T-shirt and gray shorts below the knees, "with that shiny kind of metallic look to them." Lane testified the man's voice and eyes were familiar to her. She also recognized his whole style, what he wore, and how he talked, and realized he was [Petitioner] Donnell "Domino" Robinson. Lane didn't know [Petitioner] on a personal basis but had met him through other people. Lane testified [Petitioner] had been to their house on several occasions to see Edison. [¶] Lane testified the other men continued to yell, scream, and beat Edison, and she pleaded with them to stop.
As a result of her pleas, one gunman left Edison and told Lane that she would be shot if she didn't shut up. Lane testified she heard a pop, and the gunmen started to run from the house. One gunman paused as if he was going to shoot Lane, but this person also fled. Lane locked the doors and ran to Edison, and realized he had been shot in the head. She put pressure on the gunshot wound to stop the bleeding. She also tried to help him breathe but believed he was already dead. [¶] Lane called 911 and told the dispatcher that men had broken into her house, shot her boyfriend in the head, and he was bleeding to death. The police arrived within five minutes. Lane testified she spoke to the police a few hours after the shooting and gave them a description of [Petitioner]. [¶] Detective Robert Heiduk responded to Edison's residence and found his body in the kitchen. Edison had suffered a gunshot wound in the head. There was an expended nine-millimeter casing on the floor, just to the right of the body. The expended casing was a CCI brand, which was aluminum or white metal in color. [¶] The officers who initially arrived at the scene briefly interviewed Wynnessa Lane and received a description of the suspects. Around 4:30 p.m., Detective Heiduk interviewed Lane at the police department. Lane said she thought the person who pleaded with her to get on the floor knew her by the way he acted toward her. Lane told Detective Heiduk about the distinctive weapon used by one of the assailants, and that it had two handles with a chrome tip on the muzzle. Detective Heiduk testified her description of the weapon was consistent with an Intratec Arms Tec-9 nine-millimeter assault pistol, which uses nine-millimeter ammunition and had been used in several shootings in the Bakersfield area. [¶] Edison was killed by a single gunshot wound in the head which had been fired at close range. The bullet entered the left side of his head, above the ear and behind the eyebrow, and went through the skull. The bullet traveled in a downward direction, from left to right and front to back. There were bruises around his eyes which were caused by the gunshot wound. There were no obvious punch or kick marks on Edison's face or body, but the pathologist testified a body is not likely to bruise after the heart stops. [¶] The police found approximately $14,000 in cash hidden in Edison's house. Edison's sister and Wynnessa Lane told the police the money was obtained from a real estate loan. There was no evidence that the gunmen tried to steal the money. Detective Heiduk found a spiral notebook in the house, with a page entitled "People that owe me." The page contained a list of names and numbers. The name "Domino" was written on the page, along with an equal sign and "$5." There were other names written on the page, along with amounts of $5, $10, and $25. [¶] Mark Ferguson lived on the corner of La France and El Soreno Drive, directly behind the residences on South Chester Street. At approximately 2:30 p.m. on May 30, he saw three or four young men walking toward the houses on South Chester. About five minutes later, Ferguson saw these same individuals jogging and running back. He noticed one of the men was wearing a pair of light blue basketball-type shorts, possibly "North Carolina blue." Ferguson testified one of the men had "a hand around his waist, as if he was carrying something." [¶] Ferguson testified the men entered an early 1990's model light blue Cadillac with a felt material top. The car was facing south on El Soreno Drive. Ferguson did not see their faces, but he observed at least two men take off ski masks as they entered the car. Ferguson continued to watch as the car headed eastbound on La France, and he was able to get part of the license plate number. The first two figures were "4" and "N." The next figure was a "swooping" letter, like a "J" or "G." Ferguson did not call the police, but he saw police in the area about one hour after seeing the men leave in the Cadillac. [¶] Josea Kent testified that [Petitioner] Donnell "Domino" Robinson came by his house around noon on May 30, 2001, and asked to borrow Kent's blue Cadillac. [Petitioner] was alone and talked with Kent at the door. [Petitioner] didn't say why he wanted to borrow the car, but promised to return it later. [Petitioner] had never borrowed his car before but Kent wasn't worried about it. Kent gave the keys to [Petitioner] and he left by himself. [¶] Kent testified he went outside around 6:00 p.m. and found his car parked in the garage. Kent testified it was unusual to see his car in the garage because he normally parked it in the driveway. The keys were not in the car and Kent did not see [Petitioner]. [¶] Detective Heiduk testified the police department received several anonymous telephone calls that "Domino," "Little Cool," and Josea Kent were involved in the murder, and that "Domino" was at 1st and T Streets. At 4:30 p.m. on May 30, Officer Matthew Peery observed a white, 1997 Cadillac at the intersection of 1st and T Streets which was completely blocking traffic, and conducted a traffic stop. Tommie Thomas was the driver and [Petitioner] was the passenger. [Petitioner] was wearing a white T-shirt and long gray shorts, which were "new nylon shorts, real shiny." Officer Peery asked [Petitioner] what he had been doing that day, and [Petitioner] said he was playing basketball at Lowell Park for the previous two hours. Officer Peery was aware that [Petitioner] was possibly involved in the murder of Edison. Officer Peery determined Thomas was on active probation and conducted a probation search of the car, did not find any contraband, and allowed [Petitioner] and Thomas to leave. [¶] Later that evening, Josea Kent visited his girlfriend, Antwanique "Nikky" Walker, at her apartment on White Lane. Shortly before 11:00 p.m., [Petitioner] and Tommie Thomas arrived at Nikky's apartment as Kent and Nikky were about to watch the news. Kent didn't know why they were there, but figured [Petitioner] was probably looking for him and knew he could find Kent at Nikky's place. Kent testified they watched the news and there was a story that [Petitioner] and Tommie "Little Cool" Thomas were suspects in a murder investigation. Kent testified that [Petitioner] started to talk about calling "the lawyer or something before they like got in trouble, before anything happened, before they got arrested or something like that." Kent didn't ask [Petitioner] anything about the news story or murder. However, [Petitioner] gave Kent a black box and told Kent to "[g]o put it up," which meant to "go hide it or something like that." Kent testified he opened the box and saw some bullets inside, and he put the box in his bedroom closet. [¶] Detective Heiduk testified he spoke again with Lane between 6:00 p.m. and 7:00 p.m., and she said the gunman who pleaded with her to get down went by the nickname "Domino." Heiduk knew a subject named "Domino" who had a distinct injury to his right hand. He asked Lane if she knew about such an injury in order to confirm her identification. Lane replied Domino lost some fingers when a pipe bomb exploded in his hand. However, Lane never said the gunman next to her was missing any fingers or had a crippled hand. Lane initially described this person as wearing shiny gray jeans, but during this interview she referred to this person's clothes as shorts. [¶] In the early morning hours of May 31, 2001, Officer Matthew Eastman and several officers from the special enforcement unit responded to Nikky Walker's apartment and arrested [Petitioner], Tommie Thomas, and Josea Kent. Nikky Walker was also taken into custody. Officer Eastman searched the apartment and found an empty Tec-9 plastic gun case on the floor of the closet in the master bedroom. He also found a box of CCI nine-millimeter live ammunition on the top shelf of the closet, behind some shoeboxes. The casings were brass colored. [Appellate court's footnote number three copied and placed under Respondent's footnote number seven.7/] [¶] At 2:30 a.m., Detective Heiduk interviewed [Petitioner] at the police department and advised him of the Miranda [Appellate court's footnote number four copied and placed under respondent's footnote number eight.8/] warnings. [Petitioner] was wearing a white T-shirt and three-quarter length, shiny gray shorts when he was arrested. [Petitioner] agreed to answer questions about his activities the previous day, and said he went to court around noon to take care of a traffic ticket. At 12:30 p.m., he returned to his residence and took a nap. At 1:30 p.m., he went to his friend Edward's house, where he lifted weights. He left around 2:30 p.m. and met Tommie "Little Cool" Thomas near T and 1st Streets. [Petitioner] was using his girlfriend's white Cadillac. They picked up Ebony Ward, Thomas's girlfriend, and drove to Ward's house in the Olive Drive area, where Ebony braided [Petitioner's] hair. They went to Thomas's house and used Thomas's car to drive to Nikky Walker's house, where they stayed the rest of the evening until the police arrived. [¶] Heiduk asked [Petitioner] why his name was written in the notebook found in Edison's house, and why he owed $5 to Edison. [Petitioner] replied he previously purchased a cheap car stereo from Edison. [Petitioner] never told Detective Heiduk that he played basketball for two hours in the afternoon, as he told Officer Peery during the traffic stop. [¶] After Detective Heiduk finished speaking with [Petitioner], he interviewed Josea Kent, who had also been arrested. Kent was advised of the Miranda warnings and agreed to answer questions, and said he was with his girlfriend most of the day and ran errands. Detective Heiduk then interviewed Nikky Walker and another suspect. [¶] At 4:30 a.m., Detective Heiduk was about to leave the police department when he was informed that Josea Kent wanted to speak with him again. Heiduk conducted another interview with Kent, and Kent told him that he loaned his blue Cadillac to [Petitioner] and [Petitioner] later gave him the box of bullets. Heiduk testified he did not make any promises or offers of leniency to Kent in exchange for his statement. [¶] At trial, Kent testified he initially lied to the police about his contact with [Petitioner] and the Tec-9 box because he didn't want to be a snitch. Kent testified he subsequently told the truth about loaning his car to [Petitioner], seeing him later in the evening, and hiding the black box for him. Kent also told the police that his car was parked in his garage.
Defense Evidence [Petitioner] was the only defense witness, and testified he was 24 years old and received disability because he lost four fingers when a cherry bomb exploded in his hand in 1994. He lived on T Street in Bakersfield with his wife and children, and drove a white 1977 Cadillac Coupe deVille. On the morning of May 30, he took his children to school. At noon, he went to court for a traffic matter. [Petitioner] testified he left the courthouse around 12:15 p.m. and went home to take a nap. He woke up around 1:30 p.m. and went to Edward's house at 1st and T Streets, where he lifted weights until 2:15 p.m. Tommie Thomas arrived at Edward's house, and [Petitioner] and Thomas left in [Petitioner]'s car. They drove around and saw Thomas's girlfriend, Ebony Ward. Ward was with two friends, Devon Brown and a girl named "Tracie." [Petitioner] and Thomas gave Ward and her friends a ride to Ward's house, where they watched a basketball game on television while Ward braided [Petitioner]'s hair. [¶] [Petitioner] and Thomas were leaving Ward's house in the white Cadillac when Officer Peery conducted the traffic stop on 1st and T Streets. [Petitioner] told Peery he had been at Ward's house. [Petitioner] testified he never told Peery that he was playing basketball that day. [Petitioner] believed Peery saw him playing basketball at the park on previous occasions and made a mistake. [Petitioner] and Thomas asked why they were detained and Peery said their car blocked the roadway. [Petitioner] testified the car was actually parked in the driveway and didn't block the street. [Petitioner] thought they were detained for about 30 minutes. [¶] [Petitioner] testified the officer released them and they drove around the area. Thomas later received a call from Josea Kent, who asked him to come to Nikky Walker's apartment because Kent needed a ride to the bus station. They went to Nikky's apartment and Kent again asked for a ride to the bus station. They sat around and talked, and also watched the late news. [Petitioner] and Thomas heard their names on the news. [Petitioner] testified that he knew he didn't do anything, "and I know that my name was on the news for nothing. So I was like I want to call a lawyer, I'm saying talk to a lawyer first before I turn myself in." [Petitioner] testified the police arrived about an hour later and arrested them. [¶] [Petitioner] testified he had seen Clifford Edison "off and on, but we never did have no personal relationship, and the only time that I seen him was when I bought the car stereo from him." [Petitioner] testified he went to VASR Stereo and Audio Signs on Ming Street to get his car stereo hooked up, but the salesman told him the wires were burned and it couldn't be used.
The salesman also said that he knew a guy who wanted to sell a car stereo, and the salesman contacted Clifford Edison. [Petitioner] met Edison at the store and bought a car stereo from him for $70. [Petitioner] testified he still owed $5 to Edison for the stereo, which was why his name was written in Edison's notebook. [Petitioner] testified he never had a dispute with Edison about the stereo or anything else. [¶] [Petitioner] testified he knew he had been arrested for the murder of Clifford Edison when Detective Heiduk interviewed him. [Petitioner] told Detective Heiduk he owed $5 to Edison for a cheap car stereo, and that's why his name was in Edison's notebook. [Petitioner] admitted he never told Heiduk that he actually purchased the stereo for $70 and already paid $65 for it, but Heiduk never asked him. [¶] [Petitioner] testified Tommie Thomas was 19 years told and lived in Las Vegas, where he was training to be a boxer. [Petitioner] testified Thomas was a good friend who could back up his story, but he didn't know why Thomas wasn't at the trial. [Petitioner] testified Ebony Ward was incarcerated in Las Vegas. He didn't know how to contact Ebony Ward's friends, Devon Brown and Tracie, or his friend Edward. [¶] [Petitioner] testified he knew Josea Kent about six months before he was arrested. [Petitioner] had just seen Kent around and didn't have a relationship with him. [Petitioner] had been in Kent's blue Cadillac on one occasion, which was three days before he was arrested. Kent drove to the park and [Petitioner] sat in the car to smoke a cigarette. [Petitioner] never borrowed or drove the blue Cadillac. [¶] [Petitioner] disputed Wynnessa Lane's testimony that he often visited Edison at their house. [Petitioner] testified he had seen Lane when she danced at clubs, but he never had a conversation with her. [Petitioner] had never owned a Tec-9 pistol, or any other guns or ammunition. [¶] On redirect examination, the prosecutor recalled Wynnessa Lane, who testified there was approximately $14,000 in cash hidden in their house when Clifford Edison was murdered. Lane testified they received the money from a loan on their house, and she was the only person who knew where it was hidden. Lane testified none of the masked gunmen demanded money or any valuables as they beat Edison. "They just attacked him."
The California Court of Appeal reversed Petitioner's conspiracy conviction. The remaining convictions were affirmed. The case was remanded for resentencing. Petitioner was subsequently resentenced to one term of fourteen years and another term of fifteen years to life. Petitioner appealed that sentence, and his appeal was dismissed. Petitioner then petitioned for review in the California Supreme Court. His petition in that court was denied.
On February 13, 2003, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. The petition was denied on March 17, 2003. In denying the petition, the court rejected Petitioner's claim that he received ineffective assistance of counsel because "Petitioner did not meet his burden of showing prejudice." Lodged Doc. 10. In particular, the court noted that Petitioner did not show that the evidence he claimed his counsel should have introduced might have affected the verdict.
On April 24, 2003, Petitioner filed a habeas petition in the California Court of Appeal's Fifth Appellate District. That court denied the petition without comment on May 22, 2003. On August 11, 2004, Petitioner filed an application for habeas corpus relief in the California Supreme Court. The petition was summarily denied on June 29, 2005. In assessing Petitioner's entitlement to habeas relief, this Court reviews the Superior Court's order. See Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002) (explaining that when a subsequent appeal is denied without comment, a federal court must look to the last state court decision to actually address a claim).
An application for a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment "shall not be granted with respect to any claim that was adjudicated on the merits" in state court 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 ...