FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on December 14, 1999, in the Solano County Superior Court on charges of attempted murder, assault with a semiautomatic firearm, and possession of a firearm by a felon, with sentencing enhancements for discharge of a firearm and causing great bodily injury. This matter is proceeding on the second amended petition filed December 6, 2004. Petitioner seeks relief on the grounds that: (1) the trial court violated his right to due process when it admitted evidence of bullets found in his apartment; (2) the prosecutor committed misconduct during closing argument; (3) his trial and appellate counsel rendered ineffective assistance; and (4) jury instruction error violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
Terry Lee Montgomery was convicted by a jury of attempted murder (Pen. Code, § 664/187),*fn2 assault with a semiautomatic firearm (§ 245, subd.(b), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). Attendant enhancements were found true. Appellant was sentenced to a term of 30 years to life -- five years base term for attempted murder with a consecutive term of 25 years to life for discharging a firearm and causing great bodily injury within the meaning of section 12022.53, subdivision (d). The remaining counts and enhancements were stayed.
The undisputed evidence establishes that appellant and the victim, Sylvester Morris (hereafter Morris), who were acquainted, met on a street in Vallejo on the evening of January 25, 1999, and that, during the encounter, appellant shot Morris repeatedly, causing massive and life-threatening injuries. Appellant fled the scene and was arrested several weeks later in Milwaukee, Wisconsin on an unrelated offense. A check revealed the warrant in Vallejo, California.
Morris testified that appellant approached him on the street; they walked and talked until appellant moved in front of him, turned, and started shooting. Morris did not see the gun, but felt the eight or nine bullets that pierced his arm, leg, back, side, and stomach. As he fell to the sidewalk, Morris asked appellant why he shot him; appellant ran away without responding. Morris denied appellant's claim that, while talking with appellant, he reached into his waistband.
An eyewitness testified that she observed two youths shouting and arguing at each other on the opposite side of the street while walking in her direction. She saw and heard appellant shoot at Morris at least nine times and then, after firing a shot into the air, walk calmly away.
Appellant's defense was premised on the theory of self-defense and lack of intent to kill; alternatively, he claimed incapacity due to post-traumatic stress disorder (PTSD). He testified that he had been concerned for his safety for several weeks because of threats and intimidation by Morris and his relatives, who were trying to remove appellant and his relatives as drug dealers in the neighborhood. In response to those concerns, appellant bought a gun, which he had with him on the evening in question. He stated he knew little about guns and had never fired a semiautomatic weapon prior to his encounter with Morris. Appellant was apprehensive at Morris' approach to him and, when Morris put his hand into the waist of his pants, he believed Morris was reaching for a gun to shoot him. As appellant described it, he tried to "get away" and, as he turned, he heard gunshots and realized he had pulled his gun out of his pocket. He remembered pulling the trigger once, but did not intend to do so and did not intend to kill Morris. Appellant then ran to a cab, took a bus to Oakland and boarded a bus for St. Louis, Missouri, but, on urging of his family, stopped in Milwaukee. He did not return to his apartment in Vallejo prior to leaving town.
An expert testified that appellant suffered from moderate PTSD stemming from an earlier shooting incident.*fn3 He explained that appellant had persistent nightmares and flashbacks and that a person who has PTSD does not respond normally to events and is suspicious, paranoid, and quick to aggression. The doctor also testified that appellant had borderline cognitive functioning, which affects his understanding and his responses.
The jury rejected appellant's version of the event and convicted him on all counts.
On December 23, 2000, petitioner filed a timely appeal of his conviction in the California Court of Appeal for the First Appellate District. (Lodged Doc. entitled "Exhibit 4.") Therein, he claimed that: (1) the trial court erred when it admitted into evidence the bullets found in his apartment; (2) the trial court erred in allowing the prosecution to play the edited tape of petitioner's police interrogation to the jury; (3) the trial court erred by excluding evidence corroborating petitioner's claim of self-defense; (4) the prosecutor committed misconduct during closing argument; (5) his trial counsel rendered ineffective assistance; and (6) the cumulative effect of errors at his trial violated his right to due process. (Id.) Petitioner's conviction was affirmed in its entirety in a reasoned decision dated April 27, 2001. (Lodged Doc. entitled "Exhibit 7.") Petitioner raised the same claims in a petition for review filed in the California Supreme Court. (Lodged Doc. entitled "Exhibit 8.") That petition was summarily denied by order dated August 15, 2001. (Lodged Doc. entitled "Exhibit 9.")
On December 27, 2001, petitioner filed a habeas petition with the California Court of Appeal for the First Appellate District. (Respondents' May 31, 2005 Motion to Dismiss (MTD), Ex. 3.)*fn4 On January 7, 2002, the petition was denied. (Id.) In denying the petition the state appellate court noted that "[p]petitioner should first seek relief, if any, in the trial court." (Id.)
On January 18, 2002, petitioner filed a habeas petition with the Solano County Superior Court, claiming ineffective assistance of trial and appellate counsel and jury instruction error with respect to the weapon enhancement finding. (MTD, Ex. 4.) On February 28, 2002, that petition was denied. (Id., Ex. 5.) In its order the Superior Court stated that while the ineffective assistance of appellate counsel claim was cognizable in a habeas proceeding, the habeas petition should have been brought in the Court of Appeal. (Id.)
On March 28, 2002, petitioner filed a second habeas petition with the Solano County Superior Court, claiming a violation of his right to cross-examine adverse witnesses, juror misconduct and jury instruction error on the attempted murder charge. (Id., Ex. 6.) On May 21, 2002, the petition was denied in an order stating that "[p]petitioner's claims could have been addressed through his appeal, but were not, and as a result are not cognizable on a Petition for Writ of Habeas Corpus." (Id., Ex. 7.)
On October 1, 2002, petitioner filed a habeas petition with the California Supreme Court. (Id., Ex. 8.) That petition, dated September 26, 2002, presented the following claims: violation of his right to cross-examine adverse witnesses, juror misconduct, and jury instruction error on the attempted murder charge. (Id.) On October 1, 2002, petitioner filed a second habeas petition with the California Supreme Court, which he labeled as "Supplemental." (Id., Ex. 9.) This supplemental petition is essentially a copy of the first habeas petition he filed with the Solano County Superior Court on January 18, 2002, claiming ineffective assistance of trial and appellate counsel and jury instruction error on the weapon enhancement allegation. (See id., Ex. 4.) On March 19, 2003, the California Supreme Court summarily denied the "supplemental" habeas petition. (Id., Ex. 10.)
Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
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.
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
A. Erroneous Admission of Evidence
Petitioner's first claim is that the trial court violated his right to due process when it admitted into evidence bullets found in the apartment he shared with five other people. (Second Amended Petition (Pet.) at 5.) Petitioner contends that the evidence was irrelevant because there was no evidence linking him to the bullets. (Id.) The California Court of Appeal described the background to this claim as follows.
The prosecution sought to introduce into evidence bullets (shotgun shells, rifle bullets, and bullets for semiautomatic weapons) that were recovered several days after the shooting from the Vallejo apartment that appellant leased, and shared, with five other persons. Defense counsel objected on grounds of relevancy and urged that it would have a prejudicial impact on the jury. The trial court ruled that the ammunition was admissible to rebut appellant's claims of ignorance about firearms and the recent nature of his gun purchase.
(Opinion at 3.) The California Court of Appeal rejected petitioner's evidentiary claim on the merits and also concluded that his due process argument had been waived because of the failure of his trial counsel to object to the admission of the bullets on this ground. In this regard, the court reasoned as follows:
On appeal, the defense argues that the bullets constituted evidence of prior uncharged misconduct and are inadmissible under Evidence Code section 1101, which provides that evidence of other acts is inadmissible to establish propensity or disposition. No objection was made on this ground at trial, however, and the issue was therefore waived for appeal. (citations omitted.)
In any event, the contention is without merit. The evidence was not introduced to prove character or disposition. Its stated purpose was to contradict appellant's self-defense claim, specifically claims of ignorance as to guns and the claim that he only recently had armed himself out of fear. Subdivision (c) of section 1101 provides: "Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." Relevancy aside, appellant also argues that the sheer number of bullets introduced (approximately 60) rendered the evidence more prejudicial than probative and the trial court should have excluded the evidence under Evidence Code section 352. The prosecution posited at trial that any prejudice was minimal or nonexistent in view of the clear showing that appellant shot the victim a minimum of seven times with a semiautomatic weapon.
Prior to ruling, the trial court did not discuss and made no express finding as to Evidence Code section 352 and the need to balance probity against prejudicial effect. A trial court has substantial discretion in ruling under the section and, though subject to review, appellate courts are reluctant to overturn the ruling absent a showing that the court exercised its discretion "in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (citations omitted.) We find no abuse of discretion here.
Nor is there merit to appellant's claim that admission of the evidence violated his right to due process. Failure to object precludes that claim as well. By no stretch does the failure to exclude the proffered evidence in the circumstances of this case amount to a denial of "that fundamental fairness essential of the very concept of justice" necessary to invoke due process considerations. (See Lisenba v. People of State of California (1994) 314 U.S. 219, 236.) (Id. at 3-5.)
Respondents argue that the state appellate court's ruling constitutes a procedural bar precluding this court from addressing the merits of petitioner's due process claim. (Answer at 2; Memorandum of Points and Authorities in Support of Answer (P&A) at 4.) Alternatively, respondents contend that the claim should be ...