The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondents' answer (Doc. 23), and petitioner's reply (Doc. 31).
The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
About 8:00 p.m. on March 29, 2004, Sabrina Norman and her brother Roy Rayford were fired upon after just entering Norman's white Ford Explorer in the parking lot of the Franklin Villa apartment complex at the G Parkway in Sacramento. Norman explained that she had just moved into a new apartment at the complex next to a friend of hers. The friend's husband, Mtula Payton, known as Big T.C. Deuce, was a member of the Garden Block Crips gang. Payton and another Crip called Capone drove vehicles similar to Norman's Explorer.
After just entering the Explorer, Norman, sitting in the driver's seat, heard a gunshot come from her right side (i.e., the passenger side). Rayford initially said he could not tell the shot's origin, but later stated he thought it came from the driver's side (i.e., the left side) and that it sounded like a nine-millimeter handgun. Norman saw two young men -- the taller of the two holding in his right hand a black handgun, pointed downward -- standing approximately seven feet from the rolled-down front passenger window of the vehicle. The shorter man did not have a gun.
Norman and Rayford ducked as gunfire erupted on both sides of the vehicle. Norman was hit on her right cheek. The driver's side window shattered and Rayford suffered a bullet wound behind his left ear. The firing continued. Norman was then hit a second time, this time by a shotgun in the upper left arm.
Norman estimated that at least 10 shots were fired over a period of 30 to 40 seconds. She believed she was in a cross fire.
At one point during the barrage, Norman observed the same two young men walk in front of her car. The taller one asked the other, "[D]id you get 'em?"
Frightened and scrunched down, Norman put the Explorer in reverse. With Rayford's help, she backed out. More firing ensued. Norman drove the car to the complex's security booth and Rayford had the security guard call 911.
Norman suffered a three-to-four centimeter gunshot laceration to her right cheek, which caused a scar, and multiple puncture wounds from shotgun pellets, which uncomfortably remain in an eight-inch area of her left arm. Rayford incurred a bullet wound to the left side of his head, which fractured his jaw.
There is some dispute whether Norman told an investigating officer that the two young men she observed -- both Black males -- were in their mid-20's, or whether she said one looked about 20 and the other 17.
Within days of the shooting, Norman was shown photo lineups that included photos of Calhoun and Smart. Norman did not identify either defendant from the photos, but indicated that one of the photos resembled Calhoun. Norman also reiterated to an officer that she had been caught in a cross fire.
At trial, Norman identified Calhoun and Smart as the two young men she had observed at the shooting, with Calhoun being the taller individual with the gun. At the scene of the shooting, Norman had seen the taller man, who was around 5 feet 11 inches tall, in her headlights, but the shorter man, who was around 5 feet 8 inches tall, was further back. Norman had told a responding officer that she could probably identify the taller suspect but not the shorter one. Rayford made no identifications in photo lineups or in court.
Carlos Haggerty witnessed the incident from about two blocks away. Haggerty corroborated much of Norman's account of the firing, adding that he saw a man run after Norman's moving car, shooting at it. Haggerty believed that at least two guns were used because he heard "a whole bunch of gunfire."
Another witness, Jezmier Slade, was alerted after hearing six to eight rapid gunshots. Slade saw two Black men, one significantly taller than the other, standing beside the driver's door of a white Ford Explorer. The vehicle drove off and the men ran off. As the men ran, Slade saw the taller one holding what Slade thought was a semiautomatic handgun in his left hand. Smart had Slade recalled to testify that one man was about six inches taller and perhaps 40-50 pounds heavier than the other.
Calhoun claimed he was 5 feet 10 inches tall and weighed 143 pounds at the time of the offenses; Smart's comparables were 5 feet 9 inches and 146 pounds. At trial, the two stood next to each other. Smart looked a little shorter.
The day after the shooting, the police investigated at the G Parkway. They arrested 14-year-old Melvin Reno, who claimed to be a Garden Block (29th Street) Crip gang member along with Smart and Calhoun. Reno was on probation for robbery and attempted burglary and wanted to know "what he could get" for talking to the police about the shooting.
According to Reno, on the Saturday before the shooting, Big T.C. Deuce (Mtula Payton) had punched out a Meadowview Blood at a party in the G Parkway.
Testifying at trial in exchange for his relocation, Reno testified that, on the night of the shooting, he was simply walking through the G Parkway when he saw Calhoun, Smart, and a Blood named Jacoby James, who was known as "Sir." James fired first at a white Explorer or at Calhoun and Smart, and Calhoun returned fire with a handgun while Smart accompanied Calhoun. Reno speculated that James fired at the vehicle or at Calhoun and Smart in retaliation for the assault on the Blood the previous Saturday (some Crips had similar vehicles), or that Calhoun fired at the vehicle because Sabrina Norman had a son who was a Blood.
The police tried but could not find Jacoby James, but they conceded he had been arrested on an unrelated matter.
Police also interviewed 15-year-old Eugene Gibson, who is Calhoun's nephew. Initially, Gibson denied being at the G Parkway on the night of the shooting. Then he admitted that he and Calhoun were there, and that Calhoun returned fire from apparently some Meadowview Bloods. When the police pressed Gibson about Smart, Gibson stated that Smart was there as well. Gibson added that he did not see a gun in Smart's hands but thought Calhoun and Smart both shot two times, and that Calhoun was firing a handgun that "spits" out shells (no such shell was found at the scene).
Testifying at trial under a grant of immunity, Gibson stated that everything he had told the police before trial was untrue.
The police interviewed both Smart and Calhoun after their arrests. The prosecutor played both tape-recorded interviews for the jury.
Initially, and for hours, Smart denied being present at the shooting. He admitted being a Garden Block Crip (24th Street) gang member (the Garden Block Crips consist of the 29th, 24th, and 21st Street subsets). In a later interview, Smart conceded he was on the scene, but claimed that once he heard the shooting he just ran away. He thought the shooting was against the Crips because they had "stomped a nigger out." At the time of the shooting, Smart claimed he was extremely drunk; as a result, he could not remember if Gibson was also there but Gibson "probably was."
Calhoun, too, initially denied being present at the shooting. In response to continued questioning, though, he later conceded he had been walking through the G Parkway with Smart when he heard an exchange of gunfire and ran away. Neither he nor Smart had a gun. Calhoun informed the officers during the interview and again at its conclusion that he was just telling them what they wanted to hear.
The prosecution's gang expert, a Sacramento police detective specializing in African-American gangs, opined that Calhoun and Smart were members of the 29th Street set of the Garden Block Crips. He also opined that the shooting was between two rival gangs, was likely related to the assault by Mtula Payton (Big T.C. Deuce) on the Blood at the prior Saturday party, and benefitted the Garden Block Crip gang.
Petitioner and co-defendant Sergio Calhoun, who were both 15 years old at the time of the offenses, were each charged with two counts of assault with a firearm and one count of shooting at an occupied vehicle. Petitioner and Calhoun were convicted on all counts following a jury trial. The jury also found that the crimes were committed for the benefit of a criminal street gang pursuant to California Penal Code § 186.22(b)(1). The jury also found that Calhoun personally discharged a firearm, but that petitioner did not. The jury concluded that the crimes resulted in great bodily injury pursuant to California Penal Code § 12022.53. Petitioner was sentenced to 53 years to life in state prison -- three years for shooting at an occupied vehicle, plus two consecutive terms of 25 years to life for violation of § 12022.53. The trial court stayed the sentences on the assault convictions. On direct appeal, the California Court of Appeal ordered the trial court to strike one of the § 12022.53 enhancements and reduce petitioner's sentence to 28 years to life. The Court of Appeal otherwise affirmed petitioner's conviction and sentence in a reasoned decision issued by the California Court of Appeal on December 19, 2006, and the California Supreme Court denied review on April 11, 2007, without comment or citation.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings 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 ...