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), respondent's answer (Doc. 14), and petitioner's reply (Doc. 16).
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:
On December 2, 2000, the victim and aunt [who are husband and wife] lived in a duplex in Carmichael. Defendant, then age 24, is the aunt's nephew. After talking to aunt on the telephone in the evening of December 2, defendant went to their home.
At trial, aunt claimed for the first time that she was drinking that evening and that both she and the victim had used methamphetamine. As the victim told a deputy sheriff that evening, defendant was in their driveway, calling from a cell phone. As aunt also explained to the deputy sheriffs, defendant, who was then homeless, arrived at their home with suitcases and duffel bags, which he wanted to store. Aunt believed the bags contained stolen property and refused to accept them. Aunt and defendant began to argue. The victim tried to calm down defendant. The victim told a deputy sheriff that he suspected defendant had a weapon behind his back. Aunt told the deputy sheriffs she saw defendant turn around and put one hand into his waistband. The victim then stepped between aunt and defendant, pushing aunt inside and shutting the door. Aunt heard a gunshot. The victim told the deputy sheriff that he followed aunt into the house. As he closed the door, he felt a burning sensation in his left foot, although he never saw a gun. He did not realize that a bullet had entered his foot until he took off his shoes and socks when the deputy sheriffs arrived and made him remove them. The victim was initially evasive with the deputy sheriffs because he was on parole.
The deputy sheriffs photographed the front door of the home, which contained a hole that could have been made by a bullet. A bullet was recovered from the victim's ankle at the hospital.
Two witnesses standing outside across the street heard both the argument and a gunshot. Immediately thereafter, both saw someone run down the driveway in a hurried fashion, jump into the driver's side of a car, and drive away.
Aunt admitted calling 911 after the victim returned from the hospital because she thought defendant's car was outside her home. Aunt admitted she was afraid because she thought defendant had shot her husband.
At trial, the victim stated that he did not recall most of the events. At trial, aunt admitted she had made up at least three stories to tell the deputy sheriffs in order to get defendant in trouble, although only one version implicated defendant.
No defense evidence was presented.
Petitioner was convicted of assault with a deadly weapon, shooting at an inhabited dwelling, and possession of a firearm by a felon. The jury found that petitioner intentionally discharged a firearm and that he inflicted great bodily injury upon the victim. Petitioner was sentenced to the mid-term of five years plus an enhancement of 25 years to life for discharging a firearm and inflicting great bodily injury, for a total term of 30 years to life. Petitioner was also sentenced to two additional years, to run concurrently, for violating parole.
Petitioner's conviction and sentence were affirmed on direct appeal by the California Court of Appeal and he did not seek direct review by the California Supreme Court. Petitioner filed a habeas corpus action in the Sacramento County Superior Court, which was denied. Both the California Court of Appeal and California Supreme Court denied habeas relief without comment or citation. Respondent concedes that petitioner's federal claims are exhausted.
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 ...