The opinion of the court was delivered by: Charlene H. Sorrentino United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Delian Brewer is a state prisoner, proceeding with appointed counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his October 2, 1997 convictions for second degree murder, attempted murder, attempted robbery and robbery in the Sacramento County Superior Court, Case Nos. 95F02656 and 95F07371.
Petitioner makes the following claims:
A. Petitioner received ineffective assistance of trial counsel;
B. Petitioner's right to due process was violated by jury instruction error;
C. Petitioner received ineffective assistance of appellate counsel;
D. Petitioner's right to due process was violated by joinder of cases; and
E. Petitioner's sentence violated his right to due process.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
No court summary of the facts in this matter exists. The facts below are taken from the October 31, 1997 Probation Officer Report and Recommendation, lodged with respondent's Answer. Neither petitioner or respondent has objected to this report and there was no objection to its factual summary at the sentencing hearing. See RT 1754-57.
1) February 1995 Murder and Attempted Robbery
On February 3, 1995, SPD officers responded to 11th Avenue and Riverside Boulevard regarding a possible shooting. Upon arrival, officers located Victim #1 leaning against a telephone pole with approximately four to six witnesses attending to him. Victim #1, who had suffered a gunshot wound to the back of the head, was conscious but stated he could not see. He was subsequently transported to U.C.D. Medical Center where he underwent medical treatment. Officers were informed the victim had stated a friend of his was also shot somewhere in the park. Officers drove through William Land Park and located the victim's vehicle parked, with the trunk open. Officers looked into the vehicle and in the passenger seat located Victim #2, who was bleeding from the head area and appeared to be dead. Victim #2 was transported to the U.C.D. Medical Center where he was pronounced dead. Subsequent investigation revealed earlier that day, Victim #2 had contacted [co-defendant] Kufa, indicating he wanted to buy several ounces of methamphetamine. Kufa put him in contact with his cousin, defendant Brewer, who subsequently set up a "deal" with Victim #2. Just prior to the shooting, the defendants drove to West Sacramento to meet up with the victims at a Carl's Jr. After the victim arrived at Carl's Jr., Brewer contacted Victim #2 and gave him a package containing several ounces of methamphetamine. Victim #2 indicated it was "not safe" and wanted the defendants to drive with them while they "weighed the stuff out." The defendants entered the victim's vehicle with Kufa sitting in the back seat behind Victim #1, and Brewer sitting in the back seat behind Victim #2. The victims left the area, got on the freeway and exited at the William Land Park exit. During the short drive, Victim #2 displayed a handgun to the defendants and asked if they were interested in buying it. The defendants declined, indicating they each had their own guns. Victim #2 then made reference to selling bullet proof vests, which the defendants also declined to purchase. As Victim #1 entered William Land Park, Victim #2 apparently made furtive movements, which prompted Brewer to pull out his gun and shoot Victim #2 in the back of [the] head (Count 1 with 12022.5(a) P.C., Found True). As Victim #2 slumped over, Kufa placed a gun to the back of Victim #1's head, who then placed his hands in the air and begged the defendants not to shoot him. Brewer reached over the front seat and slammed the gear shift into park, halting the vehicle. Brewer then placed his gun to Victim #1's head and demanded to know where the money was. Victim #1 indicated the money might be in the trunk, and while Kufa held his gun to Victim #1's head, Brewer exited the vehicle and opened the trunk (Count 3, with 12022.5(a) P.C., Found True). When he did not find any money, Brewer returned to the driver's side and demanded Victim #1 exit the vehicle. As Victim #1 exited the vehicle, he grabbed for Brewer's gun and during the struggle, Brewer yelled to Kufa to shoot him. Kufa then raised his gun and shot Victim #1 in the back of the head (Count 2, with 12022.2(a) P.C. Found True). As Victim #1 fell to the ground unconscious, the defendants ran off.
At some point in time, Victim #1 regained consciousness, but realized he could not see. The victim stumbled through William Land Park and onto  Riverside Boulevard, where witnesses responded after hearing the victim cry for help.
On March 23, 1995, following a lengthy investigation, which included positive identification by the victim, and finger print identification, the defendants were arrested for violation of section 187(a) P.C., 664/187(a) P.C., and 664/221 P.C. and transported to the Sacramento County Main Jail for booking.
2) The November 1994 Robbery Charges
On November 9, 1994, officers responded to an apartment complex on Marconi Avenue, regarding a shooting. Officers contacted Victim #1 who stated he was in his living room watching TV with his girlfriend, when they heard a loud bang at the door. Following a second loud bang, the door burst open and three male blacks, dressed in black, with ski masks, entered the residence yelling, "Get down mother fucker!" One of the individuals, possibly the second one through the door, shot at Victim #1 as he raised his hands to his face. The bullet struck Victim #1's left hand and left shoulder. Victim #2 then ran to the back bedroom where her 16-month old child and 14-year-old brother were asleep.
The suspects then demanded Victim #1 give them all the money he had and dragged him into the master bedroom where the victim's safe was. As they held a gun on Victim #1 and his child, Victim #2 was instructed to open the safe. After removing approximately $1,000 from the safe, all three individuals left the apartment in an unknown direction (Count 4 and 5, with 12022.5(a) P.C., Found True). Victim #2 indicated she recognized at least one of the individuals, known as "Jr." She thought the second individual's name was "Delian" and the third, who went by a street name of "Snoop." She states all three individuals were cousins from the Oakland area and they had been to their house several times in the past six months for barbecues.
Answer, Lodged Document 6 at 671-74 (Probation Officer's Report). A jury found petitioner guilty on all counts. Answer, Lodged Doc. 12, Clerk's Transcripts at 1745-48. The trial judge sentenced petitioner to an indeterminate term of 35 years to life in prison, plus a consecutive determinate term of 30 years and four months. Id. at 1747-48.
B. Post Trial Proceedings
1) State Appellate Proceedings
Petitioner filed a petition for review with the California Court of Appeal on April 13, 1998. Answer, Lodged Doc. 13. That petition was denied on January 4, 1999. Answer, Lodged Doc. 16 at 1. Petitioner then petitioned the California Supreme Court which denied that petition on March 17, 1999. Answer, Lodged Doc. 16.
2) Habeas Corpus Proceedings
On June 21, 2000 petitioner filed a petition for writ of habeas corpus with the Sacramento County Superior Court. Answer, Lodged Doc. 2. That court denied that petition on July 11, 2000. Answer, Lodged Doc. 3 at 1. Petitioner then petitioned the California Court of Appeal on August 24, 2000. Answer, Lodged Doc. 17. That petition was denied on September 28, 2000. Answer, Lodged Doc. 18. Petitioner again petitioned the California Supreme Court on July 16, 2001. Answer, Lodged Doc. 19. That petition was denied on January 29, 2002. Answer at 2. Petitioner filed this federal petition on February 7, 2002.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
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.
28 U.S.C. § 2254(d). See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). 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. Ineffective Assistance of ...