The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties appearing in the action, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 9), respondent's answer (Doc. 23), and petitioner's reply (Doc. 27).
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:
While driving under the influence of methamphetamine, defendant Ernest Erastus Clark, IV, caused a head-on collision resulting in serious bodily injury. One year later, again while driving under the influence of methamphetamine, he caused another head-on collision, this time killing two people and seriously injuring another.
A. July 6, 2002, Collision
On July 6, 2002, at about 4:00 p.m., defendant drove a pickup truck onto Highway 50 at Watt Avenue going eastbound. Driving in excess of eighty-five miles per hour, he cut in front of one vehicle and swerved back and forth without signaling. He then crossed all eastbound lanes, and almost struck the guardrail but made a corrective action and drove along the shoulder for a brief period, still traveling over eighty-five miles per hour. He then swerved back across five lanes of traffic, missed the Bradshaw Road exit, jumped a nearby embankment where he crashed though a cyclone fence, and headed eastbound on Micron Road.
Meanwhile, Hugh Estes was traveling northbound on Bradshaw Road in his pickup truck. As Estes turned onto Bradshaw Road between Florin Road and the Jackson Highway, he saw defendant's pickup truck coming straight towards him. Defendant's truck was moving at an excessive speed and he made no effort to move back into the southbound lane. Surrounded by a ditch on one side and traffic all around him, Estes could not avoid the collision. The impact shattered his windshield, lodging glass in his eye, and causing the steering wheel to hit him in the chest. Estes was later transported by ambulance to the intensive care unit of a nearby hospital where he was released the following day. Two weeks later, he underwent eye surgery to repair the damage caused by the glass.
Defendant was also transported to the hospital where a blood sample was drawn from him. He was treated for his injuries, which included punctured lungs and a broken leg.
B. Collision on July 20, 2003
One year later, on July 20, 2003, at approximately 12:00 p.m., Lavonne Gibson was driving northbound on Highway 160, a divided highway in Sacramento County, with three lanes in both directions. As she headed down the off-ramp onto Del Paso Boulevard, defendant entered the same off-ramp going the wrong direction. He was traveling at seventy or eighty miles an hour and she was forced to pull to the side to avoid being hit. Defendant took no evasive action.
He continued driving southbound against northbound traffic and passed another driver who was traveling in another lane. Shortly thereafter, his vehicle collided head on with a Honda Accord. The driver of the Accord, Ann Odell, was declared dead at the scene. Her head had been disconnected from her spine. After hitting the Accord, defendant's [Acura] truck struck a Lincoln Town Car driven by Lesley Kibby. Kibby was driving northbound with her eighty-one-year-old mother Ruth Ann Watkins. Kibby was pried out of her car with the "jaws of life" and taken to the hospital. Her arm was broken and she was hospitalized for seven weeks. Kibby's mother, Ruth Watkins, was admitted to the hospital and diagnosed with multiple rib fractures and a closed head injury. While in the hospital, she developed several complications and died on August 15, 2003. The pathologist concluded that the blunt force injuries she sustained in the collision aggravated her underlying medical problems and led to her death.
Defendant was unable to answer coherently the paramedics' questions, although he told the officer his name was Ernie. He was transferred to the medical center, placed under arrest for driving under the influence, and a blood sample was taken from him. His lower right leg was amputated as a result of injuries he sustained in the collision. Upon discharge, he was taken into custody and advised of his Miranda5/ rights. He agreed to answer questions and claimed he had no recollection of the collision, but admitted he was a drug addict and frequent user of methamphetamine.
A highway patrol officer trained in accident reconstruction confirmed that the Acura and the Accord were in the northbound number one lane traveling in opposite directions when they both swerved into the number two lane and collided with each other. The Acura pushed the Accord across the road where the two vehicles collided with the Lincoln. The Acura was traveling at an estimated speed of at least 71.8 miles per hour when it hit the Accord and no skid marks attributable to the Acura were found.
Defendant's girlfriend, his stepfather, and two of his brothers testified that when they drove with defendant, he would weave in and out of traffic, cut people off, and drive too fast. They warned him to drive more carefully and to slow down.
D. Expert Testimony Regarding the Blood Test Results
The criminalist who analyzed defendant's blood samples found that the blood drawn on July 6, 2002, contained .02 milligrams per liter of amphetamine and .20 milligrams per liter of methamphetamine. The blood drawn on July 20, 2003, contained .03 milligrams per liter of amphetamine and .43 milligrams per liter of methamphetamine.
Barry Logan, a toxicologist, testified that methamphetamine is a highly addictive drug that operates as a central nervous system stimulant, which generally affects the processes or pathways in the brain responsible for making decisions and carrying out actions as a result of those decisions. The drug produces an array of effects as it works its way through the body. Initially after ingesting the drug, people feel euphoric, energetic and good about themselves, their perception of their capabilities and abilities are enhanced, and they are often alert, restless and agitated. They also overestimate their ability to perform certain tasks, resulting in aggressive and risk-taking behavior.
After the initial feeling wears off, the user moves into the second phase, referred to as "tweaking." This occurs after the drug has been administered for a period of time and the brain starts to develop some tolerance to the affects of the drug. When it is readministered, people feel restless and agitated. This phase is characterized by irritability, anxiety, agitation, and paranoia. The next phase is called the "crash phrase." As usage progresses over a period of time during a binge, a person experiences some depression, low energy, inattention, preoccupation, and fatigue from lack of sleep, which may cause the person to sleep for a long period of time during this phase.
Logan testified that driving under the influence of methamphetamine is very dangerous and the blood methamphetamine level of a driver impaired by methamphetamine is usually .2 or .3 milligrams of methamphetamine per liter of blood. Those who sustain fatal injuries have an average concentration of .35 milligrams per liter of blood.
A driver who has used methamphetamine and is in the early phase of the drug will engage in speeding and reckless driving. A driver who is in the crash phase of the drug, may be inattentive or fall asleep at the wheel, causing him or her to drive off the road or drift across lanes without making any corrective action. Logan therefore concluded that because of all the behaviors associated with the three stages of recreational use, methamphetamine affects a persons' ability to drive when he or she is under the influence of the drug and that person's ability to drive safely is impaired. Logan further concluded that defendant was driving under the influence of methamphetamine when he collided with Estes' truck on July 6, 2002, and at the time of the fatal collision on July 20, 2003.
Defendant did not testify but called two witnesses to present a mental impairment defense. His mother, Bonnie Wright, testified about his early childhood developmental problems and his methamphetamine addiction. He did not talk until he was three years old, he was slow in school, held back in the second grade, and at age ten, was placed in special education classes and speech therapy. In 1999, when he was eighteen years old, he spent a year in a residential treatment facility for drug addiction, which seemed to help him, attended Narcotics Anonymous (NA) meetings after he was released from the facility, and obtained his GED. However, he had a relapse in the summer of 2000 and rejected efforts to help him. At that time, the defendant told his mother he did not think he had a problem and that he would quit using "speed."
Dr. John Wicks, a clinical neuropsychologist, testified that defendant had problems with verbal expression, reading, learning, and memory. Dr. Wicks diagnosed him with attention deficit disorder and also concluded that with respect to abstract reasoning and judgment, defendant was borderline retarded and had an IQ of 80, which placed him in the low normal range of intelligence.
Petitioner was convicted following a jury trial of two counts of second degree murder, two counts of driving under the influence of a drug and neglecting a duty imposed by law which caused bodily injury, and one count of misdemeanor hit and run. The jury found true the allegation that petitioner caused death to more than one victim. Petitioner was sentenced to an aggregate term of 32 years to life in state prison, plus eight months. The conviction and sentence were affirmed on direct appeal in a reasoned decision issued by the California Court of Appeal. The California Supreme Court denied direct review and petitioner did not seek certiorari.
Petitioner filed a habeas petition in the California Court of Appeal, which was denied with a citation to In re Steele, 32 Cal. 4th 682, 692 (2004). A second habeas petition filed in the California Court of Appeal was denied with citations to In re Steele, and In re Hillary, 202 Cal. App. 2d 293 (1962). Petitioner filed a third habeas petition in the California Supreme Court, which he later amended to include all the claims raised in the instant federal petition. The California Supreme Court denied relief without comment or citation.
Respondent concedes petitioner's 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 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 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). Thus, under § 2254(d), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 127 S.Ct. 649, 653-54 (2006). "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. Jan. 17, 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, ___ F.3d ___ (9th Cir. Sept. 15, 2008) (citing Wright v. Van Patten, 128 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 127 S.Ct at 654 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 127 S.Ct. at 653.
In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 293 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id.
State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See id.; see also Wiggins v. Smith, 123 S.Ct. 252 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 123 S.Ct. at 1175. This is because ". . . the gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. As with state court decisions which are "contrary to" established federal law, where a state court decision is an "unreasonable application of" controlling law, federal habeas relief is nonetheless unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.
The "unreasonable application of" standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982. The federal habeas court assumes that state court applied the correct law and analyzes whether the state court's summary denial was based on an objectively unreasonable application of that law. See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.
In his amended petition, petitioner raises the following claims: Ground 1 Claims relating to jury deliberations:
A. The trial court interrupted crucial deliberations;
B. The jury separated without permission after deliberations began, leaving one juror alone and unsupervised;
C. The trial court failed to discharge the jury and order a new trial when one juror refused to re-enter the court with the other jurors for the reading of the verdicts;
D. The trial court failed to admonish the jury before it adjourned not to converse among themselves or with non-jurors about the case;
E. There is a "real possibility" all jurors did not participate in deliberations on September 30, 2004; and
F. Trial counsel was ineffective for failing to object to jury problems outlined above.
Ground 2 Juror Misconduct.
Ground 3 Claims relating to jury instructions:
A. Erroneous jury instruction regarding implied malice; and
B. Trial counsel was ineffective for failing to object to the implied malice instruction.
Ground 4 Insufficient evidence of implied malice.
Ground 5 Insufficient evidence petitioner's conduct caused Ruth Watkins' death.
Ground 6 Claims of ineffective assistance of counsel relating to Watkins' death:
A. Trial counsel failed to present evidence regarding Watkins' pre-existing conditions and lack of treatment;
B. Trial counsel failed to consult an expert to determine the cause of Watkins' death;
C. Trial counsel failed to request that the jury instruction regarding causation be supplemented with instructions regarding supervening causes of death and inadequate treatment; and
D. Trial counsel failed to adequately argue issues related to the cause of Watkins' death during closing argument.
Ground 7 Sentence constitutes cruel and unusual punishment because petitioner is actually innocent of causing Watkins' death. Ground 8 The trial court erred by relying on factors not found by a jury or admitted by petitioner ...