The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, a state prisoner represented by counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks to challenge his 2003 convictions for second degree murder, shooting into an inhabited dwelling, street terrorism and being a felon in possession of a firearm. He alleges relief is warranted on the grounds that his due process rights were violated when: (1) the trial court failed to instruct that witnesses Jesus Lopez and Ricardo Sandoval were accomplices as a matter of law; (2) the prosecutor offered inconsistent theories and facts regarding Petitioner's motive for committing murder and intent to aid and abet the shooting into an inhabited dwelling; and (3) the prosecutor committed misconduct by advancing inconsistent factual and legal theories of liability and vouching for the credibility of witnesses. Docket No. 1. Respondent asserts that some of Petitioner's arguments are procedurally barred and that all of them are without merit. Docket No. 9. Petitioner did not file a Traverse. The Petition shall be denied for the reasons set forth below.
Petitioner, Jesus Lopez and Ricardo Sandoval, associates of the same criminal street gang, were charged with street terrorism and the 2002 murder of fellow gang member, Joe Angel Rodriguez. Petitioner and Lopez were further charged with shooting into an inhabited dwelling house. Lopez and Sandoval both entered into plea agreements with the prosecution. In exchange for their cooperation and testimony, Lopez pled guilty to voluntary manslaughter and Sandoval pled guilty to being an accessory after the fact to Rodriguez's murder. In an unpublished opinion filed on March 29, 2005, the California Court of Appeal, Third Appellate District, summarized the testimony given by Lopez and Sandoval:
[Petitioner], Joe Angel Rodriguez, Daniel Ledesma, Jesus Manriquez, Jesus Lopez, and Ricardo Sandoval were all members of the Vickystown Street Gang.
On September 21, 2002, everyone but Ledesma was in [Petitioner]'s car when Rodriguez received a call on his cell phone. The call was from Rodriguez's sister, who reported that Ledesma had hit Rodriguez's mother in the face. [Footnote 1] Rodriguez became angry and said he wanted to go talk to Ledesma. At Rodriguez's direction, Lopez drove [Petitioner]'s car toward Stiles Place, where he thought Ledesma lived.
[Footnote 1: Ledesma was the father of Rodriguez's sister's child, and he got into a fight with Rodriguez's mother when he came over drunk trying to see the child.]
Ledesma's grandparents, the Durans, lived in a house on Stiles Place with one of Ledesma's children. Although Ledesma had stayed there in the past, he was not living there on September 21, 2002.
When they stopped near Stiles Place, [Petitioner] pulled a semiautomatic pistol from under the dashboard and handed it to Manriquez, who handed the revolver he was carrying to Rodriguez. Manriquez and Rodriguez then got out of the car and said they were going to go talk to Ledesma. Shortly thereafter, gunfire rang out, and Manriquez and Rodriguez came running back to the car, having fired numerous shots at the Duran residence.
Later the following morning, [Petitioner], Rodriguez, Lopez, and Sandoval were together at a motel smoking crystal methamphetamine when [Petitioner] said he wanted to go to Linden to get some more. Lopez drove them in his car, with Rodriguez in the front seat and [Petitioner] and Sandoval in the back seat. At some point, [Petitioner] directed Lopez to turn off on a dirt road into an orchard. When they got out of the car, ostensibly to urinate, [Petitioner] shot Rodriguez several times. After [Petitioner], Lopez, and Sandoval got back in the car, Lopez told [Petitioner] that Rodriguez was getting up, so [Petitioner] got out of the car and shot Rodriguez again. Rodriguez died from multiple gunshot wounds, having been shot 13 times. Lopez later turned himself in to the police.
People v. Gutierrez, No. C046193, Slip op. at 2-4 (Cal. Ct. App. Mar. 29, 2005) (available in the record as Lodged Document No. 1).
Their testimony was corroborated in many respects by the physical evidence recovered from the two crime scenes and Lopez's garage where Petitioner and Lopez destroyed Petitioner's pistol with a hammer. Petitioner's videotaped interview with police was also introduced. In the interview, Petitioner admitted to supplying the pistol to Manriquez but denied any involvement in Rodriguez's murder.
Petitioner mounted a reasonable doubt defense, which centered on discrediting Lopez and Sandoval by showing that there were some inconsistencies between their trial testimony and the statements they initially gave to law enforcement. Petitioner elected not to testify.
The jury found Petitioner guilty on all counts and found true allegations that Petitioner personally used a firearm and that both the murder and the shooting were committed for the benefit of a criminal street gang. Clerk's Transcript ("CT") at 560-68. Petitioner was sentenced to an aggregate term of 55 years to life. Gutierrez, No. C046193, Slip op. at 4.
Petitioner's convictions were affirmed by the California Court of Appeal, Third Appellate District, on March 29, 2005. Gutierrez, No. C046193, Slip op. at 18. The California Supreme Court denied review on June 15, 2005. People v. Gutierrez, No. S133558, Slip op. (Cal. June 15, 2005) (available in the record at Lodged Document No. 5). The instant federal petition was timely filed on April 12, 2006. Docket No. 1.
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 an 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, 1149-50 (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).
Because the instant petition was filed after April 24, 1996, any claim therein that was adjudicated by a state court on the merits is governed by the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Where a state court has adjudicated the merits of a petitioner's claim, this Court, under AEDPA, may not grant relief unless the state court decision "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 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). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves an unreasonable application of Supreme Court case law if it "identifies the correct governing legal principle from [the Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id. To qualify as "unreasonable," it must be objectively unreasonable, a substantially higher threshold than merely incorrect. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939 (2007).
Clearly established federal law refers only to the holdings of the Supreme Court's decisions in effect at the time of the relevant state-court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006). In the absence of an applicable holding of the Supreme Court, it cannot be said that a state court decision is contrary to or an unreasonable application of clearly established federal law. See id. at 77. Finally, even if the AEDPA standard is satisfied, the Court cannot grant relief unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); Fry v. Pliler, 127 S.Ct. 2321, 2326-27 (2007) (Brecht standard continues to apply after enactment of AEDPA).
In applying this standard, a federal district 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). The Court presumes that the state court's findings of fact are correct, unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
I - Failure to Instruct That Lopez and Sandoval Were Accomplices as a Matter of Law
Petitioner argues his due process rights were violated when the trial court erroneously failed to instruct the jury that as a matter of law Lopez and Sandoval were accomplices to the Duran residence shooting and that Sandoval was an accomplice to Rodriguez's murder. Docket No. 1 at 7-17. He submits this prejudiced him because California law does not allow a conviction to rest upon the uncorroborated testimony of an accomplice. Id. at 8 (quoting Cal. Penal Code § 1111). Respondent argues that Petitioner has failed to raise a federal claim and that his state-law claim is without merit. Docket No. 9 at 29.
"It is not the province of a federal habeas court to re-examine state-court determinations of state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is also "well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). To support a collateral attack on the judgment, the question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," not merely whether "the instruction is undesirable, erroneous, or even 'universally condemned.'" Id. This standard applies to omitted instructions as well. Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001). However, where the defect is the failure to give an instruction, the burden is even heavier as an omitted or incomplete instruction is less likely to be prejudicial than an instruction that misstates the law. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
The Court of Appeal addressed this claim on direct appeal and found that the trial court had not erred in refusing the instructions:
The trial court instructed the jury that Lopez was an accomplice in the murder of Rodriguez as a matter of law. Defendant contends the trial court also should have instructed the jury that Sandoval was an accomplice in the murder as a matter of law, and that Lopez and Sandoval were both accomplices in the shooting at the Duran residence as a matter of law. He contends the trial court's failure to do so was prejudicial because there was no independent corroboration of Lopez's and Sandoval's testimony to his involvement in the crimes. In a supplemental brief, he further contends that because Lopez and Sandoval were accomplices as a matter of law and because there was no independent corroboration of their testimony, the evidence was insufficient to sustain his convictions for murder and shooting at an inhabited dwelling.
"A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (Pen. Code, § 1111.)
"An 'accomplice' is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime." (People v. Jones (1967) 254 Cal. App. 2d 200, 213.) "This... encompasses all principals to the crime [citation], including aiders and abettors and coconspirators [citation]. Whether a person is an accomplice is a question of fact for the jury, unless there is no dispute as to either the facts or the inferences to be drawn from them." (People v. McLain (1988) 46 Cal.3d 97, 106.) "If the testimony establishes that the witness was an accomplice as a matter of law, the jury must be so instructed." (People v. Zapien (1993) 4 Cal.4th 929, 982.) "[A] court can decide as a matter of ...