The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with appointed counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 62) and respondents' answer (Doc. 68). Petitioner has not filed a reply.
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 5:45 p.m. on July 2, 1998, defendant entered the 98 Cent Clearance Center on Greenback Lane in Citrus Heights and approached Assistant Manager Barbara Bradley who stood at register 5. He asked Bradley for his backpack which he claimed he left at register 6. Bradley told him that if he left it at that register to check there. Checker Julie Rosensteel did not see a backpack at register 6 and so reported. Bradley headed to the floor safe located at register 6 to change a $50 bill. As soon as Bradley bent down and opened the store safe, defendant used a thrusting motion with the upper portion of his body to push Bradley. He then said, "what I want is in there," and he grabbed a plastic box which contained $1,305. Bradley fell over on her side hitting the safe door. Defendant fled out the front door with a customer, Curtis Richardson, in pursuit yelling, "stop, thief."
In the parking lot, two other men, Scott Hargrove and George Kessler, III, joined the chase. Defendant jumped into the driver's seat of a car parked in the lot and tried to start the car. His pursuers surrounded the car. Richardson grabbed at the keys and then the plastic box with the money on the console. Defendant started to rummage around in the car stating, "Where's my fucking gun." Kessler and Hargrove dragged defendant out of the car and, along with Richardson, detained defendant until the police arrived.
No backpack was found in the store.
When interviewed by Sacramento County Sheriff's Deputy Michael Goold, defendant gave a false name and birthdate. Defendant explained that he had gone to the grocery store to get a soda and he saw people chasing another man. When the man fled past defendant, the people started chasing defendant. Defendant dove into the car to get away from the people chasing him. He did not know how the keys got into the car nor how the money got into the car. He said the man the people had originally been chasing had money. Defendant denied having been in the 98 Cent store. The officer spent about seven hours with defendant who seemed coherent, understood the questions, and responded appropriately. Defendant never said anything about having used drugs.
Defendant testified and admitted reaching into the safe and taking the money in the plastic box. He claimed he was "high" and "tripping." He then "panicked" and fled from the store. Earlier in the day, he had smoked marijuana and suggested that it had been laced with some other drug, maybe cocaine. When he grabbed the money, he did not know what he was doing. He denied "deciding" to use his upper body to knock over Bradley. In the process of reaching for the box, defendant claimed his upper body hit her and knocked her to the ground.
Defendant admitted having 10 prior serious felony convictions. A defense psychologist who specializes in the effects of psychoactive drugs testified that cocaine increases impulsiveness and causes a person to have reactions similar to an adrenaline rush. The psychologist had no opinion whether defendant reacted the same from cocaine because the toxicology did not reflect how much cocaine was in his body.
When defendant was arrested, he complained of chest pains. At the hospital, defendant tested positive for cocaine. The treating physician explained that defendant stated he had ingested cocaine several days before but said nothing about ingesting cocaine or any other drug that day.
Petitioner was convicted of second degree robbery and the court found true the allegation that petitioner had two prior serious felony convictions. Petitioner's motion to strike one of the prior convictions was denied and petitioner was sentenced to a prison term of 25 years to life under California's three strikes law. The California Court of Appeal affirmed the conviction and sentence on direct review. The California Supreme Court denied direct review and petitioner's habeas corpus petition, both 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 ...