The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks to challenge his 2003 conviction for receiving stolen property. He alleges relief is warranted on the grounds that: (1) his rights to due process and compulsory process were violated when the prosecutor selectively granted immunity to only one of two percipient witnesses who were otherwise unavailable because they exercised their Fifth Amendment right to avoid self-incrimination; (2) his due process rights were violated when the trial court gave a "dynamite" instruction to the jury after it indicated it was deadlocked; and (3) his Sixth Amendment rights were violated when the trial court impermissibly relied on judge-found facts to impose the upper term in accordance with California's determinate sentencing scheme. Docket No. 1. Respondent asserts that Petitioner's arguments fail on the merits. Docket No. 9. Petitioner did not file a Traverse. The Petition shall be denied for the reasons set forth below.
In an unpublished opinion filed on October 4, 2005, the California Court of Appeal, Third Appellate District, summarized the factual background of the offense and trial:
On February 26, 2002, 14-year-old Edgar stole two bracelets, some alcohol, and miscellaneous other items from his next-door neighbor. He took the loot to his friend Albert's house. Albert is defendant's nephew. That afternoon defendant went to Albert's house and saw the bracelets sitting on top of a compact refrigerator in Albert's room. Edgar, believing the bracelets were fake, sold one to defendant for $8. Defendant told the boys he wanted to buy the bracelet for his girlfriend.
The neighbor discovered the burglary later that day and solicited Edgar's help in finding her stolen bracelets. She explained, apparently to both boys, that the bracelets were very important to her because she had inherited them from her mother. She offered a $5,000 reward for the return of the bracelets, one consisting of sapphires and diamonds and the other known as a "tennis bracelet" consisting of approximately 38 stones with a separate gold metal jacket the bracelet sat in. Defendant had purchased the tennis bracelet.
Edgar testified he rode his bike to defendant's house and asked defendant to return the bracelet because there was a $5,000 reward for it. Defendant told him he had already sold it for $100. The boys returned the sapphire bracelet. Edgar told his neighbor that Albert purchased the bracelet from a guy at an Exxon station for $50. She gave him a check for $50 and later another one for $500 to encourage him to keep looking for the tennis bracelet. A few days later, the neighbor reported the burglary to the police.
Defendant eventually gave the bracelet to his girlfriend as a late Valentine's Day gift. He told her he bought the bracelet from his nephew. As the only witness for the defense, the girlfriend testified that although she liked the bracelet, she returned it to defendant because it was too big and fell off her hand. On March 18, 2002, she and defendant went to a pawnshop to have a ring sized. The owner offered defendant $800 for the bracelet but referred him to a jeweler who he believed would pay more.
There was considerable testimony about the value of the bracelet and its appearance before the jeweler cleaned it. The jeweler told defendant the diamonds in the bracelet were low-grade quality. After asking defendant if he was the owner and obtaining his identification, the jeweler paid defendant $1,300 for the bracelet. The transaction was recorded on videotape. The jeweler testified defendant did not seem nervous or in a hurry. Defendant's girlfriend left her ring with the jeweler to be sized.
During the police investigation, a detective contacted local pawnshops and located the missing bracelet. The jeweler informed the investigator that defendant's girlfriend would return for her ring. When she did, the police informed her the bracelet had been stolen.
Defendant's girlfriend made arrangements with the jeweler to repay the $1,300 he lost in the transaction. She made regular payments, purportedly on defendant's behalf. By the time of trial, they had paid the jeweler $700.
People v. Renfro, No. C044390, 2005 Cal. App. Unpub. LEXIS 9029, *2-6 (Cal. Ct. App. Oct. 4, 2005).
Petitioner appealed his conviction making the same arguments presented in the instant petition. The Court of Appeal affirmed the conviction in a reasoned opinion issued October 4, 2005. Id. The Supreme Court of California denied review without comment on December 14, 2005. People v. Renfro, No. S138542, 2005 Cal. LEXIS 13939 (Cal. 2005). The instant federal petition was timely filed on April 11, 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).
Petitioner argues his rights to due process of law and compulsory process were violated when the prosecutor refused to grant Albert immunity so that he would be available as a defense witness at trial. Respondent contends the Court of Appeal's decision denying this claim is not an unreasonable application of clearly established federal law.
The Court of Appeal addressed this claim on direct review:
Defendant attempts to invoke a narrow federal exception to the general rule that a criminal defendant cannot compel the government to grant immunity to a witness. The Ninth Circuit Court of Appeals has recognized such an exception "where the fact-finding process is intentionally distorted by prosecutorial misconduct, and the defendant is thereby denied a fair trial." (United States v. Westerdahl (9th Cir. 1991) 945 F.2d 1083, 1086.) In order to fall under the Ninth Circuit exception, the defendant must show that "(1) the testimony was relevant; and (2) the government distorted the judicial fact-finding process by denying immunity." (United States v. Young (9th Cir. 1996) 86 F.3d 944, 947.) The distortion must be intentional. (Id. at p. 949.)
The Attorney General insists that defendant waived the immunity issue by failing to request the court to grant Albert immunity at trial and, more substantively, that there is no such exception recognized in California. We reject the Attorney General's rigid application of the waiver doctrine. The record is replete with defense counsel's complaints that his client's right to a fair trial had been impinged by the prosecutor's selective grant of immunity. Defense counsel expressed resignation and frustration that the trial court could not, at his behest or on its own initiative, grant immunity to a defense ...