FINDINGS AND RECOMMENDATIONS
Petitioner Ty Erik Lopes is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner is currently serving a sentence of life, without the possibility of parole, following his 2002 convictions for first degree murder, rape, and special circumstance enhancement that the murder occurred during commission of the rape. Petitioner sets forth various allegations in ten separate claims which have been reorganized for purposes of this opinion into the following claims: (A) the rape charge and special circumstance enhancement were illegally re-filed after the preliminary hearing and should have been set aside by the court; (B) the trial court erred in denying petitioner's motions for acquittal because there was insufficient evidence to support a conviction; (C) the prosecutor committed several Brady violations; (D) the prosecutor engaged in prosecutorial misconduct; (E) petitioner received ineffective assistance of counsel at trial and on appeal; (F) the trial judge made two evidentiary rulings in error; and (G) the trial judge committed an instructional error. For the reasons that follow, the claims are without merit and the petition should be denied.
The following factual summary of the evidence adduced at petitioner's trial is drawn from the unpublished opinion of the California Appellate Court, Third District, Case No. C047680.*fn1
In June 2000, the body of the 18-year-old victim was found at the construction site of a Home Depot. The cause of death was ligature strangulation, and there were signs of manual strangulation. The marks on the victim's body were consistent with being strangled by her bra and the beads that she wore around her neck.
Josh B[urroughs], who was 14 years old at the time of the murder, testified that he was at a party at a Home Depot construction site around Memorial Day 2000. Also present were defendant, the victim, and the victim's boyfriend, Jacob Silva. At the party, Josh saw the victim and Silva arguing, and also saw Silva strike the victim at least twice. Josh testified he left the party shortly thereafter.
Manteca Police Sergeant Anthony Souza interviewed Josh while investigating the victim's murder. Souza took Josh to the Home Depot and, although it looked substantially different, Josh led Souza to nearly the precise location where the body had been discovered. Josh accurately described how the area looked on the night of the murder and the condition of the victim's clothing when the body was discovered.
Prior to a second interview, Josh asked to visit the victim's grave. After staring at the grave, he described what happened the night of the murder. Defendant, Silva, and Raymond Goans were present. Defendant brought alcohol. Silva beat the victim and dragged her from the back rooms to the spot where her body was found. Defendant, Goans, and Silva had sexual intercourse with the victim there. At some point, Silva choked the victim with her bra. Defendant then choked her, holding her up like a "hangman" until she went limp. Goans and defendant then moved the body a couple of feet and covered it.
In a third interview, Josh told police that Silva choked the victim with his hands before beating her and that, although she had only one beer at the party, the victim was acting as if she had too much to drink.
At trial, Josh testified that he lied to police during the interviews because he was afraid of bad consequences if he snitched. He also was afraid of getting hurt if he testified at prior court appearances. Defendant threatened Josh by telling him, "You're going down, punk."
Marcus Hopkins testified that while they were in jail together in April 2001, defendant told him about being with Silva and the victim at a party at a Home Depot construction site. Defendant brought beer and ecstasy, and someone gave ecstasy to the victim. The victim and Silva then had a fight. Defendant said he held the victim's wrists, thinking that she and Silva were playing. When defendant realized the victim was crying, he let her go. Silva had been having sex with the victim while defendant was holding her down. Defendant told Hopkins that police examining the victim would find DNA evidence from Silva and Goans but not from him. In exchange for his testimony, Hopkins had three felony counts dismissed. His sentence on the remaining counts was stayed, and he was released from custody.
Charles Cooper testified that while he and defendant were in jail together, defendant said he was charged with the victim's murder. Defendant admitted having sex with the victim but claimed Goans had killed her. Defendant explained that events got out of hand when the victim indicated she was going to call the police. When Cooper asked defendant if he killed her, defendant said "they" strangled her and "they" had to get rid of the evidence. Defendant told Cooper they put rags in the victim's mouth and strangled her but did not mean to kill her. Defendant indicated the murder took place over Memorial Day weekend at a Home Depot that was under construction.
Cooper had a lengthy criminal history, was in jail on numerous charges, and testified he was afraid he would be killed if sent to prison. In exchange for his testimony, Cooper was allowed to serve his time in Humboldt County, where he was placed in an alternative work program. After two days in the work program, Cooper left and remained at large until just before trial.
(C047680 Opinion at 1-2.)
Petitioner was convicted of rape, murder, and the special circumstance enhancement that the murder occurred during commission of the rape.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
The "contrary to" and "unreasonable application" clauses of §2254(d)(1) are different. Under the "contrary to" clause of §2254(d)(1), a federal court may grant the writ only 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 the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. As the Third Circuit has explained, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3rd Cir. 1999) (en banc) (emphasis in original). The state court is not required to cite the specific controlling test or Supreme Court authority, so long as neither the reasoning nor the result of the state court decision contradict either. Early v. Packer, 537 U.S. 3, 8-9 (2002).
The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle but unreasonably applies it to the facts of the particular case. Williams, 529 U.S. at 410. The focus of this inquiry is whether the state court's application of clearly established federal law is objectively unreasonable. Id. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
This court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). If relief is precluded by 28 U.S.C. §2254(d), the court may deny the petition without addressing the merits of the claim. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
IV. ANALYSIS OF PETITIONER'S CLAIMS
A. Rape Charge and the Special Circumstance Enhancement
Petitioner alleges that the rape charge and special circumstance enhancement were illegally re-filed after his preliminary hearing and that the magistrate judge should have granted his motion to set them aside. (See petition, grounds one and two.)
Petitioner was charged with murder, rape, and the special circumstance enhancement that the murder occurred during commission of the rape. (CT at 1-3.) At the preliminary hearing, the magistrate judge found sufficient cause to sustain the murder charge, but did not find sufficient cause to hold petitioner over for the rape and special circumstance enhancement charges at that time. (CT at 726).
The district attorney subsequently re-filed all charges in an information. (CT at 730-32.) Defense counsel moved to set aside the rape charge and special circumstance enhancement pursuant to California Penal Code § 995. In the motion, defense counsel argued that the charges could not be re-filed because the magistrate judge had made adverse factual findings at the preliminary hearing and made a determination of insufficient probable cause. The motion was denied and the charges were not set aside. (RT at 794.)
On review of petitioner's application for writ of habeas corpus, the San Joaquin Superior Court held that nothing in the magistrate judge's ruling or his statements at the preliminary hearing precluded the prosecution from re-filing the rape charge and special circumstance enhancement. (SP 080354B opinion at 1-2.*fn2 ) Citing Jones v. Superior Court, 4 Cal.3rd 660 (1971) and People v. Day, 174 Cal.App.3d 1008 (1985) for the applicable California law, the state superior court found that the magistrate judge did not make any factual findings and determined that the defense motion was properly denied by the trial court. (SP080354B opinion at 1-2.) This decision ...