The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, proceeding with appointed counsel, has filed a petition pursuant to 28 U.S.C. §2254. Petitioner challenges his April 3, 2001, San Joaquin County jury trial conviction for three counts of attempted murder, with weapon enhancements found true and two counts of shooting at an occupied motor vehicle. The jury found that petitioner did not commit the acts with deliberation and premeditation. Petitioner was sentenced to a term of 35 years, 4 months. Amended Petition (AP), filed on March 6, 2006. Petitioner raises the following grounds for relief: 1) ineffective assistance of trial counsel; 2) failure to add jury instructions; 3) sufficiency of the evidence.*fn1 AP at 6-18.
For the reasons set forth herein, an evidentiary hearing is ordered on one aspect of the ineffective assistance of counsel claim; the remaining claims should be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
Legal Standards The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to' clearly established law as enunciated by the Supreme Court, and an "unreasonable application of' that law. Id. at 495, 117 S.Ct. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Evidentiary Hearing Standards
Federal courts may hold evidentiary hearings in habeas actions under certain prescribed conditions:
(2) If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant can show that-
(i) a new rule of constitutional law...; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
The United States Supreme Court has interpreted the opening paragraph of 28 U.S.C. § 2254(e) to provide that where a petitioner has exercised diligence to "develop the factual bases" of his claims in state court, the requirements of § 2254(e(2)(A) do not apply to his request for an evidentiary hearing. Williams v. Taylor, 529 U.S. 420, 435 (2000). In other words, a petitioner who has exercised such diligence will be taken out of the purview of section 2254(e)(2), or as the Ninth Circuit has sometimes termed it, subjected to the evidentiary standard in "pre-AEDPA" cases. Griffey v. Williams, 345 F.3d 1058 (9th Cir. 2003), vacated on other grounds as moot, 349 F.3d 1157 (9th Cir. 2003) (petitioner died); Williams, 529 U.S. at 430 (showing under § 2254(e)(2) "applies only to prisoners who have 'failed to develop the factual basis of a claim in state court proceedings.'").
Accordingly, "[a] petitioner who avoids the reach of § 2254(e)(2) qualifies for an evidentiary hearing if the petitioner alleges facts, that if proven, would entitle him to relief and the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts." Griffey, 345 F.3d at 1065 (citing Jones v. Wood, 114 F.3d 1002, 1010, 1013 (9th Cir. 1997)). "In other words, petitioner must allege a colorable constitutional claim." Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002). Nevertheless, the court does not have to hold an evidentiary hearing when the record clearly refutes the collateral factual allegations raised by petitioner. Schiro v. Landrigan, __U.S.__, 127 S.Ct. 1933, 1940 (2007). Moreover, Schriro also announced that in determining whether to grant an evidentiary hearing the federal court must apply the AEDPA deferential standards to legal and factual questions necessarily reached by the state courts. Id. Thus, for example, if the reasons for counsel actions were at issue, but under deferential standards, the court could not find prejudice, no evidentiary hearing would be necessary.
The opinion of the California Court of Appeal, Third Appellate District, contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
On Christmas afternoon 2000, Scott Fore and his family drove to Tracy on I-5.
As Fore started to exit the highway, a red Chevy Baretta came up on his left side, and Fore noticed a shotgun sticking up and out of the passenger's window. The gun was lowered as the Baretta passed the Fore's car. Fore braked sharply, and the Baretta cut in front of him. Fore called CHP on his cell phone and followed the car, staying a distance behind.
The Baretta was driven by defendant Mendoza, and [Petitioner] sat in the front passenger's seat. As they went down the street, Mendoza drove the car into the lane for oncoming traffic and next to a yellow Sentra. [Petitioner] fired a shot at the Sentra, breaking the rear passenger windows of the car, and hitting another vehicle as well. A young girl was sitting in the back seat of the Sentra. Although she was covered with shards of glass from the exploding windows, she was not hit or injured.*fn2 Mendoza continued driving at speeds of approximately 100 miles per hour, while he was chased for approximately three miles by pursuing patrol cars. Officers saw [Petitioner] holding a shotgun out of the window.
Mendoza eventually stopped the car on the side of the road. [Petitioner] had a difficult time getting out of the car with the shotgun, and had to be ordered to drop the weapon.
A Spanish-speaking officer, Officer Agraz, arrived at the scene to assist with the arrests. Defendants were smiling and giggling when they were apprehended. They had a difficult time following orders, and both appeared to be intoxicated. Their balance was poor and officers noticed the smell of alcohol.
Officers placed defendants in patrol cars. [Petitioner], who was placed in Officer Agraz's car, was very obstreperous and had to be restrained. He yelled, "Fuck you, police," in English, and later said in Spanish, "It's a good day to kill." He also said, "I want to go to prison, and my life-my life isn't worth a shit."
Officers searched the Baretta, and found a number of items, including a nearly empty bottle of tequila, four expended shotgun shells, and a bag of 29 unused shells. Officers retrieved the shotgun and found it to be loaded with live ammunition, including one round in the firing chamber. This could happen only if someone had "racked" the gun after it was fired at the Sentra.
A criminalist testified that the gun had a normal trigger pull and could not be discharged without pulling the trigger. The expended shells on the floor of the Baretta ...