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 challenges a 2004 judgment of conviction and sentence entered in the Superior Court of California, Sacramento County, on one count of robbery and enhancements for the personal discharge of a firearm and prior convictions that qualified as strikes under California's Three Strikes Law. Petitioner alleges relief is warranted on the following grounds: (1) erroneous jury instruction concerning third-party threats against the victim; (2) failure to give Miranda warning before questioning; (3) misjoinder of firearm enhancement; (4) ineffective assistance of counsel; and (5) prosecutorial misconduct. Docket No. 1. Respondent asserts that Petitioner's last ground is unexhausted and that all the grounds fail on the merits. Docket No. 14. Petitioner has filed a Traverse. Docket No. 16. The petition will be denied for the reasons set forth below.
In an unpublished opinion filed on October 31, 2005, the California Court of Appeal, Third Appellate District, summarized the factual background of the offense and trial:
On March 3, 2004, at approximately 11 a.m., Sajid Zaman Khan was driving his pickup truck on Beaumont Street in Sacramento. As he approached a stop sign at the intersection of Beaumont Street and Eleanor Avenue, a man waved at him and cried, "Stop, stop, stop." While Khan was distracted by this man, another man (who was later identified as defendant) climbed through his driver's side window, half-way inside his truck, and grabbed his neck and his cell phone. Defendant then climbed out of the truck and told Khan, "Don't move or I'll kill you." When Khan saw defendant had a gun, he bent down. Defendant then fired a shot and ran away.
Khan continued down Beaumont Street and saw two police officers at the next stop sign. He told Sacramento Police Officer Timothy Chan that he had just been robbed at gunpoint and asked Officer Chan to follow him back to the scene of the crime. Officer Chan did so, and on the way, Khan pointed out defendant and the man who waved him down.
Officer Chan ordered both men to stop and to get on the ground. Defendant, who was wearing a green jacket, continued walking while the other man stopped. Officer Chan again ordered defendant to get on the ground and stop, but defendant ignored him. When Officer Chan continued after defendant, defendant took off running. Officer Chan followed until defendant jumped over a fence. Officer Chan then instructed dispatch to "set up a perimeter." [Footnote 2]
[Footnote 2: Officer Chan explained that for reasons of "officer safety, you never bail over a fence after someone that's potentially armed with a gun."]
Defendant was found hiding in the laundry room of a nearby apartment complex. Although he was no longer wearing a green jacket, a green jacket was recovered from inside one of the laundry room clothes dryers.
Officer Chan identified defendant as the person who had fled from him. Later that day and again at trial, Khan identified defendant as the person who robbed him.
At least three people witnessed the incident. Patrick Williams, a mower operator for the City of Sacramento Parks Department, saw the incident from the department's corporation yard at the intersection of Beaumont Street and Eleanor Avenue. Williams saw Khan's vehicle "jerking" forward and "a pair of legs hanging out of the driver's side window." He then saw the person hanging from the window jump back from the car and fire a shot at the driver of the car. He saw the gun in the person's hands and observed "gun smoke" after the gun was fired. He testified the shooter was African American but said he would not be able to recognize him if he saw him again.
Edward Saenz, a parks supervisor for the Parks Department, was also working at the corporation yard at the time of the incident. He, too, saw Khan's truck "jerking" and a "guy in the [driver's side] window of the truck." As he approached Khan's truck to see if he could help, he saw a man "jump out" of the truck and immediately heard a gunshot. He did not see a gun; he only heard the shot. He testified the person who jumped out of the truck was African American but said he would not be able to recognize him if he saw him again.
Janeth Cincineros Sanchez witnessed the incident from her cousin's second floor window. Sanchez testified she saw an individual hitting Khan through the window of his truck. She then "put [her] head back in the window, and then . . . heard gunshots." When she looked out the window again, the man who had been hitting Khan was backing away from the truck. According to Sanchez, the man was wearing a green jacket. At trial, Sanchez identified defendant as the person she saw hitting Khan through the window.
Gunshot residue was found on the right cuff of the green jacket recovered from the laundry room.
The defense called one witness: private investigator Thomas Paul Heffernan. Heffernan testified that he met with Khan on two occasions. On the first occasion, Khan told Heffernan "he never saw the guy fire [the gun] and [did not] know where the gunfire came from." The second time Heffernan met with Khan, Khan told Heffernan "the two guys charged in this case were not the right guys." During the second meeting, Khan mentioned being "under pressure" at least four times.
People v. Collins, No. C048197, Slip op. at 2-5 (Cal. Ct. App. October 31, 2005) (available in the record as Lodged Document No. 4).
Petitioner timely appealed his conviction, arguing that the trial court erred when it instructed the jurors they could use evidence of third party threats against a witness to show Petitioner's state of mind. Lodged Document No. 1. The Court of Appeal affirmed Petitioner's convictions in a reasoned opinion filed October 31, 2005. Collins, No. C048197, Slip op. at 9. The Supreme Court of California denied review without comment on January 18, 2006. People v. Collins, No. S139530 (available in the record as Lodged Document No. 6). Petitioner thereafter filed a petition for writ of habeas corpus with the superior court, arguing that relief was warranted because (1) the arresting officers questioned Petitioner before giving him Miranda warnings; (2) the trial court erred by allowing the prosecutor to charge the personal discharge of a firearm enhancement based on a toy gun; (3) trial counsel rendered ineffective assistance when he failed to object to inadmissible evidence and failed to advance Petitioner's cause at trial; and (4) appellate counsel rendered ineffective assistance when he failed to raise these issues on direct review. Lodged Document No. 7. The Superior Court of California, Sacramento County, denied the petition in a reasoned opinion on September 27, 2006. Lodged Document No. 8. Petitioner then filed a petition for writ of habeas corpus with the Court of Appeal, raising the same grounds contained in his petition to the superior court, and adding a claim that the prosecutor committed misconduct by introducing the victim's perjured statement at trial. Lodged Document No. 9. The petition was denied without comment on January 25, 2007. Id. Petitioner raised the same arguments in a petition for writ of habeas corpus before the California Supreme Court. Lodged Document No. 10. The petition was denied without comment on July 18, 2007. Lodged Document No. 11.
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). Where a state court has "silently denied" a claim on the merits without explaining its ratio decidendi, a district court independently reviews the record to determine if the denial was an unreasonable application of clearly established federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006).
I. Jury Instruction Regarding Third-Party Threats
Petitioner alleges that he was denied a fair trial by the trial court's instruction that the jurors could consider third-party threats against a witness as to Petitioner's state of mind. Respondent contends this claim must be denied because the Court of Appeal's conclusion that the error was harmless was not an unreasonable application of clearly established federal law.
"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 ...