The opinion of the court was delivered by: Mary M. Schroeder, United States Circuit Judge
On September 22, 2006, Maurice Cook ("Petitioner"), a California state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 23, 2007, Respondents filed an answer. On March 23, 2007, Petitioner filed a reply and supporting memorandum.
Petitioner asserts that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated by the individual and cumulative effects of several errors made by counsel on direct appeal in the state court. For the reasons set forth below, the petition for writ of habeas corpus is DENIED.
On March 13, 2003, Petitioner was convicted by jury in the Yolo County Superior Court of one count of second-degree murder (Cal. Penal Code § 187(a)); one count of discharging a firearm in a grossly negligent manner (Cal. Penal Code § 246.3); one count of possessing a firearm within ten years of a criminal conviction (Cal. Penal Code § 12021(c)(1)); and one count of carrying a loaded firearm in a public place or vehicle after a criminal conviction (Cal. Penal Code § 12031(a)(1), (2)(D)). Petitioner's sentence of 40 years to life included an enhancement for intentional use of a firearm causing death or great bodily injury under Cal. Penal Code § 12022.53(d).
On April 5, 2004, the California Court of Appeal affirmed Petitioner's convictions, and on June 9, 2004, the Supreme Court of California denied review. On June 2, 2005 and September 2, 2005, Petitioner filed two petitions for writ of habeas corpus in the Yolo County Superior Court. The Superior Court denied both petitions. Petitioner sought appellate review of the second petition; both the California Court of Appeal and the California Supreme Court denied relief.
On September 22, 2006, Petitioner filed this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his convictions violate his rights under the Sixth and Fourteenth Amendments.
The California Court of Appeal summarized the facts of the case as follows: Defendant, his two brothers, Antonio and Jamarl, and several other individuals were drinking alcohol, smoking marijuana, and listening to music in the parking lot of an apartment complex on the evening of April 3, 2002. One of those present was James Giles, who was wearing a blue shirt, a color associated with members of the Crips street gang. Defendant and his brothers were active members of the Oak Park Blood street gang.
At some point, Giles said to Antonio, "What's up, Loc?" It is disrespectful for a Crip to call a Blood "Loc." When defendant and Jamarl confronted Giles, who was sitting on the hood of a car, Giles got up and took off his jacket. Defendant interpreted this as preparation to fight. Defendant said, "I don't fight niggas no more, I kill niggers." He then walked to his car, retrieved a .38 caliber snub-nose revolver from the trunk, walked to within two feet of Giles, and fatally shot him in the chest and thigh.
After Giles was shot, defendant and his brother ran to their car and "peel[ed] out of the parking lot." Defendant fired one to five shots in the air from the vehicle as they were leaving. Although some at the scene had run away when the confrontation occurred, there were still people in the area when defendant discharged the gun from the vehicle. When the police arrived approximately 20 minutes later, there were 50 to 60 people at the crime scene area.
Defendant, who was arrested a short time later, initially denied any involvement in the shooting. In a second interview, he said that he shot Giles out of "stupidity" after Giles had pulled out a sharp object or knife. Defense The defense theory was that the killing was only voluntary manslaughter because defendant acted under a heat of passion, or he acted in an honest but unreasonable belief in the need to defend his brother, Jamarl, or he was too intoxicated to form the requisite specific intent.
Defendant testified as follows: he was drinking in the parking lot and listening to music with his two brothers and some other people. After Jamarl confronted Giles, defendant, whose vision was "blurred," saw a "sharp object" in Giles's left hand. Defendant walked over to his car, retrieved his gun, and shot Giles in the leg and chest because defendant was scared and thought that Giles was going to jump defendant's brothers. Defendant claimed that he accidentally fired off another round through the roof of the car as he was leaving.
In his federal habeas petition, Petitioner initially asserted that his constitutional rights were violated because the state court gave a flight instruction to the jury. Respondent rebutted this claim in its answer, and Petitioner subsequently conceded the claim in his reply. Petitioner's remaining claims arise under the Sixth and Fourteenth Amendments. Petitioner asserts that his counsel on direct appeal was ...