FINDINGS AND RECOMMENDATIONS
Petitioner, a state prison inmate proceeding pro se, challenges his Sacramento County conviction for first degree murder along with the special findings made by the jury.
Petitioner and co-defendants Craver and Shelmire were jointly charged in an amended information filed on July 21, 2003 with first-degree murder of Justin Roberts, as well as robbery murder and burglary-murder special circumstances; it was further alleged that a principal was armed with a firearm during the commission of the offense. CT 56-57. Although the defendants were tried together, three juries were impaneled. See RT 71, 91-93.
The jury returned a guilty verdict against petitioner for first-degree murder. The jury also found that the burglary-murder special circumstance and the firearm allegation were true, but rejected the robbery-murder special circumstance. RT 522-524.
Petitioner has not raised any intrinsic challenge to the facts as found by the state court. Therefore, after a review of the record, this court accepts the California Third District Court of Appeal's statement of facts and adopts it for the purposes of this petition:
The victim, Justin Roberts, was allowed to grow medical marijuana at his residence. Prior to September 14, 2001, he had been growing marijuana on the back patio of his Sacramento apartment for about two months. Roberts lived with his girlfriend, Sally Lewis; their two children; Lewis's brother, Levi Lewis; and their roommate, Eric Aguiar, who slept on their couch.
On September 13, 2001, co-defendant Andre Craver called defendant and told him to expect a visit and to "be ready at night." At some point that day, Craver told defendant that he had a "lick" or a "gig." The word, "lick," meant a robbery. Craver stated that he and co-defendant Eric Shelmire knew where to go to get marijuana. Craver told defendant there was a "nice amount of weed" at the location and asked if he wanted to help out. Defendant agreed to go along. Later that night, Craver and Shelmire arrived at defendant's residence. Craver said, "'Let's go do this,'" and introduced defendant to Shelmire. Defendant dressed himself entirely in black, including shoes, pants, shirt, sweatshirt, and beanie. Craver was wearing all black, including a ski mask that covered his whole face with the eyes and nose cut out. Shelmire also was wearing all black, including a beanie and a sweatshirt with a hood. Defendant admitted they wore black because it was "the best color not to be seen."
Craver and Shelmire traveled in one car and defendant followed in his own car. They arrived at an apartment complex off of Auburn Boulevard. The three men entered the complex on foot. Shelmire carried a two-foot-wide duffel bag and opened a security gate by entering the correct code on a keypad. The three men walked to Roberts's apartment and noticed that a window was open. Defendant saw Craver pull a handgun from his waistband. Craver slid the window fully open and entered the apartment through the window. Defendant followed directly behind Craver. The interior of the apartment was almost completely dark.
Aguiar testified that an unknown intruder landed on top of him as he slept on the couch near the window. The intruder struck Aguiar on the head with an unknown object, and the two began to fight on the couch. During the struggle, Aguiar grabbed the intruder by the neck, pulled him close, and felt for his nose. Aguiar followed the intruder's nose to his eye and shoved his finger into the intruder's eye. When he did this, the intruder started screaming, "'I need help.'"
After the intruder yelled for help, Roberts emerged from his bedroom and ran down the hallway. He turned on the hallway light switch. Almost immediately thereafter, three gunshots went off in quick succession. No words were spoken when the gun was fired. Immediately after the shots were fired, the intruders left the apartment through the window. Defendant ran to his car and noticed that Craver's car was already gone. Defendant got into his car and drove home.
Following the gunshots, Aguiar began to collect his thoughts. Seeing that the bathroom light was on, he knocked on the closed door and got no response. The door was obstructed and blood was visible on the bathroom floor. Aguiar forced open the door and found Roberts laying on the floor bleeding. Roberts died as a result of a gunshot wound to the chest.
Within an hour of the struggle, a tissue sample was taken from beneath the fingernail of the finger that Aguiar pushed into the intruder's eye. The DNA in the tissue sample matched DNA obtained from Craver at the jail.
Lodged Doc. No. 3 at 2-4 (Opinion of Third District Court of Appeal; internal footnotes omitted).
II. Standards Under The AEDPA
An application for a writ of habeas corpus by a person in custody under a 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). 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) (referenced herein in as "§ 2254(d)" or "AEDPA"). See Ramirez v. Castro, 365 F.3d 755, 773-75 (9th Cir. 2004) (Ninth Circuit affirmed lower court's grant of habeas relief under 28 U.S.C. § 2254 after determining that petitioner was in custody in violation of his Eighth Amendment rights and that § 2254(d) does not preclude relief); see also Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003) (Supreme Court found relief precluded under § 2254(d) and therefore did not address the merits of petitioner's Eighth Amendment claim).*fn1 Courts are not required to address the merits of a particular claim, but may simply deny a habeas application on the ground that relief is precluded by 28 U.S.C. § 2254(d). Lockyer, 538 U.S. at 71 (overruling Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir. 2000) in which the Ninth Circuit required district courts to review state court decisions for error before determining whether relief is precluded by § 2254(d)). It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an ...