FINDINGS AND RECOMMENDATIONS
Petitioner Melvin L. Brown is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner was convicted by jury of first degree murder in the San Joaquin County Superior Court, case SF83625A, and was sentenced to a prison term of 25 years to life. Petitioner has presented three grounds for relief, reorganized for clarity into the following three claims: (A) there was insufficient evidence to support the first degree murder conviction; (B) the conviction should be set aside based on newly discovered evidence; and (C) trial counsel rendered ineffective assistance. For the reasons that follow, the claims are without merit and the petition must be denied.
The following background summary was set forth in the unpublished opinion of the California Court of Appeal, Third District, No. C043093.*fn1 Petitioner is the defendant referred to therein.
In August 2001, Abel Roque lived with his girlfriend, Marlo McKnight, in an apartment on San Joaquin Street in Stockton. Previously, McKnight had lived with her uncle, William Brown, in another apartment in the same complex. After McKnight moved in with Roque, defendant moved in with [Brown, who was his father.] Defendant is McKnight's first cousin.
On the evening of Wednesday, August 22, 2001, Stockton police officers responded to Roque's apartment to investigate a report of a foul odor. A "do not disturb" sign was taped on the front door, which was locked. The porch light bulb had been unscrewed. Officers kicked in the door. Most of the lights in the apartment were turned off. In the bedroom, officers found Roque's body lying on top of the covers on a bed, next to an empty bottle of Southern Comfort. Beer cans were also in the bedroom. Roque's throat and face were cut. There were no signs of a struggle, burglary or robbery. Based on the blood smears, he had been killed while sleeping on his back. A fan, which was next to the bed, was on at the time of the killing. In the kitchen, officers found an ice chest and some more beer cans.
An autopsy revealed that Roque had a seven-inch-long incised wound to his neck caused by an edged instrument such as a knife. The wound was potentially fatal. His left ear had been cut off. He also had a laceration and skull fracture caused by a blunt instrument such as a hammer. This wound was also potentially fatal. The cause of death was the loss of blood from the neck and ear wounds plus the blunt force trauma to his head. His blood-alcohol content was .28 percent. Roque died sometime between late Sunday, August 19, 2001, and early Tuesday, August 21, 2001. A criminalist observed no defensive wounds on Roque's body. Late Saturday, August 18, 2001, Roque and Tony Watkins, another resident of the complex, scuffled over a dent in Watkins' car which he claimed Roque caused. Roque was drunk. Watkins hit Roque and pushed him down the stairs. Victor Sheldon, another resident, attempted to break up the fight. McKnight claimed she and Roque left the apartment complex and went to Oakley, where her parents lived, because Watkins had threatened Roque. However, she had agreed to housesit a home located just around the corner from her parents' home.
On Sunday, August 19, 2001, Sheldon saw defendant at the apartment complex and explained that he needed his van, which he had loaned to Roque, on Monday to go to work. Defendant said he knew; he appeared to be in a hurry.
McKnight claimed that Roque and defendant were with her in Oakley on Sunday evening. Roque and defendant argued and McKnight told them to leave. Roque left in a Rambler and defendant followed in the van. They returned when there was a problem with the van. Roque and McKnight argued and McKnight told him to leave. Defendant and Roque left in the Rambler. McKnight claimed she never saw Roque again.
Paul Martin saw Roque at 2:40 a.m. on Monday, August 20, 2001. Martin was waiting on his balcony for his ride to work. Roque and defendant drove up in Roque's Rambler. Martin declined Roque's invitation to join them for a beer, but when Roque claimed they were "partying" all night, Martin said he would stop by at noon when he got off work. Roque told him to just knock on the door. Martin went by Roque's apartment at 12:30 p.m. and found a "do not disturb" sign on the door. Martin had never seen the sign before although another resident claimed to have seen it on Saturday, August 18 and McKnight claimed she and Roque put up the sign a couple of days before Roque's death. [Martin] noticed that Roque's Rambler and possibly the van were gone. Martin did not see McKnight on Monday, Tuesday or Wednesday.
On Monday, August 20, 2001, or Tuesday August 21, 2001, McKnight saw defendant wearing Roque's pants and Raiders jacket and carrying a backpack. According to McKnight, defendant explained that Roque had given him the clothes. McKnight denied telling a detective that defendant pulled some of Roque's belongings out of the backpack. McKnight asked defendant about Roque's whereabouts but defendant did not respond. McKnight's sister, Tammy, also saw defendant wearing a black leather jacket but did not recall whether there was a Raiders insignia on it. Defendant explained to Tammy that he and Roque had argued about Roque's drinking, that Roque's Rambler broke down and that a friend drove defendant to Oakley. According to Tammy, McKnight had a bruise under one eye and a mark under the other. Tammy knew that defendant and McKnight were close and defendant "was pissed off because [Roque] hits [ ] [McKnight] all the time." One time, Roque set McKnight's hair on fire. Defendant had told Tammy that Roque would "get his."
That Monday, McKnight called Sheldon and asked whether he knew the whereabouts of Roque. Sheldon had not seen Roque since Saturday evening. Sheldon had previously heard defendant threaten to kill Roque.
Wednesday afternoon, McKnight decided to go to Stockton. Defendant tried to persuade her not to return to the apartment and told her that Roque was dead. Defendant stated that he had "whacked" Roque. McKnight returned to Stockton with defendant and a friend of Tammy's. McKnight went to Sheldon's apartment asking if he knew the whereabouts of Roque, but telling Sheldon that Roque was dead. McKnight later denied telling Sheldon that Roque was dead. Sheldon wanted the keys to the van but McKnight refused. McKnight went to Richard and Irene Hembry's apartment and asked Richard to break into Roque's apartment. On previous occasions when McKnight was locked out of Roque's apartment, McKnight had borrowed a butter knife or other tools from the Hembrys to either pop the window open or to open the locked door. McKnight was concerned because Roque had never been away for so long; she told the Hembrys that he was dead. Richard Hembry went to Roque's apartment with his son, smelled a strong odor, and his son called 911.
McKnight left with Tammy's friend, defendant and William Brown. McKnight told Brown that defendant claimed to have killed Roque and asked if that was possible. Brown believed that defendant was not serious and when confronted, defendant denied it. Brown had to break up a fight between defendant and Roque a few days before Roque's body was found. Brown opined that defendant and McKnight appeared to have been on methamphetamine for a number of days. Brown returned to his apartment and defendant and McKnight went to Oakley to her parents' home. The next day, police searched both Oakley homes. They found a Raiders jacket and a backpack with several pieces of identification belonging to defendant in the home McKnight was house-sitting.
In August 2001, McKnight's father discovered a boot knife with a two and a half inch blade missing from his car. His discovery occurred shortly after defendant had been in the car. (C043093 opinion at 1-3.)
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).