The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 8), and petitioner's reply (Doc. 61).*fn1
The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
The trial testimony, viewed in the light most favorable to the judgments, established the following facts. On January 28, 1999, two men kicked in the door of an apartment in the Southwood Estates apartment complex in Vacaville, where Cory Bonifacio and Ann Winston lived with their two children. Both Bonifacio and Winston and their children were home when the two men entered. Pepper, their two-year-old Rottweiler dog, was also in the house. One man, later identified as defendant Romero, wore a mask and carried a gun. The other man, later identified as defendant Fernandez, was not wearing a mask and was carrying a lead pipe.
Once in the kitchen of the apartment, Fernandez told Winston to get on the floor. Romero pointed his gun at the children and demanded money. He said, "[I]f you don't give me money, I will shoot your kids." When Bonifacio heard the noise, he came down to the kitchen. Romero pointed the gun at him and ordered him to get on the ground. In spite of the mask, Bonifacio immediately recognized Romero from his eyes, chin, and voice, having seen him twice before. Winston also recognized Romero's voice from a prior conversation she had with him in the neighborhood.
Once Bonifacio was on the ground in the kitchen, Fernandez hit him with his fist, and struck the dog in the head with the pipe. At some point, Fernandez pulled a gun out of his fanny pack and pointed it at Bonifacio, demanding that he give him money. Bonifacio took about $150 out of his pocket and Romero grabbed it.
Romero ran out of the door and Pepper chased after him. Fernandez also fled, but paused at the front door as if he were putting something into his fanny pack. When he paused, Bonifacio tackled him. While Bonifacio and Fernandez fought, Pepper had Romero pinned to the ground about 10 to 15 feet away. Romero's mask came off in the struggle and Fernandez clearly saw his face. Romero ran away with Pepper chasing him and Fernandez ran after them once he got away from Bonifacio. After defendants ran away, Winston and Bonifacio heard a single gun shot, and later they found Pepper dead with a gunshot wound in her chest. Winston and Bonifacio later identified Romero and Fernandez in photographic lineups.
Fernandez's wife, Gloria, eventually helped the police locate Fernandez and Romero in Colorado. Gloria testified that on January 26 she had rented Fernandez a U-Haul so he and Romero could move to Colorado where Fernandez's daughter, Desiree, lived. She and Fernandez had fought over the move, and that night she was arrested for domestic violence. When she was arraigned on January 28, Fernandez and Romero were present in the courtroom. By the time she was released that evening, however, Fernandez and Romero were gone and had taken all of her furniture. Gloria reported the theft to the police.
Rosie Aguayo, who had traveled with Romero and Fernandez to Colorado, testified that prior to leaving California, the U-Haul stopped at the Southwood Apartment Complex and Fernandez got out to see a friend. After about five minutes, she heard a noise that sounded like a backfire and then she heard a dog yelping. Shortly thereafter the U-Haul departed.
They arrived in Colorado two days later.
Investigators arrested Fernandez and Romero in Colorado and executed a search warrant for Desiree's house. The search turned up clothing that matched the descriptions of the clothing worn by the robbers on January 28th. Desiree testified at trial that the clothes seized from her house belonged to her. She also testified that Romero and Fernandez arrived at her house at about 11:00 p.m. during her anniversary party. She said her wedding anniversary is on January 28th. Gloria, however, testified that the anniversary, as recorded in her date book, is actually on January 30th.
Fernandez and Romero are father and son, respectively.
The state court recited the following procedural history through direct appeal:
Defendants Romero and Fernandez were charged by an amended information with first degree residential burglary in count one . . .; first degree residential robbery in counts two and three . . .; assault with a semiautomatic firearm in counts four, five, six, and seven . . .; and cruelty to an animal in count eight . . . . The amended information also alleged that both defendants used a firearm in the commission of the offenses . . .; that a principal in each of the above offenses was armed with a firearm. . .; and that Romero personally and intentionally discharged a firearm in the commission of the robbery. . . . On June 16, 2000, a jury found defendants guilty as charged. The jury found true all the firearm enhancement allegations against Romero, but found true only those enhancement allegations against Fernandez that did not require him to have been personally armed with a firearm. Defendants each filed a motion for a new trial that was denied.
Romero was sentenced to a total of 38 years in prison. The trial court sentenced him to the midterm of four years for first degree robbery, the midterm of two years for each of the four counts for assault with a semiautomatic firearm, and the midterm of eight months for cruelty to an animal. He was sentenced to an additional 25 years, 4 months for the firearm enhancements. Sentencing on all other counts and enhancement allegations was stayed . . . .
Fernandez was sentenced to a total prison term of 18 years. The trial court sentenced him to the midterm of one year four months for first degree robbery, the upper term of nine years for one count of assault with a semiautomatic firearm, the midterm of two years for each of the remaining three counts of assault . . ., and the midterm of eight months for cruelty to an animal. He was sentenced to an additional one year for the firearm enhancements. Sentencing on all other counts and enhancement allegations was stayed . . . .
Defendants' appeals were consolidated and the California Court of Appeal affirmed the judgments and convictions in an unpublished opinion issued on November 18, 2002. Fernandez filed a petition for review in the California Supreme Court on December 20, 2002. On December 31, 2002, petitioner Romero filed a separate petition for review joining in the arguments raised in Fernandez' petition. The California Supreme Court denied review without comment or citation on February 11, 2003. Petitioner Romero did not file any post-convictions actions in state court. The instant federal petition was filed on February 9, 2004.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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 (2000); Lockhart v. Terhune, 250 F. 3d 1223, 1229 (9th Cir. 2001). Thus, under § 2254(d), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 127 S.Ct. 649, 653-54 (2006). "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. Jan. 17, 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, ___ F.3d ___ (9th Cir. Sept. 15, 2008) (citing Wright v. Van Patten, 128 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 127 S.Ct at 654 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 127 S.Ct. at 653.
In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 293 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id.
State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See id.; see also Wiggins v. Smith, 123 S.Ct. 252 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 123 S.Ct. at 1175. This is because ". . . the gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. As with state court decisions which are "contrary to" established federal law, where a state court decision is an "unreasonable application of" controlling law, federal habeas relief is nonetheless unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.
The "unreasonable application of" standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982. The federal habeas court assumes that state court applied the correct law and analyzes whether the state ...