FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding with an amended application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner was convicted in 2002 of first degree murder (Cal. Pen. Code §187), attempted murder (Cal. Pen. Code §664, 187), and firearm use for the benefit of a criminal street gang (Cal. Pen. Code §12022.53). He is serving a total sentence of 82 years-to-life imprisonment and seeks relief on the grounds that he was convicted with constitutionally insufficient evidence; his trial counsel rendered ineffective assistance of counsel in multiple respects, including cumulatively; and his Sixth and Fourteenth Amendment rights were violated by the trial court when he was ordered to serve consecutive sentences. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied, as explained below.
On direct appeal, the California Court of Appeal summarized the facts presented at trial as follows:
This incident involved a gang-related shooting at an adjacent car on a freeway on the night of October 19, 1998.
On that night, Mike Xiong, along with several other persons in his car, picked up his friend, Gao Vue, near the home of Her Yang. Before Gao got into Mike's car, he had walked by Her's house. There were a number of people at Her's place at this point, including defendant, co-defendant David Her, co-defendant Russo Vang, Pou Vue, Molia Yang and May Cha. (In a joint trial, a separate jury convicted David of the same offenses as defendant, but deadlocked regarding Russo. Her Yang is also known as Billy; defendant as Gizmo; David as Dino.) Earlier that evening, May had seen David with a handgun, and Pou and Molia had seen Russo with a sawed-off shotgun.
As Gao walked by Her's house, there were several young men out front, including Pou. After Pou commented, "Who is that guy in front of the street?" and "How come he's looking over here?," some of these young men yelled something at Gao. Gao ran toward Mike's car and off they went.
At that point, Pou saw defendant, David and Russo, who still had the big gun with him, get into defendant's car and follow Mike's car. One of Mike's passengers said someone was following them. (Molia had accompanied defendant to Her's house on the night of October 19. While in the bathroom at one point, she heard some cars leaving. When she came out, she noticed that defendant, David, and defendant's car were gone.)
Mike got onto the freeway. Shortly thereafter, a car pulled alongside in the lane to his left (i.e., the fast lane). The cars were traveling about 70 miles per hour. The adjacent car's front seat passenger then displayed the "CK" hand gesture, signifying "Crip Killer." The back seat passenger inserted a magazine into a handgun and fired three to four shots at Mike's car. There was evidence that the front passenger added at least one more.
One of the shots struck Gao in the left eye and killed him. Another shot struck Mike near his left eye and passed through his nose. Mike was able to pull his car off the freeway, and he and his other passengers summoned help.
According to Molia, defendant returned to Her's house in his car about 5 or 10 minutes after he had left. David was in the car with him. About 10 minutes later, defendant left alone in his car, which was a light blue, two-door Mazda with a sunroof and a "tail" (i.e., spoiler).
Meanwhile, the police interviewed some of the occupants of Mike's car. Stacy Xiong explained that the shooters' car was, the same one she noticed leaving Her's house. Cindy Thao described this car as a light blue two-door with a sunroof and a tail, a description Stacy largely confirmed. Mike also told the police the car was light blue.
The police went to Her's house. They had David and the other young men still at the house gather in the front, so that some of the girls from Mike's car could individually view them anonymously. The girls identified David as the driver of the shooter's car, and, in varying respects, identified Sua Vang and Va (Ming) Vue, defendant's brother, as the possible shooters. In subsequent photographic lineups, Mike identified Va as the shooter and disputed Sua's identification. Molia testified that Va did not arrive at Her's house until after defendant and David had already left. At trial, Cindy testified that photographs of defendant's car did not look like the shooters' car.
The police also searched Her's house. In a bedroom closet, they found a loaded .380 semi-automatic handgun; in a dresser, they found an empty 40-caliber magazine clip. A .380 bullet recovered from Gao's head during his autopsy had been fired from the same gun.
Pou told an investigating detective that he had asked defendant at work the next morning what had happened. Initially, Pou told the detective that defendant had said nothing had happened. Subsequently, Pou told the officer that defendant had said they had chased the car and shot some people, killing one and injuring another. The victims, defendant told Pou, were enemies from out of town.
A police officer testified as an expert in Asian gangs. He noted that David and Russo had been validated as being members of the MOD (Masters of Destruction) criminal street gang, and opined that defendant was a member as well. In response to a hypothetical question based on the facts of this case, the officer also opined that the charged offenses were done for MOD's benefit.
Resp't's Lodged Doc. E at 2-5 (footnotes omitted).
A. Standards of Review Applicable to Habeas Corpus Claims
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 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").*fn1 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). ...