The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS
BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody (Ct. Rec. 1) and Respondent's Answer and Memorandum of Authorities (Ct. Rec. 12). Conrad Petermann represents Petitioner. Respondent is represented by Deputy Attorney General Stephanie A. Mitchell. Petitioner filed a traverse on May 13, 2007. (Ct. Rec. 14.) This matter was heard without oral argument. After careful review and consideration of the pleadings submitted, it is recommended that the Petition for Writ of Habeas Corpus be denied.
At the time his petition was filed, Petitioner was in custody in Susanville, California, pursuant to his 2003 Sacramento County conviction for attempted murder and discharging a firearm at an occupied vehicle, both with firearm enhancements. (Ct Rec. 1 at p. 4-5.) Petitioner challenges the 2003 Sacramento County conviction. (Ct. Rec. 1.)
The Third District Court of Appeal described the facts: The instant offenses occurred on November 10, 2002, following an earlier altercation between the victim and another man, Charles Haynes, who had apparently reported to police that the victim had taken his stereo. The victim went to Melvin Vaughn's house to try to locate Haynes because that was where the victim had met him. The victim spoke with Vaughn outside the house, and at one point Haynes and another man, Marcel Burnett, arrived. The victim was a much larger man than Haynes.
The victim confronted Haynes and hit him after Haynes swore. Haynes fell down, and then got up and told the victim he would be back. Haynes then ran away, yelling threats and insults. The victim exchanged words with Burnett following the altercation with Haynes, and Burnett subsequently left.
Forty-five minutes to an hour later, the victim returned to his vehicle. He noticed Haynes, Burnett, and two other persons (later identified as [Petitioner] and Kenny Jordan) in Haynes's Ford Explorer, which was parked facing eastbound on a nearby street -- in the direction the victim intended to drive home. As he backed up, the victim noticed the Explorer had been moved to face westbound. The victim was concerned that Haynes and the other men were going to "jump" him so he stopped nearby. Haynes and Burnett got out of the Explorer and walked toward Vaughn's house, and [Petitioner] and Kenny Jordan walked toward the victim's truck.
The victim said something to the effect of: "[W]ho's going to get their ass whipped first[?]" [Petitioner] took out a gun from his sweatshirt and said, "I'm not here to fight you." The victim tried to drive away but crashed into Haynes's Explorer, and the engine on the victim's truck stopped. [Petitioner] walked up to the driver's window of the victim's truck and started firing at the victim. The victim sustained multiple gunshot wounds and was seriously injured.
Police found [Petitioner] and Jordan after the incident. Police traced their route away from the scene and found a handgun in a holster that was partially concealed by some greenery. The gun was a.22 caliber Smith and Wesson, and it contained six Federal brand spent shell casings. In the back of Haynes's Explorer, police found a box containing 29 Remington brand.22 caliber long-rifle cartridges.
[Petitioner's] Testimony [Petitioner] testified that he had never met the victim, Haynes, or Burnett before the day of the shooting. Jordan was dating [Petitioner's] sister and was present at an apartment where [Petitioner] had spent the previous night. At some point, Haynes came to the apartment and talked with Jordan in the kitchen. Jordan subsequently asked if [Petitioner] wanted to "go for a ride," which [Petitioner] thought meant leaving to smoke marijuana. [Petitioner] left with Haynes and Jordan. [Petitioner] had the loaded.22 caliber gun concealed inside his sweatshirt. He carried the gun for protection after he was involved in a fight two years earlier and some people threatened to pistol whip him and kill him. [Petitioner] denied taking any additional ammunition with him or being aware of the box of ammunition in Haynes's car.
Burnett was waiting in the car. [Petitioner] said that the other men talked during the ride. He only overheard part of the conversation but did remember hearing about Haynes's stereo being stolen. They stopped at one point and got out of the Explorer. Haynes, Burnett, and Jordan walked toward the corner; [Petitioner] assumed they were going to get some marijuana. The victim drove his truck in reverse on the wrong side of the street and stopped near the corner. He said: "[W]hich one of you guys want to get run over first?" [Petitioner] initially thought the victim was joking.
The victim drove straight toward everyone and barely missed [Petitioner] before striking Haynes's Explorer. The victim tried to restart his truck. [Petitioner] thought his life was in danger and that the victim was trying to run them over. [Petitioner] took out his gun and fired at the victim to prevent him from continuing to try to kill them. [Petitioner] claimed he was not trying to kill anyone. He fled when he ran out of ammunition and saw the victim lean over; [Petitioner] was concerned the victim was going to grab a gun but admitted he never saw one. [Petitioner] panicked and disposed of the gun, and he claimed that he lied to police about his involvement in the incident because he did not trust them. (Lodged Doc. 4 at 2-5.)
As indicated, after a jury trial in the Sacramento County, California Superior Court, the Petitioner was found guilty of attempted murder*fn1 and discharging a firearm at an occupied vehicle*fn2, both with personally and intentionally discharging a firearm that proximately caused great bodily injury.*fn3 (Clerk's Transcript at 159-162, 166-167.) With respect to count one, the trial court sentenced defendant to seven years for attempted murder and 25 years to life for the firearm enhancement. The court imposed and stayed the sentence and firearm enhancement on count two. (Clerks' Transcript at 206-209.) After trial, defendant appealed and the Third Appellate District affirmed. (Lodged Document 4.) The California Supreme Court denied Mr. Olson's petition for review on August 31, 2005. (Lodged Document 6.)
On October 3, 2005, Mr. Olson filed a petition for a writ of habeas corpus in the Sacramento County Superior Court. (Lodged Document 7.) The court denied his petition on November 22, 2005. (Lodged Document 8.) Mr. Olson filed a petition for a writ of habeas corpus in the Third District Court of Appeal on March 30, 2006. The court denied the petition on April 13, 2006. (Lodged Documents 9,10.) Mr. Olson petitioned the California Supreme Court for review on April 24, 2006. The court considered the petition, the People's answer, and Mr. Olson's reply. The court denied review on June 27, 2006. (Lodged Documents 11,12,13 and 14.)
Mr. Olson timely filed the current federal habeas petition on December 22, 2006. (Ct. Rec. 1.)
C. Federal and state claims
In his federal habeas petition, Mr. Olson raises the following claims: Federal habeas claim one: Trial counsel inadequately investigated and failed to present expert testimony in violation of Mr. Olson's Sixth Amendment right to effective assistance of counsel. (Ct. Rec. 1 at 21-45.)
Federal habeas claim two: Trial counsel failed to call available fact witnesses to substantiate self-defense, in violation of Mr. Olson's Sixth Amendment right to effective assistance of counsel. (Ct. Rec. 1 at 45-55.)
Federal habeas claim three: The state court deprived Mr. Olson of his constitutional rights by denying an evidentiary hearing on claimed ineffective assistance of counsel. (Ct. Rec. 1 at 81-84.) Federal habeas claim four: The trial court excluded evidence of the victim's "violent, dangerous character" in violation of the Fifth, Sixth and Fourteenth Amendments. (Ct. Rec. 1 at 55-84.)
In the state's highest court or the highest court rendering a reasoned decision, Mr. Olson raised the following issues: State court claim one: Petitioner was denied his Sixth Amendment right to the effective assistance of counsel by trial counsel's failure to adequately investigate and employ relevant experts "to provide the jury with the explanation and defense why this was attempted manslaughter and not attempted murder." (Lodged Doc. 7 at 14.)
State court claim two: Trial counsel was ineffective because he failed to call available [factual] witnesses to substantiate self-defense, in violation of the Sixth Amendment. (Lodged Doc. 7 at 14.)
State court claim three: The trial court violated Mr. Olson's rights under the Fifth, Sixth and Fourteenth Amendments by excluding evidence of the victim's "violent, dangerous character." (Lodged Document 1 at 9-26, Lodged Doc. 3 at 3-5.)
State court claim four: The state court violated Mr. Olson's constitutional rights by denying an evidentiary hearing on his claims of ineffective ...