FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction on charges of first degree murder and attempted robbery, with enhancements for being armed with a firearm and suffering a prior serious "strike" felony conviction. He seeks relief on the grounds that his conviction was obtained through a confession that resulted from an unlawful custodial interrogation and that the trial court erred in denying his repeated motions for substitute counsel. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied, for the reasons set forth below.
Separate juries convicted Mario Pierre Hall and Manuel Hartman Primas of crimes arising out of a botched robbery of a drug dealer. Hall's jury found him guilty of first degree murder and attempted robbery and sustained a robbery-murder special circumstance and firearms allegations. (Pen.Code, §§ 187, 190.2, subd. (a)(17, 211/664, 12022.53(b), (c) & (d).) Primas's jury found him guilty of first degree murder and attempted robbery, and sustained firearm allegations; the trial court found he had a serious felony prior which qualified as a strike. (Pen.Code, §§ 187, 12022, subd. (a)(1), 211/664, 667, subds. (a), (b)-(I).) The trial court imprisoned Hall for life without parole plus 25 years to life, and Primas for 56 years to life, and imposed various fines on each conviction. Each timely appealed. We shall direct minor changes to some monetary orders and otherwise affirm each judgment.
Evidence Given to Both Juries Hall, Primas and Eddie Watts tried to rob drug dealer "Big Rick" Collier in a Franklin Villa alley on the evening of December 10, 2000; Collier was shot dead. Watts pleaded guilty to manslaughter and was not tried with the others.
Veronica Edwards, Collier's companion and mother of their children, went shopping with him that evening and he received a call on a mobile phone; later they went to a market where he spoke with a friend; he then told her he wanted to go to a house on G Parkway to collect some money. Edwards knew Collier had a lot of money on him. When she stopped her car by the house, a man got in and directed them to an alley. The man came out of a house and approached a shorter man. Collier got out of the car, spoke to the men, then they all went to a different alley between El Limon and G Parkway. Edwards heard Collier's voice, then heard gunshots, then saw people scattering.
Shayron Savoy lived nearby upstairs and heard someone in the alley say "'Give me everything.'" He saw a dark-complected man with a beanie over his face approach Collier. Collier told the man "'I don't have nothing. What is this for?'" Collier began to walk backwards, then Savoy saw the man with the beanie point a gun and shoot. Collier apparently pitched forward onto the shooter; as the shooter struggled to get out from under him and escape, he lost his beanie. In a pretrial videotaped statement, Savoy told an officer that Collier tried to grab the gun from the robber before the first shot, they went to the ground, then as they struggled on the ground he heard more shots. Savoy had said Primas was nearby and ran off after the shooting. He said neither Watts nor Primas was the shooter. Later he identified a picture of Hall as resembling the shooter, but he was not certain.
William Mosley saw the shooter pointing a .38-caliber revolver at Collier and ordering him to the ground; Collier said he was going home. Mosley saw Collier "tussling" with the shooter, then he heard shots.
Bobby Barksdale testified Primas asked for and was given a scale that day, about one hour before Barksdale heard Collier had been shot. In a pretrial statement, he had said that 15 to 20 minutes before he heard Collier had been shot, Primas asked for the scale "because he was going to buy some weed from Big Rick."
DNA Evidence Showed that Hall had Worn the Beanie Found Near Collier
Collier was shot three times at near-contact range. Two wounds were not serious, but a head wound caused by a bullet in the .38/.357-caliber class was fatal; another wound was from a similar bullet but only a fragment of the third bullet was found. Telephone records showed several calls from Watts's mobile telephone to Collier's home and mobile telephones on the night of the murder.
Hall testified at trial and claimed he had carried a small .22-caliber gun and had agreed to take part in the robbery. He claimed "it was supposed to happen in the townhouses. But I had agreed to it at first to do it in townhouses, but I never did it. I seen ... Big Rick pull up, and I just didn't do nothing. I started walking off from it." When the others pulled up in the car he told them he was "cool. I am not going to do this." The beanie had been his (explaining the DNA) but Watts wore it for the robbery. On cross-examination the following took place:
"Q: So then you and Mr. Watts are standing over kind of across from where you see Mr. Primas and Mr. Collier talking, and you are having this conversation about how you don't want to be involved, right?
Q: And you give Mr. Watts your hat, right?
He watched Watts walk up to Big Rick and Primas: "I seen him [Watts] with the gun pointing it. I seen Manuel get on the ground. I seen Rick throw something and send him back up and Bono was still on him and I just seen him rush. I heard the gun go off and I left." He claimed Watts carried a revolver, like the .38-caliber revolver described by the People's expert as the likely murder weapon (and like the one Moseley saw), and that his own gun had not been fired that night. His only role was that "I heard shots and I seen the tussle, part of a tussle."
Hall called James Your to testify. He had been in prison with Watts, who sought his help to rob Collier. Watts planned to call Collier to set up a drug deal, then "jack" him using ski masks. According to Your, Watts thought Collier would be "an easy lick." Evidence Given to Primas Jury Only Adesina Hicks, Primas's former girlfriend, testified he told her he was going to call Collier and ask him to bring marijuana ("zips", from Ziploc(r) bags) to G Parkway, where two of Primas's friends would fight Collier, so Primas could take marijuana to make up for short amounts on past deals. Primas was nervous when he came home later and when she asked why he said "I didn't do it, that's all you need to know." Later he told someone on the telephone to get rid of the beanies. Primas later told her Hall and Watts confronted Collier, who resisted; when Hall's beanie came off, Hall had to shoot him. Collier's response was unexpected because Primas had thought he was a "poodle."
In an interrogation Primas told police the plan had been to commit a strong-arm robbery with no guns. Primas admitted calling Collier to buy marijuana, and said he went to get a scale from Barksdale and he and Collier began to weigh the marijuana. When Hall approached with a gun, wearing a mask, Primus [sic] "laid down," i.e., went to the ground, and saw Collier backing up before Primus [sic] heard shots and screaming. Hall told Primas he killed Collier with a .38-caliber gun. After the event Primas saw both Watts and Hall with guns.
Primas Rested Without Presenting any Evidence
Evidence Given to Hall Jury Only Barksdale had been in custody with Hall and told police Hall had told him he (Hall) had a .22-caliber gun, Collier rushed him, and "when he was on the ground, uh, tussling with Big Rick, he heard two shots and got up and ran." Hall had said he was trying to rob ("jack") Collier for drugs ("a few zips or something").
In an interrogation Hall told police he had been with Primas and Watts at a liquor store earlier that evening, but that he knew nothing about the robbery. He had heard rumors linking him to the crime. In a later interrogation he admitted he knew of the plan to rob Collier and had agreed to take part. They planned to do it by a townhouse, but apparently missed Collier, and then went to meet him in the second alley. When Hall accosted Collier, Collier demurred and rushed him, after which Hall's .22-caliber gun accidentally fired but the shot did not hit Collier. While Hall struggled with Collier, he heard gunshots. Watts had a revolver, but Primas had no gun.
II. Standards for a Writ of Habeas Corpus
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). Also, 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").*fn2 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 awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. "Clearly established" federal law is that determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law. Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds, Lockyer v. ...