The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the amended petition filed September 15, 2006. Petitioner challenges his 1999 conviction for murder, robbery, burglary and the finding that he personally used a firearm in the commission of all three counts. Petitioner was sentenced to life without the possibility of parole after the jury further found as a special circumstance that count one was committed while petitioner engaged in the commission of robbery and burglary.
Pending before the court is petitioner's motion for an evidentiary hearing and leave to seek a deposition of an out of state witness, filed February 9, 2009.*fn1
To put the pending motions in context, the court will set forth the factual summary of petitioner's offense contained in the order by the California Court of Appeal. After independently reviewing the record, the court finds this summary to be accurate and adopts it below:
On the night of April 2, 1998,*fn2 Alisha Rozadilla was alone at the Vacaville home of her boyfriend Ben Parovel. Shaun Pina and [petitioner] knocked on the door, asking for Parovel. Frightened, Rozadilla armed herself with Parovel's nine-millimeter Beretta while she waited for him to return. When Parovel came home, the two men-acquaintances of his-entered the living room of the house with him. They told Parovel that they wanted to purchase marijuana. They appeared to be unarmed. Parovel-his back to [petitioner] and Pina-took the Beretta from Rozadilla and hid it in his clothing.
Pina and [petitioner] followed Parovel into a bedroom to get the marijuana. As Parovel was weighing out marijuana, Pina pulled out a gun-a .10-millimeter Glock semiautomatic pistol with a red laser beam on it-and relieved Parovel of his Beretta. Pina demanded money. [Petitioner] returned to the living room where Rozadilla had remained, held a .38-caliber handgun to her neck and asked her " 'Where's the gun, Bitch?' " in a very loud tone of voice. When he satisfied himself that she was no longer armed, he asked where to find the money. She told him that she had no idea. He put her in a headlock-his arm underneath her chin-and walked her back to the bedroom where Parovel and Pina were. He had his gun pointed at her head.
In the bedroom, Pina and [petitioner] continued to demand money from Parovel. He handed over about $1,500, but Pina wanted more. Parovel had almost $15,000 in cash hidden in the house-money given him in the form of a cashier's check that he had recently cashed. He induced Pina out of the bedroom on the pretext that he would show him where the money was. Parovel tried to run, but Pina grabbed his hooded shirt and yanked him back. He grabbed at Pina's Glock and the two men struggled for it. The gun fell and flew across the floor. [Petitioner]-hearing the struggle-left Rozadilla in the bedroom and went to investigate. As Parovel struggled to get up and retrieve the Glock, [petitioner] entered the room holding the .38, then picked up the Glock and struck [Parovel] in the head repeatedly with it. The magazine of the Glock fell out while [petitioner] hit Parovel with it. Pina had Parovel's legs pinned and the three men struggled for several minutes.
Parovel was able to get free of Pina. The front door was open, so he ran outside with [petitioner] on his back. Parovel and [petitioner] continued to struggle over the Glock. [Petitioner] gained control of his .38. Parovel tripped, bringing [petitioner] down with him. He grabbed for the .38 and the gun went off, shooting at the side of the house. When Parovel gained control of the .38, he started shooting, afraid for his life. He believed that Pina still had his Beretta and he was angry that the two men took his money. [Petitioner] was two feet away from him; Pina was on the driveway 13 or 14 feet away from where Parovel lay on the lawn. Parovel shot Pina twice; the second shot made Pina drop.*fn3 As [petitioner] approached Pina, Parovel fled to a neighbor's house with the .38 to call the police. Parovel was bleeding from a cut on his head. He set down the .38 inside the neighbor's house. When he went outside again, [petitioner] and Pina were gone. Vacaville police responded to a report of a gunshot victim and found Pina lying on the ground, semi-conscious and with a failing pulse. A wad of money totaling almost $1,400 was removed from his clothing. No marijuana was found in his pockets and no weapon was seen near the body. Pina was declared dead at the scene.
Knowing the police were coming, Parovel threw the marijuana, a scale and a magazine for his Beretta out of the house. He did not touch the Glock. The .38 he had left at his neighbor's house was later recovered by police. It contained five empty casings and one live round of ammunition. Police searched Parovel's house and found a .10-millimeter Glock pistol without a gun magazine and a gun magazine fitting the Glock inside the house. Two bullets were found, one in the driveway and one on the garage floor. They also found a scale.
Parovel first told police that [petitioner] and Pina came to the house to play videotape games. Later, he told police the truth-that he was selling marijuana to them. He told police that he thought Nate Newman-who shared Pina's apartment-had set him up. Newman had sold him a quarter pound of marijuana for $1,300 earlier that day. Parovel had heard that Newman had a Glock handgun.
On the night of April 2, [petitioner]-with multiple gunshot wounds-was taken to a hospital. While lying on a gurney, he told police that he stood on a Vacaville street when an unknown man pulled a gun on him. [Petitioner] said that he wrestled with the man until he broke away and ran from him. The man shot at [petitioner] while he was lying on the ground. [Petitioner] told police that he flagged down a passing vehicle and got a ride to the hospital. A police officer administered a gunshot residue test. After a five- to 10-minute interview, [petitioner] was taken into surgery. The police took his clothing as evidence. They found no weapons or marijuana on his person.
On the afternoon of April 4, [petitioner] gave a second statement to police while in the hospital. A nurse advised a police officer that [petitioner] was not under the influence of any medication that would cause him to be unable to answer questions. [Petitioner] seemed alert. They spoke for 20 to 25 minutes and the statement was tape-recorded.
In this statement, [petitioner] admitted that he and Pina went to the Vacaville house of a man named [Parovel] to purchase marijuana. He told police that [Parovel] tried to rob them and that he shot at them. He learned from police that Pina was dead. [Petitioner] admitted that he had been carrying a .38-caliber revolver and that Pina was also armed with a Glock. He tried to tackle [Parovel], who was armed and whom [petitioner] thought intended to kill him. [Parovel] also tried to wrestle Pina's gun from Pina and [petitioner] felt he had to stop [Parovel]. [Petitioner] tried to help Pina, who was hit and collapsed. After the police told [petitioner] that they knew that he and Pina intended to rob [Parovel], [petitioner] admitted that he knew [Parovel] had money. [Petitioner] also told police that on the night of the shooting, a car was waiting for him containing Newman and another person. These two people brought him to the hospital. Newman had given [petitioner] the .38 and had given Pina the Glock. [Petitioner] said that Newman wanted the robbery to occur that day. Newman was to get a third of whatever [petitioner] and Pina recovered. [Petitioner] was arrested and ordered held without bail. At the preliminary hearing, he objected to the admission of the April 4 statement that he gave to police as taken in violation of his Miranda*fn4 rights and as an involuntary statement. The magistrate denied the motion after conducting a suppression hearing. (See § 1538.5.)
On June 1, [petitioner] was charged by information*fn5 with first degree murder of Pina, robbery of Parovel and Rozadilla, and burglary of Parovel's dwelling. The information alleged that the murder of Shaun Pina was committed in the commission of robbery and burglary and that [petitioner] personally used a firearm in the commission of all three offenses. (See §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 459; see also former §§ 190.2, 12022.5, subd. (a)(1).) [Petitioner] pled not guilty and denied all the enhancement allegations. His motion to dismiss the information and its special circumstances allegations was heard and denied. (See § 995.)
At trial, a forensic pathologist testified that Pina suffered two gunshot wounds. One of the bullets struck vital organs and proved to be fatal. A bullet was recovered from Pina's chest during an autopsy. His blood revealed evidence of marijuana in his system, but no alcohol or other drugs. [Petitioner's] tape-recorded statement to police was played for the jury. A criminalist testified that the bullet found in Pina's chest cavity was fired from [petitioner's] .38-caliber revolver. None of the bullets found at the scene came from Pina's .10-millimeter Glock semiautomatic pistol. [Petitioner's] motion for acquittal of first degree murder based on insufficiency of evidence was denied. (See § 1118.1.) The parties stipulated that there was evidence of marijuana in his bloodstream. [Petitioner] put on expert evidence of his organic brain damage and argued that he lacked the capacity to form the mens rea required for either robbery or burglary. He also argued to the jury that Parovel's killing of Pina was not done in response to anything that he did. Ultimately, the jury found [petitioner] guilty of all three offenses and found all three firearm-use-enhancement allegations to be true. It also concluded that [petitioner] was engaged in the crimes of robbery and burglary during the commission of the murder. He moved for a new trial, arguing that the trial court misdirected the jury in a matter of law and that the verdict was contrary to the law and the evidence. He sought a judgment of acquittal notwithstanding the verdict on the murder charge. (See § 1181, subd. 5.) The trial court denied the motion for new trial and the related motion for judgment notwithstanding the verdict. [Petitioner] was sentenced to an indeterminate term of life imprisonment without possibility of parole for the murder. The trial court also imposed a four-year consecutive term for the firearm use enhancement related to the murder charge. Terms for first degree robbery and first degree burglary and the related firearm-use-enhancement findings were stayed on multiple punishment grounds. (See § 654.)
Petitioner seeks an evidentiary hearing as to claim 6, 8, 12 and 13*fn6 of the amended petition. All claims involve ineffective assistance of trial counsel. Claim 6 involves the failure of counsel to impeach Parovel and Rozadilla's testimony with police officer witnesses who would have testified to several prior inconsistent statements. Claim 12 involves trial counsel's failure to impeach Parovel concerning the pistol whipping during the incident and claim 13 concerns trial counsel's failure to present additional evidence regarding Parovel's motive to lie due to an alleged police investigation of his drug dealing. Petitioner alleges in claim 8 that counsel was ineffective for failing to adequately investigate and properly challenge the admissibility of petitioner's two statements to the police on April 2 and April 4, 1998. In claim 11 petitioner requests leave to seek a deposition of an out of state witness, Parovel.
Federal courts may hold evidentiary hearings in habeas actions under certain prescribed conditions:
If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant can show that-
(A) the claim relies on(i) a new rule of constitutional law ...; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Whether a petitioner failed to develop a claim in state court turns on whether the petitioner exhibited a lack of diligence or some greater fault in state court. Williams v. Taylor, 529 U.S. 420, 421, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Ordinary diligence requires that petitioner seek an evidentiary hearing in state court in the manner prescribed by state law. Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Under California law, an appellate court, when presented with a state habeas petition, determines whether an evidentiary hearing is warranted only after the parties file formal pleadings, if they are ordered to do so. Horton v. Mayle, 408 F.3d 570, 582 n. 6 (9th Cir.2005). If the state court denies the petition without ordering formal pleadings, the case never reaches the stage where an evidentiary hearing must be requested and the petitioner's failure to request a hearing in state court does not trigger § 2254(e)(2). Id.
In the instant case, petitioner requested an evidentiary hearing in his state appellate petition. See Petitioner's Amended Petition (AP), Exh. A. Because petitioner sought an evidentiary hearing in state court in the manner prescribed by state law, the court finds that petitioner did not "fail to develop" the facts because he acted diligently in seeking an evidentiary hearing in state court. See Williams v. Taylor, 529 U.S. at 437, 120 S.Ct. at 1491.
Accordingly, although petitioner's habeas petition is governed by the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which limits a district court's discretion in conducting evidentiary hearings and discovery, see 28 U.S.C. § 2254(e)(2), this court assesses the availability of an evidentiary hearing under pre-AEDPA law because petitioner exercised sufficient diligence in seeking to develop the factual basis of his claim in state court. Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).
"Under pre-AEDPA law, a habeas petition is entitled to an evidentiary hearing [and discovery] on a claim where the facts are in dispute if 1) he has alleged facts that, if proven would entitle him to relief; and 2) he did not receive a full and fair evidentiary hearing in state court." See Silva v. Calderon, 279 F.3d 825, 853 (9th Cir.2002).
"In other words, petitioner must allege a colorable constitutional claim ." Turner v. Calderon, 281 F.3d 851, 890 (9th Cir.2002). Nevertheless, the court does not have to hold an evidentiary hearing when the record clearly refutes the collateral factual allegations raised by petitioner. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007). Moreover, Schriro also announced that in determining whether to grant an evidentiary hearing the federal court must apply the AEDPA deferential standards to legal and factual questions necessarily reached by the state courts. Id.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id., 104 S.Ct. at 2064.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. The defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001) (finding no deficient performance by counsel who did not retain a ballistics expert on a menacing charge where the same expert had been used in the successful defense of the same defendant on a felon-in-possession charge); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994); but cf. United States v. Palomba, 31 F.3d 1456, 1466 (9th Cir. 1994) (presumption of sound trial strategy not applicable where indicia of tactical reflection by counsel on issue absent from record). The reasonableness of counsel's decisions may be assessed according to professional norms prevailing at the time of trial. Silva v. Woodford, 279 F.3d 825, 846 (9th Cir. 2002).
Second, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687 104 S.Ct. at 2064. The test for prejudice is not outcome-determinative, i.e., defendant need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. Id. at 693, 104 S.Ct. at 2067-68. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 694, 104 S.Ct. at 2068; see, e.g., Jones v. Wood, 207 F.3d 557, 562-63 (9th Cir. 2000) (failure to investigate and present "other suspect" evidence); Hart v. Gomez, 174 F.3d 1067, 1073 (9th Cir. 1999) (failure to introduce evidence that corroborated testimony of a key defense witness whom the jury might otherwise not believe necessarily undermined confidence in the outcome); Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir. 1998) (failure to investigate and present alibi witnesses prejudicial where, without corroborating witnesses, defendant's bare testimony left him without a defense); United States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996) (failure to request jury instruction prejudicial where reasonable probability defendants would have been acquitted with instruction); Palomba, 31 F.3d at 1465-66 (error that may increase defendant's sentence ...