FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction on charges of murder with discharge of a firearm and illegal possession of a firearm. This action is proceeding on petitioner's amended petition, filed February 1, 2008. Petitioner raises two claims. First, he claims that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated by jury intimidation and tampering.*fn1 Second, he claims that his right to a fair trial guaranteed by the Sixth and Fourteenth Amendments was violated by the trial court's denial of trial counsel's second request for a continuance to talk with an eyewitness.
In May 2004 Skyy Turner, her six-or seven -year-old daughter Ariana, her sister Ann Hempstad, and her cousin Kelle St. Mary lived together at a house on Belair Street in Stockton. Jackie Slade, the brother of Ariana's father (sometimes referred to as Turner's brother-in-law although it is not clear Turner was married to Ariana's father), visited the house quite often to help the family after his brother, Ariana's father, was imprisoned on federal drug conspiracy charges. Aaron Jamal Tolliver was a close friend of Slade and a friend of Turner. He also visited the house regularly. Hempstad was dating [petitioner], who was another regular visitor to the house.
[Petitioner] and Tolliver disliked each other and had fought in the past. [Petitioner] was one of the original members of and had helped form the Nightingale area Blood gang. Slade was also a Blood gang member, but Tolliver had told [petitioner] he was a member of a rival gang, the Crips. [Petitioner] and Tolliver fought previously because Tolliver disrespected [petitioner].
On May 20, 2004, [petitioner] brought Hempstad home from the hospital. She felt poorly and was drugged with pain medicine. Hempstad went inside the home and joined Turner, St. Mary, and Tolliver in watching a movie on TV.
Sometime later there was a loud noise outside. [Petitioner] was out on the front porch of the house playing dice for money with Slade. St. Mary testified Turner was irritated by the noise and went out front to tell them to leave. After Turner came back inside there was another loud noise. Tolliver told Turner he would go out front to tell them to be quiet.
According to Slade, Tolliver came outside and told them Turner wanted them to move it down the street. [Petitioner] responded that Tolliver should mind his own business because it was not Tolliver's house and he couldn't tell [petitioner] what to do. Tolliver told them again to move. [Petitioner], who was dressed in red and had a red handkerchief hanging from his pocket, was throwing dice and saying, "Blood that and Blood this and Blood that." Tolliver and [petitioner] started "backtalking" each other.
When [petitioner] crapped out with the dice, he went and socked Tolliver once in the head. Tolliver rushed [petitioner] off the porch and hit [petitioner] back harder four or five times in the face. Although Tolliver was physically smaller than [petitioner] was, he was a good fighter and proud of it. [Petitioner] fell against the garage and to the ground. [Petitioner] tried to block Tolliver's punches but did not hit back. According to Slade, at this point, a gun [petitioner] had in the red handkerchief, fell out of [petitioner]'s pocket. [Petitioner] and Tolliver looked at the gun. Then Tolliver turned and ran. [Petitioner] picked up the gun, started chasing Tolliver and shot Tolliver. Slade heard six rapid shots. Tolliver fell to the ground, where he died.
An autopsy later showed Tolliver had been shot four times. One bullet traveled through his back into the abdominal cavity, through his liver, diaphragm, and right lung. Another bullet went into Tolliver's back, struck his spine and stopped in the spinal canal. A third bullet went into Tolliver's upper back and along the back of his left arm. The fourth bullet hit Tolliver in the head, lodging in his brain.
At the preliminary hearing, Slade testified the three women came outside after they heard the shots. At trial Slade testified Turner and St. Mary came outside in the middle of the fight. He could not remember seeing Hempstad, but thought she was there. He thought Turner and St. Mary saw the shooting. At trial Slade testified that when he saw [petitioner] start shooting, he grabbed his niece Ariana, who was standing in the doorway, and tried to duck for cover. Ariana was crying. After Tolliver fell, [petitioner] took off running.
Slade could not believe what had just happened. He did not want to watch his best friend dying, so he walked off to the store. When he came back, the police were there. Slade did not tell them what he had witnessed. In fact, Officer John Scofield testified Slade denied seeing anything, hearing anything, and said he had no idea who could have done this to his friend. Slade testified he had federal drug conspiracy charges pending against him and he feared being taken into custody. He thought his "sisters" had enough witnesses to handle the matter.
Hempstad testified all three women went outside when they heard a boom like something hitting the garage door. Hempstad saw [petitioner] and Tolliver fighting by the garage. They were both standing wrestling. [Petitioner] was over Tolliver because of their height difference. [Petitioner] was not on the ground being hit by Tolliver. Turner asked Slade if he was going to do something, but Slade said no and just stood there. Hempstad said she then saw a gun with a red rag wrapped around it fall from [petitioner]'s pocket onto the ground. She saw Tolliver turn and try to run out of the yard. [Petitioner] picked up the fun and started shooting. She thought [petitioner] fired the gun six times. Everything happened so fast.
Hempstad said she was standing on the bottom step of the porch when this was happening. Turner was at the top of the porch with St. Mary, although at one point St. Mary may have gone inside to check on Ariana. Hempstad testified that she stayed outside the entire time, but then said she went inside to check on Ariana during the fighting, found her asleep, and came back outside. Hempstad testified Turner ran down to Tolliver first and she followed. Somebody called for an ambulance and the police.
St. Mary testified she and Turner went outside when they heard a thump. Hempstad came out behind St. Mary. St. Mary saw [petitioner] and Tolliver fighting. Tolliver was on top of [petitioner] punching him in the face. St. Mary turned around and went back inside to check on her niece who was asleep. Three to five minutes after St. Mary went inside she heard three to four gunshots. St. Mary ran to the front door where she saw Turner on her knees crying. Turner ran out to the yard and St. Mary ran out behind her. St. Mary saw Tolliver lying on the ground. Turner went to Tolliver, lifted his head, and tried to wake him. St. Mary called 911.
At [petitioner]'s preliminary hearing, St. Mary testified she thought Hempstad and Turner were in the living room when the gunshots rang out, but at trial, St. Mary thought Hempstad was standing in the doorway and Turner was on the porch. In the end, she was not sure where they were. At the preliminary hearing, St. Mary said after the shots Turner went out first, then Hempstad, then she followed. At trial, she thought Turner went first, then she followed and Hempstad came behind them.
Turner testified Tolliver went outside to tell the people on the porch to leave. Tolliver was outside for a while. Turner checked on Ariana, who was asleep in Turner's bedroom. Then Turner heard some banging on her front door. She and St. Mary jumped up to see what was happening. When Turner first came out of the house, she saw [petitioner] by the garage and Slade by the garbage cans, but then she focused on Tolliver who was walking really fast down the driveway. She heard shots and saw Tolliver limp, then turn like he was shot in the back, and then the third shot dropped him. [Petitioner] was behind her when she heard the shots. Turner testified it was "like something in [her[ head [told her] don't turn around, let him leave the driveway." When the shots were done, Turner saw [petitioner] scramble to pick up a red rag on the ground. She never saw a gun. After [petitioner] left the yard, Turner went to Tolliver. Turner knew St. Mary was behind her because she called for the ambulance, but Turner did not know where Hempstad was when Tolliver was shot. Slade walked out of the yard and Turner saw Hempstad walk behind him out to the gate. Turner said she never saw any fighting. Her daughter was definitely not in the doorway watching the fight.
Turner told the police she did not want Tolliver at her house that day because Slade and the other guys would be there and they would argue.
[Petitioner] testified on his own behalf. [Petitioner] testified he dropped Hempstad off, went home to shower and then returned to Hempstad's house, where he played dice on the front porch with Slade. [Petitioner] was dressed entirely in red, the color of the Blood gang.
[Petitioner] claimed it was Slade who was upset by Tolliver coming outside and telling them to leave. [Petitioner] ignored Tolliver and continued playing dice until he heard Tolliver mutter "Slob," a derogatory term used by Crips for a Blood gang member. Tolliver had repeatedly "disrespected" [petitioner] resulting in a previous fight. [Petitioner] considered it the most important thing not to be disrespected. This time, in response, [petitioner] ran up to Tolliver and hit him in the back of the head. Tolliver and [petitioner] started fighting and they fell off the porch. Tolliver got up first and stood over [petitioner], hitting him. According to [petitioner], Slade was encouraging [petitioner] and said to him, "Get that nigger, get that nigger." Tolliver threw two punches at [petitioner] when [petitioner] was on the ground, and then turned to run. At that point, Slade fired a gun at Tolliver. [Petitioner] heard three shots and saw Slade leave down the driveway. [Petitioner] also left as he was on parole and was not supposed to be in a gang area.
[Petitioner] denied having a gun and denied shooting Tolliver. When [petitioner] learned he was wanted, he arranged with the public defender's office to surrender because he had nothing to hide.
[Petitioner] testified his relationship with Hempstad was up and down because she had found out he had another girlfriend.
People v. Lopez, slip. op. at 2-9.
I. Standards for a Writ of ...