FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 6, 2001, in the San Joaquin County Superior Court petitioner was convicted of second degree murder in violation of California Penal Code § 187. (Pet. at 1.) He was subsequently sentenced to fifteen years-to-life in state prison. (Id.) Petitioner alleges that the trial judge deprived him of his right to trial by jury, in violation of the Sixth and Fourteenth Amendments, when he refused the jury's request for new verdict forms and instead polled the jurors in open court. (Id. at 5.) In addition, petitioner alleges that there was insufficient evidence introduced at his trial to prove the element of intent necessary to convict him of second degree murder. (Id.) Upon consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
[Petitioner] was convicted of murdering Sonia Treadway, a woman with whom he had a romantic relationship. The prosecution presented evidence that Treadway was at a holiday office party waiting for [petitioner] and became intoxicated. After [petitioner] arrived about 11:30p.m., he took her home to her apartment. Shortly thereafter, Treadway was shot in the face by a gun muzzle placed against her lips. [Petitioner] called 911 at about 12:17a.m. and again 26 minutes later. [Petitioner] testified at trial. He admitted he brought a loaded .9 millimeter handgun to Treadway's apartment, although he was a felon. He admitted shooting Treadway but claimed the gun accidentally went off when he was trying to take it from Treadway. [Petitioner] initially lied because he thought the 911 operator and the police would not believe the shooting was accidental. (Opinion at 2.)
On direct appeal from his conviction petitioner argued that the trial court had erred by refusing the jury's request for new verdict forms and instead polling the jurors in open court in a coercive fashion. (Answer, Lod. Doc. No. 1.) The California Court of Appeal for the Third Appellate District rejected his argument and affirmed petitioner's judgment of conviction. (Opinion at 11; Traverse at 1.) On July 17, 2003, petitioner filed a petition for review with the California Supreme Court. (Answer, Lod. Doc. No. 4.) That petition for review was summarily denied on August 20, 2003. (Id., Lod. Doc. No. 5.)
On October 4, 2004, petitioner filed an application for writ of habeas corpus with the California Court of Appeal for the Third Appellate District, raising both the jury coercion and insufficiency of the evidence claims presented in the instant petition. (Answer, Lod. Doc. No. 6.) The state appellate court summarily denied that petition on October 7, 2004. (Answer, Lod. Doc. No. 7.) On November 4, 2004, petitioner filed an application for writ of habeas corpus with the California Supreme Court presenting both claims. (Answer, Lod. Doc. No. 8.) That petition was summarily denied on September 7, 2005. (Answer, Lod. Doc. No. 9.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
As noted above, petitioner alleges that the trial court "erred and deprived [him] of his rights to trial by jury in violation of the Sixth and Fourteenth Amendments when it refused [the] jury's request for new verdict forms so it could remedy inconsistent verdict [sic]." (Pet. at 4.) In support of his claim petitioner states:
[I]n response to the jury's inconsistent and otherwise flawed verdict forms, the trial court refused to provide the jury with new verdict forms and instead polled the jurors in open court in the presence of the victim's family members as to whether each juror agreed that [petitioner] was guilty of second degree murder. The court's conduct risked coercing one or more of the jurors into convicting Petitioner of second degree murder and abandoning any consideration of the lesser involuntary manslaughter.
In its decision affirming petitioner's judgment of conviction the California Court of Appeal*fn2 set forth the background ...