The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of three counts of attempted premeditated murder (Cal. Penal Code*fn1 §§ 664/187 [counts 1, 4, and 5]), two counts of shooting at an inhabited dwelling (§ 246 [counts 2 and 6]), and two counts of permitting another to shoot from a vehicle (§ 12034(b) [counts 3 and 7]). Street gang allegations (§ 186.22(b)) and firearm enhancements (§ 12022.53(c), (d) & (e)(1)) were also found true. On November 29, 2005, Petitioner was sentenced to an aggregate prison term of 59 years-to-life.
Petitioner filed a timely notice of appeal. On May 9, 2007, the California Court of Appeal, Fifth Appellate District affirmed the judgment of conviction, but vacated the sentence and remanded to the trial court for resentencing. (Lodged Doc. No. 1.)
Petitioner filed a petition for review in the California Supreme Court, which was denied on July 25, 2007. (Lodged Doc. Nos. 2-3.)
On remand, the trial court resentenced Petitioner on August 24, 2007, and an amended abstract of judgment was filed on September 10, 2007. (Lodged Doc. No. 4.) Petitioner did not appeal from the resentencing.
Petitioner filed the instant federal petition for writ of habeas corpus on October 24, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on February 19, 2009. (Court Doc. 13.) Petitioner filed a traverse on August 12, 2009. (Court Doc. 22.) STATEMENT OF FACTS*fn2
[Petitioner] was the driver in two drive-by shootings that occurred on May 22, 2004. Julian Espitia fired a handgun out the passenger window at two houses. A man was struck in the chest by a bullet, but he survived. An occupant of one of the houses admitted that he had been a member of the Original Gangsters Surenos (OGS), which is a Surenos subset. Gang expert Joe Aguilar testified that [Petitioner] is a member of the Brown Pride Catella (BPC), which is a Nortenos subset. Nortenos and Surenos are rivals. [Petitioner] and six other BPC members had been injured in a drive-by shooting that occurred on February 28, 2004. Detective Aguilar opined that the May 22, 2004, drive-by shooting was committed to enhance and benefit the BPC. [Petitioner] denied knowingly participating in the drive-by shootings. He testified that he was simply giving friends a ride and Espitia unexpectedly fired a handgun out of the passenger window on two occasions.
(Lodged Doc. No. 1, Opinion, at 2.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. §§ 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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). A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams (Terry) v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id., quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, where the state court decided an issue on the merits but provided no reasoned decision, courts conduct "an independent review of the record . . . to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). "[A]lthough we independently review the ...