ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on March 1, 2000, in the San Joaquin Superior Court on charges of murder, attempted murder, burglary, and shooting at an inhabited residence, with enhancements for use of a firearm and commission of crimes in furtherance of a street gang. He seeks relief on the grounds that: (1) he is factually innocent of the crimes for which he was convicted; (2) his trial counsel rendered ineffective assistance; (3) the prosecutor committed misconduct; (4) the evidence was insufficient to support the gang enhancement allegation; (5) his right to due process was violated by jury instruction error; and (6) his constitutional rights were violated when he was shackled during trial. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
Defendants Elisio Valdez and Johnnie Ray Peraza were convicted of various crimes, including the murders of Andrea Mestas and her fetus, the premeditated attempted murder of Ronny Giminez, and the false imprisonment and aggravated assault of Nancy Davis. The crimes were committed at separate times and in separate places. The prosecutor theorized that defendants went to Mestas's apartment intending to kill her boyfriend on orders from the Nuestra Familia, a prison gang. The prosecutor also presented evidence that the Nuestra Familia considered Mestas to be a "rat" and a "snitch." As to the motive for the Giminez shootings and the crimes against Davis, who was defendant Peraza's girlfriend, evidence indicated that Peraza was upset because Davis had been seeing Giminez, the father of three of her children.
Defendant Valdez was sentenced to multiple life sentences, plus a determinate term of 11 years and 8 months in prison. Defendant Peraza received multiple life sentences, plus a determinate term of 14 years in prison. On appeal, they raise numerous claims of error.
Defendants' convictions are based upon events that occurred on July 13, 1998. We summarize the facts in the light most favorable to the judgment. (People v. Mayfield (1997) 14 Cal.4th 668, 767, 60 Cal.Rptr.2d 1, 928 P.2d 485.)
At about 4:15 a.m., defendant Valdez knocked at the door to Ronny Giminez's apartment. When Giminez opened the door, Valdez asked if he was "Ronny" and whether apartment 3 was for rent. As Giminez looked toward apartment 3, Valdez fired a gun. The bullet missed Giminez but penetrated the ceiling of the apartment. Giminez struggled with Valdez and managed to get the door shut. After police responded to the scene, Giminez identified Valdez as the assailant. However, he recanted the identification at trial.
Around 5:00 a.m., Andrea Mestas's daughter, Angelina, was in the living room of their home when Mestas opened the door and spoke to a man who asked if he could use the telephone. According to Angelina, Mestas said the phone was not working and began yelling, "No, Elisio, no." Angelina then saw defendant Valdez shoot Mestas twice at close range and run away. A car similar to one owned by defendant Peraza was observed leaving the scene. When officers responded to Angelina's 9-1-1 call, they found Mestas dead, lying face down in her blood. An autopsy revealed that defendant Valdez's gun had been within inches of Mestas's chest when the fatal bullet that perforated her heart was fired. Mestas was pregnant with a 16- to 17-week-old fetus, which perished as the result of Mestas's death.
Shortly before 5:30 a.m., two men in a car similar to one owned by defendant Peraza twice drove by Giminez's apartment. Multiple gunshots fired out of the passenger side of the car riddled the apartment with bullet holes.
At about 7:00 a.m., defendant Peraza came to the apartment of his girlfriend, Nancy Davis, and asked to speak with her. When Davis told Peraza that he was not welcome and refused to let him in, Peraza pulled a firearm from his pants, pointed it at her, and said, "Don't fuck with me." Davis fled to her bedroom, closed the door, and telephoned 9-1-1 to report that Peraza was there with a gun. Peraza forced his way into the bedroom and pulled back the slide of his gun to demonstrate that it was loaded. Outside the bedroom, Davis's sister, Julia Raines, heard the sound of the gun being manipulated and Davis crying. Raines left to get help. Police arrived while defendant Peraza was inside the apartment, holding Davis and her children hostage. Peraza fled by jumping over the backyard fence. He was captured in a building on an adjacent property.
Defendant Peraza's gun was found hidden inside Davis's apartment. A ballistics test revealed that bullets recovered from the scene of the Giminez shootings and the Mestas murder had been fired from Peraza's gun. In Peraza's car, officers discovered an expended shell casing that matched casings found at Giminez's residence.
Davis informed the police that, while defendant Peraza was in her apartment, he told her that he had killed Giminez. Defendant Peraza later told Valdez's brother-in-law, Robert Juarez, that he had murdered Mestas.
The prosecutor theorized that defendants went to Mestas's apartment intending to kill her boyfriend, David Ortega, on orders from the Nuestra Familia, a prison gang. The prosecutor also presented evidence that the Nuestra Familia considered Mestas to be a "rat" and a "snitch."
As to the motive for the Giminez shootings and the crimes against defendant Peraza's girlfriend, Nancy Davis, evidence indicated that Peraza was upset because Davis had been seeing Giminez, the father of three of her children.
On appeal, petitioner and his co-defendant Valdez claimed, among other things, that in order to be convicted of the implied malice murder of Mestas's fetus, they had to have reason to believe that Mestas was pregnant. (Opinion at 13-14.) In an opinion filed on June 25, 2003, the California Court of Appeal agreed. (Opinion at 14-15.) The appellate court reversed the convictions of petitioner and Valdez for the murder of Mestas's fetus and also reversed the multiple murder special circumstance findings, because "the court's instructions on implied malice, coupled with the prosecutor's erroneous statements of the law during argument, misled the jurors into thinking they could convict defendants on both murders while finding malice aforethought only as to Mestas's death." (Id. at 15.) Subsequently, the California Supreme Court granted the prosecution's petition for review and deferred consideration of the petition pending its decision in People v. Taylor, 32 Cal. 4th 863 (2004) (hereafter Taylor). (Id.) Later, in Taylor, the California Supreme Court held that "a person who murders a pregnant woman may be found guilty of implied malice murder of the fetus even if the killer does not know the woman is pregnant." (Opinion at 15) (citing Taylor, 32 Cal. 4th at 868-70.)
After Taylor was decided, petitioner's case was transferred to the California Court of Appeal with directions to vacate its decision and to reconsider the matter in light of the Taylor decision. (Opinion at 15.) On remand, the California Court of Appeal rejected all of the challenges raised by petitioner and his co-defendant Valdez, including their challenges to their convictions for the murder of Mestas's fetus, modified the judgments to correct several sentencing errors and otherwise affirmed the convictions. On March 8, 2005, petitioner filed a petition for review in the California Supreme Court. (Lodged Document entitled "California Supreme Court Docket Reflecting Order Denying Review.") On May 11, 2005, that petition for review was denied.*fn2 (Id.)
On September 2, 2006, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Copy of State Court Habeas Petition, filed August 5, 2009 (Doc. No. 45).) Although petitioner asserted only a claim of actual innocence on the state habeas form, he attached points and authorities that contained additional claims of prosecutorial misconduct and ineffective assistance of trial counsel. (Id. at 3 of 46, 28-40 of 46.) Petitioner also requested an evidentiary hearing. (Id. at consecutive page 1.) Respondent represents, and petitioner does not contest, that petitioner's habeas petition was summarily denied by the California Supreme Court. (Answer at 3.)*fn3
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). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 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); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 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).
Petitioner's first claim is that he is actually innocent of the crimes for which he was convicted. He includes as an exhibit to his petition a declaration signed under penalty of perjury by his co-defendant, Elisio Valdez, in which Valdez states that petitioner was not involved in any of the criminal activity that took place "during the entire twenty-four hour period of July 13, 1998." (Pet., Ex. A at 1.) Valdez declares that petitioner was not involved in any of the acts or actions nor was he culpable for any of the results occurring on July 13, 1998. Johnnie Ray Peraza did not drive me, did not accompany me, did not ask or advise me, did not aid or abet me, in any act or action during July 13, 1998. (Id. at 4.) Valdez further states that he was prevented from declaring petitioner's innocence during their joint trial because his trial counsel advised him not to testify. (Id. at 1.)
In Herrera v. Collins, 506 U.S. 390 (1993), a majority of the Supreme Court assumed, without deciding, that a freestanding claim of actual innocence is cognizable under federal law. In this regard, the court observed that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." Id. at 417. A different majority of the Supreme Court explicitly held that a freestanding claim of actual innocence is cognizable in a federal habeas proceeding. Compare 506 U.S. at 417 with 506 U.S. at 419 and 430-37. See also Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000) (noting that a majority of the Justices in Herrera would have supported a free-standing claim of actual innocence). Although the Supreme Court did not specify the standard applicable to this type of "innocence" claim, it noted that the threshold would be "extraordinarily high" and that the showing would have to be "truly persuasive." Herrera, 506 U.S. at 417. More recently, the United States Supreme Court declined to resolve whether federal courts may entertain independent claims of actual innocence but concluded that the petitioner's showing of innocence in the case before it fell short of the threshold suggested by the Court in Herrera. House v. Bell, 547 U.S. 518, 554-55 (2006). Finally, the Supreme Court has recently once again assumed, without deciding, that a federal constitutional right to be released upon proof of "actual innocence" exists. District Attorney's Office for Third Judicial Dist. v. Osborne, ___U.S.___, 129 S.Ct. 2308 (2009). In doing so, the Supreme Court noted that it is an "open question" whether a freestanding claim of actual innocence exists and that the court has "struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet." 129 S.Ct. at 2321.
The Ninth Circuit Court of Appeals has likewise assumed that freestanding innocence claims are cognizable in both capital and non-capital cases and has also articulated a minimum standard of proof in order to prevail on such a claim. Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc). Under that standard "[a] habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." 132 F.3d at 476-77. See also Jackson, 211 F.3d at 1165. The petitioner's burden in such a case is "extraordinarily high" and requires a showing that is "truly persuasive." Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417).
Assuming arguendo that a freestanding claim of innocence may be maintained in this non-capital case, petitioner has failed to make the showing required to entitle him to relief. The court notes, first, that Valdez's declaration has no bearing on petitioner's convictions resulting from his assault on Davis, even though it purports to absolve petitioner of all criminal activity that took place on July 13, 1998. Moreover, post-trial exculpatory declarations from co-defendants, such as that of Valdez, are inherently suspect. As the Ninth Circuit has observed in considering similar evidence:
[A]ppellant argues that the co-defendants were prevented from testifying by their attorneys. This mere allegation is insufficient to establish that the co-defendants' testimony is newly discovered.
There is no evidence that they were forced to refrain from testifying. [fn. omitted] Furthermore, at the time it was probably prudent for them to decline to testify. [They] had each pled guilty on July 17, but had not been sentenced yet. Testifying now, however, is safe for the co-defendants, as they have already been sentenced. It would encourage perjury to allow a new trial once co-defendants have determined that testifying is no longer harmful to themselves. They may say whatever they think might help their co-defendant, even to the point of pinning all the guilt on themselves, knowing they are safe from retrial. Such testimony would be untrustworthy and should not be encouraged. We find that the judge did not abuse his discretion in refusing to grant a new trial on the basis of newly discovered evidence.
United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992). See also Awon v. United States, 308 F.3d 133, 141 (1st Cir. 2002) ("By the time of his affidavit St. Louis had nothing to lose by exonerating Awon. He had already been convicted and sentenced. He was in a position to say whatever he thought might help Awon [.]"); United States v. Montilla-Rivera, 171 F.3d 37, 42 (1st Cir. 1999) (finding that by the time of their post-sentencing affidavits co-defendants had nothing to lose by saying "whatever they [thought] might help their co-defendant, even to the point of pinning all the guilt on themselves, knowing they [were] safe" from any increased punishment for the transaction); United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996) (recognizing that a convicted, sentenced co-defendant has little to lose (and perhaps something to gain) by such testimony); United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983) (post-sentencing exculpatory testimony of co-conspirators found to be "inherently suspect").
Therefore, Valdez's declaration does not constitute a "truly persuasive demonstration" that petitioner is innocent of the other charges against him. Herrera, 506 U.S. at 417. Accordingly, petitioner is not entitled to relief on his claim of actual innocence.
B. Ineffective Assistance of Trial Counsel
Petitioner next claims his trial counsel rendered ineffective assistance by failing to investigate and present certain evidence at petitioner's trial. (Pet. at 4, 8-9.) After setting forth the applicable legal principles, the court will address petitioner's specific claims in turn below.
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. 466 U.S. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).
Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "This includes a duty to... investigate and introduce into evidence records that demonstrate factual innocence, or that raise sufficient doubt on that question to undermine confidence in the verdict." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999)). In this regard, it has been recognized that "the adversarial process will not function normally unless the defense team has done a proper investigation." Siripongs v. Calderon (Siripongs II), 133 F.3d 732, 734 (9th Cir. 1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). Therefore, counsel must, "at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (internal citation and quotations omitted). On the other hand, where an attorney has consciously decided not to conduct further investigation because of reasonable tactical evaluations, his or her performance is not constitutionally deficient. See Rompilla v. Beard, 545 U.S. 374, 383 (2005) ("the duty to investigate does not force defense lawyers to scour the globe on the off-chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste"); Siripongs II, 133 F.3d at 734; Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998); Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995). "A decision not to investigate thus 'must be directly assessed for reasonableness in all the circumstances.'" Wiggins, 539 U.S. at 533 (quoting Strickland, 466 U.S. at 691). See also Kimmelman, 477 U.S. at 385 (ineffective assistance where counsel "neither investigated, nor made a reasonable decision not to investigate"); Babbitt, 151 F.3d at 1173-74. A reviewing court must "examine the reasonableness of counsel's conduct 'as of the time of counsel's conduct.'" United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting Strickland, 466 U.S. at 690). Furthermore, "'ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.'" Bragg, 242 F.3d at 1088 (quoting Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)).
In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman, 477 U.S. at 381 (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
Robert Juarez (Juarez) testified for the prosecution at petitioner's trial. (Reporter's Transcript on Appeal (RT) at 924-1184.) Juarez was formerly a member of the Nuestra Familia prison gang and he was the brother-in-law of petitioner's co-defendant, Elisio Valdez. (Id. at 926-28.) Among other things, Juarez testified that after he was released from the California State Prison at Pelican Bay (Pelican Bay), he went to petitioner's house and, while there, he intercepted and confiscated a letter to petitioner from someone at Pelican Bay telling petitioner to "dust," or kill Juarez. (Id. at 1000-01, 1006.) Juarez further testified that when he and petitioner were incarcerated at Deuel Vocational Institution (DVI) and were in cages after taking a shower, he asked petitioner about the shooting of Mestas and petitioner responded that he "dusted the bitch." (Id. at 1010-11, 1027.) Petitioner also made a gesture indicating that a gun was used to kill Mestas. (Id. at 1036.) Juarez also testified that at one point when petitioner was housed "a few doors" down from him at DVI, he and petitioner had a further conversation about the Mestas murder. (Id. at 1028-29.) During that conversation, petitioner told Juarez that he "dusted the bitch" because "she was a rat" and explained some of the particulars surrounding the Mestas killing. (Id. at 1028-29, 1036.) Juarez testified that he had heard elsewhere that Mestas was a "rat." (Id. at 1029.) Specifically, Juarez had heard that Mestas testified against someone in a murder trial. (Id. at 1031.)
After the verdicts were rendered in this case, petitioner waived his right to counsel and proceeded pro se. (Supplemental Reporter's Transcript on Appeal (SRT) at 74-83.) On August 1, 2000, petitioner filed and argued a motion for new trial in the trial court. (Id. at 131-54; CT at 911-17.) Petitioner argued that his counsel did not provide him with adequate representation at trial. Specifically, he complained that trial counsel failed to obtain records establishing that petitioner "never came in contact" with Juarez at DVI, and that he was not housed in a cell next to Juarez. (SRT at 132-33.)*fn4 Petitioner also argued that his trial counsel:
(1) improperly failed to exclude "a lot of hearsay testimony by Robert Juarez;" (2) violated petitioner's right to due process by failing to cooperate with petitioner's suggestions regarding the conduct of the trial; (3) failed to demonstrate that there was insufficient evidence linking petitioner to the charged crimes; (4) failed to investigate a shoe-print found at the scene of the Mestas shooting that did not fit petitioner's shoe-print; (5) failed to subpoena the mail sergeant at Pelican Bay to refute Juarez's testimony that a letter was mailed from Pelican Bay to petitioner; (6) failed to move to sever petitioner's trial from that of his co-defendant Valdez; and (7) failed to challenge the testimony of a prosecution witness who stated he saw a car matching petitioner's car at the scene of one of the crimes. (Id. at 133-39.) Petitioner also argued that his trial counsel abandoned him, that he was unable to communicate with his counsel, and that his trial counsel "threatened" him by falsely telling him that the shoe-print placed him at the scene of the Mestas shooting. (Id. at 138, 143.) Petitioner noted several times that he was not identified by any eyewitness as being present at the shooting of Mestas or the attempted shooting of Giminez, and questioned why he was nevertheless found guilty of those crimes. (Id. at 133-39, 145-47.)
After hearing petitioner's argument on the motion for new trial, the trial court granted an evidentiary hearing and appointed an investigator to assist petitioner. (Id. at 165, 171-76.) Several witnesses testified at that evidentiary hearing, as explained below.
Correctional Sergeant Mark Piland testified as follows. At Pelican Bay, some, but not all, of the outgoing mail, including mail involving known prison gangs, was reviewed and read. (RT at 2415-16, 2421.) There are no inmates whose mail is always read. (Id. at 2423-24.) A piece of mail which contained a directive to "kill someone" would be "stopped," but only if it was read by the mail room staff and was understood as a directive to kill. (Id. at 2414, 2418, 2422-23, 2429.) Sergeant Piland was not familiar with petitioner, but he had heard of Robert Juarez. (Id. at 2425, 2430.)
Sergeant Den Dulk testified that at DVI, several inmates could be in holding cells at the same time. (Id. at 2459.) Correctional staff document inmates' movements in the administrative segregation unit, including when they use the showers. (Id. at 2480.) However, time spent in holding cells is not necessarily documented. (Id. at 2481.) If an inmate was waving his hands while standing in a holding cell, another inmate could see it. (Id. at 2462.) Sergeant Den Dulk also testified that some inmates "yell important stuff" to inmates in other cells, and some don't. (Id. at 2468-69.) He testified that inmates "blurt stuff out all the time." (Id. at 2473.)
Monivie Peraza, petitioner's sister, testified that petitioner's trial counsel told her petitioner's case was "open and shut." (Id. at 2498.) When she asked counsel why petitioner's trial wasn't severed from that of Valdez, he "just shook his head like, 'I don't know'" and said it was "too late" for a severance. (Id.) She testified that petitioner's complained to her that his trial counsel failed to file motions that petitioner had suggested or written, threatened petitioner "with evidence," and didn't like petitioner. (Id. at 2499.)
Petitioner's trial counsel also testified at the hearing. He stated that he didn't personally cause any physical evidence to be tested because he received test results from co-counsel or from the prosecutor and there was no physical evidence linking petitioner to the crimes. (Id. at 2503-07, 2547.) He did not compare petitioner's shoe-print size to the size of the shoe-print found at the scene of the Mestas shooting because the prosecutor's theory of the case was that petitioner was the driver of the getaway car, not the shooter. (Id. at 2515.) Counsel denied telling petitioner that the reason he didn't have the shoe-print tested is that he believed the prints belonged to petitioner and did not want to create evidence that could be used by the prosecutor to prove petitioner's guilt. (Id. at 2518.) Counsel also denied that petitioner asked him to test the shoe-prints. (Id. at 2519-20.) Counsel denied that he ever threatened or belittled petitioner in order to prevent him from making outbursts in the courtroom or to dissuade him from testifying. (Id. at 2527-29.) Counsel acknowledged that petitioner wanted to sever his trial from Valdez's trial. (Id. at 2531-32.) He testified that it was difficult working with petitioner, that he was nervous around petitioner on several occasions, and that he swore at petitioner in the courtroom several times in order to induce petitioner to improve his behavior. (Id. at 2532-37.) However, counsel did not dislike petitioner and their difficult relationship did not affect counsel's motivation. (Id. at 2532.) Counsel did not refuse to ask questions petitioner wanted him to ask. Rather, he incorporated petitioner's suggestions into his own questions, covered the material in another way, or didn't ask the question because he didn't think it was a good idea. (Id. at 2537.) Counsel did not subpoena a correctional sergeant from Pelican Bay to testify at trial to the mail procedures at the prison because he did not think Juarez was a credible witness and he "didn't think the jury would believe him." (Id. at 2540.) Counsel also testified he did not believe he could establish that all letters leaving Pelican Bay were read by correctional staff. (Id. at 2541.)
Counsel testified he did not file a "severance motion" because he believed it would be advantageous for petitioner to be tried with Valdez so that "the jury would have somebody else to hang their -- a conviction on and be able to exonerate [petitioner]," and because there was no evidence "that was going to be admissible against [Valdez] but not admissible against [petitioner]." (Id. at 2542-43.) Counsel "didn't think it was to [petitioner's] advantage to be tried alone in the case." ...