FINDINGS AND RECOMMENDATIONS
Petitioner Vernon Shaw, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his conviction in the San Joaquin County Superior Court, case number SF082211A, for two counts of attempted murder, three counts of assault with a semiautomatic firearm, and three counts of discharging a firearm from a vehicle.
A. The trial court erred by imposing consecutive sentences;
B. The trial court erred by refusing a specifically requested jury instruction on accomplice testimony;
C. In-court identifications should not have been allowed; and
D. He received ineffective assistance of trial and appellate counsel.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
Robert Horn worked and lived about a block from Poplar Street, in Stockton. He had recently acquired a burgundy-colored Cutlass and on April 28, 2001, someone broke his car window and stole his stereo.
On May 2, 2001, Sean Abrams, an acquaintance of Horn's, appeared and told Horn he had seen a guy named "Fooka" break into Horn's car and steal the stereo. He also told Horn he knew where Fooka lived. The two men drove three houses down and parked on the corner of Poplar Street, where they saw Zakarias Brown and another male. Abrams identified Zakarias, aka "Fooka," as the thief. Horn had seen Zakarias in the neighborhood, so he got out of his car and approached him, telling Zakarias that he (Horn) had heard that Zakarias had stolen his car stereo. Zakarias denied stealing the stereo and the two discussed the matter. Horn believed him and concluded that Abrams had lied to him, so he told Zakarias to forget the matter, they shook hands, and Horn turned and began walking back to his car.
As Horn walked away, Zakarias said, "If you want trouble, I give him trouble." Horn then saw Abrams charge towards Zakarias, while pushing up his sleeves. Zakarias pulled out a handgun and shot Abrams in the neck, and as Abrams turned to run, Zakarias shot him again in the back. Horn thought Zakarias was shooting at Abrams.
Abrams screamed he was hit, jumped into Horn's car, and Horn drove him to Dameron Hospital. During that drive, Abrams asked Horn to go back and retrieve his cell phone, which he had dropped when he was shot. Horn told him not to worry.
Horn spoke to police officers at the hospital and agreed to go back to the scene and try and identify the shooter. He was transported in a patrol car to the scene of the shooting where he identified Zakarias and Zakarias was arrested. About 30 minutes later, the police returned Horn to the hospital. Meanwhile, Abram's family had arrived at the hospital, including defendant [petitioner Shaw, who is Sean Abram's brother]. Abram's mother asked Horn if he knew where Abrams dropped his cell phone and he told her he did. Shortly afterwards, defendant asked Horn if he would take him to the area where Abrams had dropped his cell phone and Horn agreed.
Meanwhile, people had begun gathering in front of the apartment complex where Abrams was shot. Two of Zakarias's brothers, Darwin Brown and Clayton Brown, were standing in the driveway in front of the apartment complex, talking about Zakarias's arrest. Their longtime friend David Brown III and his one-year old son, David Brown Jr., came by and saw Zakarias seated in the back of a police car and Horn seated in another police car talking on a cell phone. Darwin told David that Horn was responsible for Zakarias's arrest. A short time later, Calvin Davis, Maurice Crawford, and Carnell Burse stopped to talk to the Brown brothers. Meanwhile, Horn and defendant were headed back to Poplar Street in Horn's Cutlass, ostensibly to retrieve Abram's cell phone. During the drive, defendant asked Horn about Zakarias and Horn told him the police had taken him to jail. When they reached Poplar Street, Darwin spotted the Cutlass as it slowly approached them and said "[h]ere come those fools now." He and Clayton thought there was going to be trouble as a result of the Abram's shooting. The rest of the men in their group stood up to see the car and as it approached the group, Darwin stated walking towards it. Just as he reached the sidewalk, the car stopped and defendant began shooting a semiautomatic handgun from the passenger window.
Darwin and Clayton were hit and fell to the ground. Calvin was also hit in the face but was able to run up the stairs for help. Upon hearing the first shot, David grabbed his son and hit the ground, while Maurice jumped over a gated fence, and Carnell followed by breaking though it.
Darwin Brown was hit twice in the head and once in the leg and lay on the ground unconscious. He regained consciousness in the hospital where he remained for a month. Bullet fragments remain lodged in his head. Clayton Brown was shot four times, twice in the buttocks, once in the leg, and once in the thigh. One of the bullets exited through his penis. Calvin Davis was shot in the face and lost his eye.
Immediately after the shooting, defendant pointed the gun at Horn and ordered him to drive away. Horn complied, but as he was driving, he heard a clicking sound. Thinking defendant was reloading his gun, he looked at defendant, which caused him to hit another car. Defendant exited the car and fled on foot. Horn drove to the Greyhound bus station, caught a bus to Mississippi, and stayed there for one day. He then went to Milwaukee, where he stayed for about a month until he was arrested.
An anonymous tip led Stockton Police officials to Buffalo, New York where defendant was apprehended after he attempted to flee from 12 to 15 Buffalo police officers who pursued him in a foot chase through numerous fenced in yards. He was subsequently extradited to California.
Defense Defendant took the stand and testified in his own behalf. He denied being in Horn's car on May 2, 2001, or shooting the victims, and pointed the finger at Horn. He testified that after he learned his brother had been shot, he went to the hospital where he found out what happened. He spoke to Horn at the hospital about the shooting and Horn told him he had just come from the scene of the shooting where he identified the shooter, although he did not identify the shooter by name. Defendant left the hospital by himself and went home where he told his girlfriend what happened, then he went to his uncle's house and then to his aunt's house. The following day, Sean told him about the shooting of the Brown brothers and their friends. Later, he heard that people in the neighborhood were looking for him and felt he and his family were in danger, so he decided to take his family and leave Stockton. He went to Los Angeles first and then to Buffalo, New York where his cousin lived.
Defendant also called several witnesses who testified. According to his aunt, Ocee Deed, she met Horn a couple of days before the shooting when he was driving his Cutlass. At that time, he said only thing wrong with his car was that "Darfus and them," who lived around the corner from him, had stolen his stereo and that he was going to get them niggers for that. When she told him he could always get a new stereo, he said, "No. No. I'm going to get them niggers."
Sean Abrams testified that on May 2, 2001, Horn called him on his cell phone and told him he had seen the people who stole his stereo and he wanted to go jump them. He picked up Abrams and they drove around the corner where Horn approached Fooka and an argument ensued. Sean was standing by Horn's car when Horn started to run towards him, and Fooka started shooting. Abrams was sure Fooka was shooting at Horn, although Abrams was the one that got hit, once in the neck and then as he ran away, again in the back. On the drive to the hospital, Horn told Abrams he was going back to take care of business. Abrams did not see his brother at the hospital.
After petitioner's first trial the jury was unable to reach a verdict. Reporter's Transcripts ("RT") at 43. After a second trial petitioner was found guilty on December 5, 2002, of two counts of attempted murder, three counts of assault with a semiautomatic firearm, and three counts of discharging a firearm from a vehicle, with all firearm enhancements found to be true. Answer, Lodged Doc 14 at 418-419. The trial judge sentenced petitioner to an aggregate term of ninety-eight years to life on January 27, 2003. Id. at 671-77, 683-85.
B. Procedural History 1) State Appellate Review
Petitioner filed his appellate brief in the California Court of Appeal, Third Appellate District on February 19, 2004. Answer, Lodged Doc. 3 at 2. That court denied his appeal in a reasoned opinion on September 15, 2004. Answer, Lodged Doc. 7. On October 26, 2004, petitioner filed a petition for review in the California Supreme Court. Answer, Lodged Doc. 9. That petition was summarily denied on December 12, 2004. Answer, Lodged Doc. 10.
Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court on January 19, 2006. Answer, Lodged Doc. 11. That petition was denied on October 18, 2006. Petitioner then filed his original petition for a writ of habeas corpus in this matter on January 31, 2006. On February 16, 2007, petitioner filed his first amended petition.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a).
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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. 28 U.S.C. § 2254(d).
Although "AEDPA does not require a federal habeas court to adopt any one methodology," Lockyer v. Andrade, 538 U.S 63, 71 (2003), there are certain principles which guide its application.
First, the "contrary to" and "unreasonable application" clauses are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). It is the habeas petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 360 (2002). It is appropriate to look to lower court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).
Second, the court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). So long as the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000).
Third, in determining whether a state court decision is entitled to deference, it is not necessary for the state court to cite or even be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2003). Moreover, a state court opinion need not contain "a formulary ...