The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are Petitioner's first amended petition for a writ of habeas corpus (Doc. 26), Respondent's answer (Doc. 31), and Petitioner's reply (Doc. 40).
The California Court of Appeals, on Petitioner's direct appeal, recited the following facts, and Petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct*fn1
Around 11:30 the night of September 10, 2003, Woodland Police Officer Timothy Keeney stopped Montoya briefly on the northwest corner of Court Street and Fifth Street for riding his bicycle without a light. Montoya told Keeney he was going to the 7-Eleven store. He was acting nervous but consented to a pat search of his clothing. Keeney found no weapons. Montoya's counsel asked on cross-examination whether her client appeared to be "under the influence." Keeney responded that he was not a "drug certified person" and there was no indication in his report that Montoya was under the influence of a controlled substance.
Shortly after midnight, Daniel Rangel heard yelling then screams outside his residence at the corner of North Street and Fifth Street. From his porch, Rangel saw two men from the neighborhood, identified at trial as Montoya and Morales, running north on Fifth Street. Rangel heard Montoya say, "I'm tired of this shit." After Montoya and Morales ran away, Rangel and another resident went to investigate. They found a man lying in a pool of blood in the alley off Fifth Street and called for an ambulance.
Medical personnel arrived and found Jesus Alderete lying face down in a pool of blood with no breath or pulse. Alderete was pronounced dead at the hospital at 12:35 a.m.
Police investigators found no weapons in the alley or in the adjacent yards. They did, however, find a black nylon knife sheath on Fifth Street near the alley. Investigators also discovered shoe prints along the alley fence and blood on the fence all the way to the street.
Angelica Roa, Alderete's cousin, went to the crime scene in the early afternoon of September 11, 2003. As she entered the alley, Roa saw two men behind the house where Alderete had lived. One of the men, whom she identified at trial as Montoya, was drinking a beer. Montoya told Roa he was sorry about what happened to Alderete, adding that he "didn't expect something like that to happen around that area." Montoya also indicated that he had known Alderete for a long time and although they were not good friends, "they got along fine." He acknowledged to Roa that he hung around with "the southerners" while Alderete hung out with "the northern." At one point during the conversation, Montoya showed Roa a scar on his back.
Police arrested Montoya on the morning of September 12, 2003, after learning Rangel had seen him running from the scene of the crime. Woodland Police Detective Joshua Simon advised Montoya of his Miranda rights. [FN2] Montoya talked with him for over an hour. The prosecution played a videotape of the interview at trial and the jury received a transcript. [FN2: Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed. 2d 694].]
Montoya initially told Simon that he was riding his bicycle home from the 7-Eleven store around 10:00 p.m. on September 10, when a police officer stopped him for not having a light on the bike. He said he went home after that encounter and watched a movie. Montoya acknowledged he knew Alderete by his nickname "Chongo" but never talked to him. He knew that Chongo lived on the alley where he was killed.
Simon told Montoya that someone had seen him running away from the area where Alderete's body had been found. According to Simon, Montoya's demeanor changed. He crossed his arms and appeared to be nervous. In addition, Montoya's hands were shaking and his breathing was "kind of jagged." Montoya told Simon he had been stabbed a year earlier near the hot dog stand on Fifth Street by a Norteño he did not know. Montoya acknowledged he was a Sureño.
When Simon reminded Montoya that he had been seen running from the scene with another person, Montoya offered a second version of what happened. He told Simon that he encountered Alderete at the entrance to the alley off Fifth Street as he was riding his bike home from Freeman Park. Montoya said Alderete started "talking shit to [him]." Specifically, Alderete called Montoya "scrap," a disrespectful term for a Sureño. According to Montoya's second story, Alderete started to box with him then pulled out a knife. A friend of Montoya's came up and hit Alderete from behind. Montoya told Simon he got the knife away from Alderete and stabbed him with it. He stated he was not sure how he got the knife, but said he stabbed Alderete in the back no more than two or three times. Referring to Alderete, Montoya continued, "You know I'm tired of that fool too, you know. Always fuckin, fuckin with my mom. Whatever you know. Fucking always talking shit."
Montoya elaborated on what happened earlier in the evening. He said he was mad at a friend and had gone to a park to fight him. However, Montoya's friend did not want to fight, so he left for home. Montoya told Simon that when Alderete began talking "bullshit" to him, he thought to himself, "I have to bust somebody, you know, so I can go happy." He refused to give Simon the full name of his friend, but eventually identified Morales from a photograph. Montoya also confirmed that Morales hit Alderete with a rock or piece of concrete from the alley and punched Alderete with his fists.
Simon told Montoya he suspected Montoya brought the knife to the fight and suggested the police might find his fingerprints on the knife sheath. At that juncture, Montoya changed his story again. He acknowledged the knife was his and he had been carrying it until the police officer stopped him on his bicycle. Montoya said he threw the knife away toward the alley when he saw the officer making a U-turn to approach him. When Alderete started "talking shit" to Montoya on his way home, he turned around, rode back to pick up the knife, and returned to where Alderete was standing. Alderete swung at Montoya a couple of times, but missed. At that point, Morales came up and hit Alderete from behind. Montoya told Simon that when Alderete moved toward the fence, "I turned back and did it." According to Montoya, he discarded the knife.
During the interview, Detective Simon observed several gang-related tattoos on Montoya's body, including the numbers one and three on the inside of his middle finger, three dots on his elbow, and "Little Sur" on his thigh. A search of Montoya's residence revealed CD's by gang-related artists with covers featuring gang symbols and graffiti. Photos displayed in the residence showed Montoya and the words "Sur 13."
Police arrested Morales in a bedroom of Montoya's residence and brought him to the police station for interrogation on the afternoon of September 12, 2003. Detective Simon read Morales his Miranda rights and Morales talked with him. The prosecution played a videotape of the interview at trial and the jury received a copy of the transcript.
Morales told Simon he received a phone call from Montoya late on the night of September 10, 2003. Montoya challenged Morales to a fight because Montoya believed Morales was trying to steal his girlfriend. The two men met at Freeman Park at the south end of Fifth Street where they exchanged words but did not fight. According to Morales, Montoya displayed a knife during the confrontation.
Shortly after Montoya left the park on his bicycle, Morales heard screams. He followed the sounds to the alley off Fifth Street. Morales saw Montoya fighting with a man called "Chongo" whom he knew to be affiliated with the Norteños. Morales told Simon he had previously been in a fist fight with Alderete and heard Alderete call Montoya "scrapa." Morales picked up an object - - described alternatively as a "rock" or "dirt clod" - - and threw it at Alderete's back. Alderete turned to face Morales and began fighting with him. Morales said Montoya started swinging at Alderete's back. Alderete held up his hand and said "sorry" before collapsing to the ground. Morales knew that Montoya "stuck him." Montoya made a motion with the knife and said, "damn homie I stabbed him."
Morales told Simon that he and Montoya fled to Montoya's house. Montoya said he stuck Alderete four times. When he heard police cars driving into the area, Montoya threw the knife over the fence behind his apartment. He also told Morales to throw his pocket knife over the fence.
Morales acknowledged that both he and Montoya were "southerners." However, he explained that he would not get mad if someone called him "scrapa" because he was a "southsider." Before the stabbing, Morales said he told Montoya he did not "play . . . shit" over territory. "I don't play red or blue whatever homie, But ay, don't get me wrong I'm still down for . . . my side homie." Simon testified that Morales had Sureño tattoos on his body, including the word "Sur" on his left hand and three dots on his right hand.
Police investigators found two knives in the vacant lot adjacent to Montoya's apartment. One had a double-edged steel blade and a black plastic handle. The other was a pocket knife. Further analysis revealed Alderete's DNA in blood stains on the knife with the double-edged blade, but none on the pocket knife. There were no fingerprints on either knife.
The autopsy showed that Alderete suffered six stab wounds on his back, two of which caused his death. One fatal wound was four and a half inches deep and the other six inches deep. These stab wounds punctured Alderete's lungs, causing severe bleeding into the chest cavity. The autopsy also revealed an abrasion behind Alderete's right ear which appeared to have been caused by a hard object with well-defined edges, like a brick or piece of concrete. Alderete had a blood-alcohol level of 0.14 percent at the time of his death. He was 5'10" tall and weighed 289 pounds. Alderete had a dot tattooed on the index finger of his right had and four dots on the fingers of his left hand.
Sergeant Steven Gill, supervisor of the Gang Violence Suppression Unit of the Woodland Police Department, testified as a gang expert. Gill stated that there were approximately 250 Sureños and 400 Norteños in Woodland. He explained that Sureños identify with blue and the number 13, symbolized by tattoos of one and three dots, while Norteños identify with red and the number 14. According to Gill, both gangs "thrive on their theory of respect," gained by instilling fear in rival gang members and the community at large. Gang members do not tolerate disrespect and use violence to increase respect and enhance their gang's reputation. Gill testified that gang members are expected to back each other up in a confrontation with rival gang members.
It was Gill's opinion that both Montoya and Morales were active members of the Sureño criminal street gang on September 11, 2003, based on their clothing, tattoos, prior involvement in gang-related incidents, and their statements to police. Gill testified that Montoya was stabbed in the back in a fight with three Norteños at Fifth and North Streets in June 2002. He also stated that Alderete admitted he was a Norteño as early as 1996. Since that time, Alderete had been observed flashing gang hand signals and wearing gang symbols and colors.
When asked a hypothetical question based on the circumstances of this case, Gill stated his opinion that the stabbing of Alderete was a gang-related incident. According to Gill, events like the stabbing make citizens reluctant to report gang activity, help control gang territory and increase drug sales, and send a message to rival gang members that dire consequences result from disrespect. Gill testified it was significant that both Montoya and Morales admitted they were Sureños, knew Alderete was a Norteño, and recognized Alderete had disrespected Montoya by calling him "scrapa."
Petitioner was charged in the September 11, 2003, death of Jesus Alderete, with first degree murder (Cal. Pen. Code § 187(a)) and two enhancements, including that the murder was committed for the benefit of a criminal street gang (Cal. Pen. Code § 186.22(b)(4)) and that Petitioner used a deadly weapon in the commission of the crime (Cal. Pen. Code § 12022(b)(1)) (count 1). He was also charged with criminal street gang activity (Cal. Pen. Code § 186.22(a)) (count 2), and that he intentionally killed Alderete to further criminal street gang activity (Cal. Pen. Code § 190.2(a)(22)) (count 3). Following a jury trial, Petitioner was convicted of the first degree murder count, with the jury finding both enhancement charges to be true (count 1). He was also convicted of participating in a criminal street gang (count 2), and the jury found true the special circumstance that he intentionally killed Alderete to further criminal street gang activity (count 3). On August 27, 2004, he was sentenced to life imprisonment without the possibility of parole on both count 1 and count 3. He was also sentenced to life imprisonment without the possibility of parole on the first enhancement to count 1, and an additional year on the second enhancement. Finally, he was sentenced to an additional two years on count 2.
Petitioner appealed his conviction to the California Court of Appeal. On February 27, 2006, the Court of Appeal issued an order vacating Petitioner's life sentence as to the first enhancement of count 1, staying the two year sentence as to count 2, and affirming the remainder of the judgment. Petitioner then appealed to the California Supreme Court, who denied his petition for review on May 24, 2006. Following this denial, Petitioner filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of California. His petition was transferred to this court on September 19, 2006, for proper venue. On September 28, 2006, this court appointed counsel for Petitioner, and provided an opportunity for counsel to file an amended petition. The amended petition was filed on June 15, 2007. Respondent file an answer on August 15, 2007, and Petitioner filed his traverse on January 11, 2008.
In his amended petition, Petitioner sets forth five claims: (1) Insufficient evidence to support a finding of premeditation and deliberation; (2) Trial court error in not giving proper jury instruction; (3) Insufficient evidence to support the gang enhancement finding; (4) Prosecutorial misconduct; and (5) California's death penalty statue is unconstitutional, in violation of the Eighth Amendment.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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); 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). Thus, under § 2254(d), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412) . "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 549 U.S. at 74.
In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406.
State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 538 U.S. at 75-76. This is because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. at 75. The Supreme Court recently reaffirmed that "[w]here . . . it is the state court's application of governing federal law that is challenged, the decision must be shown to be not only erroneous, but objectively unreasonable." Waddington v. Sarausad, __ U.S. __, 129 S.Ct. 823, 831 (2009) (citations omitted). Therefore, the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
The "unreasonable application of" standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982. The federal habeas court looks to the last reasoned state court decision as the basis for the state court judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
A writ of habeas corpus is generally available under 28 U.S.C. § 2254 only on the basis of a transgression of federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is not available for alleged error in the interpretation or application of state law. See Middleton, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo. See Milton v. Wainwright, 407 U.S. 371, 377 (1972).
A "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)); see also Lisenba v. California, 314 U.S. 219, 236 (1941). In order to raise such a claim in a federal habeas corpus petition, the "error alleged must have resulted in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1962); Crisafi v. Oliver, 396 F.2d 293, 294-95 (9th Cir. 1968); Chavez v. Dickson, 280 F.2d 727, 736 (9th Cir. 1960).
The Ninth Circuit has also reminded us that "[h]abeas corpus is an 'extraordinary remedy' available only to those 'persons whom society has grievously wronged and for whom belated liberation is little enough compensation.'" Juan H. v. Allen, 408 F.3d 1262, 1270 (9th Cir. 2005) (quoting Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)).
Petitioner's first claim is that there was insufficient evidence for the jury to find he acted with premeditation and deliberation to support a finding of first degree murder. His third claim is that there was insufficient evidence to support the gang enhancements.
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that, upon the record of evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).*fn2 Under Jackson, the court must review the entire record when the sufficiency of the evidence is challenged on habeas. See id. It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. "The question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991); see also Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Further, the Ninth Circuit has held that the AEDPA requires an additional degree of deference to a state court's resolution of a sufficiency of the evidence claim. Consequently, habeas relief is not warranted unless "the state court's application of the Jackson standard [was] 'objectively unreasonable.' " Juan H., 408 F.3d at 1275 n.13. The federal habeas court determines sufficiency of the evidence in the context of the substantive elements of the criminal offense, as defined by state law. See Jackson, 443 U.S. at 324 n.16.
1. PREMEDITATION AND DELIBERATION
Here, the state court set forth the relevant state law in reviewing Petitioner's challenge of his conviction on the basis of sufficiency of the evidence to find he acted with ...