The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING FIRST AMENDED PETITION
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
Following a jury trial in the Fresno County Superior Court, Petitioner was conviction of attempted murder (Cal. Penal Code §§ 187(a)/664),*fn2 assault with a firearm (§ 245(a)(2), first degree burglary (§§ 459, 460), unlawful possession of a firearm (§ 12021(a)(1)). It was also found true that he personally used a firearm and caused great bodily injury (§ 12022.5(a), 12022.53(b)-(d), 12022.7(a)). In addition, Petitioner admitted that he suffered a prior serious felony conviction within the meaning of California's Three Strikes law. (§§ 667(b)-(i), 1170.12).
Petitioner was sentenced to a determinate term of 23 years plus a consecutive indeterminate term of 25 years-to-life in state prison. (Lodged Doc. No. 5.)
Petitioner filed a timely notice of appeal. On May 18, 2005, the California Court of Appeal, Fifth Appellate District affirmed Petitioner's conviction. (Id.)
Petitioner filed a petition for review in the California Supreme Court, which was denied on August 10, 2005. (Lodged Doc. Nos. 6, 7.)
Petitioner filed the instant federal petition for writ of habeas corpus on March 13, 2006, and an amended petition on March 31, 2009. (Court Doc. 27.)
Respondent filed an answer to the amended petition on June 1, 2009, and Petitioner filed a traverse on July 1, 2009. (Court Docs. 33, 36.)
In June 2002 James Cogdell and Vicki Hubble lived together in a mobile home and a small trailer located on a parcel of property on Little Sandy Road (the property). One can see the trailer from the mobile home and vice-versa.
On the morning of June 20th Cogdell took some medication and went to sleep in the trailer. A few hours later, Hubbell was in the mobile home when she heard dogs barking and a man yelling. Cogdell was awakened by the noise. Cogdell opened the trailer door and Hubbell looked through a window to ascertain the source of the commotion. They saw [Petitioner], with whom they had been acquainted for the past five to eight years, standing beside a white Ford Thunderbird. Co-defendant Jeffrey Marquez and another person were sitting inside the car. Cogdell recognized the Ford Thunderbird as one belonging to Marquez's wife, Donna McCain Marquez (McCain).
[Petitioner] approached the trailer, yelling that Cogdell owed him and that he was going to kill him. Cogdell told [Petitioner] to leave. [Petitioner] began to walk away. Cogdell closed the door, but quickly reopened it because [Petitioner] continued to yell.
Marquez got out of the car. He opened the trunk, removed an object and tossed it to [Petitioner]. [Petitioner] approached Cogdell, holding the object. Cogdell and Hubbell realized that [Petitioner] was carrying a gun. Cogdell described it as a sawed-off .22 caliber rifle. During her testimony Hubble described it as an older rifle with a brown stock. [Petitioner] pointed the rifle at Cogdell and said that "he was going to kill him." Cogdell replied, "Go ahead and kill me then."
Cogdell testified that [Petitioner] entered the trailer without his permission, yelling that Cogdell "owed him," and "he was going to take whatever." Cogdell told [Petitioner] that "[h]e ain't taking nothing." [Petitioner] repeatedly said that "he's crazy and that he'd kill me." [Petitioner] also said, "you know I can do it."
Cogdell grabbed the rifle's barrel and pulled it to his left. Cogdell and [Petitioner] began struggling. [Petitioner] discharged the rifle, sending a bullet through a cabinet. They continued to struggle and about 30 seconds later [Petitioner] discharged the gun a second time, sending a bullet into Cogdell's lower left leg.
Hubbell testified that she heard [Petitioner] and Cogdell arguing. [Petitioner] insisted that he was going to enter the trailer. Cogdell was trying to push him outside. The two men began wrestling in the trailer's entry. Hubbell heard a gunshot and then she saw [Petitioner] on the floor, half in and half out of the trailer's entry. [Petitioner] still had the gun in his hands. He started to get on his feet. While he was on his knees he fired a second shot, causing Cogdell to fall backwards. [Petitioner] got to his feet. He yelled, "You are crazy for messing with me. You know I'll kill you. What are you doing? Are you crazy? You know I'm-you know I'll kill you. I'm going to kill you."
[Petitioner] walked back to the car, carrying the rifle. He handed the rifle to Marquez, who slid it in behind the driver's seat. The two men got into the car. Then [Petitioner] got out of the car, saying "he had to finish this, it was not done." Marquez got out of the car and said to [Petitioner], "Get in the car, let's go." They got back into the car and Marquez drove away.
Marquez testified that [Petitioner] got out of the car. Marquez said that he did not hear [Petitioner] yelling at anyone. After waiting for a few minutes, Marquez stepped out of the car, looked around and yelled to [Petitioner] that they needed to leave. [Petitioner] returned to the car. He did not have a gun in his hands and he was not running. Marquez denied hearing any gunshots and testified that he did not hand or toss a gun to [Petitioner]. Marquez was angry with [Petitioner] and yelled at him because he noticed two syringes in the car that he believed belonged to [Petitioner]. Marquez was afraid McCain would see the syringes. He was taking methadone to help him stop using illegal drugs because McCain had threatened to leave him if he used drugs again.
McCain testified she was in the back seat of the car and Marquez was driving that morning. [Petitioner] was in the front passenger seat. After stopping for gas and food, [Petitioner] directed Marquez to the compound. When they arrived, [Petitioner] got out of the car. McCain saw [Petitioner] standing near the travel trailer. Marquez got out of the car and yelled to [Petitioner], "Cousin, come on, let's go." [Petitioner] was facing the trailer. McCain could hear dogs barking and [Petitioner] yelling, but she did not know what he was saying. She did not hear any gunshots and [Petitioner's] hands were empty. She did not see any blood or scratches on [Petitioner's] body. ...