FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1997 conviction on charges of attempted murder, shooting at an inhabited dwelling, shooting a firearm from a motor vehicle, possession of a firearm by a felon, and enhancements for arming with a firearm and commission of the crimes for the benefit of a criminal street gang, and the sentence imposed thereon.
This action is proceeding on eight claims raised in petitioner's first amended petition, filed September 28, 2005, including the four claims raised in petitioner's original petition and again in the first amended petition, and claims one, two, four, and five in petitioner's first amended petition, filed September 28, 2005. See Findings and Recommendations filed June 11, 2007; Order filed July 24, 2007. The claims before the court are: (1) actual innocence of the crime of attempted murder; (2) actual innocence of the crime of shooting at the victim; (3) violation of the double jeopardy clause by charging petitioner with two crimes from one act; (4) violation of the so-called Williamson rule by charging petitioner with attempted murder, and shooting at the victim, and shooting at a building; (5) insufficient evidence to support the attempted murder conviction; (6) ineffective assistance of trial counsel for failing to request certain jury instructions and in failing to properly challenge a writ of mandate filed by the government; (7) violation of double jeopardy by sentencing petitioner more severely following a successful appeal; and (8) ineffective assistance of appellate counsel for failing to raise on direct appeal the claim that petitioner received ineffective assistance of counsel for failing to request certain jury instructions, for failing to challenge one of the jury instructions given, and for failing to challenge the omission of another jury instruction.
Thia Lee lived with her eight children and her husband, Chao Vang, in a house in San Joaquin County. On the night of January 27, 1997, Lee heard a disturbance in the backyard. When Vang returned home from work, Lee asked him to check the backyard. When he did so, Vang discovered that some chickens the family was keeping were gone.
The following morning, Vang found footprints and a pager near a broken portion of the fence. A person with a name similar to a misspelling of [petitioner]'s name purchased this pager in February 1996. Vang pushed a button on the pager and a telephone number appeared, which belonged to [petitioner]'s girlfriend. Vang telephoned the number and a male answered the phone.
During the ensuing conversation, Vang told the man that Vang lived where the chickens had been stolen and that he had found a pager. When the man demanded the return of his pager, Vang told him that, if he wanted the pager back, Vang wanted his chickens back. The man told Vang that all his chickens had been "killed and eaten." Vang threatened to destroy the pager. The man told Vang, if the pager was not returned, there would be a shooting that night and the man would come and kill Vang.
The two men agreed to meet at a school so Vang could return the pager. Vang went to the designated school and waited for an hour, but no one came. Soon thereafter, the pager started going off on a regular basis until the evening. A subsequent investigation disclosed 10 messages stored in the memory of the pager. The number 187, the Penal Code section for murder, was used in these messages approximately 20 times.
Around 10:30 p.m., Lee and her children were in the kitchen, and all the blinds in the house were closed. After the children finished their homework, some of them went to bed while everyone else watched television in the living room. The light in the kitchen remained on, while the living room was dark except for the television. Not more than five minutes after the family left the kitchen, five shots were fired through the front kitchen window.
Coincidentally, at the same time, two San Joaquin County Sheriff's Department deputies were dispatched to a nearby address on an unrelated call. As they were driving in the neighborhood, the officers heard what they believed to be shots fired, went to investigate, and saw a car parked on the wrong side of the road. Deputy Donald Benbrook heard another gunshot and saw a flash coming from the passenger side of the parked car.
Deputy Benbrook engaged the patrol car's lights and siren, and the deputies followed the suspects' vehicle. A high-speed chase ensued onto Interstate 5, off the freeway, and through a residential neighborhood. Benbrook noticed the passenger doors of the vehicle were open slightly and feet were hanging out of the car. The suspects drove back onto the freeway in a northbound direction.
At the county line, the Sacramento County Sheriff's Department and the California Highway Patrol took over the chase, and the suspects' vehicle ultimately was disabled. Officers surrounded the vehicle and arrested the three occupants -- Sang Soth (the driver of the vehicle), Xarone Xayosa*fn2 (who was sitting in the back seat), and [petitioner] (who was sitting in the front passenger seat). Officers found a loaded chrome colored.357 magnum handgun in a plastic bag inside the vehicle's engine compartment. They did not find a shotgun in the car.
According to Soth, he and [petitioner] had been at a barbecue where chicken was served earlier that day. Soth saw several guns at the party, including a three-foot-long shotgun, but he did not know to whom the guns belonged. Soth, Xayosa, and [petitioner] left the party and drove to a residence to pick up a pager. Suddenly, Soth heard popping sounds from just outside the car, and he drove away. He did not know who shot the gun and denied telling law enforcement officers that the shooter was sitting in the front passenger seat.
Xayosa testified that he, Soth, and [petitioner] left the party to buy beer. After making the purchase, Xayosa, who was in the back seat, became drunk and "fell asleep." A couple of gunshot blasts awakened him. The shots came from the passenger side of the car, and [petitioner] was sitting in the front passenger seat. Xayosa denied seeing a shotgun in the car.
Officers testified that Soth and Xayosa stated a shotgun was fired from the front right side of the vehicle, which was where [petitioner] was sitting.
An investigation revealed ten handgun rounds and three shotgun rounds in the street of an intersection through which the fleeing suspects had driven. Several expended shotgun shells were found along the roadway outside the front of the victims' house, and five plastic shotgun wads were found near the victims' front yard. There was no evidence that the house was fired on with a.357 magnum revolver.
Officer Kevin Hatano, an expert on street gangs, testified as follows: Soth was a member of a gang called the Original Bloods. [Petitioner] and Xayosa were members of the Conway Asian Gangsters, a gang founded sometime before 1992 and comprised of 22 members at the time of trial. One of the primary purposes of the gang was the commission of criminal acts. It is common for gang members to gain respect by committing violent acts and then bragging about them. Drive-by shootings often are done to make a statement or to raise the actor's status in the gang. In 1992, [petitioner] was convicted of burglary. Xayosa and Soth were arrested together for a burglary in 1994. The same year, Conway Asian Gangster members Binh Kouiyoth and Vong Vue attempted to kill a rival gang member. In Officer Hatano's opinion, the drive-by shooting at Vang's house benefited the Conway Asian Gangsters. Threatening to ruin a pager could be considered disrespectful by gang members, causing them to retaliate.
Kouiyoth I, slip op. at 2-6.
I. Standards for a Writ of Habeas Corpus
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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
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). 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). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
In claims one and two of the amended petition, petitioner contends that he is actually innocent of two of the crimes for which he was convicted. In his first claim for relief, he claims that he actually innocent of the attempted murder of Vang, and in his second claim for relief he claims that he actually innocent of shooting at Vang. Petitioner presented these claims to the California Supreme Court in a petition for writ of habeas corpus filed in that court on October 16, 2004. See Lodged Document 19. The California Supreme Court denied that petition in an order filed August 31, 2005 citing In re Clark (1993) 5 Cal.4th 750 and In re Robbins (1998) 18 Cal.4th 770, 780. See Lodged Document 20. Respondents contend the claims should be denied on the merits. See Answer to First Amended Petition, filed December 14, 2007, at 12-16.
The United States Supreme Court has "assumed without deciding" that it is possible to raise a so- called "freestanding claim of actual innocence" in federal habeas corpus proceedings. Osborne v. District Attorney's Office for Third Judicial District, 521 F.3d 1118, 1130 (9th Cir. 2008) (citing Herrera v. Collins, 506 U.S. 390, 417 (1993)).*fn3 "In Herrera, the Supreme Court did not specify what showing would be required for a habeas petitioner to make out a successful freestanding claim of actual innocence. The Court stated only that the threshold would be 'extraordinarily high,' and that the showing would have to be 'truly persuasive.' Herrera, 506 U.S. at 417...accord id. at 426 (O'Connor, J., concurring)." Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc); see also In re Davis, S.Ct., 2009 WL 2486475, slip op. at (Aug. 17, 2009) (Stevens, J., concurring) (citing Triestman v. United States, 124 F.3d 361, 377-380 (2nd Cir. 1997) for proposition that "'serious' constitutional concerns... would arise if AEDPA were interpreted to bar judicial review of certain actual innocence claims.") Cf. In re Davis, supra, slip op. at 2 (Scalia, J., dissenting) (U.S. Supreme Court has expressed "considerable doubt that any claim based on alleged 'actual innocence' is constitutionally cognizable.") The United States Court of Appeals for the Ninth Circuit has also "assumed that freestanding innocence claims are possible" and has "articulated a minimum 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.'" Osborne, at 1130-31 (quoting Carriger, at 476).
In support of his claim that he is actually innocent of attempting to murder Vang, petitioner presents his own declaration, in which he avers that he and the other occupants of the car knew that Vang would not be at home when they drove by and shot at the house, and that he had no intention of shooting Vang or anyone else. Amended Petition, at 16-17, Declaration of Chanh Kouiyoth. Petitioner's declaration falls far short of the "affirmative proof" that he is actually innocent of the attempted murder of Vang. The claim should be denied.
2. Shooting at the Victim
Petitioner's claim that he is actually innocent of shooting at Vang is based on the same contentions that support his claim that he is actually innocent of the attempted murder of Vang: that petitioner knew Vang would not be home when he drove by and shot at the house. This claim, too, is without merit.
1. Charging Petitioner with Two Crimes from One Act
By the fourth claim in the amended petition, petitioner contends that his Fifth Amendment protection against double jeopardy was violated when he was charged with both attempted murder of Vang and with a separate crime of shooting at Vang from a vehicle in violation of California Penal Code § 12034(c). Petitioner presented this claim to the California Supreme Court in the petition for writ of habeas corpus filed in that court on October 16, 2004, see Lodged Document 19, which, as noted above, was denied on August 31, 2005 in an order citing In re Clark (1993) 5 Cal.4th 750 and In re Robbins (1998) ...