The opinion of the court was delivered by: Jeremy Fogel United States District Judge
ORDER*fn1 DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Victor Maciel Garcia ("Garcia") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the Court concludes that Garcia is not entitled to relief and will deny the petition.
Two eyewitnesses identified Garcia, who at the time was seventeen years old, as the person who fired several shotgun blasts during a gang altercation in an alley on May 5, 2002. A pellet from one of those blasts apparently hit a twelve-year-old girl in the leg and caused slight bleeding.
On cross-examination at trial, one of those witnesses was asked by Garcia's counsel if she remembered talking with an officer on the night of the shooting. She answered in the affirmative. Garcia's counsel asked if the witness had told the officer that she was "unable to describe the suspects." She replied, "No, I never stated that." Garcia's counsel then attempted to refresh the witness's recollection with a police report from the night of the shooting that purportedly indicated that she had, in fact, been unable to identify any suspects. The court sustained the prosecution's objection to the use of the report as inadmissible hearsay, and Garcia's counsel was unable to show the report to the witness.
On September 9, 2002, a jury in the Stanislaus Superior Court convicted Garcia of: attempted murder by intentionally and personally using a firearm (Cal. Penal Code §§ 664/187 & 12022.53(d), count one); assault with a firearm (Penal Code §§ 245(a)(2) & 12022.5(a)(1), count three); assault with a firearm (Penal Code §§ 245(a)(2) & 12022.5(a)(1), count four); assault with a firearm (Penal Code §§ 245(a)(2) & 12022.5(a)(1), count six); and participation in a criminal street gang (Penal Code § 186.22(b)(1)). Additionally, as to count six, the jury found true the allegation that Garcia personally inflicted great bodily injury (Penal Code § 12022.7(a)). CT 166-167.
Before sentencing, Garcia requested a transfer to the juvenile court on the ground that at the preliminary hearing the magistrate did not find reasonable cause to believe that Garcia was subject to the discretionary provisions of Proposition 21.*fn2 Welf. & Inst. Code, § 707(d)(4).*fn3 In opposition, the prosecutor argued that Garcia had waived any jurisdictional irregularity by failing to object and, in the alternative, that the magistrate's findings of probable cause to believe that Garcia committed offenses authorizing a Proposition 21 discretionary direct file were equivalent to the missing finding. Pen. Code, §§ 664/187(a), 245(a)(2), 186.22(b)(1); Welf. & Inst. Code, § 707(b)(12), (b)(13), (d)(2)(C)(ii). The court denied the transfer. CT 179-185.
On December 5, 2002 the trial court sentenced Garcia to an aggregate forty-five years to life term in state prison - fifteen years to life for attempted willful, deliberate, and premeditated murder consecutive to twenty years for the personal and intentional use of a firearm and ten years pursuant to the criminal street gang enhancement. CT 218. The superior court subsequently recalled the sentence and held a hearing on Garcia's request for a juvenile disposition.
At the hearing, the court characterized Garcia's prison term of forty-five years to life as "kind of a long sentence for somebody [his] age." The court also stated that the eighteen year term Garcia's counsel had tried unsuccessfully to negotiate was "[p]robably acceptable," but that releasing Garcia "at the time he's twenty-five year old" was inappropriate. The court noted that Garcia had returned to the United States after being deported because he "liked the lifestyle of the gang," that he increased his involvement in illegal gang activities after his return, and that he even shot at someone "to prove he was faithful to the gang." On that record, the court reimposed forty-five years to life sentence to send the message that having "the younger people pull the trigger" will lead to no less harsh a punishment than if "the twenty-two year old gang members" pull the trigger.
Garcia filed a direct appeal in the state appellate court on May 22, 2003. Prev. Lod. Doc. No. 1.*fn4 That appeal raised two issues: (1) the trial court erred when it denied his counsel the opportunity to refresh the eyewitness's recollection using a police report that included her statement to the police at the scene; and (2) the sentence for attempted murder required modification. On May 20, 2004, the Court of Appeal affirmed the conviction, but it remanded the matter to the superior court to modify the judgment. The Court of Appeal directed the trial court to strike the fifteen year to life term for attempted willful, deliberate, and premeditated murder and the consecutive ten year criminal street gang enhancement, and to substitute a term of life with possibility of parole and a fifteen year minimum eligible parole date.
On June 30, 2004, Garcia filed a petition for review in the California Supreme Court. On September 15, 2004, the petition was denied without comment or citation. Garcia did not file a habeas corpus petition in state court.
Garcia filed the instant federal habeas petition in United States District Court for the Eastern District of California on December 13, 2005. USDC-E Docket No. 1. The matter was transferred to the Fresno Division on January 12, 2006. USDC-E Docket No. 5. The petition alleges that: (1) Garcia was denied his Sixth Amendment right to confront and cross-examine an eyewitness by refreshing the witness's recollection with a police report containing her statement to the police at the scene; (2) review should be granted based on recent grants of review in two subsequent cases; and (3) Garcia was denied effective assistance of counsel at trial. Garcia had not asserted a claim of ineffective assistance of counsel previously.
On April 13, 2007, Respondent moved to dismiss the petition on the ground that it contained exhausted and unexhausted claims. USDC-E Docket No. 21. On January 16, 2008, Magistrate Judge Wunderlich recommended that Respondent's motion be granted, but that Garcia be given the opportunity to withdraw the unexhausted claim of ineffective assistance of counsel. USDC-E Docket No. 32. Garcia withdrew the unexhausted claim on February 25, 2008. USDC-E Docket No. 33. On November 24, 2008, the matter was reassigned to this Court for further proceedings. USDC-E Docket No. 51.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997). This petition was filed after the effective date of AEDPA and is therefore subject to its provisions.
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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); Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "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." Lockyer, 123 S.Ct. 1163, 1174 (citations omitted). "Rather, that application must be objectively unreasonable." Id. (citations omitted).
While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887 (1983), direct review of a criminal conviction is the primary method for a defendant to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765 (1995).
A. Garcia's Sixth Amendment Right to Confrontation Was Not Violated
Garcia contends that the trial court violated his right to confront and cross-examine witnesses when it denied his counsel the opportunity to use a police report to refresh the recollection of an eyewitness who had identified him as the shooter. Pet. at 5. Garcia previously raised this claim in the California Court of Appeal and in ...