The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the California Superior Court, County of Tulare, Petitioner was convicted of first degree murder (Cal. Penal Code*fn1 § 187, subd. (a); Count 1), attempted premeditated and deliberate murder (§§ 187, subd. (a), 664; Counts 2 and 4); permitting a person to discharge a firearm from a motor vehicle (§ 12034, subd. (b); Count 3), discharging a firearm from a motor vehicle (§ 12034, subd. (c); Count 5); and shooting at an inhabited dwelling (§ 246; Count 6). The jury also found true the following enhancements: as to Count 1, that the murder was committed while Petitioner was an active participant in a criminal street gang (§ 190.2, subd. (a)(21); that the crimes were committed "for the benefit of, at the direction of, or in association with a criminal street gang" (§ 186.22, subd. (b)(1)(A); as to Counts 1 and 2, that a principal discharged a firearm and caused great bodily injury or death (§ 12022.53, subds. (b), (c), (d), (e)(1) in the commission of the charged crimes); and as to Counts 4, 5, and 6, that Petitioner personally used a firearm in the commission of the charged offenses (§ 12022.5, subd. (a)). (I CT 147-148, 216-221.) Petitioner was sentenced to an aggregate term of life imprisonment without the possibility of parole plus 25 years to life. (Id. at 237-242.)
Petitioner filed a timely appeal to the California Court of Appeal, Fifth Appellate District. On December 27, 2007, the Court of Appeal reversed Petitioner's sentence and remanded the case for re-sentencing, but affirmed the judgment in all other respects. (Lodged Doc. No. 1.)
The California Supreme Court denied Petitioner's petition for review on April 9, 2008. (Lodged Doc. Nos. 2 & 3.)
Petitioner filed the instant federal petition for writ of habeas corpus on June 8, 2009. (Doc. 1.) On August 10, 2009, Petitioner filed an amendment to the petition naming the proper respondent. (Doc. 7.)
On October 16, 2009, Respondent filed an answer to petition. Petitioner did not file a traverse.
On March 26, 2005, Alejandro Gonzales reported that his white Honda four-door car had been stolen.
Pedro Flores was standing outside of his home on Easter morning March 27, 2005. A white car with two Hispanic male occupants drove by. The occupants of the car stared at Flores. Flores "flipped them off" and made a Northerner gang sign. The car turned around and one of the occupants fired shots at Flores. Flores later told an officer that the driver was the shooter. Flores ran inside and moved his sister from the front bedroom to the rear bedroom. More shots were fired into the front bedroom. Flores testified that the passenger was the person who was shooting after Flores went inside the house. Flores described the driver as skinny and the passenger as heavier. A handgun was used.
J.B., an 11-year-old neighbor of Flores, testified he was playing in the backyard on Easter morning. He heard gunshots and ran to a window and looked out. Flores was calling out names to the males in a four-door white car. The car contained two males in the front seat. Flores went inside his home. The car turned around and the passenger started shooting a rifle.
Later that same Easter morning, V was with his older brother, Anthony Castro (Castro). They went to a gas station to put gas in his mother's car. A white Honda drove by and the passenger flashed a Southerner gang sign at them. V and Castro ignored the incident. The driver stopped at the gas station and put gas in the car. V said the driver was skinny. They left the gas station and the white Honda followed them.
Castro then drove to pick up his good friend Alejandro Salazar, a Norteno gang member. Castro was still being followed by a white Honda with two males inside. The Honda continued to follow them after Castro picked up Salazar. Castro returned to his house and dropped off V. Castro changed his clothes and then he and Salazar began walking back to Salazar's house.
As Castro and Salazar were walking back toward Salazar's house, the white Honda drove in their direction. A rifle came out of the back seat window and shots were fired. Salazar fell to the ground, then got up and ran to his house. Castro ran into a different house.
V was outside of his house when his cousin Sandra came and said that Castro had been shot. V saw the white Honda speeding away from the area. Castro had been shot three times. He bled to death from the gunshot wound to his back. This bullet passed through his lever, kidney, diaphragm and heart. He had two other bullet wounds, one to his leg and one to his hip.
Salazar's aunt took Salazar to the hospital. He had been shot three times, once each to the head, back and leg.
On Easter morning, law enforcement received a call reporting the location of a stolen vehicle. Deputy Sheriff William Hakker went to the location. He saw a white Honda with a Hispanic male in the driver's seat. The male ran into an apartment. [Petitioner] came out of the same apartment; he was not the male who ran inside the apartment. The white Honda matched the description of a vehicle used earlier in a shooting. The vehicle contained a.22 rifle, and a 12-gauge shotgun.
[Petitioner] was questioned. At first, [Petitioner] denied all involvement in the shootings. He then admitted that during the first shooting he shot at the window of the house. In the second shooting, [Petitioner] was driving when Ezekial Perez shot at the two males walking down the street. [Petitioner] said that earlier that morning he went to Kmart with Exekial and gave him money to buy ammunition. Ezekial bought the ammunition.
On Easter morning, March 27, 2005, two bald, "gangster-type" males came into the Delano Kmart and purchased a box of.22 caliber ammunition. An employee of the store identified Ezekial Perez from a picture as the "chubby" person who walked out of the store with a bag of ammunition.
Stephen Pederson testified as an expert on gangs. He testified that [Petitioner] was a gang member and the crimes were committed for the benefit of a criminal street gang. (Lodged Doc. No. 1, Opinion, at 2-4.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
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; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show ...