The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. (Court Docs. 8, 9.)
Following a jury trial in the Kern County Superior Court, Petitioner was convicted of vandalism of property worth more than $400 (Cal. Pen. Code*fn1 § 594(b)(1)); and willful and unlawful use of force or violence upon Aaron Blinn (§ 243(a)). Petitioner was acquitted of the charge of making terrorists threats to Aaron Blinn (§ 422). It was also found that Petitioner twice, after being released from custody on an earlier felony, committed an additional felony within the meaning of section 12022.1. In addition, Petitioner had previously served two prior prison terms within the meaning of section 667.5. Petitioner was sentenced to a total prison term of six years.
Petitioner filed a timely notice of appeal. On May 20, 2009, the California Court of Appeal, Fifth Appellate District affirmed the judgment in all respects.
Then on July 29, 2009, the California Supreme Court denied review.
Petitioner filed the instant federal petition for writ of habeas corpus on September 10, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on November 30, 2009, and Petitioner filed a traverse on December 21, 2009. (Court Docs. 10, 12.)
Aaron Blinn has lived in the same neighborhood as Petitioner for the past couple years. During that time, Petitioner would frequently drive down Blinn's street at a high rate of speed causing loud eruptions of noise late at night. Petitioner revved his motorcycle right in front of Blinn's home, waking up his children who were scared. Blinn lived on the corner of the street and he placed steel barriers in front of his children's window and kitchen because he was afraid Petitioner would crash into his home. Blinn had reported Petitioner's conduct to the police and had asked him, albeit politely, to stop revving his motorcycle because it was scaring his children. Petitioner replied, "Fuck you. I'll do whatever I want. You got a problem with me, we'll take it out to the fields and we'll handle this." Petitioner also stated that the police could not stop him and he belonged to a motorcycle gang.
On September 30, 2007, just after midnight, Blinn heard Petitioner revving his motorcycle outside his home, which woke up his children. After Blinn looked outside, Petitioner drove down the street at a high rate of speed, doing a "wheelie." Blinn got in his truck and drove to Petitioner's home to try to talk to him. Just after he arrived, Blinn "saw the blinds fly open in one of the windows in front of the house, and [Petitioner] jumped out of it." (RT 127.) Petitioner went to the passenger side of Blinn's truck and was screaming "Mother fucker, get out of the fucking truck. I'm going to get your fucking ass." (RT 127-128.) He continued to scream and was attempting to open the door. He then ran to the driver's side of the truck and pushed Blinn through the open window, telling him to get out of the car. (RT 128.) Petitioner then reached in the truck and threw the driver's side door open causing it to crack and bend. (Id.)
Blinn attempted to reason with Petitioner and asked him not to rev his motorcycle because it frightened his children. Petitioner seemed to calm down for a bit and then he exploded like a "firecracker." (RT 131-132.) He was screaming again and spitting on Blinn's face. (RT 132.) Blinn could smell alcohol on Petitioner's breath, and he told Blinn "Things are only going to get worse for your family. . . . My friends have been wanting to help me out and take care of you guys. . . . I've been holding them back. . . . Not anymore. They're going to be able to do whatever they want. . . All I've got to do is call, and they'll be there." (RT 132.) Blinn was very scared by Petitioner's threats. (RT 136.)
Blinn explained that in the past Petitioner had told him there was nothing the police department could do to stop him. (RT 138.) He also said he was in a motorcycle militia gang and had been shot in a gunfight. (Id.) After this incident, Blinn observed a group of motorcycle riders outside his home and was very scared. (RT 147.) Blinn did not want his wife and children in the home so they went to his father's house in Colorado. Blinn "skipped around from house to house" and changed vehicles periodically. (RT 149.)
Richard Smith, lives across the street from Petitioner. (RT 185.) On September 30, 2007, he received a phone call from Blinn in the early morning hours. Blinn asked him to go to his home. (RT 186.) Smith went to Blinn's house and he was very upset. While the two were standing outside Blinn's home, Smith observed Petitioner drove down the street at a high rate of speed and did not slow down as he turned the corner. (RT 186-187.)
Mike Popovich, lives directly behind Aaron Blinn and their properties share a back fence. (RT 191.) On October 10, 2007, Popovich received a telephone call from Blinn and asked if he would help him get his family out over the back fence. (Id.) He helped Blinn get his wife and children over the back fence and took them to an aunt's house. (RT 191-192.)
Manolito Sagun, owns a motorcycle and lives two houses down from Blinn. (RT 197.) He had conversed with him and worked on his motorcycle. (RT 198.) Sagun had observed Petitioner drive between 110 and 120 miles per hour in the neighborhood. (Id.) He also observed him doing a "wheelie." (Id.) On September 30, 2007, Sagun's wife and child were awakened by the excessive noise from Petitioner's motorcycle. (RT 201.)
Justin Lopez, was 19-years-old at the time of trial, and lives two houses down from Petitioner. (RT 212-213.) He is friends with Petitioner and knew his grandmother. (RT 214-215.) On September 30, 2007, sometime around midnight, he was standing in his driveway with a friend smoking a cigarette. (RT 213.) He saw Petitioner arrive home on his motorcycle and then he saw Blinn arrive. He heard yelling between Petitioner and Blinn. (RT 215, 219, 221.) Lopez told Blinn "it's late at night. You need to go" and Blinn told him it was none of his business. (RT 220.) He thought he heard Petitioner say "Well, if you're going to keep doing this, then you can step in my front yard, but other than that you just need to leave." (RT 221.) He then saw Blinn open the door to his truck and then say "if you're going to do something" and slammed the door. (Id.) He said that Blinn was yelling very loud. (RT 222.) Lopez did not see the truck's door hit the blue vehicle and Petitioner remained on his lawn during the entire incident.
John Chafin, is a neighbor of Petitioner. (RT 311.) He observed Petitioner ride his motorcycle at a high rate of speed through the neighborhood. (RT 312.) He also observed Petitioner drive around Blinn's home in a circle fashion. (RT 314.)
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 Kern 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 that the state court's adjudication of his 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). A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams (Terry) v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id., quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). "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, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, where the state court decided an issue on the merits but provided no reasoned decision, courts conduct "an independent review of the record . . . to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
C. Prosecutorial Misconduct - Doyle Error
Petitioner contends that the prosecutor committed misconduct under Doyle v. Ohio, 426 U.S. 610 (1976), by soliciting testimony regarding the invocation of his Miranda rights.
Petitioner's counsel called Bakersfield Police Officer Joseph Dougherty to testify. Counsel asked him several questions relating to the officer's interview with Petitioner. (RT 266-268.)
During cross-examination, the prosecutor questioned Officer Dougherty regarding his interview:
BY MR. HAYWARD [prosecutor]:
Q: Did you attempt to - - or isn't it true you attempted to talk to him in a more in-depth way about what happened and he refused to talk to you?
A: Yes, sir. I advised him of the Miranda issue.
MR. LUKEHART [defense counsel]: ...