The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Lakwinder Singh, a state prisoner proceeding pro se, has filed a Petition for Habeas Corpus relief under 28 U.S.C. § 2254. Singh is presently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Correctional Training Facility, Soledad. Respondent has answered the Petition and Singh has replied. Singh has also requested an evidentiary hearing.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial Singh was convicted in the California Superior Court, Sutter County, of one count each second-degree murder (California Penal Code § 190(a)) and personal use and discharge of a firearm in committing the offense (California Penal Code §§ 12022.5, 12022.53). Singh was sentenced to consecutive, indeterminate terms of 15 years to life on the second-degree murder conviction and 25 years to life on the use of a firearm for an aggregate sentence of 40 years to life. Singh was also sentenced to the upper term of 10 years for the gun use enhancement (California Penal Code § 12022.5(a)), which sentence was stayed under California Penal Code § 654. Singh timely appealed his conviction and sentence to the California Court of Appeal, Third District, which affirmed his conviction and sentence in an unpublished, reasoned decision.*fn2 The California Supreme Court summarily denied review without opinion or citation to authority on October 26, 2005. On February 6, 2006, Singh filed a Petition for a Writ of Habeas Corpus in the Sutter County Court, which summarily denied his Petition for failure to establish a prima facie case for habeas relief, citing In re Lawler, 23 Cal 3d 190, 194. Subsequent petitions for habeas corpus relief were summarily denied without opinion or citation to authority by the California Court of Appeal, Third District, and the California Supreme Court on August 10, 2006, and October 10, 2007, respectively. Singh timely filed his Petition for relief in this Court on January 27, 2008.
II. GROUNDS RAISED/DEFENSES
Singh raises four grounds in his Petition: (1) in instructing the jury, the trial court improperly modified CALJIC 5.50.1; (2) the trial court improperly denied his motion for a new trial or, in the alternative, a reduction of the conviction to voluntary manslaughter; (3) the trial court erred in imposing the stayed prison term for the gun use enhancement; and (4) ineffective assistance of trial counsel. Respondent has not raised any affirmative defenses.*fn3
Because the Petition was filed after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn9 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn10
In applying this standard, this Court reviews the last reasoned decision by the state court,*fn11 which in this case was that of the California Court of Appeal. Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn12
Ground1: Modification of CALJIC 5.50.1.
The trial court instructed the jury with CALJIC 5.50.1, which, over defendant's objection, the court modified by deleting the language shown as stricken:
Evidence has been presented that on prior occasions the alleged victim threatened or participated in an assault or threat of physical harm upon the defendant. Further, [E]vidence has been presented that other persons known by the defendant to be associated with the victim threatened or assaulted or participated in an assault or threat of physical harm upon the defendant. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed his life or physical safety was endangered at the time of the commission of the alleged crime.
In addition, a person whose life or safety has been previously threatened or assaulted by other persons known by the defendant to be associated with the victim is justified in acting more quickly and taking harsher measures for self protection from an assault by that person than would a person who has not received threats from or previously been assaulted by the same person or persons.
Singh argues that by deleting the reference to the prior assault by the victim upon him, the trial court denied the jury the opportunity to use the prior assault in assessing Singh's state of mind at the time of the shooting. According to Singh, this prejudiced him because it rendered moot his state of mind, a key element in the defense. The California Court of Appeal rejected Singh's arguments, holding:
A homicide defendant who asserts self-defense is entitled upon request to a pinpoint instruction on antecedent threats or antecedent assaults by the victim or third-parties associated with the victim, if there is evidence in the record to support such an instruction. (Citations omitted)
Citing cases from other jurisdictions (citations omitted) defendant argues that the victim's assault upon defendant immediately prior to the shooting qualifies as an antecedent assault. Thus, he says, the deleted portion of the instruction was supported by the evidence. We disagree.
The victim's attack upon defendant immediately prior to the killing does not qualify as an antecedent assault within the meaning of CALJIC No. 5.50.1. In California, the cases establishing the right to a pinpoint instruction regarding antecedent threats or assaults, all involve prior threats or assaults made on occasions before, and separate from, the events underlying the charged offense. (Citation omitted.) In such circumstances, a pinpoint instruction may be necessary or helpful to assist the jury in evaluating the significance of otherwise unrelated events in the past, and the effect these past events had on the reasonableness of the defendant's response to the victim's present conduct.
However, the same reasoning does not logically apply to the victim's assault upon defendant, which constituted an integral part of the events immediately preceding the fatal shooting. In a homicide case where a defendant claims self-defense based on threatening conduct by a victim, jurors do not need a special pinpoint instruction to understand the significance of the victim's assaultive conduct immediately prior to the killing. The standard CALJIC self-defense instructions, which were given to the jury in this case, were sufficient to cover the topic. (See CALJIC Nos. 5.12, 5.13, 5.15-5.17, 5.50-5.53.)
This is not a situation where after the victim attacked defendant, a significant amount of time elapsed and the victim then made threatening moves indicating he was going to attack defendant again. Here, the victim beat defendant, was pulled off of him by Brower, was removed to a location approximately eight feet away, was not moving toward or speaking to defendant, and was not armed at the time of the shooting. Under these circumstances, defendant could no longer entertain the belief that the victim constituted an imminent and deadly peril to him. Thus, defendant's right to use deadly force in self-defense ended absent any further conduct by the victim creating a risk, or apparent risk, of death or great bodily injury. (Citations omitted.)
Although previous threats or assaultive conduct by a defendant's victim may cause the defendant to be on heightened alert and to reasonably act more quickly to any act by the victim that reasonably appears to be calculated to carry out the threat (citation omitted), previous threats and assaults alone do not justify a deadly assault absent some overt act or physical demonstration by the victim. (Citations omitted.)
Thus, the victim's attack upon defendant was not a prior assault within the meaning of CALJIC No. 5.50.1; it was the only assault by the victim that could have ...