FINDINGS AND RECOMMENDATIONS
Petitioner Luis Armando Delhorno is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner stands convicted in the Sacramento County Superior Court of various offenses in case 02F02916, for which he is currently serving a sentence of 15 years to life. In the pending petition, petitioner challenges his convictions for second degree murder and vehicular manslaughter.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts of petitioner's offenses were well summarized on direct appeal in the unpublished opinion of the California Court of Appeal, Third District, case C046032:
Shortly after 1:00 p.m. on March 20, 2002, the victim, Lowell Tetrick, was riding his motorcycle southbound on Whitsett Drive in Sacramento when he encountered defendant driving his pickup truck in the opposite direction. Defendant had just turned onto Whitsett and was in the victim's lane of traffic approximately 104 feet away. Defendant and the victim applied their brakes, and the victim lost control of the motorcycle. It flipped over and slid on its side toward the truck. The victim was separated from the motorcycle and he too slid toward the truck. By the time the motorcycle and the truck reached each other, they had nearly come to a stop. The victim came to rest just under the front of the truck, wedged between the truck and the motorcycle.
After a second or two, defendant started to drive the truck forward slowly. The motorcycle, which was in front of the right side of the truck, was pushed out of the way. However, the victim remained under the truck and was dragged along as the truck increased speed. The victim was dragged for 243 feet before disengaging from behind the truck. His helmet was scraped and gouged and was eventually pulled off his head. Defendant sped away from the scene.
The victim suffered massive injuries, especially to his right side. A skid mark of flesh and blood was found on the road between where the motorcycle and the victim came to rest. The victim had a large scrape from his back over both hips and an abrasion over his right shoulder blade. He had a large scrape over his left chest and hip. Muscle had been torn away in the armpit area of his right side, and there was asphalt imbedded in this injury. He had injuries to the back of his right arm and his legs, but the most severe injuries were to his head. The right side of his face had been ground away, his right eyeball was gone, the bone of his skull had been ground down and the gray matter of his brain was exposed. There were also injuries to the victim's ribs, spleen, sacroiliac joint, and pubic bone.
A nearby resident called 911 at 1:29 p.m. and police and fire department personnel arrived soon thereafter. The victim was taken away, but his heart stopped before he reached the hospital. The victim was pronounced dead at 1:52 p.m.
When defendant arrived home, he appeared shaken and scared and told his girlfriend he had hit something or somebody. Defendant told her that the victim was under the truck and that he dragged him. Defendant covered the back of his truck with a tarp. The truck was later moved ot the home of a friend. Defendant asked if he could leave it there because he was in trouble with the law and wanted to go to Mexico. Later, an anonymous caller reported where the truck could be found and the identity of its owner. The authorities found the truck and defendant was arrested.
Petitioner was charged with murder, vehicular manslaughter, failing to stop after causing an accident, and driving without a valid license. He pleaded no contest to failing to stop after causing an accident and driving without a valid license, and was convicted by jury of murder and vehicular manslaughter. Petitioner was sentenced to an aggregate term of 15 years to life.
On direct appeal, the California Court of Appeal, Third Appellate District, affirmed judgment, and the California Supreme Court denied review. Petitioner sought habeas corpus relief in the state courts which was denied at all levels.
In the pending petition, petitioner claims that (A) the prosecutor committed prejudicial misconduct when presenting the testimony of an expert witness, a portion of which was previously undisclosed to the defense; (B) the trial court erred in denying petitioner's motion for a mistrial based on the foregoing ground; (C) the prosecutor committed further misconduct during closing arguments when he allegedly argued facts not in evidence and misstated the applicable law; and (D) petitioner received ineffective assistance of counsel when his court appointed attorney failed to raise the aforementioned claims on direct appeal.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
A. Prosecutorial Misconduct- Expert Testimony
Petitioner claims that the prosecutor failed to inform the defense that he would be asking his collision reconstruction expert, Steven Walker, about sound or noise produced inside the cab of petitioner's truck. Petitioner contends that the prosecutor's actions violated the Supreme Court's holding in Brady v. Maryland, 373 U.S. 83 (1963). Petitioner further contends that Walker's previously undisclosed testimony lessened the prosecution's burden of proof and interfered with his right to the effective assistance of counsel, depriving him of a fair trial.
Walker testified at length on the morning of October 9, 2003 regarding his findings at the scene of the collision. (Reporter's Transcript ("RT")*fn1 at 759-95.) After a lunch break and the brief testimony of another witness taken out of order for scheduling reasons, Walker resumed the stand. (RT at 807.) He opined that petitioner's truck was at or near a stop, i.e., was traveling at less than five miles per hour, at the time of impact with the victim and the motorcycle. (RT at 810-12.) He further opined that the victim's body separated from the motorcycle, which was spun clockwise out of the way to its point of rest, while the victim was captured at the front end of the truck and "pushed into compliance with the geometry of the undercarriage of the truck." (RT at 818-820.)
Walker described for the jury the "dynamics involved in the transmission of sound into the cabin of a vehicle." (RT at 825-28.) He explained, in part, that when a vehicle runs over an object, the noise vibrations are directed into the passenger compartment where they can be heard as well as sensed, tactilely (sic), through "the seat ...