FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges on several grounds his 2000 conviction on charges of second degree murder with use of a firearm. This action is proceeding on petitioner's second amended petition, filed August 4, 2005.
On November 8, 1998, [petitioner] was at the residence of his cousin, Timothy Carver (Carver), using the telephone to arrange a ride to Reno, Nevada, where he had a November 12, 1998, court date in a criminal matter. Later that day, [petitioner] entered Carver's residence unannounced and became angry and argumentative with Carver's wife, Renae Carver. [Petitioner] implied that she had given wrong directions to an individual who was planning to take him to Reno. Carver told [petitioner] to leave the residence and picked up the telephone to call the police. A shot rang out. When [petitioner] turned around, Renae saw that he was holding a chrome gun with a pearl or white handle. [Petitioner] had acquired the gun a couple of weeks earlier during one of several burglaries he had committed with Carver.
Renae telephoned 911 and police arrived shortly thereafter. Paramedics found Carver lying on the floor. He was conscious and able to speak. He was taken to hospital where he underwent surgeries, lapsed into a coma, and died several days later. [Petitioner] was apprehended in Reno.
[Petitioner] testified on his own behalf that he saw Carver coming at him from the kitchen to his left. Carver had a knife in his left hand. Carver said nothing but lunged at [petitioner] to stab him. [Petitioner] used his left hand to block and grab Carver's arm. They slammed into a wall where a blood smear is visible. [Petitioner] got knocked down to the area of Carver's knees. [Petitioner] saw a handgun lying next to a telephone; a quilt partially covered the gun. He picked up the gun in his left hand as Carver swung at him. [Petitioner] jumped back and the gun went off. [Petitioner] dropped the gun and ran out of the apartment.
People v. Pratt, slip op. at 2-3.
I. Standards for a Writ of Habeas Corpus
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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
A. Reasonable Doubt Instruction
Petitioner's first claim for relief is that his federal constitutional right to equal protection was violated by the "essentially standardless" definition of reasonable doubt in CALJIC 2.90, the reasonable doubt instruction given at petitioner's trial. Second Amended Petition, at 7. The last reasoned state court rejection of this claim is the decision of the state court of appeal on petitioner's direct appeal, which rejected the claim as follows:
[Petitioner] contends the trial court violated his federal right to equal protection when it instructed the jury with CALJIC 2.90, which, he claims, "provides no adequate and uniform standard for determining the level of certainty to which the jury must be persuaded . . . ." (Italics added.) An almost identical contention, that the instruction "gave the jury no guidance as to the level of certainty," was held to be frivolous in People v. Hearon (1999) 72 Cal.App.4th 1285, at pages 1286, 1287.*fn2
[Petitioner] claims a result contrary to Hearon is now requires by the United States Supreme Court's landmark decision in Bush v. Gore (2000) 531 U.S. , [148 L.Ed.2d 388, 399]. We disagree.
In Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d 582] the high court held that, "The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial court's from defining reasonable doubt nor requires them to do so." (511 U.S. at p. 5 [127 L.Ed.2d at p. 590].) Because no definition is necessary, the definition in CALJIC 2.90 cannot be challenged as inadequate.
None of the opinions in Bush, supra, 531 U.S. [148 L.Ed.2d 388], purports to reject Victor, supra, 511 U.S. 1 [127 L.Ed.2d 583], or to hold that trial courts must define reasonable doubt. It is fundamental that a case is not authority for an issue neither raised nor considered. (People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4.)*fn3
Rather, in Bush, supra, 531 U.S. [148 L.Ed.2d 388] the court majority carefully distinguished the election contest before it from the ordinary case in which a jury evaluates evidence at a criminal trial. In the election context, "The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment." (Id. at p. [148 L.Ed.2d at p. 399].) Here, in contrast, the fact finder confronted numerous persons who appeared as live witnesses and had to decide "whether to believe [each] witness." (Ibid.) [Petitioner] does not argue that the assessment of credibility can be confined by a series of specific rules, as in Bush. Nor does Bush suggest that the next step in the process, the determination whether the facts found by the trier establish guilt beyond a reasonable doubt, is "susceptible to much further refinement" through "specific rules designed to ensure uniform treatment." (Ibid.)*fn4
[Petitioner] contends that further refinement can easily be accomplished, but his only specific suggestion is that the jury "be informed that there are at least three standards of proof in the law, preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt." The point has no merit.
None of the closing summations in this case described the lesser standards of proof or related them to the standard of beyond a reasonable doubt. However, there mere omission of inapplicable standards from a particular case does not raise the specter that the applicable standard will be applied in an unequal manner. The jury had to decide whether the evidence placed [petitioner]'s guilt in doubt and whether that doubt was reasonable. The definitions of "preponderance of evidence" and "clear and convincing evidence" do not tell the jury how to determine whether a doubt is reasonable; they are not essential or even particularly helpful to that task. Their omissions from this case did not violate equal protection.
People v. Pratt, slip op. at 5-8.
The jury in petitioner's trial was instructed with CALJIC 2.90, as follows:
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.
Clerk's Transcript on Appeal (CT) at 237. In Victor v. Nebraska, 511 U.S. 1 (1994), the United States Supreme Court held that a reasonable doubt instruction "need not follow a prescribed formula, and . . . require[s] only that the trial court (1) convey to the jury that it must consider only the evidence and (2) properly state the government's burden of proof. See id. at 13, 114 S.Ct. at 1246, 127 L.Ed.2d 583. The Court specifically stated that: 'An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof.' Id. at 14-15, 114 S.Ct. at 1247, 127 L.Ed.2d 583 (emphasis added)." Lisenbee v. Henry, 166 F.3d 997, 999 (9th Cir. 1999). CALJIC 2.90, as given at petitioner's trial, meets these standards. Drayden v. White, 232 F.3d 704, 715 (9th Cir. 2000).
In Bush v. Gore, 531 U.S. 98 (2000), the United States Supreme Court held that "recount mechanisms" implemented in the State of Florida following a Florida Supreme Court decision requiring a recount of votes cast in the 2000 presidential election did not "satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right" to vote because of "an absence of specific standards" to ensure the equal application of the "basic command" to "consider the 'intent of the voter.'" Bush v. Gore, 531 U.S. at 105-106 (internal citation omitted). Nothing in Bush v. Gore in any way undermined the holding of Victor v. Nebraska, nor is there any clearly established United States Supreme Court precedent extending the holding in ...