The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Khammay Keomanivong, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Keomanivong is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pelican Bay State Prison. Respondent has answered, and Keomanivong has replied.
I. BACKGROUND/PRIOR PROCEEDING
Following a jury trial, Keomanivong, along with two co-defendants, Hong Le and Manora Ek, were found guilty in the San Joaquin County Superior Court of first-degree murder (Cal. Penal Code § 187), with two special circumstances, discharging a firearm from a motor vehicle with the intent to inflict death (Cal. Penal Code § 190.2(a)(21)), being an active participant in a criminal street gang and carrying out the murder to further the activities of the gang (Cal. Penal Code § 190.2(a)(22)), and six counts of attempted murder (Cal. Penal Code §§ 187, 664) against six identified ASW members. As to all of these counts, the jury found two firearm enhancements (Cal. Penal Code § 12022.53(c) and (d)), and a gang enhancement (Cal. Penal Code § 186.22(b)(1). All defendants were also convicted of discharging a firearm from a motor vehicle (Cal. Penal Code § 12034(c)), with gun use (Cal. Penal Code § 12022.53(d)) and gang (Cal. Penal Code § 186.22(b)(1)) enhancements, and street terrorism (Cal. Penal Code § 186.22(a)). In addition, Keomanivong was convicted of possession of a firearm by a felon (Cal. Penal Code § 12021(a)). The trial court sentenced Keomanivong to two prison terms of life without possibility of parole.
All three defendants timely appealed their convictions and sentences to the California Court of Appeal, Third District. As to defendants Keomanivong and Ek, the Court of Appeal found errors in sentencing and modified the sentences accordingly,*fn2 and reversed Le's conviction in an unpublished reasoned decision.*fn3 The California Supreme Court summarily denied review in a "postcard denial" without opinion or citation to authority on February 7, 2007. Keomanivong did not seek collateral review in the California state courts. Keomanivong timely filed his petition for relief in this court on November 5, 2007, and his second amended petition with leave of court on June 23, 2009.
II. GROUNDS RAISED/DEFENSES
In his second amended petition, Keomanivong raises seven grounds for relief: (1) denial of a speedy trial; (2) the prosecution failed to disclose evidence favorable to defendant; (3) an improper jury instruction on self-defense; (4) the trial court improperly refused to discharge a juror; (5) ineffective assistance of trial counsel; (6) a Kurtzman error;*fn4 and (7) insufficient evidence to support a gang member enhancement. Keomanivong also adds as his eighth ground joinder in the arguments of his co-appellants Le and Ek. Out of an abundance of caution, the court will also consider the grounds raised by co-defendant Manora Ek in his separate petition for habeas corpus relief that have not been specifically raised by Keomanivong.*fn5 Those grounds are:*fn6 (8) restrictions on the jury selection voir dire; and (9) prosecutorial misconduct in misstating the standard of proof in closing argument. Respondent contends that Keomanivong has not properly exhausted his state court remedies with respect to his third, fourth, sixth, and seventh grounds and that his third ground is procedurally barred. Respondent further contends that, with respect to the attempt to join the grounds raised by Keomanivong's co-defendant, Ek, the Court should not consider those claims because they are neither identified nor has Keomanivong attached a copy of the referenced briefs.*fn7 Respondent raises no other affirmative defense.*fn8
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), 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."*fn9 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."*fn10 The holding must also be intended to 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.*fn11 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.'"*fn12 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.*fn13 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn14 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn15 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 outcome.*fn16 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn17
In applying this standard, this court reviews the last reasoned decision by the state court,*fn18 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.*fn19 This presumption applies to state trial courts and appellate courts alike.*fn20
A. Grounds Raised Directly by Keomanivong.
Keomanivong contends that because he withdrew his waiver of time on October 3, 2002, and was not brought to trial until July 2003, he was denied his right to a speedy trial. The California Court of Appeal recited the factual background in its opinion.
Keomanivong was arrested on March 19, 2002, and held in custody since that time. On July 16, 2002, after the preliminary hearing, he was held to answer on the charges. The information was filed on July 29, 2002, and Keomanivong was arraigned the next day. Keomanivong brought a motion to set aside the information under Penal Code section 995; he waived time so his motion could be heard. On October 3, 2002, the motion was resolved and Keomanivong withdrew his time waiver.
At a hearing on October 28, 2002, Le and Keomanivong put on the record that they withdrew their time waivers on October 3 and trial for them must be set by early December. The district attorney and counsel for Inthirath and Oth (who were still in the case at that time) had schedule conflicts. The court indicated it would decide the severance motions, based on Aranda-Bruton issues (Bruton v. United States (1968) 391 U.S. 128 [20 L.Ed.2d 476]; People v. Aranda (1965) 63 Cal.2d 518) in the various statements of defendants, before setting the case for trial.
At the hearing on the motion to sever, November 5, 2002, counsel for Le and Keomanivong argued the severance motion was moot because three defendants (Le, Keomanivong and Chhun) had withdrawn their time waivers. The court indicated it could not decide the severance issue at that time because it had just got the redacted statements. The prosecutor indicated that if trial was set for any of defendants' cases, the People would not waive time as to any of the defendants. He further stated he did not understand how they could be ready for trial in less than 30 days.
Counsel for Keomanivong made it clear he wanted the trial set by December 3. Although that was less than 30 days away and he had not received witness information from the prosecutor, he would not complain. The prosecutor stated that once a trial date was set, if any counsel made a motion to continue, under Penal Code section 1050.1 there would be justification to continue all the cases.FN9 He argued a defendant could not get severance simply by not waiving time. Counsel for Keomanivong noted the time waivers were withdrawn before any motions to sever had been filed, or even prepared.
FN9. At a much earlier hearing, on April 15, 2002, none of the parties disagreed with the proposition that good cause to continue the trial of one defendant was good cause to continue the trial of all.
After a discussion of which defendants wanted their trial severed from which other defendants, the prosecutor stated it was critical to the People's case to have only one trial. There were significant transportation issues with the witnesses from Oakland. There were also concerns about threats to witnesses. He explained that getting all the witnesses to court once would be a feat, but getting them there multiple times would be next to impossible. If defendants would not waive time, the People would not. A trial date should be set for all six cases; if any defendant moved to continue his case, the People would move to continue all the cases under Penal Code section 1050.1.
The trial court agreed that was the only way to handle the situation and set the trial date for November 25, 2002.
At the next hearing on November 11, 2002, the court announced that counsel for Le had passed away. Keomanivong wanted to go to trial; he would not waive time. The court found good cause to continue the case and vacated the trial date as to all defendants. Keomanivong put his objection on the record. By early December Le had retained new counsel. That counsel indicated he could be ready for trial in May. Keomanivong maintained his desire for the earliest possible trial date. In light of the request for a May trial date, the prosecutor raised Keomanivong's speedy trial rights. Le's new counsel and the prosecutor agreed on April 1 for the trial date. The trial court set the trial date as April 1, 2003, over Keomanivong's express objection.
In January 2003, the motions to sever were denied; the court ruled the cases would proceed in a joint trial with the agreed upon redactions to defendants' statements. Keomanivong again raised the issue of his right to a speedy trial; he had not waived time. Counsel for Inthirath and Ek indicated they could not start the trial in April because they had a death penalty case scheduled then. In addition, counsel for Inthirath was expecting her first grandchild at the end of June and her son-in-law was being deployed to the Middle East in mid-April.
The trial court set the trial date as July 1, 2003. Counsel for Keomanivong questioned whether other counsels' schedules was good cause for continuing his client's trial. The court responded yes; good cause for one was good cause for all. Counsel indicated Keomanivong was very upset and wanted the finding of the good cause stated on the record. The court found good cause to continue the case until June 30 due to the unavailability of counsel. Keomanivong placed his objection based on his right to a speedy trial on the record. The court noted the Legislature had set the 60-day trial limit. "What the Legislature giveth, the Legislature can taketh away." The court believed the Legislature had taken away the right to a trial within 60 days. The court encouraged Keomanivong to take a writ to settle the issue.
After further continuances, jury selection began July 10, 2003.*fn21
The Court of Appeal rejected Keomanivong's position, holding:*fn22
Even before the enactment of Penal Code section 1050.1, courts have found the need to maintain joinder in a complex case could constitute good cause to continue a trial beyond the 60-day period. In Ferenz v. Superior Court (1942) 53 Cal.App.2d 639 (Ferenz ), this court found good cause to continue defendant's trial beyond 60 days over his objection. The prosecution presented affidavits in support of the continuance showing that nine defendants were jointly charged in a conspiracy to violate sedition laws. It was desirable and necessary to try them together because the trial required 50 witnesses, several from out-of-town, and would take eight to ten weeks. (Id. at p. 641.) This court found the prosecution had shown good cause for the continuance. (Id. at p. 643.)
In Hollis v. Superior Court (1985) 165 Cal.App.3d 642, four defendants were charged with murder. Three defendants moved for a continuance, on the basis counsel needed more time to prepare for trial, and they waived time. Defendant did not; he demanded trial as originally scheduled and sought to dismiss the information as to him when his trial was continued. (Id. at p. 644.) This court found the trial court did not abuse its discretion in continuing the trial; it properly balanced the competing interests in joint trial and speedy trial in a substantial and complex case. (Id. at p. 646.) "Where a continuance is granted to a co-defendant upon good cause, the rights of other jointly charged defendants are generally deemed not to have been prejudiced." (Ibid., citing People v. Teale (1965) 63 Cal.2d 178, 186.)
In Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, at page 501, the court also found good cause to continue a trial over defendant's objection to maintain joinder. Thus, it is well established that maintaining joinder will, in the appropriate case, constitute good cause for a continuance. This principle has now been codified in Penal Code section 1050.1. This case was long and complex; the trial took eight weeks and over 40 witnesses were called. As in Ferenz, supra, 53 Cal.App.2d 639, the length and complexity of the case, and the number of and the difficulty in securing attendance at trial of the witnesses provided good cause to maintain joinder and continue Keomanivong's case.
In Greenberger v. Superior Court, supra, 219 Cal.App.3d 487, because the delay was six months, substantially longer than in Ferenz (22 days) or Hollis (40 days), the court considered whether there was good cause for the long delay. Relying on the factors set forth in Barker v. Wingo (1972) 407 U.S. 514 [33 L.Ed.2d 101], the court found there was. (Greenberger, supra, at pp. 502-506.) Here, it was about nine months from when Keomanivong withdrew his time waiver in October 2002 until jury selection began in July 2003. Keomanivong contends the Barker factors show his Sixth Amendment speedy trial rights were infringed.
In Barker v. Wingo, supra, 407 U.S. 514, 516 [33 L.Ed.2d 101, 109], the United States Supreme Court undertook to set out the criteria by which the right to a speedy trial is to be judged. The court rejected rigid approaches of a fixed time period or a demand-waiver rule in favor of a more flexible balancing approach, in which the conduct of both the prosecution and the defendant are weighed. (Id. at pp. 529-530 [33 L.Ed.2d at p. 116].) The court identified four factors to be applied on an ad hoc basis: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (Id. at p. 530, fn. omitted [33 L.Ed.2d at p. 117].) None of these factors is a necessary or sufficient condition to finding deprivation of the right to a speedy trial. They are related factors which must be considered with other relevant circumstances in a "difficult and sensitive balancing process. (Id. at p. 533 [33 L.Ed.2d at p. 118].)
The first factor, length of delay, serves as a triggering mechanism; until there is a delay that is presumptively prejudicial, there is no need to consider the other factors. (Barker v. Wingo, supra, 407 U.S. at p. 530 [33 L.Ed.2d at p. 117.) Depending on the nature of the charges, generally a postaccusation delay is considered "presumptively prejudicial" when it approaches one year. (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1 [120 L.Ed.2d 520, 528].) Here, it was almost a year between Keomanivong's arraignment on the information and his trial, so the delay triggers further inquiry. (Barker v. Wingo, supra, 407 U.S. at p. 530 [33 L.Ed.2d at p. 117].)
The second factor is the reason for the delay and different weights are assigned for different reasons. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." (Barker v. Wingo, supra, 407 U.S. at p. 531, fn. omitted [33 L.Ed.2d at p. 117].)
The delay until October 2002 should not be weighted against the People since Keomanivong waived time until this point. As the Supreme Court noted, delay may often work to the accused's advantage. (Barker v. Wingo, supra, 407 U.S. at p. 521 [33 L.Ed.2d at p. 111].) Keomanivong contends the primary reason for the delay after arraignment was that the prosecution failed to provide discovery. Whatever the reason, Keomanivong expressly waived his speedy trial rights before October 2003 and cannot now complain about that delay. From October 2003 on, the record, as set forth above, shows that the delay was to accommodate other counsel's schedules and to bring in new counsel after the death of Le's counsel. This delay was necessary to maintain joinder, which was a valid reason.
The third factor is defendant's responsibility to assert his right to a speedy trial. From October 2002, Keomanivong repeatedly asserted his right (although he did not move to dismiss the information), so this factor weighs in his favor. (Barker v. Wingo, supra, 407 U.S. at p. 531-532 [33 L.Ed.2d at p. 117].)
The final factor is prejudice to the defendant. Prejudice should be assessed in light of the interests of the defendant which the speedy trial right was designed to protect: "(I) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." (Barker v. Wingo, supra, 407 U.S. at p. 532 [33 L.Ed.2d at p. 118].) The last interest is the most serious. (Ibid.)
While Keomanivong suffered considerable pretrial incarceration and presumably the attendant anxiety and concern, there is no showing that the delay impaired his defense. No witnesses on his behalf died or disappeared; there was no apparent loss of memory. (Barker v. Wingo, supra, 407 U.S. at p. 532 [33 L.Ed.2d at p. 118].) Indeed, Keomanivong did not call any witnesses. Nonetheless, he contends he was prejudiced by the delay because if his trial had been held earlier:
(1) he would have taken the stand in his defense; FN10 (2) he would have been tried with Inthirath who may have testified Keomanivong was not a shooter or a promoter of the jump out; (3) he would have been able to impeach K.O., the only witness who testified he was a shooter, more effectively because her dislike of him was stronger then; and (4) an eyewitness, with fresher recollection, may have recalled that Keomanivong did not shoot.
FN10. He contends the reason he did not take the stand was due to prosecutorial misconduct as set forth in part II. A. 2 of the Discussion.
Keomanivong's showing of prejudice is, at best, extremely speculative; it is based on things that might have happened. We recognize that in Doggett, the Supreme Court allowed a presumption of prejudice based primarily on speculation. (Doggett v. United States, supra, 505 U.S. at pp. 657-658 [120 L.Ed.2d at pp. 531-532].) In that case, however, the delay was egregious, over eight and a half years from indictment to trial, with six years attributable to the government's negligence. And the government was unable to show the extensive delay did not impair defendant's ability to defend himself. (Id. at p. 658 & fn. 4 [120 L.Ed.2d at p. 532].)
This case is distinguishable from Doggett. The delay from after Keomanivong withdrew his time waiver was nine months, which is not quite the period-approaching one year-that is presumptively prejudicial. (Doggett v. United States, supra, 505 U.S. at p. 652, fn. 1 [120 L.Ed.2d at p. 528].) More importantly, the reason for the delay is weighted less heavily against the government. The primary reason for the delay was valid: to maintain joinder in a large, complicated case with many witnesses, several of whom came from out-of-town and posed transportation problems. On balance, we find Keomanivong was not deprived of his right to a speedy trial.*fn23
As the California Court of Appeal correctly noted, the seminal constitutional speedy trial case is Barker,*fn24 which is "clearly established law" under AEDPA. As the Supreme Court recently noted in applying Barker:
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." The speedy-trial right is "amorphous," "slippery," and "necessarily relative." Barker, 407 U.S., at 522, 92 S.Ct. 2182 (quoting Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905)). It is "consistent with delays and depend[ent] upon circumstances." 407 U.S., at 522, 92 S.Ct. 2182 (internal quotation marks omitted). In Barker, the Court refused to "quantif[y]" the right "into a specified number of days or months" or to hinge the right on a defendant's explicit request for a speedy trial. Id., at 522-525, 92 S.Ct. 2182. Rejecting such "inflexible approaches," Barker established a "balancing test, in which the conduct of both the prosecution and the defendant are weighed." Id., at 529, 530, 92 S.Ct. 2182. "[S]ome of the factors" that courts should weigh include "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid.*fn25
The sine qua non of a Sixth Amendment speedy trial violation is a showing of prejudice, i.e., that the defendant's ability to present a defense is prejudiced by the delay.*fn26 The mere fact of delay, standing alone, does not necessarily establish prejudice.*fn27 As the Supreme Court has explained, to trigger a speedy trial analysis under Barker, an accused must allege the interval between accusation and trial has crossed the threshold dividing ordinary from "presumptively prejudicial" delay;*fn28 that is, the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry.*fn29 The Supreme Court, although it has noted that lower courts have generally found postaccusation delays approaching one year are "presumptively prejudicial,"*fn30 has not established a bright-line test. The Supreme Court has, however, held that the presumption that pretrial delay has prejudiced an accused intensifies over time.*fn31
Even if the delay in this case were sufficiently lengthy to cross the threshold dividing ordinary from "presumptively prejudicial" delay, Keomanivong does not prevail. The California Court of Appeal, after determining that the threshold was crossed, carefully weighed the Barker factors.*fn32 Most notably, in this case, Keomanivong provides no factual basis other than his continued pretrial incarceration for his conclusory statement that he was prejudiced by the delay.
Nor could he plausibly make such a showing. Keomanivong "does not contend that vital evidence fell into the prosecutor's hands (or slipped through his own fingers)" during the period October 2002 through July 2003.*fn33
This court cannot say that the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn34 Nor can this Court find that the state court unreasonably applied the principles of Barker-Doggett-Reed to the facts of Keomanivong's case within the scope of Andrade-Williams-Schriro. Keomanivong is not entitled to relief under his first ground.
Ground 2: Failure to Disclose Evidence Favorable to Defendant.
Keomanivong contends that the prosecutor violated the requirements of the California Penal Code by failing to turn over copies of letters that Keomanivong had allegedly written while he was in jail awaiting trial. The California Court of Appeal rejected Keomanivong's arguments, holding:
Before deciding whether to testify, Keomanivong asked if the prosecutor had any discovery applicable to him. The prosecutor replied, "Not that I intend to give, in light of the court's ruling." Keomanivong did not testify.
Keomanivong contends the prosecutor's answer to whether he had discovery materials related to Keomanivong implied that he had letters and his refusal to turn them over to the defense violated Penal Code section 1054.1, subdivision (b). He further contends that failure was prejudicial because it robbed him of the ability to challenge the authenticity of the letters, crippled defense counsel in devising a strategy, denied Keomanivong effective assistance of counsel, and interfered with his decision whether to testify.
If the prosecutor had letters written by Keomanivong, his refusal to disclose them violated California's discovery law. (Pen.Code, § 1054.1, subd. (b); People v. Jackson, supra, 129 Cal.App.4th 129, 168-172.) The problem with Keomanivong's contention, however, is that it is entirely speculative. The record does not show that such letters actually existed. Accordingly, any effect their nondisclosure had on Keomanivong's defense is speculative. We do not reverse convictions based upon mere speculation. (Citations omitted.)*fn35
"[T]he Constitution does not require the prosecutor to share all useful information with the defendant."*fn36 Brady,*fn37 and its progeny, require the Government to disclose material information that is "favorable to the accused, either because it is exculpatory, or because it is impeaching."*fn38 In addition to the fact that, as the California Court of Appeal noted, the record does not show that such letters existed, Keomanivong has failed to show either (1) that the prosecutor had such letters, if they existed, or (2) what information those letters contained that might be exculpatory or impeaching. Whatever transgression of state law may have occurred, Keomanivong has failed to carry his burden of establishing a Brady violation by a preponderance of the evidence. Because he has failed to establish a claim of constitutional dimension,*fn39 Keomanivong is not entitled to relief under his second ground.
Ground 3: Improper Jury Instruction on Self-Defense.
Keomanivong argues that the trial court erred in giving CALJIC 5.54 "Self-Defense by an Aggressor" instead of CALJIC 5.56 "Self-Defense-Participants in Mutual Combat." Respondent contends that, although this claim was presented to the California Court of Appeal it was not raised in Keomanivong's petition for review filed with the California Supreme Court, Keomanivong has not properly exhausted his state court remedies. This court may not consider claims that have not been fairly presented to the highest state court that may hear the claim.*fn40 In this case, the highest state court to which Keomanivong could have presented his claim is the ...