The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Manora Ek, a state prisoner appearing though counsel, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Ek is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the High Desert State Prison.
Respondent has answered, and Ek has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Ek, along with two co-defendants, Hong Le and Khammay Keomanivong, 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, Ek was convicted of permitting another to shoot from a motor vehicle (Cal. Penal Code § 12034(b)). The trial court sentenced Ek 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of Appeal found errors in sentencing and modified the sentences accordingly,*fn2 and reversed Le's conviction in an unpublished reasoned decision.*fn3 The California Supreme Court summarily denied review in a "postcard denial" without opinion or citation to authority on February 7,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. Ek did not seek collateral review in the California state courts. Ek timely filed his petition for relief in this court on May 5, 2008.
II. GROUNDS RAISED/DEFENSES
In his petition Ek raises four grounds for relief: (1) trial court improperly restricted jury voir dire; (2) trial court failed to discharge a juror depriving him of a fair and impartial jury; (3) trial court erroneously instructed the jury on pretextual self-defense (CALJIC No. 5.55); and (4) prosecutorial misconduct in closing argument in misstating the proof beyond a reasonable doubt standard. Respondent contends the third ground is procedurally barred. Respondent raises no other affirmative defense.*fn4
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."*fn5 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."*fn6 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.*fn7 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.'"*fn8 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.*fn9 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.*fn10 "[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.'"*fn11 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.*fn12 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.*fn13
In applying this standard, this court reviews the last reasoned decision by the state court,*fn14 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.*fn15 This presumption applies to state trial courts and appellate courts alike.*fn16
Ground 1: Restricted Jury Voir Dire
Prior to the commencement of the trial, the San Joaquin Superior Court imposed certain restrictions on jury voir dire. The California Court of Appeal summarized the voir dire procedure adopted by the San Joaquin Superior Court:
Prior to trial, the prosecutor indicated he intended to use a questionnaire in jury selection. The trial court told the parties that since there were three defendants and use of a juror questionnaire was so time consuming, they had a choice: they could use a questionnaire, in which case no oral voir dire would be allowed, or they could select the jury through oral voir dire, with time limits. The prosecutor objected to having to choose and asked why. The court explained the reason was time. He thought a juror questionnaire was "a big waste" of time. The prosecutor continued to object, claiming it was "not fair." The trial court believed juror questionnaires should be reserved for unique cases; the court was firm that if a questionnaire was used, he would not voir dire any potential jurors.
The defendants all wanted to use a questionnaire. Keomanivong's counsel suggested the questionnaire be used for background and voir dire be permitted on the law. The court told the prosecutor challenges for cause would be based solely on the questionnaire, without further voir dire. The court would allow some questions to rehabilitate a potential juror.
After the questionnaires were completed by prospective jurors, the court maintained its position of no voir dire. The prosecutor objected, noting some questions were left blank. The court responded that was what peremptory challenges were for. Counsel should make their decision whether to use a questionnaire based on whether people are smart enough to complete it.
Prospective jurors were given a 12-page questionnaire to complete. The questionnaire asked for background information about the juror's age, marital status, employment, military service, education, and experience with the legal system. It asked about prior jury service and law enforcement contacts. There were a series of questions concerning knowledge of and opinions about gangs. It then asked about the juror's knowledge of the case. The final questions addressed opinions about certain legal principles, including aiding and abetting, self-defense, the presumption of innocence, bias, and firearms.*fn17
Ek argues that this procedure, and the trial court's inconsistent application of the rehabilitation exception allowing follow-up oral questioning, produced a voir dire so deficient that it violated the Sixth Amendment right to an impartial jury. The California Court of Appeal rejected the defendants' argument:
Defendants contend the trial court erred in eliminating or restricting oral voir dire. The Attorney General responds that defendants' failure to object below bars the contention on appeal. It is true that defendants did not voice objections to the trial court's procedure for jury selection at the time. Ek raised the restriction on voir dire as one ground for his motion for a new trial. The prosecutor, however, repeatedly raised objections to the elimination of oral voir dire and the trial court overruled his objections. There is no basis in the record for believing an objection by defense counsel would have fared better. Failure to object does not bar appellate review of an issue when an objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) Since the trial court proceeded despite vigorous objection by the prosecution, we review defendants' contention.
Code of Civil Procedure section 223 addresses the examination of prospective jurors in criminal cases. It provides that the court shall conduct the initial examination and the court may limit the oral and direct questioning of prospective jurors by counsel.FN3 (Code Civ. Proc., § 223.) "Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause." The trial court's exercise of its discretion in conducting voir dire "shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution."
FN3. The trial court expressed concern about counsel wanting to ask the same questions that were on the questionnaire and taking too much time. The court can control the process by limiting the questions that may be asked by counsel. (Citation omitted.)
A juror questionnaire may be used for assisting the voir dire process. (Citation omitted.)
Voir dire, the legal term describing the process of jury selection, "is itself a combination of two French verbs meaning 'to see' and 'to say.' [Citation.]" (People v. King (1987) 195 Cal.App.3d 923, 932.) The importance of observing prospective jurors as they answer questions is well established. "Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled. [Citations.]" (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 [68 L.Ed.2d 22, 28].) The selection of jurors is often based on their demeanor ...