Petitioner Eleazar Calderon Soria, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Soria is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Centinela. Respondent has answered, and Soria has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Soria was convicted in the Yolo County Superior Court of two counts of attempted voluntary manslaughter (Cal. Penal Code §§ 192(a), 664(a)), two counts of assault with a firearm upon a peace officer (Cal. Penal Code § 245(d)(1)), and one count of resisting an officer through threats, force or violence (Cal. Penal Code § 69), with true findings that Soria was personally armed with, and discharged, a firearm (Cal. Penal Code § 12022.5(a)) and that he knew the intended victims were peace officers. The trial court sentenced Soria to an aggregate prison term of 48 years. Soria timely appealed to the California Court of Appeal, Third District, which affirmed his conviction and sentence in an unpublished decision,*fn2 and the California Supreme Court summarily denied review without opinion or citation to authority on January 3, 2008. Soria timely filed his petition for relief in the Central District of California on November 29, 2008, which transferred the petition to this court.
The facts underlying Soria's conviction, as recited by the California Court of Appeal, are:
In July 2004, Soria lived with his girlfriend Angelina Sanchez and their daughter in a trailer in West Sacramento. Another daughter of Angelina, Sarah Gonzalez, lived in the trailer next door. During the night of July 23 or the early morning of July 24, [Soria], who was angry, awakened Angelina, grabbed her by the arm, and told her to call her son, Alex Sanchez.
Instead of calling Alex, Angelina called Sarah. [Soria] took the phone away from Angelina and took her outside. He put a gun to Angelina's stomach. Sarah, who had come out of her trailer, saw what [Soria] was doing and begged him to stop. She tried to intervene, but he pushed her away. He then walked away. Sarah called 911.
Officer Jason Fortier of the West Sacramento Police Department responded to the scene shortly after midnight. He spoke to Angelina and Sarah. Angelina told the officer that [Soria] had threatened to shoot her and her children. He also threatened that if the police were called he would shoot the police. [Soria] had a silver automatic handgun, with four to five magazines.
The police received information that [Soria] was at his brother's house, nearby, on Walnut Street. Several people came out of the Walnut Street residence, leaving [Soria] and others inside, including [Soria's] uncle. Officer Justin Farrington called the cell phone of [Soria's] uncle, making brief contact with the uncle, but the call went dead after [Soria] yelled something in the background. Officer Farrington took a position behind an oak tree, with a view of the door into the house. Meanwhile, [Soria's] uncle came out of the house and reported that [Soria] had a handgun.
Upon hearing that [Soria] had a handgun, Officer Farrington moved to a new position behind a parked sedan, with Officer Ed Hensley. Officer Farrington laid down on the ground and was able to see the door into the house from there. The lighting conditions were poor, but there was a light above the patio just outside the door.
A police sergeant used the public address system in his patrol car to ask [Soria] to come out of the house unarmed. The police also had [Soria's] son make the same request over the public address system in Spanish. No less than five announcements were made over the public address system, asking [Soria] to come out. [Soria] did not respond.
After several minutes, Officer Farrington saw a handgun, held by two hands, protrude from the doorway of the house. Slowly, [Soria] moved outside the door. He was holding the gun at chest level, moving it up and down and then to the left and to the right, as if looking for a target. Officer Farrington was to [Soria's] left. [Soria] looked in Officer Farrington's direction and paused, appearing to look at the officer. [Soria] pointed the handgun directly at Officer Farrington.
Having looked down the barrel of [Soria's] gun, Officer Farrington withdrew, hiding behind the front tire of the car. His movement made noise, which, along with [Soria's] looking and pointing the gun in his direction, led Officer Farrington to believe that [Soria] knew where he was. Defendant, however, retreated into the house.
Within 15 or 20 seconds, [Soria] reappeared in the doorway with his gun pointed in the direction of Officers Farrington and Hensley. Again looking down the barrel of [Soria's] gun, Officer Farrington took a shot with his semiautomatic rifle. [Soria], whose torso had been turned in Officer Farrington's direction, rotated so that he was facing straight out the door and moved toward the interior of the house. As [Soria's] torso swung to the right, he fired multiple rounds from the handgun. Officer Farrington fired another round, and either his first or his second shot hit [Soria]. Officer Hensley also fired at [Soria]. Although [Soria] fired ...