The opinion of the court was delivered by: Robert H. Whaley United States District Judge
ORDER DENYING HABEAS PETITION
Before the Court is Petitioner's Petition for Writ of Habeas Corpus, 28 U.S.C. Section 2254 (Ct. Rec. 1). Petitioner is a state prisoner currently confined by the California Department of Corrections at Pleasant Valley State Prison, Coalinga, California, and is proceeding pro se.
Petitioner was convicted by a jury of the following crimes: Counts 1 & 2, making criminal threats (Cal. Penal Code § 422); Count 3, second degree robbery (§ 211), and Counts 4 & 5, attempted murder (§§ 644/187). The jury also found that in committing the attempted murders, defendant personally and intentionally discharged a handgun, causing great bodily injury, within the meaning of section 12022.53, subdivision (d). Petitioner was sentenced to a total of sixty-three years and four months to life.
Petitioner appealed his convictions and sentence to the California Court of Appeal. In his appeal, he argued: (1) his convictions for attempted murder were not supported by substantial evidence; (2) the imposition of personal handgun use enhancements constituted cruel and unusual punishment; and (3) the trial court had a sua sponte duty to instruct the jury that assault with a firearm is a lesser included offense of attempted murder. The Court of Appeal affirmed the judgment. The California Supreme Court denied his Petition for Review.
Petitioner filed a habeas petition in the Sacramento County Superior Court. In his petition, he argued ineffective assistance of counsel for failing to investigate and offer numerous exculpatory witnesses. The superior court denied the petition. He then filed a petition with the California Court of Appeal and the California Supreme Court. These petitions were summarily denied.
On January 2, 2008, Petitioner brought his Petition Under 28 U.S.C. § Writ of Habeas Corpus by a Person in State Custody, asserting three grounds for relief:
(1) ineffective assistance of counsel by his trial counsel's failure to investigate and present evidence of petitioner's innocence; (2) violation of Fifth Amendment right to due process by his conviction based on insufficient evidence of specific intent to kill; and (3) violation of Fifth and Sixth Amendment rights to due process and fair trial by the trial court's failure to give the lesser included offense instruction on Assault with a Deadly Weapon.
In order to succeed with his § 2254 petition, Petitioner must establish that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Petitioner must also establish that his claims were adjudicated on the merits in state court proceedings and that the adjudication of the claim "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 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." § 2254(d). A determination of a factual issue made by the State court shall be presumed to be correct. § 2254(e). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.
A state court's decision is "contrary to" clearly established federal law only where "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-24 (2000). There is an "unreasonable application" of clearly established federal law when a state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. A state court decision can also involve an unreasonable application of clearly established precedent "if the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. The state court's error must be one that the habeas court concludes is objectively unreasonable, not merely erroneous or incorrect. Id. at 409-11.
The state concedes that Petitioner has properly exhausted his claims. See Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008), citing 28 U.S.C. § 2254(b)(1)(A).
The California Court of Appeal summarized the facts as follows:
The jury in this case heard evidence that during a span of about 20 minutes on one Christmas evening, defendant Jaime Lorenzo Ballejos went on a spree during which he used a revolver to threaten two neighbors standing outside after Christmas dinner (counts one and two); robbed an acquaintance at gunpoint (count three); then shot the robbery victim in the ...