The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, E'Drick Brown, a state petitioner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Brown is currently in custody of the California Department of Corrections, incarcerated at the Sacramento State Prison in Represa, California. Respondent has filed an answer,*fn2 and Brown has filed a traverse.*fn3
The following factual background is taken from the reasoned decision of the California Court of Appeal:*fn4
A. FEBRUARY 7, 2003 INCIDENT (COUNTS 1,2,3,4)
Reyes Hernandez and his twin brother Raciel were friends with defendant Martinez in junior high school. In high school, Reyes and Raciel became involved with the Sureño street gang. Martinez is a validated member of the rival Norteños gang. Reyes and Martinez had two fights in the ninth grade. Since that time, they had limited their antipathy to " 'mad doggin' " or giving each other dirty looks as a sign of disrespect.
At around 3:00 p.m. on February 3, 2003, Jaime Delhorno picked up Reyes and Raciel at their residence on Melrose Drive and drove toward Edgar Soto's house on Karl Drive. Delhorno drove his Chevy Tahoe, Reyes sat in the front passenger seat, and Raciel sat in the back seat behind Reyes. As the young men drove past Martinez's residence on Karl Drive, Reyes saw Martinez getting into his car with defendant Brown. Reyes and Martinez made eye contact.
When the three in the Chevy Tahoe reached their destination, Reyes got out of car to meet Soto. Martinez and Brown drove up five minutes later in a green Ford Taurus and parked in front of Delhorno's vehicle. Reyes had never met Brown. Martinez, the driver, was visibly angry and told Reyes in a loud voice, "[W]e got some funk" meaning "[W]e got a problem." Reyes replied, "[W]hatever," and approached to within three and a half feet of defendants' car. Reyes, who was wearing a blue "L.A." hat signifying his Sureño affiliation, told Martinez they could fight if he got out of the car. Martinez responded, " 'You don't want me to send you back to L.A.' " Reyes said, " '[Y]ou got to do what you got to do.' " Martinez replied, " '[Y]ou don't want me getting out the car and start buckin', " meaning "shooting." At that point, Martinez lifted the car's armrest and displayed a black, semiautomatic handgun. Brown, who was sitting in the front passenger seat, told Reyes, " '[Y]ou don't want to mess with no Niggas.' Reyes suggested defendants follow him to his mother's house. Reyes knew his five brothers were at home and there were cameras outside the residence. He got back in Delhorno's car and said that defendants had a gun. Reyes told Delhorno to drive to his mother's house. When they realized defendants were, in fact, following in their car, Delhorno started speeding. As they turned on Craighurst Way, Reyes saw Brown lean out of the Taurus and fire three or four shots at the Chevy Tahoe in quick succession. Reyes, Raciel and Delhorno ducked down while Delhorno kept driving. One of the bullets hit the back door of the Chevy Tahoe and stopped behind Raciel's seat. Defendants continued to follow Delhorno's car at a distance of three to four car lengths. Delhorno's mother heard the gun shots as they were driving up, and called the police. Police recovered three or four 40-caliber shell casings from the street where the shooting took place. Unable to locate Martinez or his vehicle, Sacramento County Sheriff's detectives obtained a search warrant for Martinez's residence. Both defendants were present when the search was conducted. Detectives discovered a stolen, loaded, nine-millimeter handgun under the bed. They also found items associated with Norteño gangs.
In a subsequent interview with Sacramento County Sheriff's Detective Elaine Stoops, Martinez admitted that: (1) he was involved in a verbal altercation with Reyes on February 7, 2003; (2) he followed Reyes and his friends in his car because they were "mugging him"; (3) he had been involved in three prior fists fights with Reyes because of their rival gang affiliations; (4) he challenged Reyes to a fight on February 7, 2003; (5) there were gunshots fired at the scene; and (6) he was a Norteño gang member.
Brown stated in his interview with Detective Stoops that he was "not really too familiar with this Sureño Norteño thing," even though the subject of street gangs had not come up.
Detective Luis Aguilar specialized in Hispanic gangs in the sheriff's gang suppression unit. It was Aguilar's opinion Brown was affiliated with the Norteño gang, based on Brown's association with a gang member and his involvement in a gang-related crime. Aguilar also opined the shooting was committed at the direction of and in association with the Norteño gang.
B. APRIL 3, 2003 INCIDENT (COUNTS 5, 6, 7)
In April 2003, Jeffrey Perrine lived with his mother on Buttonwood Way in Citrus Heights. He had a bedroom in the garage. Perrine's room contained an entertainment center, two 19-inch televisions, a stereo surround sound system, a DVD player, a 200-disc CD player, a receiver, and a sound system from his car. One of the televisions was connected to outdoor surveillance cameras. Perrine used an electronic key pad to gain entrance to the house through the garage door.
Perrine was a student at Sierra College, but did not work due to injuries suffered in a recent car accident. He lived off the insurance check and support from his mother. To pay his car insurance, Perrine sold marijuana to four or five friends he had known for several years. Perrine also smoked about one-eighth of an ounce of marijuana each day to relieve the symptoms of stress, asthma, severe back pain, and attention deficit disorder and hyperactivity.
A few days before April 3, 2003, Perrine's friend Jesse Mendoza introduced him to defendant Brown. Perrine sold $10 worth of marijuana to Mendoza and his girlfriend, and they all smoked the marijuana together. He had four ounces of marijuana in this room that day with a street value of $1,000. Brown was present when Perrine retrieved the marijuana from its hiding place. Brown complimented Perrine on the marijuana and the stereo system.
Perrine returned home between 2:00 and 2:30 p.m. on April 3, 2003. His mother and brothers were away. When Perrine pulled into the driveway, he noticed a black Honda Accord with no license plates parked nearby. Defendant Martinez and an unidentified driver were in the car.
Brown walked toward Perrine from the front door of the residence. He said he wanted to buy a $20 bag of marijuana. Perrine responded that he had no marijuana. At that point, Brown asked if he could use Perrine's phone to tell Jesse Mendoza to meet him in the neighborhood. Perrine approached the car and tried to shake hands with Martinez whom he did not know. Martinez ignored Perrine.
Perrine explained that his cell phone was not working, but offered the house phone to Brown. He and Brown walked toward Perrine's room in the garage. As Perrine unlocked the bedroom door, Brown shoved him onto the bed. Martinez joined Brown inside the bedroom. Perrine saw Brown pull a semiautomatic gun from his waistband. He stood up and Brown touched the center of his forehead with the gun. Brown told Perrine, " '[S]it down you fuckin' [W]hite boy before I have to do somethin'." Perrine thought Brown was going to kill him. Martinez closed the door of the room and Brown said, " '[G]ive me everything, give me everything you've got, give me anything, give me the weed, give me the money, where's it all at, we're hurtin'.' " Perrine kept telling Brown he did not have anything.
Brown handed the gun to Martinez. Martinez pointed it at Perrine and told him to stay quiet. Brown began ransacking Perrine's room. Each time Perrine stood up, Brown shoved him back on the bed. Defendants became more threatening as Perrine denied he had anything they wanted. Eventually, Brown found the one-half ounce of marijuana Perrine had for his personal use and demanded to know where he was hiding the rest of the marijuana. When Perrine told them it was all he had, Brown responded, " 'Bullshit.' " Brown demanded, " 'Where the F is everything at whiteboy?' "
Brown continued to search Perrine's room. He eventually took Perrine's wallet, $300 to $400 in cash, and the marijuana. Shortly thereafter, Perrine's brother returned in the family car. As he entered the garage, Perrine pushed him out of the way, and defendants fled through the open door. Perrine reported the robbery to law enforcement the following day.
Defendants called several witnesses on their behalf. Rosalien Dolner, Brown's girlfriend, testified that Reyes Hernandez, a victim in the February 2003 shooting, approached her at "No ID Check Cashing," her place of work. Reyes told Dolner he would not go to court if she paid him $2,000. She said Reyes told her he knew defendants were not involved in the shooting. Dolner testified she did not call the police, but informed Brown's attorney and assistant. She said Brown's attorney told her if she was harassed again, "he would take care of it." Co-workers testified that Dolner appeared frightened of Reyes, who was a regular customer. Reyes denied Dolner's claims.*fn5
II. PROCEDURAL BACKGROUND/ PRIOR PROCEEDINGS
After a joint trial, a jury convicted Brown and Martinez of attempted murder (Cal. Penal Code §§ 187(a) & 664, Count One), discharging a firearm at an occupied vehicle (Cal. Penal Code § 246, Count Two), assault with a firearm (Cal. Penal Code § 245, Count Three), receiving stolen property (Cal. Penal Code § 496(a), Count Four), robbery (Cal. Penal Code § 211, Count Five), residential burglary (Cal. Penal Code § 459, Count Six) and assault with a semi-automatic firearm (Cal. Penal Code § 245 (d)).*fn6 Among other enhancements, the defendants were charged with having committed the offenses alleged in counts one, two and three for the benefit of, at the direction of and in association with a street gang.*fn7 The jury found the defendants guilty on all counts and found all of the special allegations to be true.*fn8 The court sentenced Brown to an aggregate term of 16 years plus 23 years to life.*fn9
Brown timely appealed to the Court of Appeal of the State of California, Third District, which affirmed the judgment in a reasoned decision.*fn10
Brown appealed to the Supreme Court of California, which denied review without citation to reason or authority.*fn11
On June 16, 2008, Brown timely filed a Petition for Writ of Habeas Corpus in this Court. Brown raises four grounds for relief, several of which contain sub-arguments. Respondent concedes that Brown has properly exhausted his four grounds, ...