FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The second amended habeas petition before the court challenges petitioner's 2005 conviction in the Sutter County Superior Court for driving in the willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer in violation of California Vehicle Code § 2800.2 and for failing to stop at the scene of an injury accident in violation of California Vehicle Code § 20001. Petitioner seeks federal habeas relief on the grounds that: (1) the evidence presented at his trial was insufficient to support his conviction for failing to stop; (2) his conviction was the result of an illegal vehicle stop; (3) the prosecutor presented perjured trial testimony; (4) evidence of a third vehicle occupant was improperly excluded from evidence at trial; and (5) his trial counsel rendered ineffective assistance.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On May 10, 2005, following a court trial, petitioner was found guilty of driving in the willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer and of failing to stop at the scene of an injury accident. (Notice of Lodging Documents on November 5, 2009 (Doc. No. 30), Reporter's Transcript on Appeal (RT) at 162-64.) Additionally the trial court found that sentencing enhancement allegations with respect to two prior serious felony convictions and two prior prison terms to be true. (Id. at 164-65.) Following his conviction, petitioner was sentenced on July 19, 2005, to a state prison term of twenty-five years to life plus an additional two-year enhancement term for the prior convictions and prisons terms. (Id. at 197.)
Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On April 20, 2007, the judgment of conviction was affirmed in a reasoned opinion.*fn1 (Resp't's Lod. Doc. 1.) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 5.) On July 18, 2007, the California Supreme Court summarily denied that petition. (Resp't's Lod. Doc. 6.) On August 4, 2008, petitioner filed his original petition for a writ of habeas corpus in this court, raising only the insufficiency of the evidence claim. (Doc. No. 1.)
On October 9, 2008, petitioner filed a petition for writ of habeas corpus in the Sutter County Superior Court raising six additional claims. (Resp't's Lod. Doc. 7.) The Sutter County Superior Court denied that petition on November 3, 2008. (Resp't's Lod. Doc. 8 at 2). Petitioner then presented those six claims in a petition for writ of habeas corpus filed in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 9.) That petition was summarily denied on January 8, 2009. (Resp't's Lod. Doc. 10.) Those same claims for relief were then raised in a petition for writ of habeas corpus filed by petitioner in the California Supreme Court on March 11, 2009. (Resp't's Lod. Doc. 11.)
On July 14, 2009, before the California Supreme Court reached a decision as to the habeas petition filed with that court, petitioner filed his first amended petition for writ of habeas corpus in this court raising his original exhausted insufficiency of the evidence claim and his six still unexhausted claims. (Doc. No. 21.) On July 16, 2009, the undersigned issued findings and recommendations recommending that this action be stayed so that petitioner could exhaust the six still unexhausted claims. (Doc. No. 22.)
On July 29, 2009, the California Supreme Court denied petitioner's March 11, 2009, petition with a citation to In re Swain, 34 Cal.2d 300, 304 (1949). (Resp't's Lod. Doc. 12.) On August 31, 2009, petitioner filed this second amended petition in this court raising his original insufficiency of the evidence claim and the six newly exhausted claims, as well as a motion to lift the stay. (Doc. No. 24, 25.) On September 4, 2009, petitioner's motion to lift the stay was granted. (Doc. No. 26.) Respondent filed an answer on October 28, 2009. (Doc. No. 29.) Petitioner filed his traverse on November 23, 2009. (Doc. No. 32.)
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On December 16, 2004, defendant borrowed his sister's Dodge Stratus, used the car to drive her mother home, and then picked up a friend, Angalett Mims.
At about 1:00 a.m., police officer Bill Williams, who was on patrol in uniform and driving a marked patrol car, saw the Dodge Stratus and noticed its brake lights were not operating. Williams activated his overhead red and blue lights to make a traffic stop. Defendant, the driver of the Dodge, initially pulled over but then sped away after Williams got out and walked toward the Dodge. Williams returned to the patrol car and chased the Dodge with his lights and siren operating.
The fog was thick and visibility was about one-half block. While making a turn, the Dodge skidded across both lanes of traffic, struck the curb, and accelerated up to approximately 65 miles per hour, running through a red light without slowing. At another intersection, defendant decelerated and made a 180-degree turn. Officer Williams had to brake in order to avoid colliding with the Dodge as it made the turn.
The Dodge sped off, fishtailing as it rounded the corner in a residential area. Its speed increased to 65 miles per hour, well over the 25-mile-per-hour limit.
Defendant lost control of the Dodge when it went over a dip in the roadway and hit a bump; it spun around several times, struck a fence and a tree, and ended up in an open field. The Dodge was "totaled." Its front bumper was on the ground near the fence, and its rear bumper was "barely hanging on."
Upon seeing the crash, Officer Williams requested medical assistance because he assumed "there was going to be somebody that was injured."
Immediately after the crash, defendant told Mims to run but she stayed in the Dodge. Defendant fled without asking Mims if she was injured and without checking on her or aiding her in any way. Officer Williams saw defendant get out of the car and ordered him to stop, but defendant ran away.
Seeing Mims in the front seat of the Dodge with her seat-belt on, Williams went to her aid rather than chase after defendant. Mims was "upset, scared and shaking," and told Williams her neck hurt. She also had pain in her leg. When "rescue" workers arrived on the scene, they put a brace on her neck because she told them it hurt. She was then transported to a hospital, where she said she was "okay" and declined treatment. By the time of trial, she still had pain in her leg, although she had not seen a doctor for it.
A search of the Dodge revealed a sales contract in the name of Anetta Ford, defendant's sister. Ford told Officer Williams that defendant had borrowed the Dodge at about 11:00 p.m. the previous evening. When Ford's daughter later went to retrieve some property from the Dodge, she saw it had been "[c]ompletely totaled."
Defendant's parole agent testified that defendant absconded from supervision before the present incident, and a warrant was outstanding for his arrest. Conditions of defendant's parole precluded him from being away from his home at the time of the incident and from driving his sister's car without notifying the parole agent. (Resp't's Lod. Doc. 4 (hereinafter Opinion).)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) 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
(2) 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Respondent asserts that federal habeas review of petitioner's second through seventh claim is procedurally barred. (Answer at 19.) Respondent notes that petitioner raised these claims in his March 11, 2009, state habeas petition and that the California Supreme Court denied relief with a citation to In re Swain, 34 Cal.2d 300, 304 (1949). (Id. at 20.) Respondent argues that such a citation to Swain may indicate a denial based on the conclusory nature of the claims or, alternatively, on untimeliness grounds. (Id.) Respondent contends that because a review of the state petition in question shows that petitioner alleged his claims with exceptional particularity, the California Supreme Court's citation to Swain must have been intended as a denial based on untimeliness grounds. (Id.)*fn2
The denial of a habeas petition with a citation to In re Swain is deemed a denial on procedural grounds, leaving state remedies unexhausted. Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). Respondent, however, concedes that petitioner has exhausted all of the claims presented in his second amended petition pending before this court. Moreover, even if petitioner's claims were unexhausted, an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust available state remedies. 28 U.S.C. § 2254(b)(2). A federal court considering a habeas petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not "colorable." Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Here, the undersigned will recommend that federal habeas relief be denied on the merits of petitioner's claims two through seven because they are not "colorable."
B. Sufficiency of the Evidence
Petitioner claims that there was insufficient evidence introduced at trial to support his conviction for violating California Vehicle Code § 20001. Specifically, petitioner asserts that there was no evidence that the crash resulted in injury to his passenger, Mims, or that petitioner knew Mims was injured before he fled the scene. (Second Am. Pet. at 36-40.) Petitioner argues that his conviction was based solely on the uncorroborated testimony of Mims, who indicated that she was not injured in the crash and who later told the hospital staff that she "was okay." (Id. at 36-37.) Petitioner argues that Mims testified that she only experienced pain in her neck and leg after she exited the vehicle. (Id. at 39.) Petitioner further argues that ...