The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge
REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Ny Nourn, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging her conviction for second degree murder. (See Lodgement No. 1. Vol. 2 at 464.) Petitioner contends that habeas relief is proper based on the following five grounds: (1) The double jeopardy clause was violated when the prosecutor argued facts to which she had been previously acquitted; (2) the prosecutor presented a legally untenable theory of liability; (3) the jury was improperly instructed; (4) there was insufficient evidence to support her conviction; and (5) Petitioner's counsel provided ineffective assistance because he failed to object on double jeopardy grounds or argue the legal untenability of the prosecution's theory at trial.
This Court has reviewed the Petition, Respondent's Answer, Petitioner's Traverse, and all supporting documents. Based on the documents and evidence presented, and for the reasons set forth below, the Court finds that Petitioner is not entitled to the relief requested and recommends that the Petition be DENIED.
This Court gives deference to state court findings of fact and presumes them to be correct. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). The pertinent facts as found by the state appellate court, and substantially taken from its opinion, are as set forth below. (See Lodgement 6 at 3-8.)
On December 23, 1998, David Stevens' body was found abandoned in the passenger seat of a burning car. An autopsy revealed that Stevens had been fatally shot twice in the head before his body was burned.
The case was unresolved for three years. However, in November 2001, Petitioner Ny Nourn contacted the San Diego Police Department and confessed her role in Stevens' murder. The following description of the events leading up to the murder is from Nourn's transcribed confession.
In August 1998, when Nourn was 17 years old she met Ronald Barker, then a 34-year-old married man with a child, through the Internet. Within days, they developed an intimate relationship.
Nourn's relationship with Barker continued through the fall of 1998. In November 1998, Nourn began working at the Perfect Match dating service. She developed a friendly relationship with her boss, David Stevens. On the evening of December 22, Nourn went on a date with Stevens. They went to his apartment and had sex. After leaving Stevens' apartment, Nourn returned home. When she arrived, she saw Barker's car parked near her house. She nervously parked and approached Barker.
Barker asked Nourn where she had been. At first she said she had been shopping. Barker did not believe her and Nourn admitted that she had "slept with [her] boss." Barker became angry and told her to get out of the car. Nourn said she was sorry and that it would never happen again. She then told Barker that Stevens coaxed her into having sex with him, and changed her story, stating that he had raped her. Barker replied, "I'm gonna kill him," and told Nourn she had been "violated" and was "used goods." He told Nourn to take him to Stevens' apartment so that he could confront him, and Nourn agreed to do so.
On their way to Stevens' apartment, Barker and Nourn stopped and had sex in the back seat of his car. Afterward, Barker suggested that he and Nourn should end their relationship. Nourn begged him not to do so, and he responded that the "[o]nly way you stay with me is if you kill David or I kill David." Nourn replied, "I do anything you say." Barker then stated that he needed to go to his house to get his gun, and Nourn followed him there.
Barker then told Nourn to call Stevens and tell him that she was stranded on the freeway. However, when Nourn called, Stevens did not answer. Barker and Nourn drove to Stevens' apartment.
They planned for Nourn to tell Stevens that her car had broken down and ask him for assistance. Barker would follow in his vehicle and when he flashed his headlights, Nourn would have Stevens pull over. They would tell Stevens that Barker was Nourn's brother.
When they arrived at Stevens' apartment, Nourn called him on the intercom and told him she needed help with her car. When Stevens came out, he and Nourn left in his car and traveled eastbound. Barker followed in his own car. Barker flashed his lights; Nourn told Stevens to pull over. She told Stevens that she thought the person following them was her brother. Nourn walked to Barker's car and he told her to have Stevens follow him. Nourn returned to Stevens' car and told him to follow Barker. They drove to a residential area and then stopped. Nourn introduced Barker to Stevens as her brother. They then all got into Stevens' car, with Barker in the back seat.
Barker directed Stevens to drive, on the pretense of looking for Nourn's car. Nourn did not say much and "just kept to [her]self." Barker then directed Stevens to pull over.
After Stevens pulled over, he asked, "Where's the car?" Barker grabbed Stevens by the neck and pointed the gun at his head. Barker said, "How does it feel to sleep with someone's girlfriend?" Stevens replied "[D]on't do this," and Nourn said, "No, no." Barker twice fatally shot Stevens in the head. Nourn assisted Barker in moving Stevens' car and later setting it on fire with Stevens' body inside.
During the following three years, Barker and Nourn's relationship continued and neither told anyone about Stevens' murder. Nourn stated that she went along with the plan because she thought that Barker would kill her if she did not.
Nourn denied that she wanted to see Stevens hurt or killed. She stated she liked Stevens very much. She believed Barker would have killed her if she refused to participate in his plot to murder Stevens. Nourn admitted Barker had never physically abused her in any way prior to Stevens' murder, although she stated that Barker had slapped her one time on the night Stevens was killed. Nourn asserted that although she knew Barker had a gun and had threatened to kill Stevens, she believed he only intended to "confront" him. She believed Barker's death threats were directed at her, not Stevens. Nourn also recognized that Barker had no idea where Stevens lived and only her assistance led Barker to him. Nourn admitted she was alone with Stevens several times as the plot unfolded. She acknowledged she had several opportunities to stop the murder, but did not warn Stevens or take any actions to prevent it because she was worried about her own safety. At trial, three psychologists testified Nourn suffered from Battered Women's Syndrome before, during and after Stevens' murder. However, one psychologist admitted that at the time of the murder Nourn was not so subjugated by Barker that she did not feel free to defy him by dating Stevens.
III. PROCEDURAL BACKGROUND
In 2003, a jury returned a verdict of first degree murder against Ny Nourn and found true a lying in wait special circumstance allegation. (Lodgement 6 at 1.) In May 2004, the California Court of Appeal affirmed Nourn's conviction but reversed the special circumstance finding based on instructional error. (Id.) Nourn filed a writ of habeas corpus which the California Court of Appeal granted in December 2006. (Id.) The court reversed Nourn's conviction for first degree murder based on ineffective assistance of counsel. (Id. at 1-2.)
In November 2007, Nourn was again put on trial on charges of murdering David Stevens and committing arson to his car. (Id.) Prior to trial, the court dismissed a special circumstance lying-in- wait allegation. (Id.) After the close of the prosecution's case, the trial court granted Nourn's motion for acquittal on the first degree murder charge. (Id.) The jury found Nourn guilty of second degree murder and not guilty of arson. (Id.) Nourn was sentenced to 15 years to life. (Id.)
Nourn filed a direct appeal of her conviction in the California Court of Appeal, which upheld her conviction, in a written opinion on April 27, 2009. (Lodgement 6.) Nourn then filed a petition for review in the Supreme Court of California. (Lodgement 7.) The Supreme Court denied the petition without comment. (Lodgement 8.) Nourn filed her petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. 2254 on October 28, 2009. (Doc. No. 1.) Respondent answered the petition January 14, 2010. (Doc. No. 12.) Nourn filed her traverse to the petition February 10, 2010. (Doc. No. 14.)
This Petition is governed by Title 28, United States Code, § 2254, as amended by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Section 2254(a) sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a).
As amended, 28 U.S.C. § 2254(d) reads: (d) 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 ...