FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction on charges of first degree felony murder, attempted robbery, and second degree robbery. Petitioner's conviction followed a retrial on charges reinstated after petitioner's prior conviction arising from the same incident was set aside by issuance of a federal writ of habeas corpus.*fn2 At the first trial, petitioner was convicted on charges of first degree murder, attempted murder, attempted robbery, and robbery. See Clerk's Transcript on Appeal (CT) at 27 (Findings and Recommendations filed Oct. 27, 2000.) All of the convictions were accompanied by findings that petitioner personally used a firearm in the commission of the offenses, and the jury also found that petitioner committed the murder during the course of a robbery or attempted robbery. Id. Petitioner's prior conviction was set aside on the ground that his right to due process was violated by admission of an apology letter written by petitioner found to be the "tainted fruit" of a coerced confession. Id. at 23-25, 42-55. On retrial, the jury rejected the allegations of personal use of a firearm, "instead sustaining lesser-included allegations that a principal was armed during the crimes." People v. Cheval Shannon Wright, No. C039121 (Dec. 11, 2002), slip op. at 2.*fn3
The second jury found, as did the first jury, that the murder occurred during the commission of a robbery. Id. This action is proceeding on five of the six claims raised in petitioner's first amended petition, filed February 14, 2005.*fn4
A. Undisputed Facts and Objective Witnesses
The [petitioner] drove a Hyundai to the home of acquaintances, where he joined a group drinking alcohol and smoking marijuana. Five of the partyers, including the [petitioner], departed in the Hyundai to buy more alcohol.*fn6 The [petitioner] was too inebriated, so he asked someone else to drive.
The two victims were among the four occupants of an open convertible that was dropping off one of the passengers in the North Highlands area. As the convertible neared the passenger's home, it passed the Hyundai, which was heading in the opposite direction. The [petitioner] told the Hyundai driver to make a U-turn. As the convertible began its own U-turn to drop off the passenger on her side of the street, the Hyundai stopped in front of it (though not blocking it).
According to a bystander who witnesses the crimes, a man got out of the Hyundai and approached the convertible. He yelled at the victims, then pointed a gun at them. A second man got out of the Hyundai and attempted to restrain the first. The first man (who was darker-complected) broke free and fired two or three shots. The bystander identified the [petitioner] as the second man, based primarily on his lighter complexion and physical appearance in comparison with the co-defendant. In 1993, he had not been able to identify either the co-defendant or the [petitioner] in photo lineups.
A deputy assigned to the jail in October 1994 testified that he had conducted a random search of the co-defendant's mail. He found an outgoing letter bearing the co-defendant's return address and signature in which was written, "Just 'cause I got out of the car with the [gun], that don't prove shit."
The convertible driver had died in an automobile accident by the time of the retrial. The prosecutor read from transcripts of his testimony in the first trial. The witness had described two men simultaneously getting out of the Hyundai. The first, who was dark-complected, walked up to the convertible and asked where they lived. He was holding a gun. The other man hung back. Both of them wore colored rags at their waists. The armed man then demanded money. The driver was in the process of offering the $10 or so in cash in his pocket when he heard gunfire. He looked behind him; the murder victim was grimacing. The second man, who had a lighter complexion, grabbed the first man. The driver grabbed at the gun; as the barrel began to slip out of his hand, he pushed it away and floored the accelerator. The first man fired a shot in the direction of the convertible as it drove off. The driver discovered that he had a bullet wound in his stomach.
The convertible driver was an unwilling witness, because he was facing the start of his own prison term and did not want to be known as a snitch through his identification of the two men. Before his initial testimony at the preliminary hearing, he found himself in the same holding cell as the [petitioner], with whom he spoke.*fn7 There were no charges pending against the co-defendant at that time. While he was willing to adhere to his identification at the preliminary hearing of the [petitioner] as the person who attempted to restrain the shooter, he would not identify the co-defendant as the shooter even though he had picked his photo in a lineup a few weeks after the shooting. However, the driver had admitted to both defense and prosecution investigators in interviews before and after the preliminary hearing that the co-defendant was the shooter.
The surviving male convertible passenger also testified the co-defendant had approached the car, gun in hand, and questioned them before demanding money. He saw the co-defendant shoot at the murder victim and the convertible driver. Someone then grabbed the co-defendant, struggling for the gun. When confronted with his testimony at the preliminary hearing that someone had grabbed the gun from the first man, he corrected his recollection. He believed the co-defendant was the second person to approach the car, at which point he took the gun from the first person and immediately fired at them. Whatever his confusion, he was still sure that the co-defendant was the shooter. He had not been able to identify him in a photo lineup, but the witness attributed his difficulty to the poor quality of the picture of the co-defendant.
The female convertible passenger testified the co-defendant approached the car, and aggressively questioned them about their places of residence. She had seen him around the neighborhood, but did not know him by name. The [petitioner] then approached the car. He was wearing a colored bandana and had a gun in his hand. She was not sure which one of them demanded money. She thought the murder victim pulled a dollar out of his pocket.*fn8 She did not see who fired shots, and could not recall if the co-defendant had the gun in his possession at any time (although she acknowledged testifying in the first trial that he held it at some point). In interviews with the police shortly after the shooting, the female convertible passenger had said three men got out of the convertible (one of whom remained near the Hyundai), but she could not now recall the interviews. She could not remember an interview during a photo lineup (in which she had identified the co-defendant), when she asserted the co-defendant held the gun at least some of the time but the other man had done all the talking; again, she was not sure which one had fired it.*fn9 She had not been able to identify the [petitioner] in photo lineups. At the preliminary hearing, she identified the [petitioner] as the man who held the gun and interrogated the convertible's occupants. However, at the first trial, she acknowledged the co-defendant also had the gun at some point; she was not sure who fired it, but believed it was the person holding it when he got out of the other car.
C. Hyundai Occupant Accounts
The three occupants of the Hyundai (other than the [petitioner] and the co-defendant) were close friends and members of the same gang faction as the co-defendant. The [petitioner], on the other hand, was from a different neighborhood faction of the gang. They had only recently met him, and did not owe any particular loyalty to him.
The female Hyundai passenger testified that she did not see either man with a gun when the [petitioner] and co-defendant got out of the car. She could not hear what they said to the convertible occupants. When she got out of the car after hearing a gunshot, she saw only the [petitioner] with the gun in his hand.
The Hyundai driver claimed all of his passengers got out of the car. He could not hear what anyone was saying, except for the demand for money; he could not tell who issued that command. He could not tell who fired the gun -- he only saw it for the first time later in the back yard of the party house.
The other male Hyundai passenger heard the [petitioner] demand money from the people in the convertible, then heard a shot. He got out of the Hyundai and saw the [petitioner] fire a second shot at the convertible driver, after which he helped the co-defendant to restrain the [petitioner] and pull him back to the Hyundai.*fn10 This was the first he had seen of the gun that day. He admitted that his trial testimony was less favorable to the [petitioner] than his testimony at the preliminary hearing, because the [petitioner] was now trying to blame the co-defendant for the crimes.
Everyone in the Hyundai returned to the house where they had been partying. They parked the car around the corner. Everyone was agitated and talking about the shooting. The [petitioner] asked for a change of clothes. Somebody attributed the shooting to the [petitioner]; though present, he remained silent and did not deny it.*fn11 Pulling money out of his pocket, the [petitioner] expressed his disbelief that "all [he] got was ten dollars from it."
The [petitioner] had borrowed the Hyundai from his girlfriend's roommate. Shortly after the shootings, the [petitioner] phoned his girlfriend and said she should report that the car was stolen. He would not elaborate. Later that night, the [petitioner] met with his girlfriend around the corner from her apartment and returned the keys. He then moved to Fairfield with his girlfriend, where he cut his hair and attempted to find a job.
Hearing of the [petitioner]'s August 1993 arrest, the murder victim's widow came to see him in jail accompanied by her teenage niece. She identified herself and asked why he had killed her husband. The [petitioner] said he was sorry for what happened, and he would trade his life for her husband's if he could. She claimed the visit lasted 10 to 15 minutes. The widow did not mention this conversation at the first trial, nor did she tell the present prosecutor about it at first until she collected her thoughts. She could not explain the omission, other than having been "emotionally stressed out . . . and I just didn't think about telling anybody." She also thought that perhaps it was improper to have visited him.
The jail records show a visit from the widow, accompanied by a minor, on September 2, 1993, at 1:06 p.m., and an in and out time for the [petitioner] of 1:12 p.m. One cannot necessarily determine from these records either the length of a visit, or if an inmate refused to speak with a visitor. There was nothing otherwise to corroborate her conversation with the [petitioner]. The widow admitted she had a 1994 felony conviction for being an accessory after the fact to an assault.
People v. Wright, slip op. at 2-9.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). 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 section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).