FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on September 19, 2005 in the Sacramento County Superior Court on charges of one count of assault with a deadly weapon with malice aforethought by a prisoner serving a life sentence, and two counts of possession of a sharp instrument while confined in a penal institution. Petitioner seeks federal habeas relief on the following grounds: (1) there was insufficient evidence introduced at his trial of an intent to kill to support the jury's finding of malice aforethought with respect to the charge of assault with a deadly weapon; (2) the trial court violated his rights to a jury trial, to due process, to confront the witnesses against him, and to present a defense when it failed to allow his trial counsel and the jury to take physical possession of the weapon used in the attack; and (3) jury instruction error violated his right to due process.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND
Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On May 16, 2007, the Court of Appeal reversed petitioner's conviction for assault with a deadly weapon and stayed the concurrent sentence imposed on one count of possession of a sharp instrument, pursuant to Cal. Penal Code § 654. (Notice of Lodging Documents on March 20, 2009 (Doc. No. 16), Resp't's Lod. Doc. 4 (hereinafter Opinion)). In all other respects, petitioner's judgment of conviction was affirmed. (Id.) In its unpublished memorandum and opinion, the California Court of Appeal provided the following factual summary:
Three correctional officers testified that they saw Contreras and Garcia attack another inmate in the exercise yard at Sacramento State Prison. The attack was also captured on a surveillance camera in the yard.
Contreras and Garcia both stabbed the unarmed victim inmate with inmate-manufactured weapons. The attack involved direct thrusts from the side, from overhead, and from opposite angles on either side of the victim. During the attack, Contreras and Garcia each received a guard-fired, nonlethal rubber round to their backsides, but these two shots failed to end the assault. It took a tear-gas grenade to accomplish that. The attack lasted about 25 seconds. The victim incurred at least 41 puncture wounds (23 to his back, 10 to his chest, one to his lower abdomen, two to each arm, and three to his neck), and suffered two collapsed lungs.
On June 28, 2007, petitioner filed a petition for review in the California Supreme Court. (Resp't's Lod. Doc. 5.) On August 8, 2007, the California Supreme Court summarily denied the petition for review. (Resp't's Lod. Doc. 6.)
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). Section 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).
A. Sufficiency of the Evidence
Petitioner's first claim is that "there was no substantial evidence of intent to kill and therefore malice because the alleged attack in the present case was 'wild and unaimed,' did not target any vital organs and involved no attack calculated to cause death." (Pet. at 8.)*fn1 The California Court of Appeal rejected these arguments, reasoning as follows:
Garcia contends there is insufficient evidence to support a finding on count one (§ 4500) that the assault was done with malice aforethought. We disagree.
Preliminarily, we note that defendants caught a break when the trial court instructed on the malice aforethought element exclusively in terms of express malice -- an intent to kill. The element of malice aforethought, in the section 4500 offense, also includes implied malice -- an intentional and dangerous act done with conscious disregard for human life. (People v. St. Martin (1970) 1 Cal.3d 524, 537 ["'[t]he words malice aforethought in section 4500 have the same meaning as in sections 187 [murder] and 188 [malice definition (, which specifies express and implied) ],'" quoting People v. Chacon (1968) 69 Cal.2d 765, 781.)
Garcia contends the evidence is insufficient to show an intent to kill. In assessing the sufficiency of evidence in a criminal appeal, we review the entire record in the light most favorable to the judgment and ask whether a reasonable trier of fact could have found the challenged element beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
Here, Contreras and Garcia acted in concert to stab the victim at least 41 times, including 10 times to the chest, 23 to the back, and three to the neck. The two defendants positioned themselves to direct thrusts from the side, from overhead, and from opposite angles. The two would not be deterred and continued on for about 25 seconds. Besides being punctured in vital areas, the victim was drenched from head to toe in blood and suffered two collapsed lungs. We conclude there is sufficient evidence of an intent to kill. Garcia disagrees. He turns this evidence on its head to argue that its extensiveness actually argues against an intent to kill because had there been such an intent, there would have been a killing. But under our standard of evidentiary sufficiency, reversal is unwarranted unless it clearly appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the challenged element]." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Garcia's argument mistakenly inverts this standard, so that if there is any hypothesis of insufficient evidence, reversal is required. (Opinion at 5-6.)
The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 ...