The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner represented by counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for first degree murder. This action is proceeding on the original petition filed August 12, 2008, raising the following claims: 1) the trial court improperly precluded defense expert Dr. Pittel from testifying regarding petitioner's mental state at the time of the offense; 2) the trial court improperly precluded Dr. Pittel from testifying that petitioner's co-defendant*fn1 corroborated petitioner's statement that he had used methamphetamine; 3) the prosecutor committed misconduct by misstating the law of manslaughter; and 4) the trial court improperly denied petitioner's motion for a new trial which could have presented new evidence regarding petitioner's mental state.*fn2 Petition at 5-6.
After carefully considering the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
The victim, Ron Bailey, and a friend, Ed Gomez, went to [petitioner's] apartment to buy some drugs from another individual, Emanuel Lapuste. Shasta Flotka, who was living with [petitioner] at the time, recognized Bailey and later told [petitioner] that Bailey had drugged and raped her sister.
Later, Lapuste called Gomez and asked Gomez to give him and [petitioner] a ride. Gomez and Bailey then picked up Lapuste and [petitioner], and Gomez followed Lapuste's instructions and drove to a wooded area outside Oroville. They pulled off the road onto a dirt driveway, then got out of the car and began walking up the driveway at Lapuste's direction. Eventually, [petitioner] told them they had gone far enough, and they stopped to smoke. As Gomez was lighting Bailey's cigarette, [petitioner] suddenly attacked Bailey with a knife. [Petitioner] stabbed Bailey at least 27 times, and Bailey died from blood loss from multiple penetrating stab wounds to his chest and head. [Petitioner] testified at trial that he was "overwhelmed with anger" because of what Shasta told him and because he believed Bailey had "touched" his daughter when Bailey was in his apartment. [Petitioner] claimed he planned only to "assault [Bailey] with a deadly weapon, cut off his penis or stab him in the penis," but did not think about killing him. Once he punched Bailey, however, he "just snapped" and began to stab Bailey. Later, [petitioner] and Lapuste went back and moved Bailey's body into the brush, and later still [petitioner] returned, dragged the body back into the road, and "attempted to cremate it with gasoline and matches." [Petitioner] argued the jury should convict him of voluntary manslaughter, but the jury rejected that argument and convicted him of first degree murder with the special circumstance of lying in wait.
Lod. Doc. No. 2; People v. Fredricksen, 2007 WL 665642 *1.
Claim 1 - Expert Testimony: Mental State Petitioner alleges violations of the Fifth, Sixth and Fourteenth Amendments due to the trial court precluding defense expert Dr. Pittel from testifying regarding petitioner's mental state at the time of the offense. Petition at 5.
The right to present relevant evidence may, in appropriate circumstances, bow to accommodate other legitimate interests in the criminal trial process. See United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261 (1998) (defendant's right to present evidence in his defense "not unlimited" but rather is subject to reasonable evidentiary and procedural restrictions); Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743 (1991) (right to present relevant testimony may bow to accommodate other legitimate interests) (citations, quotations, and internal quotations omitted).
Even if a trial court's decision amounts to constitutional error, a habeas petitioner is not entitled to habeas relief unless such error had a "substantial and injurious effect" upon the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct 1239 (1946)). See also Fry v. Pliler, 551 U.S. 112, 117, 127 S.Ct. 2321 (2007) ("[t]he opinion in Brecht clearly assumed that the Kotteakos standard would apply in virtually all § 2254 cases").
Prior to trial, the prosecution moved to preclude Dr. Pittel from testifying to any conclusions or opinions regarding petitioner's state of mind either leading up to or when petitioner committed the murder. This motion was ...