The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without 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 voluntary manslaughter, with an enhancement for use of a firearm. Petitioner was ultimately sentenced to the six year middle term, plus a consecutive ten-year upper term for the firearm enhancement.*fn1 Petitioner raises one claim in his amended petition, filed July 29, 2005, that his prison sentence violates the Constitution.
On the evening of May 31, 2000, victim Brian Bower, accompanied by his good friend John Duran and two other men, Steve (whose surname is unknown) and David Morie, drove to Ed Ruiz's rural home to look at some drugs. [Petitioner], who spent a lot of time at Ruiz's place, was there when the four men arrived. Ruiz was also present. [Petitioner] was surprised to see Morie with the other men since Morie usually came by himself. Ruiz was familiar with Morie, and [petitioner] knew Morie from other drug deals conducted in the preceding week. Neither [petitioner] nor Ruiz knew the victim, Duran, or Steve.
Morie was trying to get the victim some methamphetamine and thought [petitioner] would have some. He said the victim wanted to buy an ounce of methamphetamine. As it happened, [petitioner] had about three-quarters ounce of methamphetamine with him that night, which he had bought for $400. Morie suggested, and [petitioner] agreed, that they cut one-half ounce of the methamphetamine with an equal amount of filler provided by Morie and sell it to the victim.
[Petitioner] combined and bagged the drugs and filler. [Petitioner] then weighed the mixture in the baggie on the scale while the victim looked on. The victim then smoked a sample of the mixture and pronounced it "good." The victim paid [petitioner] $370 for the drugs. [Petitioner] then departed in his truck. A detective testified that $370 was a very low price for one ounce of methamphetamine.
Later, Duran suggested the victim had been shorted. The victim, Duran, and Steve returned to Ruiz's place one to two hours later, at about 2:00 a.m. on June 1, looking for [petitioner]. With Ruiz's help, the victim tried to page [petitioner] for about 15 minutes, without success.
Next the victim, Duran, and Steve had Ruiz go with them to point out [petitioner's] home and then returned Ruiz to his home. At least twice between about 2:30 a.m. and 7:30 a.m. on June 1, the victim and his two friends went to [petitioner's] home and knocked on the door. [Petitioner] was inside, but at his direction, his fiancee told the men he was not there. The men told her to have [petitioner] contact the victim. On one of their visits, the men argued with the fiancee's mother but made no threats against [petitioner]. The three men stayed up all night looking for [petitioner]. The victim and Duran then did some drugs before the victim started work at about 8:15 a.m.
Duran visited the victim at work at about noon on June 1 to see whether the problem with [petitioner] had been resolved. While there, Duran overheard the victim's phone conversation with [petitioner], wherein the two men agreed to meet at Ruiz's place after the victim got off work. The victim asked Duran to go there with him, and Duran agreed to do so because the victim did not know anyone who had been there the previous night and Duran wanted to make sure nothing bad happened to the victim.
Duran returned to the victim's workplace at 4:30 p.m. and brought along two other men: his best friend David Champion and his long-time friend Brian Davis. Neither Davis nor Champion had met the victim before, nor did they know each other. Duran asked Davis to go with him to Ruiz's place because the victim had a problem with someone and was going to meet the person there to discuss it. Duran told him the problem related to a bad drug deal and a confrontation, both of which had occurred the previous night. The victim was dissatisfied with the quality and the quantity of the drugs he had purchased. Duran wanted to be there because things might get out of hand. Davis was there to protect Duran.
Duran and his two friends departed for the Ruiz residence in Duran's truck. The victim went in his own truck and along the way picked up Chris Ortega and Steve. Then all six men went to Ruiz's place, arriving at about the same time. There were many other people, mostly men, in Ruiz's front yard when the six men arrived. Ruiz was present. Duran and the victim parked their trucks near the house and garage, where at least one other vehicle was located.
About an hour earlier, Jennifer Ornellas, the victim's friend, had arrived at Ruiz's place with Toby Pitts and Pitts's friend David, who went by the nickname "Capone." Ornellas testified that going to Ruiz's house was Pitts's idea even though Pitts did not know anyone there. Pitts had been a good friend of the victim for a long time. Ornellas knew some of the men who arrived with the victim. In sum, there were at least 12 to 15 people present, including a number inside the crowded house. Duran later told a detective there were 20 to 25 people there.
After the victim and Champion exchanged small talk with Ornellas in the front yard for a few minutes, the victim and the five men with him filed into the garage. Ortega and Steve brought methamphetamine, and they and some of the other men smoked some in the garage with a pipe. Others only drank beer. None of the men in the garage had a gun, knife, or any other weapon.
The one-car garage had one large door (for a vehicle), which remained closed, and two small front and back doors, which were open. The inside of the garage was fairly dark; it was still daylight, and the only illumination was the natural light entering through the small doors.
After the six men were inside the garage, [petitioner] drove up. At some point the victim came out of the garage and spoke with [petitioner] in the front yard. The victim then re-entered the garage through the front door, followed by [petitioner]. The two of them went to the back of the garage and began discussing the drug deal the victim was upset about. Duran was closest to the two men, about two feet away, between them and the back door.
The victim was dissatisfied with what he bought the night before and he wanted [petitioner] to make good on it. At first the victim was not angry or yelling, but soon the volume of the men's voices increased. The victim had the baggie of methamphetamine he bought the night before and tried to give it to [petitioner], who at first refused to take it, angering the victim. The victim claimed the drugs were "no good" and said he wanted his money back. Eventually [petitioner] accepted the baggie and asked for a pipe so he could test the quality of the methamphetamine; the victim then called out for a pipe. None was provided. The baggie was passed back and forth several times.
Duran interjected that there was no "need to check it out, it was garbage." From that point on, Duran played a part in what became a three-way discussion. Duran said that [petitioner] "needed to make it right," to which [petitioner] responded that he had neither money nor drugs to give to the victim.
As he had discussed previously with the victim, Duran next suggested that [petitioner] could compensate the victim by giving him the "pink slip" to [petitioner's] truck. [Petitioner] responded negatively, asking Duran, "'And who is going to make me?'" Duran believed [petitioner] had addressed him as if he believed Duran was going to become involved in the dispute "in some form of physical manner." Duran then said, "He will," indicating the victim. The conversation became more heated, and the victim's body language and words indicated he was becoming more upset and angry. The victim and [petitioner] were roughly the same height, but the 236-pound victim outweighed [petitioner] by at least 40 pounds (petitioner claimed he weighed 150 pounds at the time).
[Petitioner] told the victim, "'tough shit, I'm leaving,'" and started to move toward the door, but the victim put his hands on [petitioner's] chest and pushed him to stop him from leaving. The victim said, "'Well, wait a minute, what are we going to do about this?'" [Petitioner ] backed up a step but the victim kept coming toward him. [Petitioner] told the victim, "'Well, I guess you're just fucked.'"
The victim said "'bullshit,'" and when [petitioner] turned and tried to leave a second time, the victim again stopped him. This time the victim grabbed [petitioner's] upper body and pushed him backwards. The second push was harder than the first and made [petitioner] stagger. The victim was forcing [petitioner] back into a corner near a bench next to a wall. [Petitioner] reached back and grabbed the bench to catch his fall and to keep himself from being pushed over or falling ...