The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a sentence of life without parole plus 25 years to life, imposed by the San Joaquin County Superior Court on November 13, 2006 pursuant to petitioner's September 27, 2006 conviction for first-degree murder with a drive-by shooting special circumstance, attempted murder, and several firearm allegations. (Cal. Penal Code §§ 187, 190.2 (a)(21), 664/187, 245(a)(2), 190(d), 12022 (a)(1), 12022.5 (a), 12022.53 (b)-(d).) Petitioner seeks relief on the grounds that: (1) the trial court's imposition of a firearm enhancement pursuant to P.C. § 12022.53 (d) violates state law, federal due process and double jeopardy because it arises from the same act as the drive-by shooting special circumstance (P.C. § 190.2 (a)(21)); and (2) the trial court's imposition of the drive-by shooting special circumstance violates the Eighth Amendment because it requires the same elements of proof as the drive-by theory of murder. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus be denied.
Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. The appellate court affirmed his convictions in a reasoned opinion on January 24, 2008. Petitioner then sought review of his convictions in the California Supreme Court. That petition was denied without comment on April 9, 2009. Petitioner filed this federal petition for writ of habeas corpus on March 10, 2009.*fn1 Respondent filed an answer on June 23, 2009. Petitioner filed his traverse on August 20, 2009.
Respondent concedes that petitioner's claims are exhausted. (Answer at 1.)
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On April 2, 2005, defendant fired a gun from a car driven by former co-defendant Nou Her, into a car driven by Herseng Vang, killing Vang. Nou Her and Tueka Moua, who was in the back of Her's car at that time, identified defendant as the shooter.
The knowledge of the participants and the details of events were the subject of differing accounts, but viewing the evidence in the light favorable to the verdict (People v. Barnes (1986) 42 Cal.3d 284, 303-304), a rational jury could piece together the following explanation for the shooting.
Tueka Moua and a group of relatives were at Taft Park, playing basketball, when several cars pulled up and a number of men got out with tire jacks or similar weapons and began chasing people.
The attackers bashed in some car windows and stole stereo equipment. Tueka Moua fled and went to a cousin's house, where he roused his uncle, Nou Her, and explained what had happened. Nou Her, defendant and Tueka Moua drove to Taft Park but found nobody, so they drove to Van Buskirk Park, where Tueka spotted some of the attackers. When the attackers left by car, the trio followed in their car. Nou Her bumped his car into one of the attacker's cars and then pulled alongside it, whereupon defendant began shooting into the car, ultimately killing Herseng Vang.
The jury deadlocked as to former co-defendant Nou and he is not party to this appeal. The jury convicted defendant as indicated above. (Lod. Doc. 3 at 2.)
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). Title 28 U.S.C. § 2254(d) sets ...