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 conviction in 2001 on charges of attempted second degree robbery and assault with a firearm, and the jury found petitioner used a firearm in connection with both offenses. (Clerk's Transcript ("CT") 92-94.) The trial court found petitioner had suffered a prior prison term. (Reporter's Transcript ("RT") 301-02.) Petitioner was sentenced to thirteen years in state prison. (CT 138.) Petitioner raises four*fn1 claims in his petition. (Dkt. No. 1.)
Petitioner filed a timely appeal which was denied on July 30, 2002. (Resp't's Ex. C.) Petitioner filed a petition for review in the California Supreme Court which was denied on June 9, 2004. (Resp't's Exs. D & E.)
Petitioner filed habeas petitions in the Solano County Superior Court, the California Court of Appeal, and the California Supreme Court, all of which were denied. (Resp't's Exs. F & G.)
The instant petition was filed on August 4, 2005. Respondent's answer was filed on June 16, 2006. Petitioner filed a traverse on August 30, 2006.
At about 11:30 p.m. on July 16, 2000, Lamar Hernandez was in Vallejo with Demeko Porter. Hernandez wanted to "kick it" with Porter before turning himself in to do some jail time. They drove to 118 Deborah Street in Vallejo. Hernandez waited in his parked truck while Porter entered the house at that location. Hernandez was talking on his cell phone when [petitioner] and Dykes approached his truck.
[Petitioner] pointed a revolver at Hernandez's face, opened the driver's door and told Hernandez to get out of the truck. Dykes held an automatic firearm and stood directly behind [petitioner]. Hernandez asked [petitioner] why he wanted him to get out of the truck. [Petitioner] again demanded that Hernandez get out of the truck. When Hernandez hesitated, [petitioner] hit him on the side of his head with the gun.
Hernandez got out of the truck. [Petitioner] ordered him to get on his knees and told him to "take it off." [Petitioner] thought that Hernandez was wearing a necklace. [Petitioner] had seen Hernandez wearing one on a prior occasion at the home of Porter's ex-wife, Dede.*fn3 [Petitioner] felt around Hernandez's neck but Hernandez was not wearing any jewelry. Dykes, who was still holding his gun and standing behind [petitioner], told [petitioner] that he saw Hernandez throw something in the back of the truck. [Petitioner] kicked Hernandez on the left side of his face, injuring his lip. He then opened the back door of the truck and found the watch. He threw it on the ground and broke it. [Petitioner] also found a trailer hitch in the back of the truck and started to vandalize the truck. He threw the hitch at the front windshield and broke it. He used the hitch to damage other windows on the truck. In addition, [petitioner] kicked the cigarette lighter and ashtray inside the truck and threw the keys to the truck over a house. [Petitioner] and Dykes then walked away. (People v. James, slip op. at 2-3.)
I. Standards for a Writ of Habeas Corpus
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. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citation omitted) 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 used to litigate 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) of the AEDPA 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.
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) (citation omitted).
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, 75 (2003) (it ...