FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a September 6, 2001 judgment of conviction entered against him in Sacramento County Superior Court on charges of murder with personal use of a firearm. He seeks relief on the grounds that: (1) the admission into evidence of his non-testifying co-defendant's hearsay statements violated his Sixth Amendment right to confront the witnesses against him; (2) constructive amendment of the information violated his Fifth and Fourteenth Amendment right to due process; (3) he had insufficient notice of the charges against him, in violation of the Sixth Amendment; and (4) his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural and Factual Background*fn1
In September 2001, separate juries in a single trial convicted defendants Nathan Barr (Barr) and Crystal Jones (Jones) of murdering James Randall.
The Jones jury determined Jones committed the murder while engaged in a robbery (Pen.Code, § 190.2, subd. (a)(17)), personally used a knife in committing the crime (Pen.Code, § 12022, subd. (b)(1)), and was armed with a firearm (Pen.Code, § 12022, subd. (a)(1).)
The Barr jury determined Barr did not commit the murder while engaged in a robbery, but did personally use a firearm (Pen.Code, § 12022.53, subd. (d)).
On October 5, 2001, the trial court sentenced Jones to state prison for life without parole plus one year for the use of a knife. It sentenced Barr to state prison for a term of 25 years to life for the murder, plus 25 years to life for the use of a firearm, for a total of 50 years to life.
On appeal, Jones asserts the trial court erred by:
1. Denying his motion for new counsel under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 ( Marsden motion);
2. Not instructing the jury on his claim-of-right defense;
3. Admitting into evidence against Jones a statement co-defendant Barr made to a witness; and
4. Not instructing the jury on accomplice testimony by means of CALJIC Nos. 3.10, 3.11, and 3.18.
Jones also argues these errors amount to cumulative error requiring reversal. He also asks us to conduct an in camera review of a witness's medical records to determine if the trial court, upon reviewing the same records, abused its discretion by concluding the records contained no discoverable information.
On appeal, Barr asserts the trial court erred by:
1. Not instructing the jury on accomplice testimony by means of CALJIC Nos. 3.11 and 3.18; and
2. Admitting into evidence against Barr a statement co-defendant Jones made to a witness.
Like Jones, Barr also claims these errors amount to cumulative error requiring reversal. He also joins in all of Jones's claims of error.
Jones and Barr resided in a Sacramento home along with the victim Randall and another man known as BJ, later identified as Benjamin Hence. Jones was known as "Rollo." Barr was known as "Mellow." Barr's girlfriend, Charla Barnes, also stayed at the house. Barr's best friend, Lawrence "Mo" Cannon, frequented the house.
Prior to February 16, 1999, Barnes had heard Barr complain to Jones and Mo that Barr had given Randall money on more than one occasion to buy crack cocaine for him, but Randall had not produced the drugs. Barr was mad about this situation. Jones commented Randall "had to pay."
On February 16, 1999, Barr, Randall, BJ, and an unidentified male were home playing dominoes in the kitchen. Jones and Barnes were also present. Barnes noticed Jones rubbing a kitchen knife in the palm of his hand. She commented to Barr about it. Barr looked at Jones, who then stopped handling the knife. Barr told Barnes, "Don't worry about him."
Barr and Barnes left the game and went upstairs to Barr's bedroom. About two hours later, Barr told Barnes she had to leave the house. Barnes refused because she believed Barr wanted her to leave so he could bring another woman to the house. Frustrated, Barr left the room and went downstairs.
Lying in bed, Barnes then heard a sound like somebody was out of breath and in pain. She heard Randall repeat over and over, "Mellow, don't do this. Mellow, I love you. You can have everything you want." Randall sounded scared, breathless, and in pain.
It was approximately 3:00 a.m. Barnes went downstairs to see what was happening. There, she saw Randall bent over, on his knees, head toward the ground. Blood was on his posterior. She saw Jones stabbing Randall with a bloody knife. Randall flinched and moaned. Twice, Barr yelled at Barnes to go back upstairs. Barnes saw blood on the carpet then ran upstairs.
Once in the room, Barnes sat down in a corner and cried. She peeked outside a window and saw BJ running across the front yard but looking back towards the house. She heard Randall crying and asking God to help him and to forgive him. She heard Randall asking Jones, "Why are you doing this, Rollo?"
A minute or two later, the noises from downstairs ceased, and all was quiet. She thought she heard someone coming up the stairs. She hid in a closet, fearing the person might hurt her. About 10 minutes passed; no one came upstairs. Then Mo yelled, "Is anybody up there?" Eventually, Barnes replied. Mo assured her he was not going to hurt her. He came upstairs and asked where the others were. Barnes did not know. Mo told her to stay upstairs. He went downstairs, then returned with Jones and Barr. Mo suggested they all leave the house together, which they did. Barnes saw blood on the living room carpet and sofa as they made their way out.
As they walked down an alley, BJ approached them and said he had not told anyone. Jones complained "the bastard wasn't dead yet." Mo asked BJ where his gun was, and BJ replied it was back at the house in his bedroom.
The five returned to the house. Barr escorted Barnes to the upstairs bedroom, then went downstairs. Moments later, Barnes heard two gunshots coming from the back yard. Barnes screamed, and eventually cried herself to sleep.
A few days after the killing, Jones met with a friend and fellow drug-user, Paul Davis, and admitted involvement in Randall's death. He admitted stabbing Randall, but said either Barr or Mo had shot Randall. He stated afterwards they took drugs and some of Randall's belongings.
Meanwhile, on February 18, 1999, Barr admitted his involvement in the murder to his mother, Theresa Rosemary Brown. Barr told her after Randall had been stabbed, Randall yelled out for BJ. When Barr went to cover Randall's mouth to stop him from screaming, Randall bit Barr's finger. Barr then shot Randall in the head.
Brown saw what looked like a bite mark on Barr's finger. When Barr was arrested on February 22, 1999, police observed and photographed a cut on Barr's finger. Barr told police he shot Randall in self-defense.
Petitioner's judgment of conviction was affirmed by the California Court of Appeal in a reasoned decision dated March 19, 2003. Opinion at 1-28. On April 15, 2003, the Court of Appeal filed a modified opinion and denied co-defendant Jones' petition for rehearing. Resp.'s Lodg. Doc. entitled "April 15, 2003 California Court of Appeal Denial of Co-Appellant's Petition for Rehearing." On April 23, 2003, petitioner filed a petition for review in the California Supreme Court. Resp.'s Lodg. Doc. entitled "April 23, 2005, Petitioner's Petition for Review in the California Supreme Court." That petition was summarily denied by order dated June 11, 2003. Resp.'s Lodg. Doc. entitled "June 11, 2003, California Supreme Court Denial of the Petition for Review."
Petitioner subsequently filed a petition for writ of habeas corpus in the Sacramento County Superior Court, in which he alleged that he did not receive adequate notice of the charges against him and that his trial counsel rendered ineffective assistance. Resp.'s Lodg.
Doc. entitled "March 1, 2004, Sacramento County Superior Court Denial of Petitioner's Petition for Writ of Habeas Corpus" (hereinafter "Superior Court Opinion"). On March 1, 2004, the Superior Court denied that petition in a reasoned decision on the merits. Id. On April 14, 2004, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District, raising the same claims. Resp.'s Lodg. Doc. entitled "April 14, 2004 Petition for Writ of Habeas Corpus." That petition was summarily denied by order dated April 22, 2004. Resp.'s Lodg. Doc. entitled "April 22, 2004, Third Appellate District Court of Appeal Denial of Petitioner's Petition for Writ of Habeas Corpus." On May 27, 2004, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court, in which he raised the same claims. Resp.'s Lodg. Doc. entitled "May 27, 2004, Petitioner's Petition for Writ of Habeas Corpus in the California Supreme Court." The Supreme Court summarily denied that petition by order dated April 20, 2004. Resp.'s Lodg. Doc. entitled "April 20, 2005, California Supreme Court Denial of the Petition for Writ of Habeas Corpus."
A. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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 a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
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 ...