The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on July 14, 2006, of second degree murder with personal use of a firearm. Petitioner was sentenced to serve an indeterminate term of 16 years-to-life in state prison.
Petitioner filed a timely notice of appeal. On March 14, 2008, the California Court of Appeal, Fifth Appellate District (hereinafter "Fifth DCA"), affirmed Petitioner's judgment except for an amendment reflecting an additional 11 days of custody credit. He then filed a petition for review in the California Supreme Court. The petition was summarily denied on June 11, 2008.
On December 21, 2009, Petitioner filed the instant federal habeas petition. He presents the following four (4) claims for relief: 1) The trial court's instructions to the jurors instructing them to refrain from requesting a readback of testimony deprived Petitioner of due process and his right to a jury trial; 2) The evidence was insufficient to prove beyond a reasonable doubt that Petitioner used a deadly or dangerous weapon during the commission of the murder; 3) The trial court failed to instruct on jury unanimity with respect to the weapon enhancement; and 4) Jury instruction CALCRIM No. 220 violated Petitioner's federal due process right to have his guilt determined beyond a reasonable doubt.
On June 4, 2010, Respondent filed an answer*fn2 to the petition. On August 11, 2010, Petitioner filed a traverse to Respondent's answer.
On the evening of December 27, 2005, Daniel and his cohort were beat up in a fight. They immediately went to get Daniel's brother, Rowland, and returned to the neighborhood for retribution. Apparently believing Mario Maya, Jr. had been involved in the earlier fight, they went to his house. Mario's uncle, Alejandro, and Alejandro's stepson were in the front yard. Both Daniel and Rowland were carrying stick-and-knife weapons. Daniel waved the weapon, then he and Rowland used the weapons to break Mario's window and fight Mario and Alejandro through the window. Mario came into the front yard and fought with Daniel. During the struggle, Daniel stabbed Mario repeatedly. As that struggle occurred, Mario's younger brother, Jesse, approached the scene with a kitchen knife. Rowland stopped him when he came up to Jesse and threatened him with the stick-and-knife weapon. But just as Rowland prepared to swing the weapon, Jesse stabbed him with the kitchen knife. As others approached, Jesse ran away. Mario's aunt, Elizabeth, was hitting Daniel with a mop and broom, trying to remove him from Mario. Rowland approached her and told her Mario had "jumped" his brother. When she told Rowland that Mario had not jumped anyone, he looked shocked. He pulled Daniel off Mario and they ran to their vehicle and sped away. The entire incident at the Maya residence lasted only a few minutes. Mario died at the hospital that evening from stab wounds. He was 20 years old.
(See Resp't's Answer Ex. A.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, a petitioner can prevail only if he can show that the state court's adjudication of his 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.
28 U.S.C. § 2254(d); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id., quoting Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id.
Finally, this Court must consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 72, quoting 28 U.S.C. § 2254(d)(1). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. "Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413.
"[A] federal court may not issue the writ simply because the 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 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state ...