The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Report and Recommendation (ECF No. 13) of Magistrate Judge Peter C. Lewis, filed on August 13, 2010, recommending that this Court deny Petitioner Ruben Gomez's Petition for Writ of Habeas Corpus (ECF No. 1).
On March 6, 2004, Daniel Menchaca was shot and killed. (Lodgment 8 at 2). On September 14, 2004, police officers arrested Marco Moedano, Petitioner and two others in connection with the shooting. In the subsequent jury trial in San Diego County Superior Court, Petitioner was prosecuted as an aider and abettor in the death of Menchaca. See id. at 1-11. During the trial, Petitioner sought to cross-examine a police informant regarding a statement Moedano made to the informant that, "basically, before anybody could do anything [Moedano] rushed [Menchaca] and shot him up." Id. at 27; see also Lodgment 12 at 3031, 3322. The trial court ruled that the portion of Moedano's statement in which he confessed to the shooting was admissible as a statement against penal interest, but excluded as inadmissible hearsay the portion of the statement in which Moedano said he had acted "before anybody could do anything." (Lodgment 8 at 27).
Petitioner was convicted of first-degree murder and carrying a loaded firearm in a vehicle. The trial court sentenced Petitioner to a total term of 25 years to life plus two years to be served concurrently. Id. at 11.
On August 13, 2008, the California Court of Appeal reversed Petitioner's conviction for first degree murder because of an instructional error, and ruled that if the first degree murder count was not retried, the judgment would be modified to reflect a conviction for second degree murder. Id. at 26, 43. The Court of Appeal affirmed the trial court's judgment on all other counts. Id. at 43. With respect to Petitioner's contention that the exclusion of the "before anybody could do anything" portion of Moedano's statement violated his federal due process right, the California Court of Appeal considered the cases of Chambers v. Mississippi, 410 U.S. 284 (1973), Chia v. Cambra, 360 F.3d 997 (9th Cir. 2004), and LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998). The Court of Appeal stated:
The statement in LaGrand more closely resembles the excluded portion of the statement at issue here. In that case, Karl LaGrand, one of two bank robbers, made statements to police in which he claimed sole responsibility for stabbing and killing one of the victims, and said that Walter LaGrand had not stabbed anyone. The trial court excluded Karl's confession from Walter LaGrand's trial on the ground that it was unreliable. In denying Walter's petition for habeas corpus, the Ninth Circuit Court of Appeals determined that Karl's confession involved two separate statements: '[F]irst, that he, Karl LaGrand, stabbed Ken Hartsock, and second, that Walter LaGrand did not stab anyone.' ... The LaGrand court ... concluded, 'In stating that Walter did not stab anyone, Karl was not further incriminating himself. The reliability that attends the inculpatory part of his confession does not afford any reliability to that part of the statement that merely exculpates Walter.' Similarly, in stating that he acted 'before anybody could do anything,' Moedano did not further incriminate himself. The trial court properly admitted the portion of his statement in which Moedano did inculpate himself. We conclude that there was no deprivation of due process resulting from the trial court's decision to exclude that portion of Moedano's statement that neither expressly exculpated Gomez nor specifically inculpated Moedano. (Lodgment 8 at 32-34 (citations omitted)).
On November 12, 2008, the Supreme Court of California denied Petitioner's Petition for Review. (Lodgment 11 at 1).
After direct appeal, Petitioner's sentence was reduced to 15 years to life. (ECF No. 1 at 1).
On December 8, 2009, Petitioner, represented by counsel, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The sole ground for relief in the Petition is that the "[t]rial court denied Petitioner due process of law and the right to present a defense, under the 6th and 14th Amendments, when" the trial court "allowed the admission of the part of Moedano's statement in which he admitted shooting the victim, but excluded the part about Moedano shooting the victim before the others could do anything." Id. at 6.
On August 13, 2010, the Magistrate Judge issued the Report and Recommendation recommending that the Petition be denied. (ECF No. 13). The Magistrate Judge stated:
Petitioner's desire to present hearsay evidence of a statement made to [the] police informant ... that Moedano shot victim Menchaca 'before anybody could do anything' was appropriately weighed against the state's legitimate interest to present only reliable evidence to the jury. The Court of Appeal reasonably and persuasively concluded that ... this hearsay evidence, unlike the evidence in Chambers, was not 'specifically disserving' to declarant Moedano's penal interest. First, the declarant in the instant case, Moedano, did not further incriminate himself. Instead, the statement was consistent with the other presented evidence: [Moedano] was, in fact, the sole shooter and principal perpetrator of the murder. Secondly, unlike Chambers, where the oral confession of the declarant completely exculpated the defendant, Moedano's statement here did not necessarily relieve Gomez of his criminal liability as an aider and abettor or co-conspirator. By saying that he acted before the others could, Moedano did not necessarily say he was the only participant in the murder or that Gomez had nothing to do with the crime. Thus, after considering the fundamental requirement of trustworthiness as applied in Chambers, both the trial court and the California Court of Appeal reasonably concluded that no such assurance of reliability existed with respect to [the informant]'s testimony about Moedano's statement.
Id. at 10-11 (quoting Lodgment 8 at 29-30).
On August 25, 2010, Petitioner filed objections to the Report and Recommendation. (ECF No. 14). Petitioner contends that "the Magistrate Judge's analysis is contrary to the analysis in the controlling caselaw" because "[a] statement can be disserving of a declarant's penal interest even if it contains no information beyond the information contained in another statement by the declarant," and "controlling case law does not require that in order to be admissible the ...