FINDINGS AND RECOMMENDATIONS
Petitioner, Charles Branch, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of fifty years to life following his convictions by jury trial in the Solano County Superior Court, Case No. FCR215293, for first degree murder with a penalty enhancement for personally and intentionally discharging a firearm to cause death. With this petition, Petitioner presents various claims challenging the constitutionality of his conviction.
Petitioner sets forth four grounds for relief in his pending petition. Specifically, Petitioner's claims are follows:
(1) The jury's finding of guilt was based on constitutionally insufficient evidence, in violation of Petitioner's Fourteenth Amendment right to due process of law.
(2) The trial court violated his state and federal rights to due process of law by allowing a police officer to testify as an expert on suicide by women and advising the jury that the victim's death was not the result of a suicide.
(3) Trial counsel rendered prejudicially ineffective assistance by failing to object to admission of evidence at trial that Petitioner threatened a neighbor with a gun in 1988.
(4) Appellate counsel rendered prejudicially ineffective assistance by (a) failing to make a claim regarding the insufficiency of the evidence relied upon by the jury to convict Petitioner at trial; and (b) failing to "federalize and argue" issues two and three, stated above.
Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.
The basic facts of Petitioner's crimes were summarized in the partially published opinion*fn1 of the California Court of Appeals, First Appellate District, as follows:
Shortly after 11:00 a.m. on March 19, 2004, [Petitioner] called 911 to report that his wife was bleeding from the head and was not breathing.
Robert Silva, [Petitioner's] neighbor, testified at trial that he spoke with [Petitioner] earlier that morning and that [Petitioner's] behavior appeared to be "normal." They spoke for about 10 to 15 minutes, after which they each went back to their houses.
Approximately 10 minutes later, Silva heard another neighbor yelling. Silva went outside and saw [Petitioner] in front of his house speaking on his telephone. [Petitioner] appeared upset. He told Silva that Shirley was in the bedroom.
Silva walked into the bedroom and saw Shirley lying on the bed. Her left side was covered by the bed covers. He saw that she had a gunshot wound to her head. The blood around the wound was black and appeared to be dried or clotted. It was not dripping. When he touched her to see if she had a pulse, Silva observed that her body was cool and her skin color was cyanotic (bluish in color). He then noticed a firearm on the right side of the bed. It was about four to six inches from Shirley's wrist.
Officer Gary Anderson arrived at [Petitioner's] house shortly thereafter. Silva walked Anderson to the bedroom. At trial, Anderson testified that Shirley was lying on the bed with her right arm outside of the bed coverings and that there was a handgun near her right hand. There was a gunshot wound in the area of her right temple. The blood around the wound was coagulated and there was blood on the pillow and the sheets. When he touched her wrist to check for a pulse he noticed that her body temperature appeared to be cooler than normal.
Anderson spoke with [Petitioner], who reported that he had eaten breakfast with Shirley that morning and that she had gone back to bed afterwards while he went out to mow the lawn. He came back into the house later and found his wife non-responsive. He said he did not know what was wrong with her.
At trial, Anderson said that he became somewhat suspicious because out of the many suicides involving females that he had worked there had always been a suicide note and only two of the women had used a gun to kill themselves.
Later that day Officer Nancy Sanchez interviewed [Petitioner] at the hospital, where he had been taken after complaining of chest pains. He told her essentially the same story that he had told Anderson regarding his and Shirley's activities of that morning. He also said that he had not noticed a weapon when he entered the bedroom and discovered his wife.
When asked about their relationship, [Petitioner] reported that he and his wife had a very loving relationship, that they were "inseparable," and that there were no problems in their relationship. He denied having anything to do with his wife's death.
Sanchez interviewed [Petitioner] again about a month later. By this time, the investigating officers were aware of many additional facts. They had learned that [Petitioner] had been having an affair with a woman named Natalie Parks for some time prior to his wife's death. Additionally, toxicology reports showed that Shirley had a substantial amount of Valium in her system at the time of her death. Gunshot residue had been found on both of her hands, including the hand that had been under the blanket. [Petitioner's] fingerprints had been found on the gun and tests showed that he had gunshot residue on his hands on the day he reported his wife's death. Sanchez also knew that [Petitioner] had obtained a prescription for Valium three weeks before Shirley died.
When confronted with these facts, [Petitioner] initially denied having been prescribed Valium. He also denied having an affair, but later admitted it. He also eventually admitted that he had lied about how his wife had died. He told Sanchez that he had entered the bedroom and had seen his wife pointing the gun to her head. The gun discharged when he tried to grab it from his wife's hand. He stated that his finger could have been on the trigger when the gun went off. [Petitioner] said he waited only a few seconds before calling 911 and admitted that he lied to the dispatcher about what had happened to his wife. When confronted with contradictory physical evidence, such as the fact that her body was already cool when Silva checked for her pulse, and that the blood around the wound had already dried, [Petitioner] could not explain the discrepancies. He was placed under arrest. [Petitioner] was tried by a jury. On February 17, 2006, the jury found [Petitioner] guilty of first degree murder and found the firearm enhancement to be true.
On March 15, 2006, the trial court sentenced [Petitioner] to 25 years to life for the murder and 25 years to life for the enhancement. This appeal followed. (Lodged Exhibit E at 1-3.)
The California Court of Appeal affirmed both Petitioner's conviction for first degree murder as well as the firearm penalty enhancement with a reasoned opinion on November 27, 2007. Petitioner then sought review in the California Supreme Court. That petition was denied without comment on February 13, 2008. Petitioner next sought habeas corpus relief in the California Supreme Court. His petition was denied by without comment on September 17, 2008. Petitioner filed this federal petition for writ of habeas corpus on October 28, 2008. Respondent filed an answer on March 25, 2009. Petitioner filed his traverse on April 6, 2009.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). 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 ...