The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge
OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS
On April 27, 2009, Zachary Glenn Libby, aka Zachery Glenn Libby, a state inmate proceeding pro se, constructively filed a habeas corpus petition under 28 U.S.C. § 2254, which this Court dismissed with leave to amend on May 6, 2009, finding petitioner had failed to name the respondent as required by Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts. On May 14, 2009, petitioner filed his First Amended Petition, claiming there was insufficient evidence to support the firearm enhancement that he personally used a firearm within the meaning of California Penal Code ("P.C.") § 12022.53(b) and the "alleged gun wasn't used menacingly." On July 15, 2009, respondent filed an answer to the petition.
However, petitioner did not file a reply. The parties have consented to this Court pursuant to 28 U.S.C. § 636(c).
On April 27, 2007, in Riverside County Superior Court case no. SWV017270, a jury convicted petitioner of one count of second degree robbery in violation of P.C. § 211 (count 1), one count of obstructing/resisting executive officers in violation of P.C. § 69 (count 2) and one count of false representation of identity to a peace officer in violation of P.C. § 148.9 (count 3), and, as to count 1, the jury found it to be true that petitioner personally used a firearm within the meaning of P.C. §§ 12022.53(b) and 1192.7(c)(8) in commission of the second degree robbery. Clerk's Transcript ("CT") 100-01, 103-06. The petitioner was sentenced to the total term of 13 years in state prison, including 10 years on the firearm enhancement. CT 116-17, 138-40.
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 141-42, Lodgment nos. 3-4, which affirmed the judgment in an unpublished opinion filed May 2, 2008. Lodgment no. 5. On June 9, 2008, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied the petition on July 9, 2008. Lodgment nos. 6-7.
The California Court of Appeal, in affirming petitioner's convictions, made the following findings of fact regarding the circumstances underlying the offenses:*fn1 The petitioner entered a convenience store at 11:45 p.m., walked around the store, grabbed a 12-pack of beer, and placed it on the cashier counter. The petitioner then exited the store. The petitioner thereafter returned inside the store. After the last customer exited, petitioner opened the front door, peered outside from side to side, turned around, and told the cashier to give him all the money in the cash register. The cashier asked if petitioner was serious. The petitioner then removed from his pocket what appeared to the cashier to be a gun and showed it to the cashier. The cashier testified that the gun was silver, was "probably like a .22[,]" and fit inside petitioner's hand. The object had a trigger and at least one barrel. The clerk characterized petitioner's handling of the alleged weapon as "brandish[ing]." The petitioner simultaneously reiterated his demand that the clerk give petitioner all the money. The petitioner returned the object to his pocket. The petitioner then showed the object to the clerk on one more occasion before he left with the money from the register. The People offered into evidence a videotape taken from the market's surveillance cameras and two still photos showing petitioner holding the object. One of the still photos is a close-up of the object in petitioner's hand.
At no time did petitioner point the object at the clerk or refer to it as a weapon. The petitioner never verbally threatened the clerk. The petitioner merely held the object in his up-faced palm. The clerk could not recall whether the object had one or two barrels. The clerk confessed that he could not actually determine the caliber of the weapon. The clerk indicated that he had never seen a fake gun before. He could not remember what type of grip or handle the object had. The clerk only saw the object for a few seconds.
A clerk at another nearby convenience store alerted sheriff's deputies to petitioner's presence a couple hours later, after a description of petitioner had been sent to local businesses. Upon the deputies' arrival, petitioner saw them and ran. Deputies pursued petitioner with the aid of a trained dog. Deputies apprehended petitioner approximately half an hour thereafter. Deputies searched petitioner and the trail of their pursuit, but did not find any weapon. Deputies never saw petitioner discard anything that appeared to be a gun nor were any other witnesses encountered who saw petitioner with a gun.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed. 2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 ...