The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 7), respondent's answer (Doc. 18), and petitioner's reply (Doc. 22).
The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
The incidents in question occurred on June 28, 2006. In June 2006, Brenisha Torbert was dating Dwayne Zachary. Torbert and defendant had dated previously for about two months. Torbert and Zachary's sister, Allean, were close friends. Shaira Gordon was a close friend of Allean's.
On June 28, 2006, Torbert, Allean Zachary, and Gordon drove in Torbert's blue Neon to the house of Allean Zachary's cousin on High Street in Del Paso Heights. Dwayne Zachary was at the house on High Street, as were two other unidentified males. While Torbert, Allean Zachary, and Gordon were at the High Street house some other women who were also at the house left in Torbert's blue Neon, and were gone for about 10 or 15 minutes. Gordon testified she thought three of the women left in the car, but she also said she did not see Dwayne Zachary or one of the other males at the house during the time the car was gone.
About 10 minutes after the group returned in Torbert's car, Gordon, Torbert, and Allean Zachary left the house and were walking toward Torbert's car when a white van pulled up in front of the driveway, the sliding door on the side of the van opened, and someone inside the van started shooting. Allean Zachary testified the shooter looked like a "boy" named Cellybo, whose picture she had seen on Torbert's My Space page. Cellybo or Cellbo are names defendant uses. Allean Zachary described the shooter as wearing a white T-shirt and jeans. Before he shot the gun, he said, "[s]tars up." "Stars up" is a phrase used by members of a criminal street gang known as the Bad Ass Young Start, or BAYS, also known as G Mobb. Defendant is a validated member of G Mobb.
After the van drove off, the girls ran back into the house. Gordon was bleeding from her lower arm, where she had been shot. They went out the back door of the house, through the alley, and into the house on the corner, where the residents called an ambulance. The police dispatch log indicated the call was received at 5:14 p.m. Torbert told Gordon that she thought defendant was the shooter.
Another witness, unrelated to anyone at the High Street house, was walking home when she saw a white van pass, saw the sliding door of the van open, and saw a dark-skinned black man with blonde dreadlocks, wearing a white T-shirt and jeans holding a gun. Defendant had dreadlocks with light colored tips.
Gordon had four shotgun pellets in her right forearm. The front passenger door of the blue Neon had damage that appeared to be from a shotgun shell. The wadding from a shotgun shell was found in the right front seat.
Officers who responded to the crime scene had information that a blue Neon had been involved in an exchange of gunfire with a white car in the vicinity of High Street just prior to the shooting on High Street. At 4:55 p.m. security cameras at the Rainbow Market caught the image of two males who appeared to be associated with each other. One of them was shooting at a white mini-van. Witnesses indicated a woman was driving a blue Dodge Neon, and the men got into the Neon after the shooting.
Dwayne Zachary was a validated member of the Beast Mob street gang. The man shooting at the white mini-van near the Rainbow Market fit Dwayne Zachary's description.
Officers responding to the shooting ran defendant's name in their police database, and discovered a report indicating he had been involved in an incident two weeks prior. The incident report mentioned a white van and a shotgun. The report listed an address for defendant at 561 South Avenue, approximately five minutes from the scene of the shooting. Officers found defendant in the garage of the house on South Avenue, hiding behind a big screen television.
Petitioner was convicted following a jury trial of assault with a firearm, discharge of a firearm at an occupied dwelling, and grossly negligent discharge of a firearm. The jury found true the special allegation that, in the commission of the offenses, petitioner personally used a firearm. Petitioner was sentenced to a determinate term of seven years in state prison. On direct appeal, petitioner's conviction and sentence were affirmed in a reasoned decision issued by the California Court of Appeal. The California Supreme Court denied review without comment or citation. Petitioner did not file any post-conviction actions in state court. Respondent concedes that the petition is timely and that all of petitioner's claims are exhausted.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism... do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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 § 2254(d)(1), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412). "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 549 U.S. at 74.
In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id.
State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 538 U.S. at 75-76. This is because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. at 75. As with state court decisions which are "contrary to" established federal law, where a state court decision is an "unreasonable application of" controlling law, federal habeas relief is nonetheless unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.
The "unreasonable application of" standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982. The federal habeas court assumes that state court applied the correct law and analyzes whether the state court's summary denial was based on an objectively unreasonable application of that law. See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.
In his petition, petitioner raises the following claims: (1) the trial court violated petitioner's confrontation rights by admitting hearsay; (2) the trial court denied petitioner's right to a fair trial by admitting evidence of gang membership; (3) the prosecutor committed acts of misconduct; and (4) ineffective assistance of trial counsel.
Petitioner claims two instances of violation of his confrontation rights causes by improper admission of hearsay evidence. First, petitioner argues that the trial court improperly admitted the hearsay statements made by his former girlfriend, Charlene Oakley, to the effect that petitioner had access to a shotgun and white mini-van. Second, petitioner claims the trial court improperly allowed the hearsay statements of an unidentified 911 caller.
The Confrontation Clause protects a defendant from unreliable hearsay evidence being presented against him during trial. See U.S. Constitution, Amendment VI. Prior to the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), the admission of hearsay evidence did not violate the Confrontation Clause where the hearsay fell within a firmly rooted exception to the hearsay rule or otherwise contained "particularized guarantees of trustworthiness." Lilly v. Virginia, 527 U.S. 116, 123-24 (1999); Ohio v. Roberts, 448 U.S. 56, 66 (1980). In Crawford, however, the Supreme Court announced a new rule: Out-of-court statements by witnesses not appearing at trial that are testimonial are barred under the Confrontation Clause unless the witnesses are unavailable and the defendant had a chance to cross-examine, regardless of whether such statements are deemed reliable by the trial court. See 541 U.S. at 51. If error occurred, the next question is whether such error was harmless.
See Bockting v. Bayer, 399 F.3d 1010, 1022 (9th Cir. 2005) (applying harmless error analysis).
While the Supreme Court in Crawford "le[ft] for another day any effort to spell out a comprehensive definition of 'testimonial,'" the Court provided some guidance. 541 U.S. at 68. The Court observed that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. at 51; see also Davis v. Washington, 547 U.S. 813 (2006) (holding that law enforcement interrogations directed at establishing the facts of a past crime or in order to identify the perpetrator are testimonial).
Regarding this claim, the state court outlined the following background:
Defendant argues the trial court erred when it ignored its in limine ruling and permitted hearsay statements suggesting he had access to a shotgun and white minivan. He argues the jury should have been instructed to ignore the officers' testimony regarding the gun and van until Oakley testified. Further, since the prosecutor ultimately decided to not call Oakley, defendant ...