The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in 2004, Petitioner was convicted of two counts of attempted murder along with corresponding enhancements. Petitioner was sentenced to two consecutive terms of fifteen years to life on each attempted murder conviction along with two consecutive terms of twenty-five years to life for the corresponding enhancements. Petitioner seeks relief on several grounds; specifically: (1) Petitioner's state and federal constitutional rights were violated when the trial court denied his Wheeler/Batson motion ("Claim I"); (2) there was insufficient evidence to support the jury's finding of a gang enhancement pursuant to California Penal Code § 186.22(b)(1) for each of the attempted murder charges ("Claim II"); and (3) there was insufficient evidence to support the jury's finding that one of the attempted murders was deliberate and premeditated ("Claim III"). For the following reasons, it is recommended that the habeas petition be denied.
II. FACTUAL BACKGROUND*fn1
In successive confrontations, defendants Titus Wilson and Raymond Lopez participated in the shootings of Anthony Ciancio and Michael Fielding . . . .
A week before the shootings, Anthony Ciancio saw Wilson and Lopez riding Sacramento's Regional Transit Light Rail. Another person also saw Wilson and Lopez and that person said, "Norcade Piru," referring to the defendants' gang affiliation. Wilson and Lopez confronted the man and said, "Man, don't be saying Norcade Piru. It's East Side Piru."
On July 31, 2003, Michael Fielding, who was 18 years old and had been affiliated with a gang in the past, was staying with Michael Young at the residence of Young's relatives on Norcade Circle in Sacramento County. Around midnight or one o'clock the next morning, August 1, Wilson and Lopez arrived at the residence. Wilson asked to see Michael Young. Fielding told them Young was not there. Lopez asked for a drink of water, and Fielding got some water for them. Fielding told Wilson and Lopez to be quiet because the residents were sleeping. Wilson and Lopez stayed at the residence for 15 to 25 minutes, then left.
Minutes later, in the dark of the early morning, Ciancio saw Wilson and Lopez on the street. As the defendants approached Ciancio, he tried to walk away. Wilson said to Ciancio, "Where you from?" Believing the question to be an inquiry into his gang affiliation, Ciancio replied he was from Oak Park and he did not "gang bang." Wilson responded that he was Piru. Wilson asked if Ciancio was a South Side Crip, and Ciancio said he was not. Lopez moved toward Ciancio and reached for a gun in his waistband. As soon as Ciancio saw Lopez reach for the gun, he swung at Lopez, hitting him in the chin. As Ciancio turned and ran, Wilson said, "Shoot that mother fucker." Lopez shot Ciancio in the back. The bullet went through his torso and out the front. Ciancio made it to a relative's residence. He received treatment and, at the time of trial, wore a colostomy bag.
Wilson and Lopez ran back to the residence where Fielding was staying and banged on the door. Fielding opened the door and asked, "Are you guys running from the police? Cuz' if you are, you can't do that over here." Lopez looked like he had been in a fight, and Wilson said Lopez had "got his ass whooped." Wilson and Lopez sat on the couch. Lopez laid down on the couch, with his head on Fielding's pillow, and appeared to be nodding off, so Fielding told him, "That's where I'm laying at. You can't, you can't go to sleep. You got to go." Lopez asked for another drink of water, but Fielding told Lopez to get it himself or told Wilson to get it for Lopez. Wilson asked to use the bathroom, and Fielding told him to go ahead but to be quiet because the residents were sleeping.
While Lopez was in the kitchen getting a drink of water, Wilson walked down the hall. Fielding heard the sound of a gun being cocked and became nervous. Wilson returned to where Fielding was and said he was leaving. When Fielding opened the door, Wilson shot Fielding six times -- twice in the chest, twice in the stomach, and one time in each arm. During the shooting, Lopez was still in the kitchen. Fielding testified Lopez looked "dumb" or "ignorant." Wilson said, "Come on Nigga, we're leaving." Lopez ran past Fielding and left the residence with Wilson. Fielding survived the shooting but is disabled from the effects of the shooting.
(Slip Op. 1-5.) Thus, to sum up the chronology during the overnight/early morning hours of July 31, 2003 - August 1, 2003, Petitioner (along with Lopez) first arrived at Michael Young's relatives' apartment where Fielding was staying. Petitioner and Lopez subsequently left the apartment and eventually confronted Ciancio on the street. After the Ciancio confrontation, Petitioner and Lopez returned to Young's relatives' apartment whereby Petitioner shot Fielding.
The jury found Wilson guilty of attempted murder of Ciancio and found true allegations that the attempted murder was committed willfully, deliberately, and with premeditation, involved a principal discharging a firearm and causing great bodily injury, and was committed for the benefit of a criminal street gang. The jury also found Wilson guilty of attempted murder of Fielding and found true the allegations that the attempted murder was committed willfully, deliberately, and with premeditation, involved Wilson's personal use of a firearm causing great bodily injury, and was committed for the benefit of a criminal street gang.
Petitioner appealed his judgment and conviction to the California Court of Appeal, Third Appellate District. That court affirmed the judgment on October 23, 2006. In February 2007, the California Supreme Court summarily denied the petition for review without discussion or citation. In February 2008, Petitioner filed the instant federal habeas petition.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). If a state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a petitioner's habeas claims. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
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 v. Andrande, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly 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. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "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. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned state court decision was from the California Court of Appeal, Third Appellate District.
V. PETITIONER'S CLAIMS FOR REVIEW
In Claim I, Petitioner argues that his rights under the state and federal constitutions were violated when the trial court denied his Wheeler*fn2 /Batson*fn3 motion. First, to the extent that Petitioner alleges a violation of the California Constitution, his claim is not cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.").
Petitioner argues that the prosecution struck two jurors [M and L], because they were African-American. The following colloquy took place between the Deputy District Attorney and prospective juror M during the voir dire proceedings:
Q: Ms. [M], you were a teacher for a while at St. Patrick's School, right?
Q: That's the one attached to Saint Rose over on Franklin?
A: Yes. I work with toddlers 14 months to a day before their third birthday.
Q: When were you a teacher at Saint Patrick's?
A: I'm a teacher now, program manager and teacher.
Q: What ages do you teach?
Q: Oh, okay, I understand. And is Monsignor Cavanaugh still sort of running the whole deal there?