The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner Adrian Frank Andrade is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the habeas petition be denied.
On June 13, 2006, a Sacramento County jury convicted Petitioner of: (1) first degree murder, under Section 189 of the California Penal Code (count one); and (2) robbery, under Section 211 of the California Penal Code (count two). Clerk's Tr. vol. 1, 278-79.
On July 21, 2006, the trial court sentenced Petitioner to a term of twenty five years to life, with the possibility of parole, on the murder conviction. Clerk's Tr. vol. 2, 391. The trial court sentenced Petitioner to three years on the robbery conviction, to run concurrently with the term imposed for the murder conviction. Id. at 389.
On August 7, 2006, Petitioner filed a notice of appeal in the Sacramento County Superior Court. Id. at 393. On April 6, 2007, Petitioner filed his opening brief in the California Court of Appeal, Third Appellate District. See Appellant's Opening Brief. On April 23, 2008, the California Court of Appeal issued a reasoned decision "modify[ing] to stay the sentence imposed on count two, the robbery count." Resp't's Answer Ex. 1, at 52, ECF No. 11.*fn1 In all other respects, the California Court of Appeal affirmed the judgment. Id.
On June 2, 2008, Petitioner filed a petition for review in the California Supreme Court. See Pet. for Review. On July 30, 2008, the California Supreme Court denied the petition without comment or citation. See Order Denying Pet. for Review.
On August 17, 2009, Petitioner filed the instant federal habeas petition. See Pet'r's Pet., ECF No. 1. On April 23, 2010, Respondent filed an answer, see Resp't's Answer, to which Petitioner filed his traverse on July 6, 2010, see Pet'r's Reply, ECF No. 15.
On August 18, 2009, Petitioner consented, pursuant to 18 U.S.C. § 636(c)(1), to have a United States Magistrate Judge conduct all further proceedings, including the entry of final judgment. See Pet'r's Consent, ECF No. 4. Respondent, however, never responded to the issued "Order Re Consent or Request for Reassignment" by the previously assigned Magistrate Judge. See Order, Feb. 9, 2010, ECF No. 6. This case is submitted for decision but is currently unassigned to a United States District Judge. Since Respondent did not indicate his consent to jurisdiction by a United States Magistrate Judge, the Clerk of the Court shall assign this case to a United States District Judge in accordance with the Court's general assignment plan.
IV. FACTUAL BACKGROUND*fn2
On the evening of July 26, 2005, [Petitioner] and three others--Michael Montano, Christopher Moyo and Daniel Perez--met at a park, smoked marijuana, and discussed robbing a drug dealer of his merchandise. The four eventually got into Moyo's car and drove to a Valero gas station and convenience store at the corner of Florin Road and French Road in Sacramento. Montano provided the group with the name and phone number of Clifford Owens, a drug dealer Montano had done business with in the past. They agreed to call Owens and lure him to the Valero station with an offer to purchase marijuana. They further agreed that, after Owens arrived, [Petitioner] and Perez would approach Owens and take his marijuana without paying for it.
After the four arrived at the Valero station, they parked in three different locations in an effort to find the best spot to pull off their scheme. In the last spot, they backed into the parking space in order to facilitate their flight after the robbery. [Petitioner] and Perez got out of the car and [Petitioner] placed a call to Owens. Using the fake name of Brandon, [Petitioner] arranged to meet with Owens at the Valero station to buy a quarter pound of marijuana for $900.
At the time, Owens was living with Harley White. White had been a drug dealer and had introduced Owens to the illicit trade. On the evening of July 26, White was at home with Jodi W., a neighbor, when Owens arrived to collect his supply of marijuana for the purported sale to [Petitioner]. Owens told them he was meeting someone named Brandon to sell him a quarter pound of marijuana. White and Jodi W. watched Owens measure out the marijuana and put it into a plastic baggie. He then put the plastic baggie into a paper grocery bag with paper handles. Owens told White the purchaser had mentioned that he knew White. Owens asked White if he knew the person or recognized the telephone number of the caller. White did not recognize either.
White tried to talk Owens out of making the sale, because White did not recognize the name or number of the purchaser and thought it might be a setup. However, Owens was behind on his bills and needed the money. White asked Owens what he would do if the purchaser pulled a gun on him. Owens said the person would have to shoot him, because he would not give up the marijuana without being paid.
After Owens arrived at the Valero station, [Petitioner] and Perez approached his car. Perez was wearing a red backpack. Moyo and Montano remained behind in Moyo's car.
Gloria S. was walking to the Valero station at the time and noticed Owens standing by the open door of his car and reaching into a brown paper bag. She saw two other men standing nearby. One of the two men with Owens began walking toward the Valero station behind Gloria S. However, she heard someone yell for him to come back and he turned around and returned to the others. As Gloria S. reached the door of the convenience store, she heard several shots.
Wayne M. was also in the area at the time. He heard the shots and, 10 or 15 seconds later, heard car doors shut and saw a white car leave the Valero parking lot in a hurry. He wrote down a license number and later gave it to authorities. This number was a close match to that registered to Moyo.
Moyo heard the gunshots three or four minutes after [Petitioner] and Perez walked over to Owens's car. He started the car and waited. [Petitioner] and Perez ran back to the car and the four drove away. Moyo heard [Petitioner] say to Perez, "I think you killed him." [Petitioner] was holding the bag of marijuana and, as they drove away, he split it among them.
Owens was found lying face-down on the ground with gunshot wounds to his head. He was dead. He was still holding the handles to the brown paper bag in his hand. Nearby was a red backpack, containing 12 unspent rounds of .22 caliber ammunition and a prescription bottle containing .4 grams of marijuana. Also at the scene were four .22 caliber shell casings. [Petitioner] was interviewed by police the next day. He claimed to have been with his girlfriend the day of the shooting and specifically denied being at the Valero station. However, later he admitted he might have been at the station that day but claimed he was on his bike. He denied having anything to do with the murder. The next day, [Petitioner] was again interviewed by police. This time, he admitted being at the Valero station with the others, but claimed he was only there to buy marijuana. According to [Petitioner], he called Owens to setup the deal, but the marijuana turned out to be of poor quality and he walked away from the deal. He said Owens got aggressive with them. He further said that, as he was walking away, he heard gunshots. He then ran to the car and departed with the others. [Petitioner] and the other three were charged with robbery and murder. After a mistrial, Moyo entered into a plea deal. [Petitioner] and Montano were tried together with separate juries. As noted above, [Petitioner] was convicted as charged. However, while finding [Petitioner] guilty of murder during the commission of a robbery, the jury found not true allegations that [Petitioner] was armed with a firearm at the time of the offenses and that [Petitioner] was a major participant in the robbery who had acted with reckless disregard for human life. Similarly, as to the robbery, the jury found not true that [Petitioner] was armed with a firearm.
V. 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 be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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.
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned statecourt decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
The petition for writ of habeas corpus sets forth four grounds for relief. In ground one, Petitioner argues "[t]he trial court erred by allowing into evidence hearsay statements made by the deceased a short time before he was fatally shot." Pet'r's Pet. 6. In ground two, Petitioner asserts "[t]he trial court erred by denying [P]petitioner's request to use the testimony of an expert which denied the presentation of a meritorious defense." Id. at 8. In ground three, Petitioner contends "[t]he trial court erred by not granting a continuance . . . ." Id. at 9. In ground four, Petitioner claims there was prosecutorial misconduct." Id. at 11.
A. Ground One: Admission of Hearsay Testimony In ground one, Petitioner argues that the trial court violated Petitioner's due process rights when it admitted hearsay statements of the victim. In Petitioner's federal habeas petition, Petitioner fails to specify which statements he challenges. See Pet'r's Pet. 6. However, in his traverse, Petitioner specifies he challenges the testimony of two prosecution witnesses. First, Harley White testified that the victim stated "a person named 'Brandon' wanted to purchase a quarter pound of marijuana for $900.00. [White] also related that [the] victim said in response to concerns about making the deal, that, '. . . [T]hey're going to have to shoot me 'cause I'm not giving it up . . . .[']" Pet'r's Traverse 15 (citations omitted). Second, Jodi Wilson testified that the victim stated "he was going to sell a quarter pound [of marijuana] for $900." Id. "In response to her concern as to what would happen if those he was to meet pulled a gun on him, he replied that, '[T]hey would have to shoot me before they take my weed because I'm too much in debt ...