The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on April 8, 2008, of first degree murder with the use of a gun. He was sentenced to serve an indeterminate term of 50 years to life in state prison.
Petitioner filed a timely notice of appeal. On April 16, 2009, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. Petitioner then filed a petition for review in the California Supreme Court. The petition was summarily denied on June 24, 2009.
Petitioner filed several collateral challenges to his conviction in the state courts. On October 5, 2009, he filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied on March 18, 2010. He then filed a petition in the Fifth DCA on October 27, 2009. The petition was denied on February 3, 2010. Finally, on February 16, 2010, he filed a petition for review in the California Supreme Court. The petition was denied on March 24, 2010.
On May 10, 2010, Petitioner filed the instant federal habeas petition. He presents the following claims for relief: 1) The evidence was insufficient; 2) The confession was coerced; 3) He received ineffective assistance of trial counsel; 4) He received ineffective assistance of appellate counsel; and 5) The trial court committed instructional error.
On August 2, 2010, Respondent filed an answer to the petition. On August 24, 2010,
Petitioner filed a traverse.
Shortly after 3:00 a.m. on December 16, 2006,*fn3 [Petitioner] called 911 and, as indicated in the transcript of the call that was admitted into evidence, reported the following. His girlfriend had been shot. A white male, followed by a second male, forced their way into [Petitioner]'s apartment and "went to the room." At some point thereafter, [Petitioner] "heard this loud pop." The two intruders then "jumped out the window." They "looked like some guys [[Petitioner]'s girlfriend] yelled at earlier when [she and [Petitioner]] were coming home."
[Petitioner] had his baby daughter with him. He stated he and Israelsky were "always arguing" and "their relationship wasn't that good." [Petitioner] left at approximately 10:00 p.m.
[Petitioner]'s mother testified that [Petitioner] arrived at her home at approximately 10:00 p.m. on December 15. [Petitioner] said he wanted to use the restroom. He stayed for approximately five minutes. [Petitioner]'s father testified that police officers came to his home on the morning of December 16 and that after speaking to them, he discovered that one of his firearms, a semi-automatic handgun, and an ammunition magazine were missing.
Fresno Police Officer Timesa Spencer, in responding to a report of a shooting on December 16 at some point after 3:00 a.m., made contact with [Petitioner], who was carrying an infant child and a diaper bag. [Petitioner] told the officer the following. Two men forced their way into [Petitioner]'s apartment, shortly thereafter, [Petitioner] "heard a pop sound" and saw a "flash," and thought he heard both men jump from the window in the bedroom. Earlier, on December 15, he and Israelsky had been driving when the two men "crossed in front of them," and Israelsky "began yelling at them...."
Officer Brandon Brown arrived on the scene at approximately 3:11 a.m. on December 16. He observed that [Petitioner], who was in the company of two other officers, was having trouble holding a small child in one arm while carrying a diaper bag in the other arm. Concerned that [Petitioner] was going to drop the child, Officer Brown grabbed the bag, and in doing so noticed, at the bottom of the open bag, what appeared to be a firearm and an ammunition magazine. The officer took the bag and put it in a patrol vehicle. [Petitioner] later told another officer that after the intruders left the apartment, he went back in and found a gun underneath Israelsky's body, and that he then put the gun in his child's diaper bag.
Thereafter, Officer Spencer took the baby to a warm car, and Detectives Rodriguez and Fern interviewed [Petitioner] in the area of the apartment building carport. An audio recording of the interview was made, and a transcript of the recording introduced, into evidence, indicated that [Petitioner] told the detectives the following. He and Israelsky "had a confrontation with some people" earlier in the day while driving home. Between 7:30 p.m. and 8:00 p.m., [Petitioner] saw these persons "walking around" in the area of the apartment building. They saw [Petitioner] leave. [Petitioner] "felt like they were going to come and [do] something to [Israelsky]," so he went to his parents' house and "took [his] dad's gun." He wanted the gun "for protection." When he got back home, he loaded the gun while sitting in the car, parked in the carport.
[Petitioner] further told the detectives the following. It was approximately 11:00 p.m. when [Petitioner] arrived home. He fell asleep on the couch. Later, he awakened and went into the bedroom. As Israelsky was "just waking up," [Petitioner] was "showing [the gun] to her," when it accidentally discharged. [Petitioner] did not know the safety was off. [Petitioner] then "got scared" and put the gun in the diaper bag.
Later in the interview, [Petitioner] stated the following. Israelsky was "annoyed" with him that he brought a gun into their home. She had "been annoyed at [him] at the same level many times...." The most recent time he and Israelsky argued, she said, "if you don't like things then you can leave," and "a while back [she] said she wished (inaudible) signed the birth certificate...." "[E]ven farther back she said ... she wished that she never got pregnant because then [she was] stuck with [[Petitioner]]." "[A]ll [that] came flooding back" when, while [Petitioner] was holding the gun, Israelsky made "the same face she made [when] she was disgusted...." He "clinched" the gun, and it went off. The gun did not go off "on [its] own." [Petitioner] "pulled the trigger." When asked if he "regret[ted] shooting her out of anger," [Petitioner] answered, "Yes." [Petitioner] was "just mad for that second."
Later, [Petitioner] spoke with Detectives Richard Byrd and Michele Ochoa, *fn4 and told them he and Israelsky were driving home when Israelsky "yelled at" "some teenagers" who were walking across the street; the teenagers "yelled back," "pulled out a knife," and "threatened [Israelsky]"; and [Petitioner] and Israelsky "drove off...." [Petitioner] saw the teenagers when he was parking the car; "they looked at" [Petitioner] and Israelsky; and "they know where we live now." At approximately 10:00 p.m. that night, [Petitioner] went to his parents' house and, while his father was sleeping, went into the bedroom and took his father's gun and a "clip," "hid" the gun in his pants and left. [Petitioner] took the gun in order to provide protection for Israelsky. Later, while sitting in his car, "getting ready to go into the apartment," he loaded the gun.
Later that night at home, he heard sounds from the bedroom that indicated Israelsky was waking up. He went into the bedroom, turned on the light, "brought [the gun] close to [Israelsky]" and showed it to her, at which point "she had that look on her face like she was disgusted [with] me." [Petitioner] elaborated, "she's made that face when she's even told me like I disgust her or I make her physically ill, she's made that face."
"[B]ack ... months ago," during a "real bad" argument, Israelsky had stated the following: she wished she had not gotten pregnant because as a result of getting pregnant, she was "stuck with [[Petitioner]]." She also wished [Petitioner] had "never signed the birth certificate" and that she had never met [Petitioner].
Four days previously, [Petitioner] said he would go with Israelsky to the store to get some medicine for the baby, but he was very tired and wanted to sleep first. He asked Israelsky to wake him in 30 minutes but "she let [him] sleep four hours instead." The two argued, and Israelsky "got mad and threw the baby's thermometer against the wall...." The "disgusted" look Israelsky gave [Petitioner] "brought everything back, everything back that one second," and [Petitioner] "clinched and pulled the trigger and shot her in the face...."
[Petitioner] knew there was a "safety" on the gun but he "just didn't know it was off."
At one point, [Petitioner] stated he "didn't [shoot Israelsky] on purpose...." Later, however, [Petitioner] denied he said he shot Israelsky "accidentally," and the following exchange occurred:
"[Detective Byrd]: Okay but the truth is she angered [sic] in that moment and you purposely pulled the trigger and shot her because she angered you is that not correct? "[Petitioner]: That is correct."
Later, this exchange occurred: "[Detective Ochoa]: You made a split second decision and you decided to pull the trigger.
"[Petitioner]: And it was a real bad decision."
Fresno County Deputy Sheriff Coburn Bayer testified to the following. The gun [Petitioner] fired had three "safety features," all of which had to be disengaged in order for the gun to fire. If the gun is not cocked, it takes 10 to 14 pounds of pressure to pull the trigger and fire the gun. After a round is fired, the gun is cocked, and it takes up to seven pounds of pressure to fire the gun.
Ian Wagner and Christina Hougard testified to the following. In December 2006, they were living in an apartment in Fresno and [Petitioner] and Israelsky were living in the apartment next door. The two couples were neighbors for approximately two or three months. Wagner and Hougard heard [Petitioner] and Israelsky arguing late at night, several times a week.
Israelsky gave birth to a child and, Hougard testified, the arguing increased after that. Hougard also testified that before the baby was born, [Petitioner] stated Israelsky "gets on his nerves" and "nags him a lot."
[Petitioner] testified that when he and Israelsky were driving home, Israelsky yelled at two persons who were "taking their time" crossing the street in front of them.*fn5 One of the men pulled out a knife and [Petitioner] drove off. As a result of this incident, [Petitioner] decided to get a gun from his father for protection.
[Petitioner] was not angry. He "told [the police he was] because they made it sound that that was the only way they were going to believe [Petitioner]...." The police indicated they thought [Petitioner] "hated" Israelsky and killed her "in cold blood." [Petitioner] did not want them to think that, and for that reason, he told them he killed her in a moment of anger. Israelsky did not really say the insulting and abusive things [Petitioner] told the police she said. He felt he had to tell the police what he thought they wanted to hear. (See Resp't's Answer Ex. A.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out ...