The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding with counsel in this habeas corpus action filed pursuant to 28 U.S.C. § 2254.*fn1 Petitioner challenges his 1997 conviction on charges of first degree murder with use of a firearm, committed while petitioner was an accomplice in the commission of robbery and commercial burglary (the burglary special circumstance was vacated on appeal). Plaintiff was sentenced to life without the possibility of parole, plus 18 years, 8 months. Petitioner raises twelve claims in his Third Amended Petition, filed April 14, 2006, in support of petitioner's contention that his conviction violates the Constitution.
After review of the entire record, including the third amended petition, answer and reply, and for the reasons set forth below, the undersigned recommends that the petition be denied.
1. Petitioner appealed his conviction. On September 29, 1999, the California Court of Appeal, Third Appellate District, affirmed the conviction in all but one respect in a reasoned opinion. (Respondents' Lodged Document ("LD") 12.) The Court of Appeal vacated and remanded the Day's Market burglary conviction (and sentence thereon) and the burglary special circumstance. (LD 12 at 22-23.)
2. On November 1, 1999, petitioner filed a petition for review in the California Supreme Court. (LD 13.) The California Supreme Court denied the petition on January 13, 2000. (LD 13.)
3. On February 13, 2001, petitioner filed his first state petition for a writ of habeas corpus in the California Supreme Court. (LD 14.) The court denied the petition in a one-line order on June 27, 2001. (LD 14.)
4. On March 4, 2002, petitioner proceeding without counsel filed the original petition in this court. (Dkt. No. 8.) Petitioner raised two claims of ineffective assistance of counsel, a claim of juror misconduct, and a claim of prosecutorial misconduct. On September 5, 2002, respondents filed a motion to dismiss the petition. (Dkt. No. 15.) On September 4, 2003, this court dismissed the petition with leave to amend. (Dkt. No. 22.)
5. On September 16, 2003, petitioner filed an amended petition for writ of habeas corpus herein. (Dkt. No. 24.) On October 6, 2003, petitioner moved to stay these proceedings to permit him to exhaust his state court remedies. (Dkt. No. 26.) On November 6, 2003, this court granted petitioner's motion and ordered these proceedings held in abeyance. (Dkt. No. 27.)
6. On January 27, 2003, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (LD 15.) The Superior Court denied the petition on procedural grounds and on the merits. (LD 15.) Petitioner then filed habeas petitions in the Court of Appeal and California Supreme Court. (LD 16, 17.) Those petitions were denied as well. (Id.)
7. On September 8, 2005, petitioner notified this court that the California Supreme Court had ruled on his state habeas petition. (Dkt. No. 38.) On September 16, 2005, petitioner moved for appointment of counsel. (Dkt. No. 39.) On September 28, 2005, this court lifted the stay of these proceedings and on October 27 denied petitioner's motion for appointment of counsel. (Dkt. Nos. 40, 44.)
8. On April 14, 2006, petitioner, now proceeding with counsel, filed a third amended petition herein. (Dkt. No. 58.) Respondent filed an answer on August 14, 2006. (Dkt. No. 63.) On February 8, 2007, petitioner filed a reply. (Dkt. No. 72.)
Early on a January evening in 1994, a clerk was on duty at Day's Market with a co-worker. A teenage Latino entered the store, walked directly to the beer cooler, selected two12-packs, then bolted out of the store. The co-worker ran after the shoplifter. As the clerk went to join in the chase, his co-worker came staggering back, holding his hand over his chest, and warned the clerk, "He's got a gun.'" The clerk ran out of the store and saw the shoplifter sitting in a car. Another person was getting into the car. This person turned and pointed a gun at the clerk. He heard a shot, at which point he fled back into the store. He discovered his co-worker had been shot, and summoned emergency personnel. While he waited for the police and the ambulance, he went outside and found the beer on the ground about 10 feet from the door. The co-worker died, a bullet having perforated his heart.
The owner of the La Tiendita grocery was also working in his store on that evening. Two young Latinos came in and went directly to the beer cooler, selecting two 12-packs. They walked out the front door, one of them saying, "'No money. We don't pay.'" The owner followed them outside, and saw them get into the back seat of a car. When he began to walk behind the car to see the license plate, the front seat passenger stepped out of the car and fired a gun at him. The owner ducked behind a pillar. He later found a bullet near where he had been standing.
On the night of the shooting, the defendant's mother recalled the defendant came home with Gabriel Garcia, Joshua Ortega, and Eliazer Ibarrola. They had two 12-packs of beer. She told them that was too much beer for them to drink, so she took one and put it in the refrigerator in the kitchen. She went to her room, and they went into the garage to drink. On the day after the shooting, Garcia's older brother told the defendant's mother he had seen his brother in a videotape on television in connection with the Day's Market robbery/homicide. That afternoon, defendant called his mother and asked her to pick him up at a south area apartment. As they drove home, she repeated what the brother told her. The defendant kept saying, "All I can tell you, we're all in trouble." He mentioned Garcia had taken some beer and "shots were fired." He wondered aloud how "a little gun . . . a .22" could kill someone. The defendant packed some things and asked his mother to drive him to an apartment somewhere in the north part of the county.
The police arrested the defendant at an apartment in
Roseville. He was hiding in the cabinets under the kitchen sink. After they took him into custody, he waived his Miranda privileges and gave a statement. (The jury saw a videotape of the statement and a transcripts of the videotape was an exhibit.)
During his statement, the defendant said he had been driving around with Garcia and co-defendants Ortega and Ibarrola. Garcia showed them a gun; the defendant did not know where he had obtained it, and thought it might have belonged to one of the other two in the car. The defendant announced he wanted to take someone's money. Garcia said he wanted beer. Garcia directed them to Day's Market. When Garcia and the defendant got out of the car, Garcia took off after two pedestrians, but apparently they did not have any money. Garcia handed him the gun. He told the defendant to go and steal some beer from the market. The defendant said he did not want any beer. Garcia went into the store. The defendant walked back to the car. Garcia came running out with the beer and jumped in the car. Someone was running after him. Garcia told the defendant to shoot. The defendant fired at the clerk as the four drove away. At the second store, co-defendant Ibarrola was reluctant to go in with Garcia because his family shopped there. He told the defendant to shoot only into the air. The defendant fired at the store's owner because he thought the latter was reaching for a gun. As they left, he handed the gun to co-defendant Ibarrola, who put it in the trunk through a hatch in the back seat. On the following morning, co-defendant Ibarrola's girlfriend called the defendant to tell him the police had arrested the other two. The defendant went with Garcia to the home of Garcia's cousin. Garcia then left with his brother; the defendant thought Garcia was going to fly to Los Angeles or Mexico. He called his mother and asked her to pick him up. She later dropped him off at a friend's house. The defendant did not surrender after the shootings because "I knew I was gonna get really fucked."
[A] jury rejected the defendant's plea of legal insanity,*fn3 finding him guilty of first degree murder, attempted first degree murder, robbery, and burglary in connection with events at Day's Market, and attempted murder, robbery, and burglary for events at La Tiendita market. It sustained separate allegations that the Day's Market murder occurred during the commission of both a robbery and a burglary. (Pen. Code, §§ 187-189, 190.2, 211, 459, 664, 12022.) The court imposed a determinate prison term and a consecutive indeterminate parole-ineligible life term. (LD 12 at 1.)
I. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a 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). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Federal habeas corpus relief 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 section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
A. Alleged Ineffective Assistance of Trial Counsel
Petitioner alleges ineffective assistance of counsel for: (1) failing to adequately raise the issue of juror misconduct in a new trial motion (Ground One); (2) failing to appropriately argue the insanity defense (Ground Two); (3) failing to ask the trial court to admonish the jury regarding statements made by the prosecutor and an expert witness (Ground Three); (4) failing to adequately investigate and present mental defenses (Ground Eleven); and (5) failing to present and argue evidence that a third party admitted the shooting (Ground Twelve). (Dkt. No. 58, attachment 12.) For the reasons discussed below, the undersigned recommends petitioner's claims of ineffective assistance of counsel be denied.
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000).
The Supreme Court has emphasized the importance of giving deference to trial counsel's decisions, especially in the AEDPA context:
In Strickland we said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689. Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a [petitioner] must overcome the "presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"
For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the [state]Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002) (internal citations omitted).
2. Failure to Adequately Raise Juror Misconduct Issues (Ground One)
Petitioner first argues his trial counsel failed to adequately raise issues of juror misconduct during the hearing on his motion for a new trial. (Dkt. No. 58, attachment 12 at 1-2.)
Petitioner bases his claim on the following facts. After the verdict was rendered, Juror Number 12 ("Juror H") contacted defense counsel. (CT 4 at 905.) According to a declaration Juror H submitted in connection with the defendant's motion for a new trial, Juror H felt that things that occurred during deliberations led to an unfair verdict regarding petitioner's sanity. (Id. at 907.) She expressed concern that "[d]uring the whole of the deliberation on the insanity question there it seemed that the most important issue was not whether or not Mr. Sanchez was insane, but if he was found to be insane, he would be back on the street very soon." (Id.) As explained by Juror H:
This was finally verbalized on the last day of deliberation. Even though the jurors knew that it was improper to discuss this issue, it was more important that Mr. Sanchez remain in jail for a long period of time. [S]omehow during the deliberations, it became [the] opinion of the jury that if he was found insane he would be on the streets in five years. I changed my vote from not guilty because he is "insane" to "sane" because I believed that he would be on the streets within five years. I found out later that this is not necessarily true.
(Id.) Juror H raised one additional issue regarding the jury's conduct:
Lastly, it was my understanding that the jury was not supposed to deliberate except when we were all in the jury room. One of the jurors was deliberating at home and prepared a chart that was shown to other members during the deliberations. It was used to prove I was violating the law by not voting that Mr. Sanchez was sane.
Trial counsel incorporated this declaration of Juror H in petitioner's motion for a new trial, where he argued in pertinent part:
3) Prior to trial a defense Motion in Limine was granted wherein it was ordered that the People were not permitted to place before the jury the fact that Drs. Schafer and Leek were appointed by the court. The defendant made the motion because it was felt that the probative ...