The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Fredy Gomez, a state petitioner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Gomez is currently in the custody of the California Department of Corrections, incarcerated at the California State Prison, Solano, in Vacaville, California. Respondent has filed an answer, and Gomez has filed a traverse.
On January 19, 2005, Mark Miguel was working as a door attendant at the Torch Club in Sacramento when defendant approached him and asked about the cover charge. Defendant hesitated when Miguel told him it was four dollars, then told Miguel "not too many people like you around here, you know." Miguel ordered defendant to leave. After staring at Miguel for about 10 minutes, he did.
Defendant returned to the Torch Club the next night about 11:30 p .m., and again encountered Miguel at the door. Defendant asked Miguel if he was going to let him in, and Miguel responded by asking if he was "going to be good." When defendant failed to answer, Miguel told him he could not come in. Defendant repeatedly asked and motioned for Miguel to come outside, but Miguel ignored him. After about 10 minutes, Miguel jumped up from the stool he had been sitting on, startling defendant, who assumed a martial arts-type fighting stance. Miguel then took defendant's arm and pushed him out the door. Defendant fell and Miguel held him on the ground for a few minutes. Miguel returned to his position at the door, and defendant walked to the end of the block, where he stared for several minutes at Miguel before leaving.
At 12:30 a.m., Miguel went inside the bar to tend to his other responsibilities. He collapsed some boxes and gathered them together. On his way out, he told the bartender, Don Jensen, that he was going to take the boxes to the dumpster. Once outside, he saw defendant standing alone on the sidewalk in front of the bar next door to the Torch Club. As Miguel walked towards the dumpster, defendant spotted him and lifted his shirt, exposing the butt of a gun. Defendant pulled a sawed-off shotgun out of his pants as he quickly walked toward Miguel. Defendant got within two or three feet from Miguel, pointed the shotgun at him and shot him in the lower abdomen. Miguel fell backwards toward the building, hitting his head as he slid down the wall. Miguel recovered his footing and began to fight with defendant over the gun, fearing he would shoot him again.
Hearing a loud bang, Jensen went outside to investigate and saw Miguel laying on the ground with his head covered in blood and defendant standing over him. Miguel called out to Jensen for help. Jensen struggled with defendant for the gun and managed to wrest it away from him, as Miguel crawled to safety. Defendant walked over to where Miguel was lying, kicked him on the side of the leg, and when Miguel opened his eyes, defendant fled on foot. Defendant was arrested later that evening.*fn1
On April 5, 2005, the Sacramento County District Attorney filed an amended complaint charging Gomez with: attempted murder with malice aforethought; possession of a short-barreled shotgun; assault with a firearm; and, being a felon in possession of a firearm. With respect to the charge of attempted murder, it was further alleged that Gomez committed the offense willfully, deliberately, and with premeditation, that he personally inflicted great bodily injury, and that he personally discharged a firearm. With respect to the charge of assault with a firearm, it was further alleged that Gomez personally inflicted great bodily injury and personally used a shotgun. It was also alleged that Gomez had a 1978 Oregon conviction for first degree robbery within the meaning of sections 667(b)-(i) and 1170.12.
On October 25, 2005, in a bifurcated trial, the jury found Gomez guilty of all counts and found true the firearm and great bodily injury allegations. The jury also found the prior-strike allegation to be true. On November 22, 2005, the court sentenced Gomez to a term of nine years in state prison and a consecutive, indeterminate term of thirty-nine years to life.
Gomez's conviction and sentence were affirmed on direct appeal on March 8, 2007. The California Supreme Court denied review on May 16, 2007. On April 24, 2007, Gomez filed a habeas petition in the Sacramento County Superior Court, which the court denied on July 25, 2007. On August 8, 2007, Gomez filed a supplemental habeas petition in the Sacramento County Superior Court, which the court denied on September 24, 2007. On August 18, 2007, Gomez filed a habeas petition in the California Supreme Court, which the court denied on March 26, 2008.
On June 11, 2008, Gomez filed the instant petition, raising six grounds for relief. On February 20, 2009, before this case was reassigned to Judge Singleton, the Honorable Lawrence K. Karlton granted Respondent's motion to dismiss, denied Gomez's motion for stay and abeyance, and ordered Grounds One, Four, and Five dismissed as unexhausted. Respondent was then directed to respond to Grounds Two, Three, and Six only. Respondent contends that Gomez's third ground for relief is unexhausted. Respondent does not assert any other affirmative defenses.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn2 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn3 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn4 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn5
When a claim falls under the "unreasonable application" prong, a state court's application of
Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn6
The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn7
"[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn8 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn9
Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn10
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn11 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn12 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn13 This is considered as the functional equivalent of the appeal process.*fn14 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn15 This presumption applies to state trial courts and appellate courts alike.*fn16
When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must presume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn17 ...