The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDING AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS OBJECTIONS DUE WITHIN THIRTY (30 DAYS)
Ronald Enrique Ybarra (hereinafter "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 and Rehabilitation pursuant to a judgment of the Fresno County Superior Court. A jury found Petitioner guilty of one count of willful, deliberate, and pre-mediated murder (Cal. Penal Code § 187(a)); and two counts of attempted murder (Cal. Penal Code § 664/187); and one count of street terrorism (Cal. Penal Code § 186.22(a)). The jury further found true the allegation that Petitioner personally used a firearm within the meaning of Cal. Penal Code § 12022.5(a)(1). On April 21, 2005, the Superior Court sentenced Petitioner to life without the possibility of parole plus an additional and consecutive ten years, and two additional life terms with the possibility of parole plus an additional and consecutive ten years on condition that Petitioner must serve a minimum of fifteen years prior to being eligible for parole.
Petitioner appealed his conviction to the California Court of Appeal, Fifth Appellate District. On January 2, 2007, the Court of Appeal vacated a $10,000 parole revocation fine and affirmed the judgment in all other aspects.
On January 25, 2007, the Court of Appeal ordered a rehearing in light of the United States Supreme Court decision in Cunningham v. California, 549 U.S. 270 (2007). On April 18, 2007, the Court of Appeal vacated Petitioner's sentence in toto and remanded the matter to the trial court to hold contested sentencing hearings in compliance with Cunningham or, in the alternative, to impose mid-term sentences rather than aggravated sentences. On May 9, 2007, the Court of Appeal issued an order modifying the published opinion without a change in judgment On May 25, 2007, the Petitioner filed a petition for review in the California Supreme Court. On May 29, 2007, Petitioner filed a petition for review in the California Supreme Court. On August 15, 2007, the California Supreme Court granted both petitions for review and deferred further action in the matter pending the disposition of a related issue in People v. Gonzalez, S149898 and other matters. On July 16, 2008, the California Supreme Court remanded the matter to the Court of Appeal for reconsideration in light of its decision in People v. Gonzalez, 43 Cal. 4th 1118 (2008).
On September 12, 2008, the Court of Appeal vacated Petitioner's sentence, remanded tothe trial court for sentencing, but affirmed the judgment in all other respects.
On October 29, 2008, Petitioner filed a petition for review in the California Supreme Court. On December 23, 2008, the California Supreme Court denied review without prejudice.
On April 2, 2010, Petitioner filed the instant federal petition for writ of habeas corpus. See Doc. No. 1. On June 18, 2010, Respondent filed an answer to the petition. See Doc. No. 12. On August 12, 2010, Petitioner filed a traverse. See Doc. No. 16.
On October 5, 2001, shortly after 7:00 p.m., someone in a BMW yelled out to [Petitioner], "What's up Sur?" [Petitioner] yelled back, "Bulldog." From inside the BMW, someone fired several shots at him from a handgun at point blank range but missed him. Sur is short for Surenos, a rival criminal street gang.
Shortly after 9:30 that evening, [Petitioner], Cernas, and another male, all armed with guns, stepped out of a large car "between a gray and a blue" in color, walked toward a house that was "a perceived Sureno location" where Gilbert Medrano, his pregnant niece Mercedes Lopez, and his friend alvaro Romero were sitting outside talking, and opened fire. [Petitioner's] father owns a sky blue Lincoln Town Car.
Bullets struck Medrano in the face, Lopez in the leg and stomach, and Romero twice in the back and once in the hip. Medrano survived with a bullet lodged between his cervical vertebrae. Lopez, who had a Caesarian section and a hysterectomy, and her daughter, who was born a month prematurely with a scratch mark from a bullet on her back, both survived. Romero died at the scene. A gang expert characterized both shootings as gang warfare between Bulldogs and Surenos.
A person in custody pursuant to the judgment of a State court may petition a district court for relief by way of a writ of habeas corpus if the custody is in violation of the Constitution, 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 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. Petitioner's custody arose from a conviction in the Fresno County Superior Court. As the judicial district encompasses Fresno County, 28 U.S.C. § 84(b), the Court has jurisdiction over Petitioner's application for writ of habeas corpus. See 28 U.S.C. § 2241(d) (vesting concurrent jurisdiction over application for writ of habeas corpus to the district court where the petitioner is currently in custody or the district court in which a State court convicted and sentenced Petitioner if the State "contains two or more Federal judicial districts").
On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for a writ of habeas corpus filed after the statute's enactment. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of AEDPA and is consequently governed by its provisions. See Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Thus, the petition "may be granted only if [Petitioner] demonstrates that the state court decision denying relief was 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) (quoting 28 U.S.C. § 2254(d)(1)), overruled in part on other grounds,Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010) (en banc); seeLockyer, 538 U.S. at 70-71.
Title 28 of the United States Code, section 2254 remains the exclusive vehicle for Petitioner's habeas petition as Petitioner is in the custody of the California Department of Corrections and Rehabilitation pursuant to a state court judgment. SeeSass v. California Board of Prison Terms, 461 F.3d 1123, 1126-27 (9th Cir. 2006), overruled in part on other grounds, Hayward, 603 F.3d at 555. 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, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). "In other words, 'clearly 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. Finally, this Court must consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72 (quoting 28 U.S.C. § 2254(d)(1)). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413; seealso Lockyer, 538 U.S. at 72. "Under the 'unreasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[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. 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." Id. at 409.
Petitioner bears the burden of establishing that the state court's decision is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 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 objectively unreasonable. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding on the Arizona court, and only those precedents need be reasonably applied, we may look for guidance to circuit precedents"); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999) ("because of the 1996 AEDPA amendments, it can no longer reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on a federal Constitutional issue . . . This does not mean that Ninth Circuit case law is never relevant to a habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining whether a particular state court decision is an 'unreasonable application' of Supreme Court law, and also may help us determine what law is 'clearly established'"). ...