The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, Pao Lo, is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-eight years to life after being convicted by a jury of four counts of assault with a semiautomatic firearm, one count of shooting at an occupied motor vehicle, one count discharging a firearm from a vehicle and enhancements for infliction of great bodily injury and personal intentional use of a firearm. Petitioner raises several claims in this federal habeas petition; specifically: (1) prosecutorial misconduct during the prosecutor's examination of a witness ("Claim I"); (2) prosecutorial misconduct for deliberately introducing inadmissible evidence ("Claim II"); (3) prosecutorial misconduct for statements made by the prosecutor during closing argument ("Claim III"); ineffective assistance of counsel for failing to object to the prosecutor's actions in Claims I-III ("Claim IV"); (5) the cumulative effect of Claims I-IV rendered Petitioner's trial fundamentally unfair and violated his due process rights ("Claim V"); (6) ineffective assistance of appellate counsel for failing to raise the issue of the prosecutor's misconduct in Claim II on appeal based on federal law ("Claim VI"); (7) the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986) when he systematically struck four potential jurors on the basis of their Asian race ("Claim VII"); and (8) ineffective assistance of appellate counsel for failing to present Claim VII on direct appeal ("Claim VIII"). For the following reasons, the habeas petition should be granted.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn1
On a late September evening in 2001, a group of young people staged street races on Stockton city streets. The spectators included Kukav Thao, his brother Chuck Thao, Chao Lee, and Amanda V. Kukav and Chuck participated in the race, driving Chuck's black Acura. Around midnight, defendant arrived in a black Mazda pickup truck.
Defendant's arrival prompted a mass exodus, with Kukav, Chuck, Chao and Amanda scrambling to their cars. As they sped off, defendant followed in the pickup. Leaning out of the passenger window, defendant fired several shots, striking Kukav's car. One bullet slammed through the car's bumper and into Kukav's right buttock.
An information charged defendant with four counts of assault with a semiautomatic firearm, one count of shooting at an occupied vehicle, and one count of discharging a firearm from a vehicle. In addition, the information alleged infliction of great bodily injury (§ 12022.7, subd. (a)), use of a firearm (§ 12022.5, subd. (a)(1)), and intentional and personal discharge of a firearm (§ 12022.53, subd. (d)).
A jury trial followed . . .
Kukav Thao's testimony Kukav Thao knew defendant for about a year prior to the incident. Kukav accompanied his brother Chuck and friends Lee and Amanda to the impromptu racing site, a public street in Stockton. Kukav and Chuck raced Chuck's Acura Integra about two times each. Fifty to 70 cars descended upon the makeshift racetrack, surrounded by crowds of onlookers.
Late in the evening, Kukav noticed defendant's arrival as a passenger in a black Mazda pickup. Kukav could not see the driver. Defendant stared and smiled at Kukav as the truck passed by.
Prior to that evening, Kukav had witnessed at least two arguments between defendant and Lee over a girl, Mercy Heu.
Frightened, Kukav left the racetrack in the Acura and drove toward Highway 99. At an intersection, Kukav stopped behind a truck with Lee, Chuck and Amanda following behind in a Honda Civic. At the intersection, the Honda pulled up beside Kukav's car. Chuck jumped out of the Honda and began yelling that defendant was behind them with a gun.
Kukav saw defendant hanging out of the passenger window of the truck with a gun in his right hand. Chuck jumped into the Acura. Kukav heard several gunshots and saw a flash but was unsure whether the shots rang out before or after Chuck got in the car. Kukav sped away, following behind Lee and Amanda in the Honda. When the cars pulled over, Kukav discovered a bullet wound in his right buttock. There was some discrepancy as to who took Kukav to the hospital and how they traveled.
Kukav denied drinking or using drugs the night of the shooting. However, he admitted taking "Ecstasy" the previous evening. A urinalysis of a sample taken from Kukav following the incident revealed the use of Ecstasy within one to three days and marijuana within one to 60 days. No blood test was performed.
Chao Lee's testimony Chao Lee had known defendant for his entire life. Lee had been dating Mercy Heu for approximately two weeks prior to the shooting. Defendant dated Heu for four or five years prior to her relationship with Lee.
Before the shooting, defendant called Lee twice at home and told Lee to "back off" and "stay away from" Heu. Lee recognized defendant's voice. Defendant also approached Lee at his workplace and talked to him about Heu. Lee testified at the preliminary hearing that he told friends and his parents about the calls but not law enforcement. Later, at trial, Lee recalled telling Detective Molthen about the telephone calls and workplace visits. The night of the shooting, Lee accompanied Kukav and Amanda to the street race in the Honda. Chuck drove the Acura. However, Lee testified no one in their group raced that evening.
Lee saw defendant riding as a passenger in the Mazda truck, a vehicle he had seen in front of defendant's house a few times. As defendant drove by, he looked at Lee. The truck drove on, then made a U-turn and drove back toward Lee.
Lee said "Let's go" and got into the Honda with Chuck and Amanda. Lee knew something bad might happen, so he told everyone to leave. Kukav drove away in the Acura, stopping at an intersection behind a truck. Lee followed in the Honda with the Mazda truck directly behind.
Chuck got out and went to Kukav's car. Lee looked in his rearview mirror and heard eight gunshots. Lee drove off, and when the group gathered again he discovered Kukav had been shot. Although he had a cellular telephone, Lee did not call the police. Lee testified that on the night of the shooting, no one in the group had been gambling, drinking, or taking drugs. Lee admitted using Ecstasy the previous evening.
Amanda V.'s Testimony Sixteen-year-old Amanda V. married Kukav in a Hmong ceremony. Amanda accompanied Kukav, Chuck, and Lee to the street racing. Amanda heard Chuck tell everyone to leave but did not see the Mazda truck pass by. After they passed the intersection, Amanda heard four or five gunshots, but it was dark and hard to see. She saw two occupants in the black truck. Amanda did not know where the gunshots originated.
Chuck Thao's Testimony Chuck Thao, Kukav's brother, testified. Chuck knew defendant by his street name, "Screech." Chuck knew Lee's girlfriend had dated defendant prior to dating Lee.
Chuck drove his Acura to the street race the night of the shooting. Both Chuck and Kukav raced. Defendant drove by in a truck and looked out the window directly at Chuck. At the preliminary hearing, Chuck testified defendant was cursing and yelling. Chuck could not see the driver of the truck.
After spotting defendant, Chuck ran and told Kukav that Screech was coming. Chuck said, "Let's get out of here." He ran to the Honda and told Lee, "Let's go." Chuck saw the truck and saw defendant pop his head and the top part of his body out of the passenger window. Chuck saw defendant holding a gun and heard six or seven gunshots. Defendant shot once before Chuck ducked down in the car. Kukav told Chuck he had been shot.
The next morning, Chuck found bullet holes in the car. He also found a bullet in the vehicle, which he later turned over to police.
Mercy Heu previously dated defendant and had known him for five years. They ceased dating by mutual agreement. Heu began dating Chao Lee in September 2001, and the pair continued to date.
Lee received a crank telephone call at his family home. At the Lee family's request, Heu listened to the tape of the call. She believed the caller was not defendant; she did not recognize the voice. Heu told Lee the caller could not have been defendant because at the time of the call defendant had been with her. Heu later stated the voice might have been that of one of defendant's friends.
The night of the shooting, Heu went to defendant's birthday party. She later went out with Lee. Heu was at her mother's house when she learned of the shooting. When she asked Lee who had shot at them, Lee replied, "'You should know who.'"
About two weeks before the shooting, defendant gave Heu a gun for protection. Heu described the gun as heavy and about a foot long. She asked defendant to take the gun back, but she was not home when the gun disappeared. Heu told no one about the gun until a week before the trial.
Heu still cared about defendant. Defendant did not tell her he wanted them to get back together and asked if she was happy with Lee. Heu visited defendant in jail until Lee found out and became angry.
Mai Vang's Testimony Mai Vang testified defendant celebrated his birthday with some friends at her apartment on the night of the shooting. Defendant never left the party. He stayed up all night, got drunk, and was sick. Defendant was never out of her sight. Defendant dated other women after breaking up with Heu.
On a previous occasion, Kukav falsely accused defendant's brother and some of his friends of beating him. Vang knew Kukav lied because defendant's brother had been with her when the beating allegedly took place. Vang believed Kukav concocted the story out of jealousy.
Vang had taken Ecstasy with Kukav on numerous occasions. Kukav raced cars while under the influence of Ecstasy.
Chang Her's Testimony Chang Her, defendant's brother-in-law, attended the birthday party for defendant and remained until the following morning. Defendant was at the party when Her arrived in the early evening.
Defendant got very drunk and threw up before passing out on the floor. Defendant and the other revelers drank and went outside only to smoke.
Defendant's Testimony Defendant testified he knew Heu for four or five years. Defendant never gave Heu a gun. Nor did he telephone Lee or confront Lee at his work about Heu. Defendant no longer cared for Heu and did not care if she dated others.
Defendant celebrated his birthday the night of the shooting. He drank beer and played cards with his friends.
On the evening of the shooting, defendant's car was in the shop for a paint job. Defendant's brother-in-law owns a black truck. However, defendant did not drive the truck on the night of the shooting. Defendant denied any responsibility for the shooting. Defendant knew nothing about the shooting until his arrest. He never saw Kukav or Chuck prior to their testimony against him in court. Defendant believed Lee accused him of the shooting because he had previously dated Heu. Defendant owned a shotgun that he used for squirrel hunting. (Slip Op. at p. 1-8.)
The jury convicted Petitioner on all counts and found each of the enhancements true. On direct appeal to the California Court of Appeal, Petitioner raised two issues; specifically: (1) the prosecutor committed misconduct "in questioning a witness, Mercy Heu, concerning a phone call allegedly made to the witness by someone acting on Appellant's behalf" (Resp't's Lodged Doc. 1 at p. 25.); and (2) there was insufficient evidence to support the convictions. (See id. at p. 34.) On August 18, 2003, the California Court of Appeal rejected both of these claims in a written opinion.
In Petitioner's petition for review to the California Supreme Court on direct appeal, he only raised the issue of prosecutorial misconduct. On October 29, 2003, the California Supreme Court summarily denied the petition for review.
In January 2004, Petitioner filed an application in the County of San Joaquin Superior Court for an order directing that a transcript be made of the voir dire proceedings. (See Resp't's Lodged Doc. 15 at Ex. A.) The Superior Court denied the application on January 26, 2004 without explanation.
Petitioner then filed a state habeas petition in the County of San Joaquin Superior Court on February 24, 2004. Petitioner raised the claims that he raises in his federal petition in that state habeas petition amongst others. In that state habeas petition, Petitioner once again requested that a transcript of the voir dire proceedings be made as it was "necessary for a full and fair adjudication of [the Batson] claim." (Resp't's Lodged Doc. 15 at p. 37.) Petitioner also requested an evidentiary hearing. (See id. at p. 39 "Petitioner is aware that he is required to provide copies of reasonably available documentary evidence, including pertinent portions of the voir dire proceedings, to support this claim. However, petitioner's diligent effort to gain access to that record was summarily rejected by the court. Accordingly, petitioner cannot be held responsible nor be penalized for this failure. Taken as true, the facts in support of this Ground meet the basic requirement for issuance of an Order to Show Cause. Petitioner respectfully submits that this Court must issue such an order, and prays that upon its issuance petitioner be provided with a copy of the transcript of the voir dire proceedings held on March 6 and 7, 2002, and allowed an evidentiary hearing as required for a full and fair adjudication of this issue.").) On March 18, 2004, the San Joaquin Superior Court denied Petitioner's state habeas petition in a written opinion.
Petitioner then raised the claims he raises in this federal petition in a state habeas petition to the to the California Court of Appeal on April 1, 2004. (See Resp't's Lodged Doc. 13.) Once again, Petitioner requested that a transcript of the voir dire proceedings be made so that there could be a full and fair adjudication of the Batson issue. (See id. at p. 37.) Petitioner also requested an evidentiary hearing. (See id. at p. 39.) The California Court of Appeal summarily denied the petition on April 29, 2004. (See Resp't's Lodged Doc. 14.)
Petitioner then filed a habeas petition in the California Supreme Court in May 2004 (See Resp't's Lodged Doc. 6.) Petitioner raised the claims that he raises in this federal habeas petition to the California Supreme Court. Petitioner requested that a transcript of the voir dire proceedings be made. (See id. at p. 37.) Petitioner again requested an evidentiary hearing. (See id. at p. 39.) The California Supreme Court summarily denied this habeas petition on April 13, 2005. (See Resp't's Lodged Doc. 7.)
Petitioner filed this federal habeas petition on September 1, 2005. On May 17, 2006, Respondent answered the petition. In his answer, Respondent admitted that Petitioner had exhausted his state remedies on all of his claims. (See Resp't's Answer at p. 2.)
On January 20, 2010, Magistrate Judge Moulds ordered that Respondent provide Petitioner with a complete transcript of the jury voir dire proceedings from Petitioner's criminal trial. Subsequently, on February 9, 2010, Chief Judge Ishii reassigned the matter from Magistrate Judge Moulds to Magistrate Judge Newman due to his recent appointment.
On March 15, 2010, Respondent lodged a copy of the jury voir dire proceedings in this court. Magistrate Judge Newman then ordered the parties to file further briefing on Petitioner's Batson claim on August 23, 2010. The parties filed their supplemental briefs addressing the Batson claim on October 20, 2010. In his supplemental brief, Respondent argued for the first time that Petitioner's Batson claim was procedurally barred and not properly exhausted. Alternatively, Respondent argued that Petitioner's Batson claimed lacked merit.
This matter was reassigned by Chief Judge Ishii to the undersigned on November 22, 2010. On December 14, 2010, Petitioner filed a response to Respondent's supplemental Batson brief opposing Respondent's procedural bar and non-exhaustion arguments. Respondent filed a reply to Petitioner's response on January 4, 2011.
On February 16, 2011, an evidentiary hearing was ordered on Claims VII and VIII. It was determined that 28 U.S.C. § 2254(e)(2) did not preclude an evidentiary hearing because Petitioner had not failed to develop the record in the state court proceedings. As outlined above, he repeatedly and at every level of the California courts requested an evidentiary hearing and a copy of the voir dire transcript so that he could fully assert the Batson issue.
An evidentiary hearing on Claims VII and VIII was conducted on March 16, 2011. At the evidentiary hearing, testimonial evidence was received from Petitioner, Ms. Katherine Hart (Petitioner's direct appellate counsel) as well as Mr. Michael Rasmussen (the trial prosecutor). Additionally, three documents were admitted into evidence, two letters from Petitioner to Ms. Hart and a declaration from Mr. Rasmussen.
On April 4, 2011, the United States Supreme Court issued its decision in Cullen v. Pinholster, 131 S.Ct. 1388 (2011). Subsequently, the parties were ordered to file supplemental briefs addressing what impact (if any) the Supreme Court's Pinholster decision had on this case in light of the evidentiary hearing that was conducted on March 16, 2011. The parties filed their Pinholster supplemental briefs on June 6, 2011. The entire matter is now ripe for adjudication.
III. 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 only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003). If a state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. See Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.")
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)). "'[C]learly 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. (citations omitted). Under the unreasonable application clause, 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." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "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. 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 an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision with respect to Claim II is from the California Court of Appeal in its decision on direct appeal.*fn2 With respect to Petitioner's remaining claims, the last reasoned decision was from the Superior Court of California, County of San Joaquin as the California Court of Appeal and the California Supreme Court both issued summary denials on Petitioner's state habeas petitions. See Ylst, 501 U.S. at 803-04.
IV. ANALYSIS OF PETITIONER'S CLAIMS
Petitioner argues in Claim I that the prosecutor committed misconduct when he attempted to elicit from several witnesses that other witnesses lied in their trial testimony. He also argues that the prosecutor committed misconduct during his closing argument when he stated that the defense witnesses had called each other liars during trial. In denying this Claim, the Superior Court of California, County of San Joaquin found that "[w]ith regard to the cross-examination and closing argument, the petition suggests the defense counsel did not object at trial. Accordingly, any objection was waived. In re Dixon (1953) 41 C[al]. 2d 756; see also In re Fudge, 2003 Cal.LEXIS 8709." (Resp't's Lodged Doc. 16 at p. 1.)
In his answer, Respondent argues that this Claim should be denied on the merits and does not assert any procedural default defense. Therefore, any procedural default argument with respect to Claim I would be deemed waived. See Trest v. Cain, 522 U.S. 87, 89 (1997) (explaining that procedural default is not jurisdictional and can be waived). In any event, because Claim I does not succeed on the merits as explained infra, any procedural default argument need not be reached. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (explaining that a district court may address the merits without reaching procedural issues where the interests of judicial economy are best served by doing so). Because the state courts never reached the merits of this Claim, de novo review applies to Claim I. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (applying de novo review where state courts did not reach the merits of a claim).
The purported prosecutorial misconduct centers around the prosecutor's cross-examination of Petitioner's alibi witnesses. On direct examination, Mai Vang testified that on September 28, 2001, she attended a party in which Petitioner was present that lasted well into the early morning hours of September 29, 2001. She testified that Petitioner never left the party that evening. (See Reporter's Tr. at p. 686.) Lou Yang and Chang Her gave similar testimony on direct examination. (See id. at p. 773, 793.)
On cross-examination of Mai Vang, the following colloquy took place between Mai Vang and the prosecutor:
Q: And how many times have you met with Jeff Silvia at his office?
Q: And who else was present when you met with Jeff Silvia?
A: David, Chang, Lou and I . . . .
Q: And this -- how many times total have you gone over what you were going to testify to with Mr. Silvia?
A: I'd say about five, six times.
Q: Okay. And how many of those times was Chang Her present? A: I'd say most of the time, yes.
Q: Was he there last night?
Q: David Lo, how many times was Bomb present when you went over your testimony?
Q: Was he there last night?
Q: And Louis Yang, or -- is it Louis?
Q: Lou. Was he present last night?
Q: How many times was he present when you went over your testimony with Mr. Silvia?
A: Every time except last night.
The following colloquy took place between the prosecutor and Lou Yang on cross-examination:
Q: So if Mai Vang came in here and said that each time you guys got together you went over what you were going to testify in the case, she'd be lying?
A: All I'm -- all I know is that every time we go there, we just talk about the case, how it's going, most of the time.
Q: So would Mai Vang be lying if she testified under oath that every time that she went over Mr. Silvia's office with everyone, that she went over what she was going to testify to, would that be a lie?
A: Well, I don't know what she basically testified to so I don't really know if she was lying.
Q: What she knew about the case. Where she was the night of the shooting, would that be a lie?
A: But she just told Mr. Silvia where she was.
Q: Each time that she went and met with Mr. Silvia?
A: We didn't really talk about everything. I mean --
Q: You are testifying you only did that one time?
Q: What was the date of that time?
A: That was the first time when I met up with Mr. Silvia . . .
Q: And what about Mai Vang, Mai Vang only said one time what she was doing the night of the shooting when she went over to Mr. Silvia's office?
A: A lot of times she goes by herself, so I'm not sure.
Q: Well, if she testified that every time she went over there, that you were present, would that be a lie?
A: There's like one or two time -- I'm not sure, but I was there like four or five times when she was there.
Q: Okay. Of those four and five times, how many times did she go over what she was doing the night of the shooting?
A: I'm -- she was just talking about how they accuse her of whatever she was doing.
Q: How many times did he go over where she was the night of the shooting of those four or five times that you were present?
Q: So if she testified that she went where she was the night of the shooting every single time, she would be lying?
A: I don't know what she testified to, so I can't say if she was lying or not.
Q: But if she did testify to that, would that be a lie?
Q: If Nahi Moua said that every time he went over Jeff Silvia's everyone was there, you, Mai, David, and Chang, and that each of the four to five times that he went there, he heard what you had to say, where you were the night of the shooting, would that be a lie? A: Yeah, I guess it would be a lie.
Q: Okay. If he testified that he heard what Mai Vang was going to testify to every time he went to Jeff Silvia's office, four or five times, that would be a lie?
Q: And if Mai Vang said those things, she would be lying, too? A: Yeah.
Q: So Mai Vang is a liar?
MR. SILVIA: Objection, Your Honor.
(Id. at p. 775-76, 777-78, 786.)
The following colloquy took place between the prosecutor and Chang Her on cross-examination:
Q: If she [Mai Vang] testified under oath that every time she went to Mr. Silvia's office that she heard what you were going to say and what you were -- where you were on 9-28, the night of the shooting, would she be lying?
Q: Okay. I know it's long.
Q: -- testified under oath that she was present four or five times at Mr. Silvia's office and heard what you were going to say about where you were 9-28 --