The opinion of the court was delivered by: Gary S.Austin 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 Kern, following his conviction by jury trial on May 9, 2005, of second degree murder with personal and intentional discharge of a firearm proximately causing great bodily injury or death (Cal. Penal Code §§ 187(a), 12022.53(d)), and possession of a firearm by a ward of the court (Cal. Penal Code § 12022.1(e)). (LD*fn1 1.) Both offenses were determined to have been committed in the furtherance of a criminal street gang (Cal. Penal Code § 186.22(b)(1)(C)). (LD 1.) He was sentenced to serve an indeterminate term of 40 years to life in state prison. (LD 1.)
Petitioner filed a timely notice of appeal. On November 13, 2006, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (LD 2.) Petitioner then filed a petition for review in the California Supreme Court. (LD 3.) The petition was summarily denied on February 21, 2007. (LD 4.)
Petitioner filed several collateral challenges to his conviction in the state courts. On December 13, 2007, he filed a petition for writ of habeas corpus in the Kern County Superior Court. (LD 5.) The petition was denied on January 25, 2008. (LD 6.) He then filed a petition in the Fifth DCA on June 3, 2008. (LD 9.) The petition was denied on August 7, 2008, on the ground that Petitioner had "failed to summarize all of the evidence that arguably supports the gang enhancement as required by People v. Duvall (1995) 9 Cal.4th 465, 475." (LD 10.) On October 6, 2008, he filed a habeas petition in the California Supreme Court. (LD 13.) The petition was denied on March 25, 2009. (LD 14.) Finally, on June 30, 2009, he filed a habeas petition in the Kern County Superior Court. (LD 15.) The petition was denied on September 1, 2009. (LD 16.)
On June 29, 2009, Petitioner filed the instant federal habeas petition. He presents the following claims for relief: 1) He claims the evidence was insufficient to support the gang enhancement; 2) He alleges the trial court denied a jury instruction on third party culpability in violation of his constitutional rights; 3) He claims the trial court violated his constitutional rights by disallowing him the opportunity to confront and cross-examine Officer Talbot with impeaching evidence; 4) He contends the trial court violated his right to present a defense by excluding evidence that his accusers had committed crimes in front of the same residence; 5) He alleges he received ineffective assistance of counsel by his defense attorney and appellate counsel because both failed to raise the claim of insufficiency of evidence to support the criminal street gang enhancement; 6) He claims he was denied a fair trial by the admission of highly inflammatory gang evidence; and 7) He claims he was denied a fair trial by the cumulative effect of the alleged errors.
On July 6, 2009, Respondent filed an answer to the petition. On November 16, 2010, Petitioner filed a traverse.
Early one evening, Rosa Rodriguez (Rodriguez) looked outside her house on Lake Street in Bakersfield and saw Quiroz, whom she knew as "Whisper," hanging out with his cousin Alejandro "Flaco" Monje and his friends Carlos "Criminal" Alvarez, Armando "Mando" Morales, and Luis "Louie" Morales. The group hung out there almost every day, but that evening, for the first time, she saw a gun in Quiroz's waistband.
Fifteen minutes later, Rodriguez's son Raul Alatorre (Raul) saw Quiroz run down the street with a gun in his hand-yelling "Bakers, Bakers" and firing shots-and then saw Anthony DeJesus drop to the ground. Yelling "Bakers, Bakers" warns that members of the rival Loma Bakers criminal street gang could be in the area.
Gasping for air and praying to God, DeJesus told a friend and a police officer that four "Mexican guys" whom he did not know and who said nothing to him had shot him. DeJesus was not a gang member. He died of massive hemorrhage from gunshot wounds inflicted by a Hi-Point .380 pistol.
A few months before the murder, Quiroz had stolen a Hi-Point .380 pistol from his girlfriend in Southern California, where he had been an 18th Street gang member before moving to Bakersfield and aligning himself with the Cycos 13 criminal street gang. Prominent at the crime scene were graffiti of the Cycos 13 gang, which controlled that neighborhood, the 18th Street gang, and Quiroz's gang moniker, Whisper. On the day after the murder, a gang task force officer told Quiroz he was under arrest but did not tell him why. Quiroz volunteered, "I didn't shoot anyone last night," and said he had been at work "from 5:30 to 1:30" that night. The parties stipulated that Quiroz did not show up on a surveillance video at his workplace until 1:18 a.m. (LD 2.)
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 of Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, a petitioner can prevail only if he can show that the state court's adjudication of his 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.
28 U.S.C. § 2254(d); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.
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, 592 U.S. at 412. "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." Lockyer, 538 U.S. 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 aset of materially indistinguishable facts." Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. "Under the 'reasonable 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 has the burden of establishing that the decision of the state court 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. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).
AEDPA requires that we give considerable deference to state court decisions. "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Insufficiency of Evidence of Criminal Street Gang Enhancement In his first ground for relief, Petitioner claims the evidence was insufficient to support the allegation that he committed the murder in furtherance of a criminal street gang. Petitioner statesthe victim was not a gang member and the only gang evidence in the case was the fact that the crime took place in a gang area.
Petitioner presented this claim by habeas petition first to the Kern County Superior Court. (LD 5.) The superior court rejected the claim finding sufficient evidence supported the gang enhancement allegation. (LD 6.) Petitioner next raised the claim to the Fifth DCA by habeas petition. (LD 9.) The petition was denied for failure to summarize the evidence that arguably supported the gang enhancement as required in People v. Duvall, 9 Cal.4th 465, 475 (1995). (LD 10.) Petitioner next presented the claim to the California Supreme Court by habeas petition. (LD 13.) The California Supreme Court denied the petition without comment. (LD 14.) When the California Supreme Court's opinion is summary in nature, the Court must "look through" that decision to a court below that has issued a reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3 ...