FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner represented by counsel and proceeding with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction on charges of murder, attempted murder, two counts of corporal injury on a cohabitant and one count of assault with a deadly weapon, enhanced by findings of personal use of a firearm. This action is proceeding on two claims raised in an amended petition filed November 20, 2009.
On February 21, 2000, petitioner was arrested for incidents occurring on two separate days. See Clerk's Transcript ("CT") at 326. The first incident occurred in October 1999 and resulted in formal charges filed in case No. 99F10330 in the Sacramento County Superior Court. See CT at 184-86. The second incident occurred in February 2000 and resulted in formal charges filed in case No. 00F01412, also in the Sacramento County Superior Court. See id. at 92-95.
On March 8, 2001, the People moved to amend and consolidate the two cases on the ground that the crimes enumerated in each Information were different offenses of the same class of crimes within the meaning of California Penal Code section 954. CT at 6; 92-95. The motion was granted on March 8, 2011. Id. at 6.
On December 6, 2001, jury trial commenced with the filing of motions in limine, including petitioner's motion to sever counts, which the People opposed. CT at 132-40; 164-69. Oral argument was held on the motion to sever on December 19, 2001. See Reporter's Transcript ("RT") at 37-40. On December 20, 2011, the trial court denied the motion on the ground that "good cause for severance has not been shown." See RT at 79-81.
On January 14, 2002, jury selection commenced. See RT at 104. Also on January 14, 2002, petitioner was charged by a second consolidated / amended information with five counts stemming from the two incidents: one count of murder, in violation of Cal. Penal Code section 187, with a further allegation of intentional and personal discharge of a firearm causing great bodily injury; one count of attempted murder, in violation of Cal. Penal Code § 664/187(a), with a further allegation of intentional and personal discharge of a firearm causing great bodily injury; two counts of corporal injury on a cohabitant, in violation of Cal. Penal Code § 273.5(a); and one count of assault with a deadly weapon, in violation of Cal. Penal Code § 245(a)(1). CT at 182-86. The information also alleged that petitioner suffered a prior conviction in 1993 for assault with a firearm, in violation of Cal. Penal Code § 245(a)(2). Id. at 186.
Jury deliberations began on January 31, 2002. CT at 194. On February 4, 2002, the jury returned guilty verdicts on all five counts. See CT at 256-58. On March 29, 2002, petitioner was sentenced to 27 years in determinate sentencing and four consecutive 25-year to life terms. CT at 327-30.
On April 3, 2002, petitioner filed a notice of appeal. CT at 331.
On February 20, 2003, the California Court of Appeal, Third Appellate District, affirmed the conviction, but remanded the matter for resentencing. See LD 1 and 2.
On March 25, 2003, petitioner filed a petition for review with the California Supreme Court. LD 3. On April 30, 2003, the petition was summarily denied. LD 4.
On December 19, 2003, petitioner was resentenced. See CT at 5. Petitioner's sentencing issues were appealed twice more but are not relevant to the grounds raised in the instant petition. See Am. Pet., Exs. A-C; People v. Howard, 2006 WL 2912544 (Cal. Ct. App. 2006).
On April 10, 2007, petitioner filed a timely petition for writ of habeas corpus in the Sacramento County Superior Court. See Am. Pet., Ex. D. Petitioner's claims concerned his sentencing and not the two claims presented in the instant petition. See id. On May 9, 2007, the superior court denied the petition. Id., Ex. E.
On June 4, 2007, petitioner appealed to the California Court of Appeal, Third Appellate District. See Am. Pet., Ex. F. On July 5, 2007, the appellate court summarily denied the petition. Id., Ex. G.
On August 6, 2007, petitioner appealed to the California Supreme Court. See Am. Pet., Ex. H. On February 13, 2008, the petitioner was summarily denied. Id., Ex. I.
On January 15, 2009, petitioner filed a petition for writ of habeas corpus in this court asserting four grounds for relief. Also on January 15, 2009, petitioner filed a motion to stay and abey the petition pending exhaustion of two unexhausted claims. On September 23, 2009, respondent filed an opposition to the application for abeyance.
On August 10, 2009, respondent filed an answer to the mixed petition.
On October 9, 2009, the undersigned issued findings and recommendations recommending that the motion to stay and abey be denied. On October 29, 2009, the Honorable Garland E. Burrell*fn1 adopted the findings and recommendations and directed petitioner to file an amended petition raising only exhausted claims.
On November 20, 2009, petitioner filed the instant amended petition setting forth two claims for relief: (1) the trial court violated petitioner's due process rights and right to a fair trial by admitting irrelevant and prejudicial 'other crimes' evidence and (2) the trial court's refusal to sever counts denied petitioner his right to due process, right to a fair trial and right to a trial by an unbiased jury. Upon review of the amended petition, respondent filed a response on December 21, 2009 stating that because the amended petition did not set forth new claims, an amended answer would not be filed. On January 4, 2010, petitioner field a traverse.
FACTS*fn2 [Petitioner] met Sandra Smith in July 1999 and began living with her in her apartment not long after. In October 1999, after she decided she no longer wanted to live with him, Smith took [petitioner]'s things to his mother's house, then told him he could come by to get his computer. When [petitioner] came by, he became upset when he discovered Smith had recently called another man. [Petitioner] came downstairs with a baseball bat to where Smith and her brother were sitting on the couch, and after telling Smith's brother "you better not get in my business," he started swinging the bat. He struck Smith's brother on the arm with the bar, then starting punching Smith when she grabbed the bat. During the melee, Smith's head struck the entertainment center, and [petitioner] bit off the tip of her brother's thumb.
Four months later, in February 2000, [petitioner] was living with another woman, Aretha Armstrong. On February 19, [petitioner] and Armstrong argued while walking back from a store because [petitioner] believed Armstrong was cheating on him. [Petitioner] became very angry and tried to hit Armstrong on the head with a bottle of brandy. She managed to block the blow with her arm and suffered a swollen wrist. As the argument continued, [petitioner] struck Armstrong in the eye with his fist and choked her.
As they continued walking, they encountered a friend of Armstrong, who took Armstrong home, then drove her to the home of her best friend, Kelly Clark. As Armstrong was getting in her friend's car, [petitioner] was very mad and told Armstrong he would "bear [her] ass in front of everybody."
Later that night, [petitioner] came to Clark's apartment looking for Armstrong. A confrontation ensued, during which [petitioner] fired a gun a number of times, killing Clark's boyfriend, Lamonte Hammond, and wounding another occupant of the apartment, Chico Stokes.
[Petitioner] was originally charged in two separate cases, one based on the events in October 1999 (case No. 99F10330) and one based on the events in February 2000 (case No. 00F01412). In March 2001, the court granted the People's motion to consolidate the cases. On the first day of trial in December 2001, [petitioner] moved to sever the cases, but the court denied the motion, finding "good cause for severance has not been shown."
[Petitioner] testified at trial and admitted hitting Smith's brother with a bat and biting his thumb. He also admitted shooting Hammond and Stokes, although he claimed he shot them in self-defense after grabbing Hammond's gun.
The jury found [petitioner] guilty of first degree murder in the shooting of Hammond, attempted murder in the shooting of Stokes, inflicting corporal injury on a cohabitant or former cohabitant for striking Smith and Armstrong, and assault with a deadly weapon for hitting Smith's brother with a bat. The trial court found [petitioner] had suffered a prior serious felony conviction for assault with a firearm. The court sentenced [petitioner] to an aggregate prison term of 127 years to life.
People v. Howard, slip op. at 2-4.
STANDARDS FOR A WRIT OF HABEAS CORPUS
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 ...