The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Teng Yang, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Yang is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Red Rock Correctional Center, Elroy, Arizona.
Respondent has answered, and Yang has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In August 2003 Yang was convicted in Butte County Superior Court of Assault with a Semiautomatic Firearm (Cal. Penal Code, § 245(b).) The jury also found defendant personally used a firearm (Cal. Penal Code § 12022.5(a)(1)), personally inflicted great bodily injury (Cal. Penal Code § 12022.7(a)), and committed the offense for the benefit of a street gang (Cal. Penal Code § 186.22(b)). The trial court imposed a 32-year prison sentence, consisting of consecutive upper terms on the assault count and the street-gang enhancement. On appeal, the California Court of Appeal, Third District, reversed the street-gang enhancement for insufficient evidence, but otherwise affirmed Yang's convictions and sentence.*fn2 After the California Supreme Court denied review, the Supreme Court granted certiorari, vacated the California Court of Appeal's decision, and remanded the matter for further consideration in light of Cunningham v. California, 549 U.S. 270 (2007).*fn3 In turn, the California Court of Appeal remanded the matter for re- sentencing in accordance with the decision of the California Supreme Court in People v. Sandoval, 161 P.3d 1146 (Cal. 2007).*fn4
On remand the Butte County Superior Court, after striking the enhancement for infliction of great bodily injury, sentenced Yang to a total prison term of 19 years, consisting of consecutive upper terms on the assault conviction and the enhancement for the use of a firearm. On appeal, the California Court of Appeal affirmed Yang's conviction and sentence,*fn5 and the California Supreme Court denied review on February 25, 2009. Yang timely filed his Petition in this Court on September 18, 2008, his First Amended Petition on April 3, 2009, and his Second Amended Petition on December 15, 2009.
The facts underlying Yang's conviction are well known to the parties and are set forth in the decision of the California Court of Appeal in both Yang I and Yang II.*fn6 They are not repeated herein, except to the extent the facts are necessary to an understanding of this decision.
II. GROUNDS RAISED/DEFENSES
In his Second Amended Petition, Yang raises the same four grounds that he raised in his Amended Petition, plus a fifth ground for which he was granted leave to add:*fn7 (1) the trial court erred in not ordering that new counsel be appointed to investigate whether Yang's trial counsel was ineffective for failing to request testing of Yang's jacket for the presence of gunshot residue, and that failure rendered Yang's assistance of counsel ineffective; (2) the trial court erred in not excluding Yang's statement to the police under Miranda;*fn8 (3) his due process rights were violated by the trial court's failure to bifurcate the gang enhancement charge; (4) the trial court erred in giving the jury a special instruction on gang membership; and (5) the trial court erred in imposing the upper limit term on both charges of which he was convicted based upon the same evidence. Yang raised his first four grounds in Yang I and II, and his fifth ground in Yang III.
Respondent does not assert any affirmative defense in his Response.*fn9 In addition to the ground he was granted leave to add (the fifth ground), Yang also included five additional grounds in his Second Amended Petition.*fn10 Contemporaneously with filing his Second Amended Petition, Yang also filed a motion to stay and hold the Second Amended Petition in abeyance while he exhausted the five additional grounds (six through ten) in the state courts.*fn11 This Court denied Yang's motion and ordered the Respondent to answer the first five grounds.*fn12
Yang had to obtain leave of this Court to file his Second Amended Petition.*fn13 Yang was granted leave to file his Second Amended Petition, but only to add his fifth ground.*fn14 Yang's Second Amended Petition was procedurally unauthorized to the extent that he did not obtain leave of this Court to add the five additional grounds and, as such, is subject to dismissal.*fn15 Because this Court may not consider claims that have not been fairly presented to the state courts,*fn16 the Order of this Court denying Yang's motion to stay and hold the Second Amended Petition in abeyance and directing the Respondent to answer only the first five grounds in the Second Amended Petition, was the functional equivalent of dismissing the sixth through tenth grounds.*fn17 Those grounds having been effectively dismissed, only the first five grounds are properly before this Court.
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."*fn18 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."*fn19 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.*fn20 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.'"*fn21 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.*fn22 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.*fn23 "[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.'"*fn24 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.*fn25 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.*fn26
Most recently in Richter, the Court took great pains to fully underscore the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens,J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn27
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn28 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn29 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn30
Ground 1: Test of Jacket for Gunshot Residue
After the verdict was entered, Yang moved for a new trial for insufficiency of the evidence. Yang also requested that the trial court: (1) order the jacket Yang was wearing be subjected to a gunshot residue ("GSR") test and (2) the appointment of counsel to investigate whether by failing to request a GSR test prior to trial his trial counsel had failed to provide him effective assistance of counsel. The Butte County Superior Court denied Yang's motion, and the Court of Appeal affirmed, holding:
The Court Properly Refused Defendant's New Trial
Motion And Request For Appointment Of Counsel Defendant argues the trial court erred in denying his motion for a new trial based on newly discovered evidence and also in failing to appoint him counsel to investigate whether his attorney failed to provide him with competent assistance in this case. We reject both arguments.
After the jury rendered its verdict, defendant filed an ex parte application to request money to have an expert test defendant's jacket for gunpowder residue. In support of this motion, defendant's counsel declared, "It is imperative that a gunshot residue expert be employed to assist in [sic ] the defendant in the prosecution of his petition for a new trial. It is undisputed that the defendant was wearing the jacket seized by the Chico Police department and admitted into evidence at the jury trial at the time of the shooting. It is also undisputed that the person who shot the victim in this case fired a minimum of 10 rounds from a semi-automatic pistol. Clearly, the shooters [sic] clothing would be covered by gunshot residue. We believe a [sic ] examination of the defendant's jacket would show the lack of gunshot residue. Such evidence would justify the granting of a new trial as a different result at a new trial would surely occur." The trial court denied this motion.
Defendant followed up this motion with a motion to have the jacket released to him, citing the same facts in his attorney's declaration. The trial court took this motion as a motion for a new trial based on the claim the results of the gunshot residue test constituted new evidence. During oral argument, defendant's counsel invited the court to appoint counsel to examine whether he failed to provide competent assistance to his client by failing to have the jacket tested before or during trial. The court rejected the new trial motion finding the decision not to test the jacket appeared to be a deliberate tactical decision by counsel. The court also refused to appoint counsel for defendant to investigate the ineffectiveness of defense counsel, concluding that counsel's decision not to test the jacket did not fall to the level of inadequate or incompetent assistance.
Motion For New Trial As the trial court did, we shall assume a test of the jacket would have uncovered an absence of gunshot residue. The question then becomes would the absence of gunshot residue constitute new evidence such that a new trial should have been ordered.
Under Penal Code section 1181, "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable."
"'In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: "'1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.'"' [Citation.] '[U]nless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal.' [Citation.]" (People v. Beeler (1995) 9 Cal.4th 953, 1004.)
In People v. Martinez (1984) 36 Cal.3d 816, 819, the jury convicted defendant of a commercial burglary. The prosecution's case "rested entirely on" the fact that the defendant's palm print was found on a drill press located on the property the morning after the burglary. (Id. at p. 822.) The evidence presented at trial was that the press had been cleaned, dried, and freshly painted the afternoon of the burglary, and there was thus no legitimate explanation for the presence of the defendant's palm print on the item. (Id. at pp. 819-820.) In support of his motion for a new trial, the defendant presented the affidavit of the shop foreman that the drill press had been painted at least a couple days prior to the burglary, at a time when the defendant had innocent explanations for having touched the press. (Id. at pp. 820-821.) Further, the witness averred that the drill press could not have been painted the day of the burglary because the paint used takes at least 10 to 12 hours to dry. (Id. at p. 821.) The trial court denied the motion concluding defendant's counsel failed to use due diligence to locate the foreman and the evidence would not render a different result probable on retrial. (Ibid.) The Supreme Court reversed. (Id. at p. 827.) The court concluded that the new evidence was central to this case and "exposed a serious gap in the prosecution's proof." (Id. at p. 822) The court concluded, "Numerous cases hold that a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant. [Citations.]" (Id. at p. 823.) This newly discovered evidence fit this criterion. (Ibid.)
The court then turned to the question of diligence. (People v. Martinez, supra, 36 Cal.3d at p. 824.) The court concluded that it should have been apparent to the defense that the foreman might have evidence relevant to the case. (Id. at p. 824.) However, the court continued, "We do not believe, however, that this lack of diligence is a sufficient basis for denial of defendant's motion. The requirement of diligence serves 'a public policy which demands that a litigant exhaust every reasonable effort to produce at his trial all existing evidence in his own behalf, to the end that the litigation may be concluded.' [Citations.] That policy, however, itself serves a more fundamental purpose-the determination of guilt and innocence. Loyal to that higher purpose, some California cases suggest that the standard of diligence may be relaxed when the newly discovered evidence would probably lead to a different result on retrial.[fn.] [Citations.] On the other hand, we have found none which declare that although newly discovered evidence shows the defendant was probably innocent, he must remain convicted because counsel failed to use diligence to discover the evidence." (Id. at p. 825.) "Once a trial court determines that a 'defendant did not have a "fair trial on the merits, and that by reason of the newly discovered evidence the result could reasonably and probably be different on a retrial,"' [citation], it should not seek to sustain an erroneous judgment imposing criminal penalties on the defendant as a way of punishing defense counsel's lack of diligence." (Ibid.) "The focus of the trial court, however, should be on the significance and impact of the newly discovered evidence, not upon the failings of counsel or whether counsel's lack of diligence was so unjustifiable that it fell below constitutional standards." (Id. at p. 826.)
As explained in People v. Dyer (1988) 45 Cal.3d 26, 52, the holding in Martinez, does not mean "a defendant is entitled to a new trial whenever evidence that was not presented at a previous trial is sought to be offered on retrial. The evidence generally must be newly discovered." Further, the Dyer court explained the rule in Martinez, comes into play only when the prosecution's case is extremely weak. (Dyer, at p. 52.)
Here, the trial court did not abuse its discretion in concluding the absence of gunshot residue on defendant's jacket could not be considered newly discovered evidence. First, defendant was on notice of the potential importance of this fact from his initial interview by the detectives, where they agreed the absence of gunshot residue might clear his name. Further, this jacket was admitted into evidence in this case, as was the fact that the shooter fired many shots from a semiautomatic handgun.
Further, in this case, unlike in Martinez, the entire case did not hinge on a single piece of circumstantial evidence, whose existence was directly contradicted by the "new" evidence. Here, the evidence defendant was the shooter was elicited from four separate eyewitnesses. This evidence was countered by vigorous cross- examination and the testimony two different eyewitnesses claiming defendant was not the shooter.
On the other hand, the new evidence of the lack of gunshot residue may or may not have demonstrated defendant was the shooter. The residue could have been washed off or destroyed by defendant or dissipated through the passage of time.
In short, this is not a case where defendant was denied a fair trial on the merits, and that by reason of newly discovered evidence the result could reasonably and probably be different on retrial. (People v. Martinez, supra, 36 Cal.3d at p. 825.) Rather, this evidence was known to defendant, readily available to him through the exercise of reasonable diligence before and during trial, and would not render a different result probable on the retrial of this case. The trial court thus did not err in denying defendant's motion.
Request For Counsel We turn to defendant's request for independent counsel to examine whether his attorney was ineffective for not testing the jacket.
Our Supreme Court has stated: "'When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a "colorable claim" of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial.'" (People v. Smith (1993) 6 Cal.4th 684, 692-693.) The defendant must establish "trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings." (Id. at p. 691.) The court held, "substitute counsel should be appointed when, and only when, . . . in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." (Id. at p. 696 .) The decision to appoint new counsel lies in the sound discretion of the trial court and "will not be overturned on appeal absent a clear abuse of that discretion." (Ibid.)
Here, the trial court did not abuse its discretion in concluding defendant failed to present a colorable claim of inadequacy of defense counsel in deciding not to test the jacket for gunshot residue. The issue of the decision to test or not test the jacket relates to courtroom events observed by the trial court. The trial centered on the testimony of four eyewitnesses who testified defendant was the shooter. Defendant's counsel ably cross-examined those witnesses and pointed out many inconsistencies in their testimony and their prior statements as we have detailed above. Furthermore, defendant presented the testimony of two witnesses who claimed defendant was not the shooter. As the case was submitted to the jury, no physical evidence tied defendant to the crime.
In this case, the absence of gunshot residue on the jacket would have little or no probative value. First, there was no evidence presented to the trial court that gunpowder residue would or would not be deposited on defendant's jacket if he fired the gun. It was only the unsubstantiated surmise of counsel that this would occur. Further, no evidence established that any gunshot residue that was deposited on the jacket would or would not have dissipated on its own, or might have been removed by actions of defendant or others during the nine days between the shooting and the date the jacket was seized. Given this, the absence of residue would have proved very little. On the other hand, a positive test of the jacket for gunshot residue would have presented the only physical evidence tending to connect defendant with the shooting. Under the discovery statutes, defendant would have been faced with a decision as to what to do with that damning physical evidence. Further, the mere fact that defendant obtained the jacket to inspect it would have alerted the prosecution to the possibility of this damning evidence.
Thus, faced with the potential the jacket did have gunshot residue on it, and the limited probative value of a negative test, it was a prudent tactical decision for the defense to forego testing of the jacket. The trial court did not err in this conclusion.*fn31
Although it is not entirely clear, it does not appear that Yang is challenging the sufficiency of the evidence in this Court. In his Petition to this Court, Yang contends the trial court erred in denying his request for a GSR test of the jacket or, in the alternative, to appoint new counsel to investigate the effectiveness of his trial counsel.
In upholding the trial court's denial of Yang's request to order a GSR test of the jacket, the California Court of Appeal ruled solely upon the basis of the requirements of California law for ordering a new trial. Whether the California court properly applied state law is of no concern to this Court.*fn32 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn33 "[The Supreme Court has] long recognized that a mere error of state law is not a denial of due process."*fn34 "[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.'"*fn35 "'Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.'"*fn36 Whether Yang was entitled to a new trial in this case did not raise an issue of constitutional dimension.
To the extent that Yang claims he was denied the effective assistance of counsel, that right, embodied in the Sixth Amendment, does present a question of constitutional dimension cognizable by this Court in this proceeding.*fn37 Under Strickland, to demonstrate ineffective assistance of counsel, Petitioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn38 A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn39 Yang must show that his trial counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn40 An analysis that focuses "solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."*fn41
Strickland and its progeny do not mandate that this Court act as a "Monday morning quarterback" in reviewing tactical decisions.*fn42 In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires ...