The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2007, a jury convicted petitioner of two counts of attempted murder (Cal. Penal Code §§ 664, 187), discharging a firearm from a vehicle (Cal. Penal Code § 12034(c)) and shooting at an occupied vehicle (Cal. Penal Code § 246). The jury also found gang and firearm enhancements to be true. (Cal. Penal Code §§ 186.22(b)(1), 12022.53(c), 12022.53(e)(1)). Petitioner is serving a sentence of 60 years to life, plus 50 years.
This action is proceeding on the original petition filed August 19, 2010. Petitioner raises the following claims: 1) insufficient evidence; 2) jury instruction error; 3) trial court made errors in evidentiary rulings; 4) ineffective assistance of counsel; 5) violation of the right to confront witnesses; and 6) prosecutorial misconduct. After carefully considering the record, the undersigned recommends that the petition be denied.*fn1
II. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
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 presented in the State court proceeding.
Under section 2254(d)(1), a state court decision is "contrary to" clearly
established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
Respondent's answer contains a factual summary. In his reply to the answer,
petitioner states that he "agrees" with this summary. (Dkt. No. 24 at 10.) After independently reviewing the record, the undersigned finds respondent's summary to be accurate. Accordingly, it is adopted below with some minor changes.
At approximately 10:30 p.m. on April 12, 2005, Rasheed Washington drove from his grandmother's house to Elm Street, between Grand Avenue to the south and Harris Avenue to the north, in the Del Paso Heights section of Sacramento to meet up with his cousin, Dellanthony Bradford, and a friend, Ivory King. ( Reporter's Transcript ("RT") at 90-95, 124, 146-47.) When Washington arrived, he stopped his car in the middle of the street facing south toward Grand Avenue, while Bradford's car was parked facing north toward Harris Avenue. Bradford came over to the driver's side of Washington's car to talk with him while King remained seated in the passenger seat of Bradford's car listening to music. (Id. at 97-98, 124-29, 149-50).
Washington and Bradford had been talking in the street for about five minutes when a dark-colored car with a white top drove by heading south toward Grand Avenue. (Id. at 102-04, 129-31, 150-52, 259.) Right after the car went past, Washington heard gunshots and saw flames and a gun sticking out from the rear window on the passenger side of the car. (Id. at 101-05.) Washington put his car in reverse and sped backward down the block, while Bradford ran from the scene. (Id. at 105-06.) When it looked like the car was gone, Washington drove back down the street and started looking for his cousin. (Id. at 106.)
King, who had also heard the gunshots, leaned over the passenger seat, put Bradford's car in gear, turned the steering wheel, and pressed the gas pedal with one of his hands to get away. (Id. at 128-32.) After reaching the corner of Elm Street and Harris Avenue, King moved over to the driver's seat, turned the car around and drove back to where the shooting had occurred. (Id. at 132-33.)
When Bradford heard the shots, he took off running through a field and then ran down an alley toward Harris Avenue. (Id. at 150, 153.) As he was running, Bradford realized that he had been shot. (Id. at 154.) Within a couple of minutes, Bradford heard police sirens and saw police lights and he headed back to Elm Street holding his right hand, which had been hit by a bullet and was bleeding. (Id. at 108-09, 130, 135, 154-58.) Bradford laid down on the ground in the front yard of the house at 3813 Elm Street where brothers Brandon Boyer and Greg Speece lived. (Id. at 109-10, 243, 249, 530-31.)
At that time, Office John Hosmer of the Sacramento Police Department was just around the corner in his police car in the parking lot of the Grant High School Police Department, located on the north side of Grand Avenue between Huron and Elm Streets and south of Harris Avenue. (Id. at 164-65.) Hosmer heard what sounded like five to ten gunshots in rapid succession coming from east of his location. (Id. at 166, 169.) Consequently, with all of the lights to his vehicle turned off, Hosmer pulled his patrol car to the front entrance of the parking lot where he had an unobstructed view to the east and west down Grand Avenue. (Id. at 166.)
Within a matter of seconds of hearing the gunshots, Hosmer saw car headlights coming south down Elm Street toward Grand Avenue. (Id. at 167.) Hosmer observed the car turn westbound on Grand Avenue and then northbound on Huron Street. (Id. at 167.) At that point, Hosmer turned on the headlights for his car and started following the vehicle. (Id. at 168.) As Hosmer was trying to catch up to the car, it pulled over and parked in front of a residence at 3840 Huron Street. Two black males wearing dark clothing (i.e., black, dark blue, or dark green) got out of the vehicle and walked to the south side of the home by the fence. (Id. at 168, 171.) One of the men appeared to have a long object in his hand. (Id. at 170.) After tossing the long object over the fence, both men climbed over the fence. (Id. at 171.)
Hosmer reported, via radio, that the two men were fleeing eastbound from that location. He then drove up Huron Street to Harris Avenue and proceeded into the alley between Huron and Elm streets. (Id. at 173.) Hosmer shined his light down the alley and saw a black male climbing over the back fence of the residence at 3841 Elm Street, knocking down a few fence boards in the process. This person "match[ed] somewhat" the description of the two men Hosmer had seen in front of the residence at 3840 Huron Street. (Id. at 173-74.)
In an effort to try and contain the two fleeing suspects as best he could until other units arrived, Hosmer proceeded to the intersection of Elm Street and Harris Avenue and waited to see if anyone "popped out onto the street at that point." (Id. at 174, 177.) Hosmer waited for thirty to sixty seconds, but he did not see anyone appear. (Id. at 176.) He then went back and shined his spotlight down the alley again for another thirty to sixty seconds, but Hosmer did not see anyone. However, when Hosmer returned to the intersection of Elm Street and Harris Avenue, he saw petitioner squatting down on the sidewalk. (Id. at 177-78.) Hosmer asked petitioner what he was doing, and petitioner told the officer he had just been shot at. (Id. at 178.)
Hosmer then headed back to the alley for a third time. This time because the perimeter was set up and the area was contained, Hosmer got out of his vehicle and headed southbound through the alley with his flashlight, looking in the backyards of the adjoining homes. (Id. at 179.) In the yard at 3840 Huron Street where Hosmer had observed the two men jump the fence and the one man toss a long object over the fence, he spotted a rifle in the southwest corner of the yard. (Id. at 179-80.)
Hosmer went into the yard and retrieved a .22 Lightning rifle along with a black jacket that was on the ground about 10 feet away from the gun. (Id. at 180, 272.) Hosmer checked to see if the rifle was loaded and found a live round in the chamber. (Id. at 185.) As Hosmer was securing the weapon, the sheriff's helicopter, which was overhead at the time, asked Hosmer over the radio if there were any plain clothes officers in the yard with him. The officers in the helicopter then told Hosmer that there was another person in the yard on the north side of a shed. (Id. at 185-86.)
Around that same time, Officer Randy Lozoya and his partner, Orland Morales, responded to Hosmer's call and went to 3840 Huron Street where they found a late model white and blue Chevrolet Caprice against a chain link fence. (Id. at 260-61, 292.) The car's engine was still running. (Id. at 262, 292.) Lozoya and Morales rushed into the backyard through the gate on the north side of the house and, along with Hosmer, they approached the shed in the yard. The officers spotted co-defendant, who had been hanging onto the fence, sweating and seemingly exhausted, and ordered him to get down on the ground, and then they arrested him. (Id. at 185-86, 262-63, 266-67, 292-94.) Co-defendant's hands were covered in what appeared to be bodily fluids, and, after he was taken to the patrol car, Morales saw co-defendant make physical movements like he was vomiting on more than one occasion. (Id. at 294-95.) However, Hosmer was not able to positively identify either petitioner or co-defendant as the two men who jumped out of the car and hopped the fence into the backyard of the house at 3840 Huron Street. (Id. at 187.)
When Lozoya was leaving the backyard through the gate, he saw a .38 snub nose revolver laying on the grass to the north side of the driveway in the front yard. (Id. at 266, 269.) Lozoya examined the weapon and noticed that it contained four empty shell casings. (Id. at 267-68.)
Officer Keith Hoversten and his partner arrived on the scene within a minute and took up a position on the perimeter of the area near the corner of Grand Avenue and Elm Street. (Id. at 242.) Almost immediately, a group of people flagged down the officers and told them that someone (Bradford) had been shot and that the victim was at a house on Elm Street. (Id. at 242.) The officers then went to that location. (Id. at 242-43.) Hoversten asked Washington if he had seen what happened and if he knew who had shot at them. Washington told the officer that "he figured it was probably the Nogales Crips because there had been a feud going on over the last few months between Nogales and Elm Street." (Id. at 246.)
Sergeant Pamela Seyffert also responded to Hosmer's call. When she arrived at the intersection of Elm Street and Harris Avenue, she encountered petitioner crouched down in a lot of unkempt weeds or grass in the yard of the house on the southwest corner. (Id. at at 301-03, 585, 590-92.) From the moment Seyffert first spotted petitioner in the light from her patrol car's headlights, he looked "kind of shocked" and "nervous." (Id. at 303.) Seyffert pulled over and searched petitioner for weapons before placing him in the backseat of her patrol car, without handcuffs, while she ran computer checks on the name he had provided to her. (Id. at 302--04.) While Seyffert was running those checks, she heard noises which sounded like petitioner "was shuffling his feet around a lot" in the back passenger compartment. (Id. at 304.) Subsequently, petitioner was moved to another police car, and Officer Tim McMahan transported him to the Hall of Justice to be interviewed. (Id. at 304-05, 331.)
Immediately after petitioner was transferred to McMahan's police vehicle, Seyffert searched the back passenger compartment of her patrol car. (Id. at 306.) Seyffert found what looked like a baby's sock shoved up between the Plexiglas and the steel cage at foot level. (Id. at 308.) Inside the sock, Seyffert found two .40 caliber Speer model bullets. (Id. at 308-10.)
Later that night, Officer Mitchell Marquez found three expended shell casings in the middle of Elm Street just south of the driveway to the home of 3813 Elm Street. (Id. at 251.) One of the casings was a .40 caliber casing manufactured by Speer. (Id. at 255-56.) The other two were .22 caliber casings with the letter "C" stamped on them. (Id. at 256-57.) Marquez also found a bullet hole in the trunk of Bradford's car. (Id. at 157-59, 258.) Additionally, during the search of the backyards along the alley, the police also found a loaded Sig .40 caliber handgun near the gate in the southeast corner of the yard at 3837 Elm Street, the house just to the south of 3841 Elm Street. (Id. at 189-90.)
Tanya Atkinson, an identification technician for the Crime Scene Investigations Unit, tested both petitioner and co-defendant for gunshot residue samples. (Id. at 354-55.) She recalled that co-defendant had bodily fluid, which she believed was mucous, on his hands when she tested him, and she did her best to "work around" the fluid. (Id. at 356, 363.)
Kathleen Modeste, who worked in forensic identification for the police department, lifted six fingerprints from the Chevrolet Caprice found in front of the house at 3840 Huron Street. (Id. at 369-71.) Modeste also tested the car for gunpowder residue, and she found a bullet casing on the left rear floorboard of the car. (Id. at 371-74, 379-80.)
At the police station, investigators examined two cell phones that had been recovered at the scene. (Id. at 338-48.) One phone, a Samsung model, had been recovered from petitioner and was included in his property bag that had been taken to the station by McMahan. (Id. at 274-75, 333, 340.) While at the station, petitioner told police that the phone number for his cell phone was 912-7436. (Id. at 340-41.) The police checked the outgoing call log for this phone and found that a call had been made at 9:30 p.m. on April 12, 2005, to the number of 289-8391, which turned out to be co-defendant's cell phone number. (Id. at 341, 343, 346, 498-99.) Police also discovered that earlier the same evening, at 5:44 p.m., a text message had been sent to petitioner's phone which read, "What's up, Crip?" (Id. at 346.)
Co-defendant's cell phone, a Nokia model, had been found in one of the pockets of the black jacket that Hosmer found by the .22 Lightning rifle in the backyard of 3840 Huron Street. (Id. at 180, 272-73, 343.) Police verified that the phone number for this cell phone was 289-8391, the same number noted in the call log for petitioner's cell phone at 9:30 p.m. on April 12, 2005. (Id. at 347, 499.) Not surprisingly, the incoming call log for this phone listed a call from petitioner's cell phone at 9:31 p.m. on April 12, 2005. (Id. at 347-48.) Additionally, the name listed on this cell phone was "RAH 1." (Id. at 348.)
At trial, Edward Pollack, a criminalist with the Sacramento County Crime Laboratory, was qualified as an expert witness regarding the testing and analysis of gunshot residue. (Id. at 397.) Characteristic gunshot residue particles were found as follows: in multiple locations within the Chevrolet Caprice (i.e., the steering wheel, and all four doors) (id. at 416-21); on three separate areas of the black coat that was found in the backyard of the house at 3840 Huron Street (id. at 421-24); and, on a long-sleeved T-shirt and sweat shirt that were taken from petitioner. (Id. at 275, 425-28.)
Except for one lead particle on the right palm and three lead particles on the left back hand, no gunshot residue was found on the hands of petitioner's co-defendant. (Id. at 415). However, the criminalist testified that the lack of gunshot residue on someone's hands did not preclude the possibility that someone fired a weapon or was near where a weapon was fired. (Id. at 415.)
Petitioner had one lead and antimony particle on the back of each hand. (Id. at 415-16.) The combination of lead and antimony could be associated with gunshot residue, but there were other environmental sources that could account for the presence of that combination. (Id. at 416.) At the beginning of his testimony, the criminalist testified that petitioner had "zero lead" on his hands. (Id. at 415.) However, later, the criminalist testified that petitioner also had 43 lead particles on the right back hand, 30 lead particles on the right palm, 23 lead particles on the left back and 28 on the left palm. (Id. at 416.) The criminalist testified that the lead particles could be caused by environmental sources other than handling a weapon. (Id. at 416) On cross-examination, when asked "isn't it true that your result was there are no lead characteristic gunshot residue particles containing lead, barium, and antimony on the samples collected from the hands of [petitioner]," the criminalist answered, "yes, sir." (Id. at 445.)
Michael Saggs, another criminalist with the Sacramento County Crime Laboratory, was qualified as an expert witness regarding firearm and tool mark analysis. (Id. at 470.) Saggs determined that the bullet casing Modeste found on the left rear floorboard of the Chevrolet Caprice was discharged in the .22 caliber Lightning rifle that Hosmer found in the backyard at 3840 Huron Street. (Id. at 475-79.) Saggs also conclusively determined that one of the expended .22 caliber shell casings found by Marquez in the middle of Elm Street was discharged in the .22 caliber Lightning rifle. (Id. at 256-57, 479-80.) Regarding the other .22 caliber shell casing found by Marquez, Saggs was not able to make a conclusive identification. However, the marks were "very suggestive that the cartridge case was discharged" by that gun, and Saggs testified that the second expended .22 caliber casing from the street "was probably discharged in the [.22 caliber lightning] rifle" found by Hosmer." (Id. at 483-84.)
Saggs also examined and tested the .40 caliber semiautomatic handgun that was found near the gate in the southeast corner of the yard at 3837 Elm Street. (Id. 189-90, 480-82.) Saggs compared a test round fired from that gun to the expended .40 caliber casing found by Marquez in the middle of Elm Street. He concluded that the expended casing found by Marquez had been discharged in the .40 caliber handgun found by police that night. (Id. at 481-82.)
In addition, Saggs examined the bullet that had been surgically removed from Bradford's hand and determined that it was a .38 caliber bullet. (Id. at 157, 487-88.) When asked if he could identify the manufacturer of the bullet, Saggs indicated that it was consistent with some ammunition produced by Winchester, and he could not identify any other possible manufacturers. (Id. at 489.) Saggs also noted that the ammunition inside of the .38 caliber snub nose revolver found by Lozoya was produced by Winchester. (Id. at 266-69, 489-90.)
Adlert Robinson, a former 30 year veteran of the Sacramento Police Department and a current investigator with the Sacramento County District Attorneys Office, who spent 11 years as a detective with the Sacramento Police Department's Gang Suppression Unit, was qualified as an expert witness regarding gangs. (Id. at 500, 511.) According to Robinson, the Bloods and the Crips are both criminal street gangs, composed primarily of African Americans that started in the late 1970s or early 1980s in Southern California and that migrated to the Sacramento area in the mid 1980s. (Id. at 511, 514.) As Robinson explained, Bloods and Crips are really "umbrella groups" that consist of several smaller gangs that are usually divided by neighborhoods, or even particular streets (i.e. Oak Park Bloods, Del Paso Heights Bloods, Meadowview Bloods, Nogales Gangster Crips, 29th Street Crips, and Valley High Gangster Crips). (Id. at 512-13.)
Regarding the Del Paso Heights Bloods, Robinson indicated that there are actually even smaller groups (i.e., "a subset of a subset") of gang members, including a subset known as the Elm Street Bloods. (Id. at 515-16.) Robinson estimated that there were approximately 30 validated members of the Elm Street Bloods in April 2005 and that the vast majority of those gang members lived around the area of Elm Street and Grand Avenue. (Id. at 516.)
Another gang, the Nogales Gangster Crips, controlled an area that was about a quarter mile away from the "turf" occupied by the Elm Street Bloods. (Id. at 516.) In April 2005, there were 20 validated members of the Nogales Gangster Crips. (Id. at 520.) Per Robinson, over the years, these two gangs would interact peacefully with each other for periods of time, but occasionally, a conflict would arise between two gangs, which would then lead to a "war" (i.e., acts of violence, including murder) between the gangs. (Id. at 516-17, 521.)
For instance, on November 29, 2002, Jovan Jordan, a Nogales Gangster Crip, pulled out a handgun and shot and killed two members of the Del Paso Heights Bloods after a verbal altercation occurred at a pizza parlor. (Id. at 522.) As another example, in or around May 2000, three members of the Nogales Gangster Crips got into a fight at school with some members of the Del Paso Heights or Elm Street Bloods. A few days later, the Crips located a person who was known to be in the company of Del Paso Heights or Elm Street Bloods but who was not a validated gang member himself. The Crips shot and killed this person while he was sitting in his car. (Id. at 523.)
In January 2005, another incident occurred which caused a "war" between the gangs where "they were shooting back and forth at each other." (Id. at 528-29.) Specifically, a member of the Nogales Gangster Crips known as Baby Rah Rah was shot and killed during an alleged drug deal gone bad. (Id. at 528.) The word on the street was that the Elm Street Bloods were responsible for Baby Rah Rah's death. (Id. at 529-29.) According to Robinson, because of the gang culture, the Crips then needed to retaliate in order to avoid sending a message to other gangs that they were weak and could be taken advantage of. (Id. at 529-30.) Between January 2005 and April 2005, four known drive-by shootings occurred in the neighborhoods of Nogales and Elm Street. (Id. at 530.)
Robinson testified that Brandon Boyer and Greg Speece, who lived in the house at 3813 Elm Street where Bradford went after being shot, were both members of the Elm Street Bloods. (Id. at 530-31.) He also indicated that petitioner had been a self-admitted member of the Nogales Gangster Crips since 1991 and that another self-admitted member of that gang, Kenyatta Hudson, named both petitioner and co-defendant as members of the Nogales Gangster Crips in 1993. (Id. at 532-33.) In addition to naming petitioner and co-defendant as gang members, Hudson also told police their gang monikers: Hudson indicated that petitioner was known as Rah Rah, and co-defendant was known as Mr. Magoo. (Id. at 533, 536.)
Robinson also testified about the gang tattoos on petitioner's body. Specifically, petitioner had the following tattoos: 1) the word "Nogales" was tattooed across his upper back; 2) the word "Crips" was tattooed across his lower back; 3) a picture of a person with "Rah Rah" below it was tattooed on his left arm; and 4) a picture of a person holding guns and a "rest in peace" roll call list with the street monikers (i.e., "Big Happy," "Cig Head," and "Tiny Loc") and dates of birth and death of former gang members who had died in the past. The tattoo also had an "NC" on it for Nogales Crips. (Id. at 534-35.)
Regarding co-defendant, both the Sacramento Police Department and the California Statewide Law Enforcement Agency had him listed as a member of the Nogales Gangster Crips, and both agencies knew his moniker was "Mr. Magoo." (Id. at 536.) As for tattoos, co-defendant had the following markings: 1) the word "Nogales" was tattooed across his chest; and 2) the letter "N" for Nogales on one arm and the letter "C" for "Crips" on the other arm. (Id. at 536-37.)
In Robinson's expert opinion, the shooting in this matter was done for the benefit of the Nogales Gangster Crips. (Id. at 537.) The fact that the shooting was a drive-by was a significant factor in Robinson's determination. The same is also true of the fact that the victims were parked basically in front of the Boyer-Speece residence, which Robinson indicated was "basically a secondary hang out for the Elm Street Bloods." (Id. at 538.) Robinson further indicated the fact that the crime occurred in the heart of the Elm Street Bloods' territory benefitted the Nogales Gangster Crips because it showed that the Crips were "not afraid to go into another rival's neighborhood to take care of what they intend[ed] to do or try to find someone or a target who they want to get. It shows that they have no fear of Elm Street." (Id. at 539.)
A. Alleged Insufficient Evidence
Petitioner alleges that there was insufficient evidence to support all of his convictions.
In the answer, respondent argues that all of petitioner's claims alleging insufficient evidence, but for the claim alleging insufficient evidence of the gang enhancement, are procedurally barred. Respondent argues that in denying petitioner's habeas corpus petition raising these claims, the Sacramento County Superior Court found these claims barred pursuant to In re Dixon, 41 Cal.3d 756 (1953) because they should have been raised on direct appeal. (See Respondent's Lodged Document 11, order by Superior Court.) The Superior Court also cited In re Lindley, 29 Cal.2d 709, 723 (1947), for the proposition that a claim alleging insufficient evidence is not a proper issue for habeas review. (Id.)
The California Court of Appeal and California Supreme Court denied petitioner's habeas petitions without comment or citation. (Respondent's Lodged Documents 13, 15.) Accordingly, the undersigned "looks through" these decisions to the last reasoned decision, i.e. the Superior Court decision, to determine whether these claims are procedurally barred. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
As a general rule, a federal habeas court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). In order for a state procedural rule to be found independent, the state law basis for the decision must not be interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). To be deemed adequate, the rule must be well established and consistently applied. Poland v. Stewart, 169 F.3d 575, 577 (9th Cir. 1999). An exception to the general rule exists if the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
Once the state has pleaded the existence of an independent and adequate state procedural ground as an affirmative defense, as respondent has in this case, the burden shifts to petitioner to place the adequacy of that procedural rule in issue. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). In order to do so, petitioner must "assert[ ] specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. at 586. Thereafter, the state retains the ultimate burden of proving adequacy of the asserted bar. Id. at 585--86.
In the traverse, petitioner does not address the issue of the adequacy of the Dixon rule. Instead, he argues he should be excused from the default because his appellate lawyer refused to raise the at-issue insufficient evidence claims on appeal. (Dkt. No. 24 at 15.) Petitioner also suggests that as a "layman at the law," he did not know to raise these claims sooner. (Id.) Accordingly, the undersigned finds that petitioner has not met his burden of placing the adequacy of the Dixon rule at issue. The claims are barred unless petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice if the claims are not reviewed.
Ineffective assistance of counsel will suffice to show cause if it was so ineffective as to violate the Federal Constitution. Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 486--88 (1986)). Such a claim of ineffective assistance must be presented to the state courts as an independent claim, however, before it may be used to establish cause for a procedural default. Id. (citing Carrier, 477 U.S. at 489.) In his habeas corpus petition filed in the California Supreme Court, petitioner did not raise a claim alleging ineffective assistance of appellate counsel. (Respondent's Lodged Document 14.) Accordingly, petitioner's claim of alleged ineffective assistance of appellate counsel does not establish cause to excuse the default of the insufficient evidence claims.
Petitioner's ignorance of the law also does not establish cause to excuse his procedural default. See, e.g., Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (fact that a petitioner was illiterate and lacked any legal assistance did not establish cause to excuse a procedural default).
Because, as will be discussed herein, petitioner's claims have no merit, the undersigned finds that petitioner has not demonstrated that the court's failure to consider these claims will result in a fundamental miscarriage of justice. Accordingly, all of petitioner's claims alleging insufficient evidence, but for the claim alleging insufficient evidence of the gang enhancement, are procedurally barred.
In the alternative, the undersigned finds that petitioner's claims alleging insufficient evidence are without merit.
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found "the essential elements of the crime" proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Jackson established a two-step inquiry for considering a challenge to a conviction based on sufficiency of the evidence. U.S. v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). First, the court considers the evidence at trial in the light most favorable to the prosecution. Id.,citing Jackson, 443 U.S. at 319. "'[W]hen faced with a record of historical facts that supports conflicting inferences," a reviewing court 'must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id., quoting Jackson, 443 U.S. at 326.
"Second, after viewing the evidence in the light most favorable to the prosecution, a reviewing court must determine whether this evidence, so viewed is adequate to allow 'any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.'"
Id., quoting Jackson, 443 U.S. at 319. "At this second step, we must reverse the verdict if the evidence of innocence, or lack of evidence of guilt, is such that all rational fact finders would have to conclude that the evidence of guilt fails to establish every element of the crime beyond a reasonable doubt." Id.
Analysis: Attempted Murder, Shooting at Occupied Vehicle, Shooting from Vehicle, Gun Enhancement
The undersigned first considers petitioner's claim that there was insufficient evidence to support his underlying convictions and the gun enhancement because there was no evidence identifying him as the shooter or as an occupant of the vehicle. (Dkt. No. 1 at 4, 29-43.) In support of this claim, petitioner also argues that there were no weapons found on his person and no evidence establishing that he discharged a firearm. (Id. at 4, 30-43.) Petitioner also argues that his fingerprints were not found in the vehicle. (Id. at 5.) Additionally, petitioner argues that his mere presence at the crime scene was insufficient evidence that he committed or aided and abetted the commission of the offenses. (Id. at 21-29, 44-48.)
The undersigned begins by setting forth the elements of petitioner's convictions. Attempted murder requires 1) the specific intent to kill; and 2) the commission of a direct but ineffectual act toward accomplishing the intended killing. People v. Smith, 37 Cal.4th 733, 739 (2005). Shooting from a motor vehicle requires a willful and malicious discharge of a firearm from a motor vehicle at a person other than the occupant. Cal. Penal Code § 12034(c). Shooting at an occupied motor vehicle requires a willful and malicious discharge of a firearm at an occupied motor vehicle. Cal. Penal Code § 965.
With regard to both counts of attempted murder, petitioner was also convicted of a firearm enhancement pursuant to Cal. Penal Code § 12022.53(c) which provides for a sentence enhancement of 20 years for any person who, "in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm."
With regard to the underlying convictions, petitioner was prosecuted as a principal and as an aider and abettor. "A person aids and abets the commission of a crime when he or she,
(i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." People v. Cooper, 53 Cal.3d 1158, 1164 (1991).
Petitioner argues that there was insufficient evidence to convict him as an aider and abettor. However, because the jury found petitioner guilty of personally discharging a firearm in connection with both counts of attempted murder, the jury did not convict petitioner as an aider and abettor, but as a principal of these crimes. (CT at 312, 314.) This finding also undermines any claim by petitioner that the jury found him guilty as an aider and abettor as to his convictions for shooting from a motor vehicle or shooting at an occupied motor vehicle. By finding that petitioner personally used a firearm in connection with the attempted murder charges, the jury necessarily found that petitioner personally used a firearm in connection with the other charges.
Viewing the evidence in the light most favorable to the prosecution, the undersigned finds that the evidence was adequate to allow a rational trier of fact to find petitioner guilty as a principal of all charges as well as the firearm enhancement. Petitioner and his co-defendant were found very close to the scene of the shooting under circumstances suggesting that they were attempting to flee the area. Petitioner attempted to hide a sock containing two .40 caliber Speer bullets by stuffing it between the Plexiglass and steel cage of a patrol car. One of the casings found at the scene of the shooting was a .40 caliber casing manufactured by Speer. During the search of the backyards in the area, an officer found a loaded Sig .40 caliber handgun.
While gunpowder residue was not found on petitioner's hands, the criminalist testified that this did not necessarily mean that he had not fired a weapon. Gunshot residue was found on a long-sleeved t-shirt and sweatshirt taken from petitioner. Gunshot residue was also found in the Chevrolet Caprice.
Additionally, strong evidence of petitioner's motive was presented, i.e. that the shooting was gang related. Evidence was presented that both petitioner and his co-defendant were members of the Nogales Gangster Crips. Evidence was also presented that the Nogales Gangster Crips were in a war with the Elm Street Bloods, and that the shooting occurred in front of a hang out for the Elm Street Bloods.
In conclusion, the undersigned finds that, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could find petitioner guilty of the underlying offenses as well as the gun enhancement. While no witness saw petitioner shoot any gun from the vehicle, there was adequate circumstantial evidence from which a reasonable jury could conclude that petitioner fired shots at the victims from the car with the intent to kill. Accordingly, this claim of insufficient evidence should be denied.
Analysis: Gang Enhancement
The undersigned next considers whether there was sufficient evidence to support petitioner's conviction for the gang enhancement.
Petitioner argues that there was insufficient evidence to support the gang enhancement on four different grounds. (Dkt. 1 at 75-89, 95-103, 107-17.) In particular, petitioner argues that there was insufficient evidence that the Nogales Gangster Crips had as one of its primary activities the offenses he committed. Second, petitioner argues that there was insufficient evidence that the shooting was committed for the benefit of, at the direction of, or in association with the gang. Third, petitioner argues that there was insufficient evidence that he intended to promote, further or assist in any criminal conduct by gang members. Fourth, he argues that there was insufficient evidence that he was an active participant in the gang.
Petitioner raised the first three claims on direct appeal. In a reasoned opinion, the California Court of Appeal addressed these claims:
Section 186.22, subdivision (b)(1) provides for an enhanced prison sentence when a defendant commits a felony "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]" For purposes of this statute, a "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [specified criminal activities], having a common name or common identifying ...