FINDINGS AND RECOMMENDATIONS
Petitioner, Jeffrey Dupree Jones, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a cumulative sentence of thirty years to life with the possibility of parole following his 2007 jury convictions after three separate trials. First, Petitioner was convicted of being a felon in possession of a firearm (Count Three), with a hung jury as to two counts of attempted murder (Counts One and Two). A second trial resulted in a mistrial due to a hung jury on the same two counts . He was convicted in a third trial of the two counts of attempted murder, both with firearm enhancements, and the trial court found true prior conviction allegations. Here, Petitioner challenges the constitutionality of his convictions.
Petitioner presents several grounds for relief. Specifically, the claims are as follow, verbatim:
(1) The trial court abused its discretion and denied [Petitioner] due process of law at both the first and third trials by allowing the people to introduce evidence that [he] was a member of a street gang.
(2) The trial court abused its discretion and denied [Petitioner] due process of law by limiting cross-examination at the third trial of the complainant in Count 2, thus improperly excluding evidence bearing on Franklin's credibility and denying [Petitioner] his fifth, sixth and fourteenth amendment due process rights to effectively confront and cross-examine his accusers.
(3) The evidence was insufficient to show an attempt to kill Franklin.
(4) [Petitioner] was denied a fair trial by the jury's use of a magnifying glass coupled with the court's refusal to reopen the trial.
(5) The trial court's refusal to allow the jury to view the scene where the incident took place was an abuse of discretion which denied appellant a fair trial.
After careful consideration of the record and the applicable law, it is recommended that each of Petitioner's claims be denied..
The basic facts of Petitioner's crimes were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follows:
A fight broke out at a bar in Stockton, followed by [a] shooting in the parking lot that killed two people. Thereafter defendant shot and seriously wounded Dewayne Jackson; he aimed and fired a gun at Ronnie Franklin, but the gun did not discharge . . . . . . . .
The prosecution theory was that after two men were killed and one injured, defendant became involved in the fight. He took a gun from his injured friend and fellow gang member, shot Jackson and then threatened and attempted to shoot Franklin. The defense version of events was that defendant's friend, Marcus McDaniel, did the shooting.
On the evening of October 22, 2004, Leon Smith, known as Big Man, his roommate Dewayne Jackson, and a friend, Vern, went to Donald's Place, a bar and club in Stockton. There they met their friend, Harold Jones and played pool.
Ronnie Franklin also went to Donald's Place that night. He took his son's mother and her friend; he stayed because they wanted him to pick them up later and he did not want to drive across town.
A fight broke out near the pool table after Troy Latin called Harold Jones a snitch. The fight escalated, many people were involved. The bartender called 911. The group hit and kicked Harold Jones, while he was under the pool table. Defendant knocked a female bartender to the floor and apologized. Smith and Jackson left the club and headed to their car. Franklin also left the club when the fight broke out.
As Smith and Jackson went to their car, five men tried to sucker punch Smith. Jackson told them they were not trying to fight, but just going home. At the car, Smith got a gun and walked back towards the club. Smith went up to the group of men and said "jump me now." One of the men, Terry Gaines, told Smith, "that's what you guys get, you know, you don't belong here anyway." Smith got in Gaines' face and shot and killed him. Smith and Gaines had a problem with each other stemming from a homicide at the Rose Garden apartments.
Franklin was Gaines's [sic] second cousin. Someone ran up to Franklin and told him Gaines had been shot. Telling the women he was with to stay in the car, Franklin ran to Gaines and then called 911.
There were more shots and Smith was killed. Marcus McDaniel was shot in the leg. McDaniel returned to the club, saying he had been shot. Defendant helped him.
Defendant left the club and looked at Smith's body. He saw Jackson and shot him. Jackson was hit in the lower spine and paralyzed. Jackson looked up and defendant was in his face; Jackson looked right in defendant's eyes. Defendant pulled the trigger again, but the gun did not fire. Defendant kicked Jackson and hit him with the gun.
Jackson grabbed his cell phone and called his mother.
Franklin saw defendant standing over Jackson with the gun and saw defendant hit and kick Jackson. Defendant looked around and saw Franklin. Franklin told defendant he was not affiliated and did not gang bang. Franklin had been a Blood gang member, but stopped affiliating in 1997 after a robbery conviction. Defendant pointed the gun at Franklin and pulled the trigger. Franklin heard the gun click, but it did not fire. Franklin left and called 911 again. He called the police because Gaines and Jackson were shot; he would not have reported just the assault on himself.
When the police arrived, the scene was chaotic and the crowd was hostile. There were three victims: Gaines, Smith and Jackson. Smith had been shot multiple times. McDaniel had left. No guns were recovered. Based on the bullets found at the scene, a criminalist determined there were nine shots from a nine-millimeter gun and at least three from a .38-caliber gun. He could not say if the .38-caliber bullets were fired from the same gun.
The police collected several surveillance tapes from the club. The tapes showed the fight around the pool table and the various participants in the shooting entering and leaving the club. The tapes showed Gaines with a gun and defendant with a gun, and later smiling. The prosecution later made a reenactment tape, showing its version of the shooting. This tape was played for the jury.
At the hospital, Jackson told the police the shooter was a Black male, 5 foot 10 or 11, 200 pounds, wearing a blue hooded sweatshirt and blue jeans with a blue rag. He initially picked McDaniel's photograph out of a lineup, but told the police the shooter had a thinner face. Jackson told the police the shooter might be in the photograph on the cover of a rap CD. When shown the CD, however, Jackson did not identify anyone.
When McDaniel's picture appeared in the newspaper, identified as the shooter, Jackson called the police and said McDaniel was not the shooter. Jackson had seen the shooter before in a white Ford Explorer. Months before the shooting, the police had stopped defendant in a white Explorer with McDaniel and two other men. Jackson thought a girl he knew had a picture of the shooter in her room. She did not want to get involved so he called the girl's cousin. Through the cousin, Jackson learned the shooter's name was Jeffrey Jones and he went by the name Smooth. Jackson called detectives with this information. When shown pictures of both defendant and McDaniel, Jackson selected defendant as the shooter. Jackson recalled that he had seen defendant sitting with McDaniel at the club before the shooting. He identified defendant in court.
The morning after the shooting, Franklin gave police a detailed statement. He described his assailant as dark complected, 5 foot 8 to 10, 170-190 pounds, 23 to 27 years old, with a hat and a blue hooded sweatshirt. Franklin initially identified McDaniel as the shooter in a photographic lineup. Franklin claimed he identified defendant as the shooter when he saw him at Gaines's [sic] funeral. Defendant did not attend the funeral. Franklin did not contact the police after he saw defendant. In fact, he tried to avoid the detective handling the case because he did not want to be involved. When shown DMV photographs of defendant and McDaniel, Franklin pointed to defendant.
Franklin did not respond to a subpoena in an earlier trial. He admitted he had not always told the police the truth; he did not trust them due to bad experiences. He was arrested after his failure to appear and refused to talk unless granted immunity. He admitted he lied both before and after the grant of immunity. Sometimes he just went along with what the police suggested. The defense request to cross-examine Franklin about another shooting was denied.
In his statement to the police, defendant denied he had a gun that night. He had known McDaniel two years and they were good friends. They were both Crips, a gang associated with the color blue. A number of defense witnesses testified that defendant was inside the club when the shots were fired. One witness testified McDaniel was the shooter.
A defense expert testified to the unreliability of witness identification. (Lodged Doc. 4 at 1-7).
An information filed on January 7, 2005 charged Petitioner with three counts. Count One charged the attempted murder of Dewayne Jackson, with penalty enhancements for intentional and personal discharge of a firearm and personal infliction of great bodily injury. Petitioner was charged in Count Two with the attempted murder of Ronnie Franklin, as well as a penalty enhancement for personal use of a firearm. Count Three charged Petitioner with being a felon in possession of a firearm. In addition, Petitioner faced penalty enhancements for a prior conviction of a serious felony, a prior prison term, and a prior serious felony as a strike.
There were three separate jury trials. Following the first trial, Petitioner was convicted on Count Three, and he admitted the prior conviction, prison term, and serious felony as to that count. The jury hung on Counts One and Two, resulting in a mistrial on those counts. A second trial also resulted in a mistrial on Counts One and Two. A third trial resulted in Petitioner's convictions on Counts One and Two. In addition, the trial court found true the additional penalty enhancement allegations as to those two counts. Petitioner was sentenced to life in prison with the possibility of parole, with the minimum term of fourteen years to be served, plus thirty years to life with the possibility of parole.
Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. The appellate court affirmed his convictions with a reasoned opinion on December 31, 2008. The California Supreme Court denied his petition for review of the appellate court's decision without comment on March 18, 2009. After exhausting the appellate process, Petitioner filed this federal petition for writ of habeas corpus on May 21, 2009. On February 16, 2010, Petitioner was ordered to show cause why his petition should not be dismissed for failure to exhaust his remedies in state court. On March 11, 2010, Petitioner filed an amended petition for writ of habeas corpus. Respondent filed an answer on September 14, 2010, and Petitioner filed his traverse on November 23, 2010.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (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. 28 U.S.C. § 2254(d). Although "AEDPA does not require a federal habeas court to adopt any one methodology," there are certain principles which guide its application. Lockyer v. Andrade, 538 U.S. 63, 71 (2003)
First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64. It is appropriate, however, to examine lower court decisions when determining what law has been "clearly ...