The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge
Pending before the court is Petitioner Anthony Barbarin's (Barbarin) application for a writ of habeas corpus. For the reasons noted below, Barbarin's application is DENIED.
On September 24, 1999, a Solano County Superior Court jury convicted Barbarin of first-degree murder. Barbarin was sentenced to state prison for 25 years to life, as well as a consecutive 6-year term for violating probation in three other cases.
In his Second Amended Petition, Barbarin states six claims for relief: (1) his due process rights were violated because one of the jurors was biased against him;
(2) his Confrontation Clause rights were violated because Nicole Garrott's preliminary hearing testimony was admitted at trial; (3) his right to effective assistance of trial counsel was violated because his attorney failed properly to object to Garrott's testimony; (4) his due process rights were violated because the trial court declined to instruct the jury that defendant could only be found guilty as an accessory after the fact; (5) his equal protection rights were violated under Batson v. Kentucky, 476 U.S. 79 (1986), because the prosecutor exercised peremptory challenges against three African-American prospective jurors; and (6) his due process rights were violated when the trial court instructed the jurors to inform the court if any other juror refused to deliberate or expressed an intention to disregard the law. Second Amended Petition.
Barbarin filed a direct appeal of his conviction in the California Court of Appeal, First District. In its decision affirming the judgment and sentence, the Court of Appeal summarized the relevant facts and testimony from Barbarin's joint trial with his co-defendant Runako Magee:
Jamie Terrell died of gunshot wounds received while he was sitting in his parked car on the street outside the home of his girlfriend in Vallejo.  Runako Magee shot the victim through the open window of the car as Magee and [Barbarin] stood beside the car talking with him.
The murder was witnessed by victim Terrell's girlfriend, Desiree Williams, and her friend Leslie Martin, both of whom were eighteen years old at the time. On December 21, 1998, the day of the murder, Martin went over to Williams's house in the late morning. In the afternoon Martin and Williams went to a store to purchase some food and candy. Upon arrival, they saw [Barbarin and Magee] entering the store. Both Martin and Williams had first been introduced to [Barbarin and Magee] by victim Terrell within the preceding month. Martin went into the store and approached  Magee, with whom she had shared a double date roughly ten days earlier with Williams and victim Terrell. Martin told Magee she would be "hanging out" with Williams and Terrell later at Williams's house, and invited him to join them there. They exchanged pager telephone numbers.
After Martin and Williams returned to the latter's house, Martin paged  Magee. When he responded by telephoning Williams's house, Martin told him they were getting ready to leave and were just waiting for Terrell to arrive. Magee told her he would come over. He arrived approximately 20 minutes later in an automobile with  Barbarin driving. After waiting awhile longer for Terrell to arrive, the four decided to go to a nearby liquor store. The two young women got into the back seat of the car. As they did so, Williams noticed a six- to seven-inch chrome-colored handgun between the front passenger seat where Magee was sitting and the center armrest. Williams made eye contact with Magee, who said: "I always stay strapped." Williams understood that he meant he always had a gun with him. Martin, who got into the car after Williams, did not notice the gun or hear any conversation about it.
Magee and Barbarin purchased some alcohol at the liquor store. On the way back to Williams's house, Martin, Williams and Barbarin smoked a "blunt," a cigar made with marijuana. Williams asked Barbarin if she could use his cellular telephone to page Terrell. Barbarin replied: "You can't page that nigger to my phone," or words to that effect. However, Magee told Barbarin to let Williams use the phone, which she did. Williams left a message telling Terrell to come to her house.*fn1 When they arrived back at Williams's house, Barbarin parked across the street. The four waited briefly for Terrell to arrive before going in the house. After at least a quarter of an hour, Williams received a message from Terrell that he was on his way, and she informed the others. About 30 minutes later, they heard loud music coming from the street. Williams looked outside, saw that it was Terrell in his Mustang automobile, and told the others it was he. [Barbarin and Magee] immediately went outside while Williams and Martin made their preparations to leave. Four or five minutes later, Martin walked outside, down the stairs, and down the driveway toward the street. Williams followed shortly thereafter, having paused to set the burglar alarm and lock the front door. Terrell's car was parked in the middle of the street. Magee was standing near the car directly in front of the driver's side window, while Barbarin stood to his immediate right, with their backs to the approaching women. When Martin was approximately six or seven feet behind Magee, she could clearly see Terrell sitting in the driver's seat of his car. She heard him, in "a soft voice," say: "What you talking about? Man, I don't know what you're talking about." As he said this, Terrell raised both his hands, which Martin could see were empty. Williams also heard Terrell say these words as she was walking down the driveway behind Martin, and she also saw Terrell raise his empty hands. Neither Martin nor Williams saw any guns or weapons. It was silent for a while, and then Martin clearly heard Barbarin say: "Man, dump on that nigger." Martin saw Magee raise a gun in his hand and fire two shots at Terrell without moving from his position at the side of the car. Terrell moaned, grabbed his left side and moved to the right, toward the passenger side of his car. Martin turned around, grabbed Williams, and ran back to the house. She heard at least two additional shots as she ran. Williams heard the shots and saw sparks, but was not certain who did the actual shooting. However, it appeared to her to have been the person closest to Terrell, i.e. Magee. Williams did not hear Barbarin say anything before the shots were fired.
When Williams and Martin reached the front door of the house, they were "frantic," "scared," and "stunned." They stooped down as Williams tried to open the door. As they did so, they heard a car take off and speed up the street, "[b]urning rubber." It took Williams about a minute to get the door open because she was shaking so much. Once inside, Williams ran to the telephone and called 911. When she got through to the 911 operator, Williams reported what had happened, but claimed she did not know who did it. Williams lied because she "was scared," "didn't know what to say, what not to say," "didn't want to get involved," and "didn't know what to do." Meanwhile, Martin could hear Terrell twice call out "help." Williams asked Martin to help Terrell while she spoke with the 911 operator.
Martin walked over to Terrell's car and spoke his name. Terrell twice said "[w]e have to go." Then he said "I can't see," started shaking, and "just stopped moving." Martin called Terrell's name loudly and touched his shoulder or arm. Williams came outside soon thereafter. She observed Terrell's eyes were closed and he was moving "back and forth." Williams was "confused and upset." She testified that she reached into Terrell's car and turned the ignition off.
Sharon Nunes lived across the street from the Williams family. Shortly after 9 p.m. on December 21, 1998, she heard loud voices and "somebody hollering." This was followed by a single gunshot, a two- or three-second pause, and then three to five more gunshots. As she ran down her hallway to see what was going on, she heard a car speed away. Nunes estimated that she was outside within 15 seconds of first hearing the last gunshots. She saw Williams and Martin standing at the end of Williams's driveway, "jumping up and down [and] screaming." When Nunes asked "[w]hat happened," Martin ran inside of Williams's house as the latter replied: "They shot my boyfriend." Neither Williams nor Martin was carrying any gun or other weapon. Nunes ran back inside to get her cordless telephone, and within "a few seconds" brought it outside to call 911. By this time, Williams had run back into her house. Almost immediately she heard approaching police sirens. Nunes stayed outside until the police arrived. Nunes did not see anyone get into or take anything out of the car. Williams and Martin did not re-emerge from Williams's house until they were escorted away by the police.
When the police arrived at the scene, a group of people was in the street. However, no one approached the immediate vicinity of the victim's car, which was parked in the middle of the street in front of Williams's house with its headlights on and its motor running. The doors of the car were closed and the driver's side window was rolled down. Victim Terrell was in the driver's seat. He had no pulse, and there was a large amount of blood on his front and left side. The first officer at the scene reached through the car window and turned off the car's ignition. The parking brake of Terrell's car was engaged. Medical personnel arrived, removed Terrell from his car, and attempted to revive and treat him. These efforts failed, and Terrell was subsequently pronounced dead as a result of two gunshot wounds to the left arm and the left side of his chest.
No guns or other weapons were found in the victim's car, on his person, or anywhere else at the scene. Neither were any weapons or live ammunition found by the police in their consensual search of Williams's bedroom. Both Williams and Martin were questioned by the police at the scene and then taken to the police station for further interrogation. At first, both Williams and Martin prevaricated, claiming they did not know who was responsible for the shooting.*fn2 Eventually, however, Williams told police that  Magee had shot Terrell, and that  Barbarin was standing next to him at the time. She then identified Magee in a photographic lineup. When the police told Martin that Williams was telling them the truth about what had happened, Martin also identified Magee from a photographic lineup as the person who had shot Terrell. Both Martin and Williams subsequently also identified  Barbarin in another photographic lineup. They testified that they had not wanted to identify [Barbarin and Magee] at first because they did not want to get involved, and were afraid they might be harmed themselves if they did so.*fn3 Very late on the night of the murder,  Magee went to the Vallejo home of his girlfriend, Nicole Garrott. In preliminary hearing testimony, Garrott testified that when she returned to her home that night with her friend Shawnte Austin, she found Magee standing in her carport next to a car. The car matched the description of the one driven away from the murder. There was also another person there, but Garrott did not know who it was. According to Garrott's preliminary hearing testimony, Magee told her he had "caught up with somebody," but did not tell her the person's name. Garrott denied that Magee told her he had shot Terrell or anyone else that evening. Austin similarly heard Magee tell Garrott: "Baby, I finally caught up with him," but did *fn4 not hear the name of the person Magee had "caught up with."
Over defense objection, the prosecution was permitted to read Garrott's preliminary hearing testimony into evidence at trial because she was unavailable as a witness. Thereafter, the trial court permitted the prosecution to impeach Garrott's preliminary hearing testimony with the testimony of Vallejo Police Department Detective James Mathews, who interviewed Garrott following Magee's arrest. At that time, Garrott told Mathews that when she saw Magee on the night of the murder, he told her that he "had . . . finally caught up with Jamie Terrell and shot him." After telling her that he was leaving town and would be in contact with her later, Magee got into the passenger side of the car he had come in, and left. Garrott also told the police that Magee believed Terrell was responsible for burglarizing the West Sacramento home of  Barbarin's sister. In her own preliminary hearing testimony, Garrott claimed the police had put words in her mouth and threatened to arrest her for aiding and abetting, and she was so scared she told them "whatever they wanted to hear."
 Magee and Barbarin were arrested on December 23, 1998, in West Sacramento. When the police told Magee he was being taken back to Vallejo to talk about the shooting, he chuckled, closed his eyes, and leaned his head back. At the time of his arrest, Barbarin gave the police a false name. During interrogations, Barbarin initially told police that he was not in Vallejo on the night of Terrell's murder, but instead was spending the night in Sacramento with a girl whose last name he did not know. Later Barbarin changed his story, admitted he was in Vallejo on the evening of the murder, and told police he had gone to his mother's house after dropping Magee off at the home of Magee's girlfriend. Barbarin was aware that his sister's house had been burglarized, and told police that one of the amplifiers stolen had belonged to Magee. However, Barbarin *fn5 said he did not think Terrell was responsible for the burglary.
Two bullets were removed from Terrell's body during his autopsy; one had traveled through his left arm and into the left side of the back of his chest, indicating his left arm was next to his body at his side when the shot was fired. The other bullet, which entered Terrell's chest from the left side and slightly toward the front of his body, was found in Terrell's right thigh. There were three bullet holes in Terrell's car, each caused by incoming bullets: two on the driver's side, and one on the rear passenger's side. The two bullets on the driver's side were each fired less than a foot from the car; the bullet entering on the passenger side was fired an estimated two to three feet from the car. No exit holes were found. Five nine-millimeter casings were found in the vicinity of Terrell's car, all fired from the same gun: one immersed in blood on the driver's seat; a second on the ground near the car; two more on the street on the driver's side; and one under the car on the driver's side. The bullets found in Terrell's body and in the car itself were nine-millimeter caliber and were consistent with having been fired from the same gun. There was gunshot residue on the victim's hands. This was consistent either with him firing a gun, having been near a gun when it was fired, or having handled an object that had gunshot residue on it. A gunshot residue expert testified that he would expect to find gunshot residue on the hands of someone shot from a "close proximity" through an open car window while sitting in the driver's seat. On the other hand, it was very unlikely that there would be gunshot residue on the hands of a victim shot from a distance of eight feet or more.
Both [Barbarin and Magee] testified in their own defense. Magee was 21 at the time of trial. He acknowledged carrying a gun on his person since suffering an assault in January 1998. He also admitted to one juvenile arrest on drug charges, as well as to a juvenile arrest for a robbery in the course of which he had used a gun. Magee and Terrell had been friends since they played Little League Baseball together when Magee was eight years old. Magee testified he did not suspect Terrell of any role in a recent burglary of the home of Barbarin's sister in West Sacramento, and he felt no anger or animosity towards Terrell at all. He claimed he did not have any stereo equipment at the home of Barbarin's sister when it was burglarized, and nothing belonging to him had been taken in that burglary.
Magee knew Williams and Terrell were dating, but claimed he did not know Terrell was coming over to Williams's house until he actually arrived. According to Magee, everything seemed "cool" until Terrell saw Barbarin go back in the house, at which point Terrell "started tripping" and asked Magee what Barbarin was doing at Williams's house. Terrell angrily said to Magee, "What you talking about? What you wanna do?" Magee understood Terrell's words and tone as a challenge. When Barbarin asked what was going on, Magee told him that Terrell was "tripping off this broad." Barbarin replied: "Fuck that nigga'," and started to walk away toward his own car. According to Magee, Terrell grabbed a gun on the front passenger seat. Fearing Terrell was going to shoot him, Magee reached for his own gun and shot Terrell. Magee ran behind Terrell's vehicle toward Barbarin's car in order to get away. As he did so, Terrell's car rolled backward. Thinking Terrell was backing his car up in order to shoot him, Magee fired his gun in Terrell's direction several times. He did not know how many times he fired his gun, and did not know if Terrell ever fired his gun at him. As he jumped into Barbarin's car, the latter said: "[m]an, what you do that for?" Magee said: "Get me out of here," and Barbarin sped away. According to Magee, he did not know if Terrell had been shot when he fled the scene. Barbarin wanted to "get away from there" because he was afraid the police would come and find out he had outstanding warrants for probation violation[s].  Barbarin's testimony differed from Magee's in several significant details. Barbarin testified that Magee was his best friend. Barbarin also knew Terrell as a friend and associate. Barbarin admitted to three felony convictions: for sale or transportation of cocaine; for possession of a firearm by a felon; and for possession of cocaine for sale. Barbarin knew his sister's house in West Sacramento had been burglarized a week or so before. He did not think Terrell had anything to do with the burglary, but he did tell the police he thought one of the amplifiers that had been stolen had belonged to Magee. Unlike  Magee, who claimed he never knew Terrell was coming to Williams's house until Terrell actually arrived, Barbarin testified that Magee had told him Terrell would be coming over to Williams's house 20 to 30 minutes before Terrell arrived. According to Barbarin, Magee had asked him to stay until Magee found out from Terrell whether the latter had a problem with going on a double date, in case it did not work out and Magee needed a ride home from Barbarin.
When Terrell arrived, both [Barbarin and Magee] went outside to greet him. Barbarin then went back inside Williams's house to get his cellular telephone while Magee talked with Terrell. When Barbarin came back outside, Magee told him that Terrell was angry and jealous that they had been inside Williams's house. Terrell said angrily: "So what you talking about?" Barbarin understood from Terrell's words, tone and manner that he was challenging Magee, or "calling [him] out." Barbarin said to Magee, "Fuck that nigga'," meaning "Just leave him alone," or "let's just get out of here and leave." Barbarin's intention was to stop his two friends from getting into a fight over something that did not really matter. Unlike Magee, he never saw a gun inside Terrell's car, or in Terrell's hands. Barbarin started toward his car. As he did so, he heard a shot fired behind him. He turned and saw Magee running around the back of Terrell's car. Unlike Magee, Barbarin testified that he did not see Terrell's car move. He heard several more shots. Barbarin got into the driver's seat of his own car and shut the door. When Magee got into the passenger's seat, Barbarin asked him what he did that for. Then he sped away, not knowing whether Terrell had been shot, but afraid of the police because there were outstanding warrants for his arrest for probation violations.
According to both [Barbarin and Magee], they first drove to Barbarin's house. Magee testified that on the way, he threw his gun out the car window. Barbarin denied seeing Magee with any gun, and denied seeing him throw it out the window. Barbarin spent the night at his own house, but let Magee drive his car to Sacramento because the police would be looking for it. On the way, Magee stopped at Garrott's house to get clothes and money. According to Magee, he did not say anything to Garrott about what had happened, and could not recall telling her "I finally caught up with him." Magee did not stay to talk with the police because he "had a warrant." The next day, Barbarin drove Magee's car to West Sacramento, where he sold his own car to a third party.  Barbarin's sister Tracy Strickland testified that both [Barbarin and Magee] occasionally stayed at her house in West Sacramento, which had been burglarized in December 1998. She denied that anything belonging to either [Barbarin or Magee] had been stolen, and specifically denied that Magee had any stereo amplifiers at her house. Strickland told Magee that she believed another individual was responsible for the burglary. As far as she knew, no one had told Magee that Terrell was the perpetrator. Strickland claimed she saw Magee in West Sacramento between 8:00 p.m. and 9:00 p.m. on the evening of the murder. Subsequently, however, she changed this testimony and stated she was not certain she had seen Magee on the night of the murder. The defense offered evidence of victim Terrell's reputation for violence and aggressive behavior.  Magee testified to his opinion that Terrell was violent; he had seen Terrell carrying a gun on numerous occasions. Terrell had a bad reputation for violence in the community. In addition, he had witnessed several incidents in which Terrell had committed acts of violence, including hitting on the head with a gun someone who owed him money; breaking the windshield of the car of someone who had blocked him in; and hitting with a stick a woman who owed him money. According to Magee, Terrell had told him he had committed a bank robbery, had shot someone in Clearlake once, and had shot another person for slashing his tires.  Barbarin testified that he had twice seen Terrell with a gun.
A Clearlake police officer who had previously worked in Vallejo testified that he had stopped Terrell and another person in a vehicle in 1994, and had found a firearm in the vehicle. In his opinion and by reputation in the law enforcement community, Terrell was a violent person. A second Clearlake police officer also testified to his opinion that Terrell was violent, and to Terrell's similar reputation in the Clearlake law enforcement community. However, in his approximately ten interactions with Terrell this officer had never found Terrell carrying a weapon. In addition, the defense offered the testimony of a Clearlake resident about an incident in 1996 in which the witness's roommate had gotten into a violent fight with Terrell, in the course of which Terrell had threatened "to kill" the roommate with a gun he was carrying. This individual acknowledged that at the time of the incident he did not tell the police that Terrell had threatened to kill his roommate, and that he "believe [d]" he had told the police that his roommate had been beating Terrell with a baseball bat. Ex. G at 1--12.
On February 25, 2002, the California Court of Appeal affirmed Barbarin's judgment of conviction. Ex. G. Barbarin then sought review in the California Supreme Court. Ex. H. at 2. The California Supreme Court denied Barbarin's petition for review on May 22, 2002. Ex. H at 1.
On March 26, 2002, Barbarin filed a petition for a writ of habeas corpus in the California Court of Appeal. The court of appeal denied the petition two days later. Doc. 30-2 at 2. In the California Supreme Court, Barbarin filed a petition for review of the Court of Appeal's denial. On May 22, 2002, the California Supreme Court granted the petition for review, and directed the Court of Appeal to order the state to show cause in the Solano County Superior Court why the writ should not issue on account of the juror bias claim. In re Barbarin, No. S105833, 2002 Cal. LEXIS 3584 (Cal. May, 22, 2002); Ex I.
On March 19, 2003, an evidentiary hearing was held in Solano County Superior Court regarding Barbarin's allegations of juror bias. The superior court denied the petition for writ of habeas corpus. Ex. I, RT at 72--78. On May 3, 2004, Barbarin filed a writ for petition of habeas corpus in the California Supreme Court. Ex. J ...