The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Report and Recommendation (ECF No. 11) of Magistrate Judge William V. Gallo recommending that this Court deny the Petition for Writ of Habeas Corpus (ECF No. 1).
On May 5, 2000, a jury convicted Petitioner in San Diego County Superior Court of one count of Second Degree Murder (Cal. Penal Code § 187(a)), one count of Evading an Officer, Causing Death (Cal. Veh. Code § 2800.3), one count of Driving under the Influence of Drugs Causing Injury (Cal. Veh. Code § 23153(a)) and personally inflicting great bodily injury upon the victim (Cal. Penal Code § 12022.7(a)), and one count of Unlawful Driving of a Vehicle (Cal. Veh. Code § 10851(a)). (Lodgment No. 1B). On June 5, 2000, the trial court sentenced Petitioner to 36 years, 4 months to life imprisonment. Id.
On November 28, 2005, the San Diego Superior Court granted Petitioner's Petition for Writ of Habeas Corpus, reversing Petitioner's conviction for Second-Degree Murder based on the decision in People v. Howard, 34 Cal. 4th 1129 (2005). (Lodgment No. 2).
On January 22, 2007 Petitioner was re-tried and again convicted by a jury of one count of Second Degree Murder (Cal. Penal Code § 187(a)). (Lodgment No. 3). On April 3, 2007, the trial court sentenced Petitioner to 15 years to life imprisonment on the Second-Degree Murder charge. The trial court confirmed the prior sentence given on all other counts and Petitioner was sentenced to a total of 21 years, 4 months to life imprisonment. (Lodgment No. 4).
On July 1, 2008, Petitioner appealed the judgment on the basis that the trial court committed reversible error when it found that Leonard Loehr was unavailable as a witness based on Loehr's fear of testifying at Petitioner's second trial. (Lodgment No. 5). Loehr, a passenger in the car driven by Petitioner, testified in Petitioner's first trial. Loehr, who was incarcerated in Arizona at the time of Petitioner's second trial, refused to testify in Petitioner's second trial for fear he would be labeled a "snitch" and subjected to retaliation by fellow inmates. The trial court appointed counsel to represent Loehr, held Loehr in contempt, and ordered that Loehr be held by the sheriff. The trial court ruled that Loehr was unavailable as a witness and that his testimony from the first trial could be introduced by the prosecution. (Lodgment No. 5B).
On April 17, 2009, the California Court of Appeal affirmed the judgment in an unpublished decision, concluding that the trial court acted within its discretion when it ruled that Loehr was an unavailable witness. The court rejected Petitioner's claim that his constitutional right to confrontation was violated. Id.
In May 2009, Petitioner filed a Petition for Review in the California Supreme Court raising the same claim that he raised in the California Court of Appeal. (Lodgment No. 6A). On July 8, 2009, the California Supreme Court denied the Petition for Review without comment. (Lodgment No. 6B).
On September 28, 2010, Petitioner, proceeding pro se, filed the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1). The Petition contains a single ground for relief: "The state trial court violated petitioner's Sixth Amendment right to confrontation when it admitted the former testimony of witness who was not shown to be unavailable to testify." Id. at 6.
On January 11, 2011, Respondent filed an Answer to the Petition. (ECF No. 8)
On February 7, 2011, Petitioner filed a Traverse. (ECF No. 10).
On June 21, 2011, the Magistrate Judge issued the Report and Recommendation (ECF No. 11) and recommended that the Petition be denied. The Magistrate Judge stated that "Petitioner does not offer any Supreme Court authority that applies to this case or that would extend to the issue he presents in his Petition.... Therefore ... the California Court of Appeal cannot be said to have unreasonably applied the law as to the issue presented in the Petition." Id. at 10. The Magistrate Judge stated that "Petitioner did not object to Loehr's prior testimony being read into evidence at his second trial at any time before, during, or after his second trial, including immediately before Loehr's testimony was read into evidence. Therefore, Petitioner's claim is barred in this Court unless he can demonstrate there is cause or prejudice...." Id. at 12 (emphasis in original). The Magistrate Judge found that Petitioner "has not established the requisite cause and prejudice, nor has he clearly defined any miscarriage of justice. Therefore, he is procedurally barred from seeking habeas corpus relief in this Court." Id. at 13. The Magistrate Judge stated that Loehr was correctly found to be unavailable under Crawford v. Washington, 541 U.S. 35 (2004), and Petitioner's Confrontation Clause rights were not violated. Id. at 14. The Magistrate Judge stated that "if the trial court erred in admitting Loehr's testimony, the error was harmless." Id. at 18.
On July 18, 2011, Petitioner filed Objections to the Report and Recommendation. (ECF No. 12). Petitioner objects that "a square holding [by the United States Supreme Court] is not required in this case." Id. at 1. Petitioner contends that Loehr's "claimed fear of retaliation if he testified was not based on any factual showing that inmates in Arizona, where he was housed and whom he claimed he feared, could possibly find out if he testified in a proceeding in San Diego." Id. at 3-4. Petitioner contends that "there was a possibility that threatening Loehr with a prosecution for criminal contempt and the six-month jail term it carried might have caused him to testify." Id. at 8. Petitioner contends that there was no procedural bar because the California Court of Appeals did not rely solely ...