FINDINGS AND RECOMMENDATIONS
Petitioner, Landon Byron Jackson, 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 fifty-four years and four months to life following his convictions by jury trial in the Sacramento County Superior Court, Case. No. 05F02532, for two counts of attempted murder with firearm and gang enhancements.*fn1 Here, Petitioner presents various claims challenging 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 prejudicially under Gardeley and Evidence Code section 352 by permitting Brown to testify to the substance of police reports recounting [his] alleged involvement in 5 uncharged crimes. [His] Sixth Amendment right to confrontation as interpreted by Crawford was violated. If [his] trial counsel was required to specifically object on Crawford grounds then counsel's assistance was ineffective.
(2) The record lacks substantial evidence to support the trial court's denial of [his] Batson-Wheeler motion.
(3) The prosecutor committed prejudicial misconduct and violated [his] federal constitutional right to Due Process and a fair trial. If [his] trial counsel's objections were insufficient, the counsel's assistance was ineffective.
(4) Cumulative prejudice amounted to a violation of [his] right to Due Process.
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The basic facts of Petitioner's crimes were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follows:
At the conclusion of the first joint trial of defendant and his former girlfriend, Kaydee Wormington, two separate juries deadlocked. Both defendant and Wormington had testified, and that testimony was read to the jury during defendant's second trial.
At the retrial, the only real issue was who shot at siblings Alicia and Ricky Canady on December 13, 2004, both of whom were standing in the driveway of William Jefferson's house. The basic story line is not disputed. A group of friends, at least one of whom was a member of the Meadowview Bloods street gang and some of whom were smoking marijuana, were socializing in front of William Jefferson's house. A yellow Mustang, driven by a young white woman, stopped in front of the house. A passenger asked, "Cuz where are you all from?" After Ricky responded "this is Meadowview," the passenger shouted something like, "this is a Meadowview killer" and began shooting into the group. Alicia was shot twice in the leg.
There were weaknesses in two of the identifications to be sure. One of the two witnesses who identified defendant was high on marijuana at the time of the shooting and unable to identify the driver; the second was mentally impaired. The third witness, one of the victims of the attempted murder and a Meadowview Blood, positively identified one of defendant's little "homeys," Corey Gaines, as the shooter and testified that defendant was not the person who opened fire on the day of the shooting.
Sixteen-year-old William Jefferson smoked three or four marijuana "blunts" a day and had smoked marijuana just before the shooting. The marijuana made him feel lazy and slowed him down. He could not identify the color or length of the driver's hair, but he did see a bald-headed black male in the rear passenger seat behind the driver. He could not say if the shooter had any facial hair. He told investigators the shooter's gun was black; at the first trial he said he was not sure if it was a semiautomatic or a revolver, and at the second trial he testified that it was a chrome semiautomatic. During cross-examination, he refused to read any more of his prior testimony and had to be admonished that he did not have the liberty to choose what he wanted to look at.
Jefferson was not sure if he had been smoking before he was shown a photographic lineup. He picked defendant out of the lineup twoand-a-half months after the shooting, and at trial he identified defendant as the shooter. He claimed he had seen defendant once, maybe six months to a year before the shooting, when he was riding a bus and a friend of his had pointed defendant out. He was unable to identify the driver.
The record is replete with references to Michael Morgan's limitations as a witness. The prosecutor emphasized that there was a considerable lag in time between her asking him a question and his response. The court gave her some leeway to lead her witness, over defense objection, because of Morgan's difficulty in understanding the questions. He was easily confused and often contradicted either his earlier testimony or his answers in the first trial. For example, he testified the Mustang was coming from one direction and later testified it came from the opposite direction. He could not read maps. Yet he too identified defendant as the shooter, both in a photographic lineup and at trial.
Ricky Canady had disavowed his gang affiliation with the Bloods, was married, attended community college full time, and was seeking work at the time of trial. Soon after the shooting, he spent the night with his girlfriend. That night, Corey Gaines, also knowing as P.K. for Piru Killer, spent the night at the same apartment. Canady, who was drunk, thought Gaines was the shooter. The next day they hung out together and Canady concluded, based on Gaines's [sic] behavior, that he must not have been the shooter after all. Two years later he changed his mind again and identified Gaines as the shooter. At trial, he insisted that defendant was not the man who shot at him. Whatever the limitations of the testimony offered by Jefferson and Morgan that we might accept, we cannot discount the significance of the testimony offered by defendant's girlfriend and percipient witness, Kaydee Wormington. Wormington's testimony from the previous trial was read into the record after she asserted her Fifth Amendment right to remain silent at her second trial.
On December 12, 2004, Wormington and her father purchased a yellow Mustang with a manual transmission. Her father gave her instructions on how to operate a stick shift because she had never driven one before. The following day she picked up defendant and Corey Gaines in her yellow Mustang. Wormington testified that defendant told her to stop the car in front of a house with a group of African-Americans in the driveway. She complied.
She further testified that Corey Gaines and defendant got out of the car. It is unclear from her testimony if Gaines got completely out of the car, but it is clear that, according to Wormington, he was back in the car before she heard any shots. Defendant, however, was out of the car when she heard one of the males respond "Meadowview," and then she heard four or five shots and saw someone fall to the ground. During cross-examination, she stated that defendant shot the female victim.
Defendant jumped back into the car, yelling at her, "[B]itch, drive. Go. Go. Drive." She testified she stalled the car twice and then drove away. Defendant ultimately ordered her to get into the passenger seat and he then drove.
Wormington testified at some length how defendant had abused her and called her names like "bitch, slut, whore, [and] punk." He would slap, choke, and "man-handle" her. She explained she stopped the car our of fear of his reprisal if she disobeyed his order. She testified she wanted out of the relationship but conceded she continued to call him many times a day after the shooting. On one occasion over a month after the shooting, she picked him up at the hospital because he was crying and told her he needed her. She talked to him frequently even after her arrest. The prosecutor elicited testimony during cross-examination of Wormington that her allegations of abuse were made only after she attended a domestic violence class in jail and belatedly admitted she was, in fact, with defendant at the time of the shooting.
Someone dropped a blue cell phone and left it at the scene of the crime. Kaylee Wormington was the subscriber for that phone. She testified she had given it to defendant as a birthday gift. Defendant's testimony from the previous trial was also read back to the jury after he too invoked his right not to testify. Defendant admitted he did "hang with" and considered himself a member of the Valley Hi Crips. The prosecution introduced many photographs of defendant "throwing up" gang signs, dressed in blue, and accompanying other known gang members. Jefferson testified the shooter was wearing a blue do-rag, a blue beanie, and a blue jacket; Ricky Canady testified the shooter was wearing a blue do-rag and "all blue" clothing.
A gang expert testified to the customs and practices of African-American gangs in general and the Valley Hi Crips in particular. She explained, as gang experts customarily do, gang psychology and sociology, including such fundamentals as: Crips wear blue and utilize their left sides (e.g., an earring in the left ear), hand signs are the mark of group solidarity or challenge, a soldier in a gang is "someone who on a regular basis will put in work for the gang" and thereby attain status within the gang hierarchy, violence breeds fear and respect, daytime shootings are particularly effective for maintaining control in neighborhoods, and a Crip's reference to a Blood as "cuz" as well as the inquiry "where are you from?" are considered challenges.
The primary activities of the Valley Hi Crips, according to the expert, are homicides, attempted homicides, robberies, narcotics dealing, and stealing vehicles. The expert testified that in December 2004 the Meadowview Bloods and Valley Hi Crips were engaged in a gang war. She reported that defendant was a validated Crip gang member, and she believed he had attained status as a soldier for the Valley Hi Gangster Crips.FN1 She opined that the shooting was for the benefit of the Valley Hi Gangster Crips, who would be given credit within the gang community for catching Meadowview Bloods "slipping," meaning they were caught without their guns. Defendant does not challenge any of the gang-related testimony of the expert, including the evidence of two predicate offenses committed by gang members and personally investigated by the expert.*fn2
FN1. At times during the trial, counsel or witnesses referred to the Valley Hi Crips as the Valley Hi Gangster Crips.
Following his second jury trial, Petitioner was found guilty of the attempted murders of Ricky and Alicia Canady, and the jury found true gang and firearm penalty enhancements as to both crimes. Petitioner was sentenced to an aggregate determinate term of twenty-nine years and four months, plus a consecutive indeterminate term of twenty-five years to life.
Petitioner appealed his convictions to the California Court of Appeal, Third Appellate District. The court affirmed Petitioner's convictions with a reasoned opinion on February 11, 2009. He then filed a petition for review of the appellate court's decision in the California Supreme Court. The court denied the petition without comment on May 15, 2009. Petitioner filed this federal petition for writ of habeas corpus on February 16, 2010. Respondent filed its answer on June 1, 2010, and Petitioner filed his traverse on June 24, 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 established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).
Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.
Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a 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." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).
Finally, the petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ; ...