The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Kenneth Vernon, is a state prisoner proceeding with a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of twenty-five years to life and a determinate sentence of ten years after a jury convicted him on one count of murder in the first degree and found true the allegation that he used a firearm. Previously, this court granted Respondent's motion to dismiss Petitioner's first, second, and eighth claims for relief raised in his second amended petition as barred by the statute of limitations. See Docket No. 48 (Order Adopting Findings and Recommendations). As such, Petitioner has eight remaining claims in this federal habeas petition; specifically: (1) Jurors committed misconduct by failing to disclose material information during voir dire ("Claim III"); (2) jurors committed misconduct when they had contact and discussions with third parties ("Claim IV"); (3) prosecutorial misconduct occurred when the prosecutor communicated with the jury outside of the court proceedings ("Claim V"); (4) Petitioner's right to a public trial was violated when the public was excluded from voir dire proceedings ("Claim VI"); (5) the trial court refused to substitute counsel at Petitioner's retrial after his initial trial resulted in a hung jury ("Claim VII"); (6) if any claims are deemed waived, counsel provided ineffective assistance of counsel ("Claim IX"); (7) there was insufficient evidence from which the jury could find Petitioner guilty of first degree murder ("Claim X"); and, (8) erroneous jury instructions were given regarding consciousness of guilt evidence ("Claim XI"). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND*fn1
Defendant lived at 8201 Arroyo Way in Stockton with his girlfriend Robin McClary, her son, and Doyle Dubois. Defendant worked as a warehouseman from 6 a.m. until 2:30 p.m. On August 24, 1995, he got home at about 3:00 p.m. and took McClary to the doctor for her allergy shot. Her son was visiting his grandparents.
Philip Mosqueda's brother owned 8201 Arroyo Way. Mosqueda was there that afternoon to fix the sprinklers. One week earlier he had repaired the air conditioning unit and checked the dishwasher. When he told McClary the dishwasher did not work, she was not upset. On August 24, he arrived at 4:45 p.m. and McClary answered the door; defendant came out later. After 5:00 p.m. Mosqueda went to the door and spoke with defendant. McClary came out; she was not upset and he smelled no alcohol on her breath.
Robert Perry worked as a gardener and repairman. He went to 8201 Arroyo Way that day at the owner's request. When he first arrived in the early afternoon, no one was home. Perry returned a little after 5:00 p.m. and defendant answered the door. They agreed on a price for gardening work and Perry began working; he used an extension cord to the garage for his trimmer and lawn mower. / / /
Perry saw McClary; she was pleasant and did not smell of intoxicants. Defendant and McClary went back in the house at 5:30 p.m. Perry heard the television and stereo very loud. He heard a plate being broken and glass shattering. He heard the sound of a firecracker in the distance. Perry heard heavy walking and the sound of shoes being thrown. After 20 to 25 minutes in the house, defendant came out carrying clothes and a towel. As he left, defendant told McClary to turn down the stereo.
Defendant returned in 10 minutes. His roommate Dubois also arrived, parked, and got in defendant's truck and left. Dubois got off work at 5:00 p.m. and was usually home by 5:30. This day he stopped at Kragen Auto Parts, the bank, and Jack-in-the-Box. He saw defendant on his way home and defendant asked if he wanted to go to the music store. Dubois went with defendant to Tower Records. At the store, defendant walked into the door. Inside defendant claimed he was cut; he had cuts on his arm and leg. He went to the counter to complain. The clerk told him he could not have cut himself on the door as there were no sharp edges. She noticed the blood on his cuts was dried. Defendant left his name, address, and phone number. He left angry and came back in 10 to 20 minutes.
Defendant and Dubois returned home. Defendant spoke briefly with a man who wanted roofing work and went inside. As they entered the house, Dubois noticed the phone pulled out of the wall in the kitchen and asked defendant about it. Defendant began calling for McClary. They found her in the bedroom, face down in blood, with her pants pulled down. There was a knife by her hand.
Defendant and Dubois left the house, screaming "She's dead." Defendant went to the neighbor's and pounded on the door, yelling, "Call 911. My girlfriend's been shot." He came back and said, "I think she's been raped. Her panties are down."
A sheriff's deputy got the call about 6:47 p.m. When the sheriff arrived, Perry was still mowing the lawn and defendant and Dubois were sitting on the grass. Defendant told the officer his girlfriend was in the house, her face was blue and her tongue hanging out. She had been shot.
The officer entered the house and noticed the television was loud. The phone was on the floor in the kitchen. In the bathroom the window frame was on the floor and the glass was broken. The screen was bent from the inside and the dirt on the window sill was not disturbed. In the north bedroom McClary was face down on the floor with her pants pulled below her buttocks.
In the living room, there were glasses on the floor and blood on the rug. Part of a broken plate was behind the couch. The blood was McClary's. McClary's blood was also found at the door of the bathroom; defendant's blood was in the shower. There was a trail of blood next to the body in the bedroom, indicating it had been moved. The strike plate and door jam to the bedroom door were broken. The waterbed had been knocked off its pedestal. There was a hunting bow and arrows on the floor. A broken gold chain was near the phone and the phone wire was missing. On the corner of the bed was an open purse. There was an empty box for a 9 mm. gun; the gun was never found.
McClary was killed by a gunshot wound to the head. The bullet entered an inch and half behind her left ear, passed through the large muscle in her neck, fractured the base of her skull, and exited behind her right ear. The gunshot was almost level, upwards five degrees. There was a bullet hole in the wall two feet above the floor. The bullet struck the sheetrock horizontally. The gun was fired from about two feet off of the floor.
McClary had several other injuries. There were abrasions and a scrape on her left shoulder blade. She had petechial hemorrhages- dot-like areas of blood-on her eyelids. These could have been caused by pressure to the neck or direct trauma. There were no internal injuries to the neck to indicate strangling. There were petechiae to the mouth area and a contusion on her lower lip. A bruise on her left cheek may have been caused by a ring. McClary had four purple petechial contusions at her Adam's apple and contusions on the right side of her neck. She had a scratch on her chin. There were six contusions on her left hipbone caused by blunt force trauma, bruises below her nipple, and an abrasion to her right elbow. There were no injuries to her hands. Methamphetamine and ethyl alcohol were found in McClary's blood. Her blood alcohol level was .08; the level of methamphetamine was .13 grams per liter. methamphetamine [sic] is a stimulant that can make one agitated, irritable, paranoid, suspicious, and aggressive. The amount of methamphetamine found in McClary was above the effective level at which there are clinical symptoms, but below the potentially toxic level at which the effects are undesirable.
Defendant was interviewed several times, at first denying any involvement in McClary's death. He suggested other suspects, including a black man who came to the house one week earlier, three Mexicans who tried to break in, and a gang who tried to kill his parents while they were in his car. Defendant also tried to implicate McClary's former boyfriend, Michael King. Late one night he went to King's. King recognized defendant's truck, called 911, and defendant left.
Defendant was arrested at McClary's funeral and charged with murder. His first trial resulted in a hung jury. The jurors voted 11 to 1 for murder, with one holding out for manslaughter. The prosecution offered defendant second degree murder with the low term for the use allegation, for a total prison term of 18 years to life.
On retrial, defendant admitted he shot McClary, but claimed it was manslaughter. Defendant testified when he moved into 8201 Arroyo Way, the sprinklers, air conditioning, and dishwasher did not work. The landlord got upset that the lawn was dying and sent a three-day notice. The landlord told him if he hired a gardener, he could forget the notice. The landlord fixed the air conditioning. The dishwasher could not be fixed but the landlord would buy a new one in October.
Defendant had purchased a gun in March. McClary kept it in her purse. McClary noted their arguments on a calendar. Defendant described them as "Just kind of a huff and puff and ignore."
On August 24, McClary was fixing dinner and drinking wine. She had two glasses of wine. She complained about the landlord not fixing things. She got angrier and said she would call him. Defendant told her not to; he had taken care of it. McClary brushed past him saying "fuck you" and stormed into the bedroom, slamming the door. Defendant got mad and told her not to slam the door; she slammed it again.
McClary went to the living room and sat on the couch. Defendant followed and yelled in her face. She pushed him and he pushed her harder, cussing. She threw a plate at him which broke on his arm. He pushed her down on the couch and saw blood on her hand. She stormed to the bedroom, yelling. Defendant followed, telling her to calm down. She tried to hit him and he pushed her into the shower. Defendant was bleeding from his arm. Defendant backed up and McClary tackled him on the bed, causing it to collapse. She hit defendant and he hit her in the face. He threw her off the bed and she landed near the wall. She grabbed an arrow and struck him in the leg. He grabbed the arrow and jerked it from her. McClary was screaming that she would kill him. He turned and saw she had a gun. He tackled her and they struggled on the ground over the gun. He pulled away and fired. She fell on top of him.
He thought no one would believe what happened so he came up with the idea to make it look like someone broke in. He opened the sliding glass door, kicked in the bedroom door, took out the bathroom window, and pushed the screen out. He threw the broken plate in the trash, grabbed a knife and put blood on it, and pulled down McClary's pants.
He intercepted Dubois and ran into the door at Tower records to explain his cuts. He threw the gun in the dumpster at Payless and towels in the dumpster at Burger King. FN1 Defendant admitted he had lied. He was scared and in denial.
FN1. Defendant had told the police he cleaned up at Burger king. When they checked the dumpsters the next day, the one behind Payless had already been emptied. They found bloody towels in the dumpster at Burger King. Both defendant's and McClary's blood was on the towels.
On cross-examination, the prosecutor asked defendant if he intended to shoot McClary. Defendant answered repeatedly only that he pulled the trigger. Finally, defendant admitted he meant to shoot her in the head. In the previous trial, he had testified he intended to kill her. The prosecutor then asked what defendant was thinking while they were wrestling for the gun. "Q. Okay. Do you remember again testifying on cross-examination -- counsel, page 1214 -- in the last trial: "All I remember when we were wrestling with the gun, uh, at a certain time in my head right before I had pulled the gun away from her I was like, 'I've got to shoot.' I pulled the gun away and I just shot with, uh, no time to think or nothing. Just happened quick, real quick. "A. Yes. "Q. So you thought about it for at least a moment before you got the gun away, about 'I have to shoot her?' "A. Yes, right -- right when I had got somewhere through there." The prosecutor argued it was a deliberate, premeditated murder. Defendant turned up the television to hide the noise and pulled the phone out when McClary tried to call for help. He kicked the bedroom door in during the fight. The violence escalated with every encounter. Three times McClary walked away from defendant; each time he followed and continued the fight. The prosecutor argued defendant's deliberate acts after the killing showed he acted with cool, rational thought, not out of heat of passion. In rebuttal, the prosecutor reminded the jury defendant said he was going to kill her before he had the gun.
During deliberations, the jury asked for a rereading of defendant's testimony on cross-examination about whether he intended to kill McClary. It then asked for the portion of defendant's testimony where he discussed wrestling the gun from her. "We believe he said to himself that he knew he had to kill her." After this testimony was read, the jury returned a first degree murder verdict.
On April 4, 1997, Petitioner was sentenced to a total term of thirty-five years to life in prison in California Superior Court for the County of San Joaquin after a jury found Petitioner guilty on one count of first degree murder with an enhancement for the use of a firearm. Rep.'s Tr. (Second Trial) [hereinafter "RT2"] at 1683; see also Pet'r's Second Am. Pet. [hereinafter "Pet."] at ¶ 1; Lodged Doc. No. 1 (Abstract of Judgment). Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District. On direct appeal, Petitioner claimed that there was insufficient evidence to support a verdict of first degree murder (Claim X in the present petition) and raised challenges to the instructions given to the jury before deliberation (Claim XI in the present petition). On March 8, 1999, the Court of Appeal, in a reasoned decision, affirmed Petitioner's conviction and sentence. Slip Op. at 2. The California Supreme Court denied discretionary review. Lodged Doc. No. 4 (California Supreme Court Denial Order).
On September 11, 2000, Petitioner filed a state habeas petition in San Joaquin County Superior Court. Lodged Doc. No. 5 (Petition for Writ of Habeas Corpus, San Joaquin County Superior Court) [hereinafter "State Habeas Pet."]. In that petition, Petitioner raised the remaining claims for relief that he asserts in this court. Id. The following day, Petitioner filed the instant federal petition for habeas corpus in United States District Court for the Northern District of California. See Pet'r's Pet. for Writ of Habeas Corpus, Docket No. 1. Noting that Petitioner had a pending petition for habeas corpus in state court, and without requiring the Respondent to be noticed, the district court dismissed Petitioner's petition without prejudice to Petitioner filing a new petition after all of his state court post-conviction proceedings had concluded. See Docket No. 2 (Order Dismissing Petition). Petitioner then filed a first amended petition, which the court did not respond to, and on October 24, 2007, over seven years after originally filing his petition, Petitioner moved the district court to allow him to file a second amended petition and to hold the proceedings in abeyance until he had exhausted all of his claims in state court. See Docket No. 17. The district court granted Petitioner's motion, Docket No. 18, and Petitioner filed his second amended petition in the Northern District on March 4, 2008. See Pet.
Meanwhile, Petitioner's state petition proceeded through the state courts. On October 1, 2001, the Superior Court, in a reasoned decision, denied Petitioner's petition. Lodged Doc. No. 6 [hereinafter "State Habeas Op."], at 3. After the Superior Court's denial, Petitioner filed petitions with the California Court of Appeal and then the California Supreme Court. See Lodged Doc. Nos. 7 & 9. Both courts summarily denied the petitions, the Supreme Court doing so on April 9, 2003. Lodged Doc. Nos. 8 & 10. Later that month, Petitioner moved the federal court to reopen his case. See Docket No. 22. The court granted the motion and ordered Respondent to respond to the petition by answer or motion to dismiss. Docket No. 23. Thereafter, Respondent moved to have the case transferred here, to the Eastern District of California, the district of conviction. Petitioner did not oppose the motion, and the court ordered that the case be transferred.
Upon arrival in this court, Respondent moved to dismiss claims one, two, and eight of the second amended petition. Docket No. 34 (Motion to Dismiss). Finding those claims barred by AEDPA's one-year statute of limitations, the court granted the motion, dismissed those claims, and ordered Respondent to respond to the remaining claims in Petitioner's second amended petition by answer. See Docket Nos. 45 & 48 (Findings and Recommendations & Order Adopting Findings and Recommendations).
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).
Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
IV. REQUESTS FOR AN EVIDENTIARY HEARING AND DISCOVERY
Petitioner requests an evidentiary hearing and additional discovery on his claims. See Pet. at 29. A court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support petitioner's claims, and if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has presented a "colorable claim for relief." Earp, 431 F.3d at 1167 (citations omitted). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted). Moreover, the Supreme Court has recently held that federal habeas review under 28 U.S.C. § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits" and "that evidence introduced in federal court has no bearing on" such review. Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398, 1400 (2011).
Petitioner has not alleged any additional facts that, if true, would entitle him to relief. In several of Petitioner's claims, he simply purports that prejudice resulted without alleging any specific facts to support such a finding or showing how the alleged deficiencies might have altered the result of his trial. See Ortiz, 149 F.3d at 934. Petitioner must allege facts, and not list mere conclusions, in support of his petition. See Rule 2(c)(2), Rules Governing § 2254 Cases. As such, Petitioner fails to demonstrate that he has any colorable claim for federal habeas relief. Furthermore, each and every one of Petitioner's claims was decided on the merits in state court, either on direct appeal or in state habeas proceedings. As such, § 2254(d) applies to Petitioner's claims and this court, in reviewing those claims, is limited to the record that was before the state court. Pinholster, 131 S.Ct. at 1398. Thus, his requests for an evidentiary hearing and further discovery will be denied. /
V. ANALYSIS OF PETITIONER'S CLAIMS
In Claim III, Petitioner alleges that jurors at his trial committed misconduct when they failed to disclose certain material information during voir dire. Petitioner alleges that: (1) One juror failed to disclose that she was related to one of the prosecution's key witnesses; (2) another juror failed to disclose that he "knew or was acquainted with" Petitioner's uncle; and, (3) a third juror was familiar with the scientific evidence involved in the trial which he did not disclose in voir dire. Furthermore, Petitioner alleges that a note the third juror sent to the trial judge regarding the evidence shows that the juror was biased.
Petitioner did not raise this claim on direct appeal. He did, however, raise this claim in state habeas proceedings. See State Habeas Pet. at 3-6. The reasoned decision by the San Joaquin Superior Court represents the last reasoned decision on this claim. Ylst, 501 U.S. at 803. In ruling on Petitioner's claim, the Superior Court concluded as follows:
Three incidents are raised with regard to this ground.
The first incident involves juror, Linda Withers. Petitioner asserts that she is related to a key prosecution witness by marriage and her family knows petitioner's family. The petition states that those relationships were not disclosed during voir dire. A review of the trial transcript, however, indicates that during the trial, counsel for petitioner was advised by petitioner's mother that the Withers family and the Vernon family know each other. Counsel advised the court of that fact. The court examined petitioner's mother and examined Ms. Withers. The court found that the juror did not know petitioner or the witnesses and allowed Ms. Withers to remain on the jury.
The second incident involves an unknown juror who purportedly "dropped something just in front of [petitioner's father.] As the man was bending down to pick up the object, he turned to [petitioner's father] and asked if [he] was the brother of Jack Vernon." Declaration of William Vernon. When Petitioner's father said yes, the juror responded by saying, "Oh. Good." This evidence is vague and speculative as to what could be implied. (In re Swain (1949) 34 C.2d 300, 303-304.)
The third incident occurred in the jury deliberation room when a juror wrote a note to the court indicating that he understood that the use of allergy or asthma medication may give a ...