The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Merced, following his conviction by jury trial on October 30, 2008, of murder in the second degree (Cal. Penal Code § 187), and active participation in a criminal street gang (Cal. Penal Code § 186.22(a)). (CT*fn1 498-501.) Firearm and criminal street gang enhancements were also determined to be true. (Id.) Petitioner was sentenced to serve a determinate term of three years plus an indeterminate term of 55 years to life in state prison. (Id.)
Petitioner filed a timely notice of appeal. On May 10, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision, but modified the sentence. (See Resp't's Answer, Ex. 1.) On July 13, 2010, Petitioner filed a petition for review in the California Supreme Court. (LD*fn2 5.) The petition was summarily denied on August 11, 2010. (LD 5.)
On March 23, 2011, Petitioner filed the instant federal habeas petition. He presents the following claims for relief: 1) He contends there was insufficient evidence to support the criminal street gang enhancement in violation of his federal due process rights; and 2) He asserts the trial court erred in admitting prejudicial gang evidence which deprived him of a fair trial in violation of this federal constitutional rights. On June 27, 2011, Respondent filed an answer to the petition. Petitioner did not file a traverse. Petitioner did, however, file an interlocutory appeal to the Ninth Circuit Court of Appeals, but the appeal was denied.
At a party in Merced, members of two Merced subsets of the Norteno criminal street gang exchanged gang taunts with members of the West Coast Outlaws, an Atwater criminal street gang with ties to neither Nortenos nor Surenos. Afterward, two Nortenos, Robby Lee Maule and Raul Herrera, confronted members of the West Coast Outlaws in a garage off a nearby alley. As Herrera stood behind him, Maule fired two shots into the garage. Korey Suttles, a member of the West Coast Outlaws, died of a gunshot wound. (See Resp't's Answer, Ex. 1.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Merced County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is
barred unless a petitioner can show that the state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...