The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ADOPTING THE RECOMMENDATION REPORT AND
On August 23, 2010, Petitioner Brandon Lynell Price ("Petitioner"), a state prisoner proceeding pro se, filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction. (Doc. No. 4.) On February 25, 2010, Respondent Domingo Uribe ("Respondent") filed an answer to petition for writ of habeas corpus. (Doc. No. 18.) On August 5, 2011, the magistrate judge issued a Report and Recommendation ("R&R") that the Court deny the petition. (Doc. No. 27.) On October 7, 2011, Respondent filed an objection to the R&R. (Doc. No. 38.)
The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines this matter is appropriate for resolution without oral argument and submits the matter on the papers. For the reasons below, the Court denies the petition and adopts the report and recommendation.
Petitioner challenges his conviction for second degree murder, shooting at an occupied vehicle, attempted robbery, and assault with a firearm. (Doc. No. 4.) He raises due process, confrontation clause and ineffective assistance of counsel claims in support of his petition. Id.
On June 29, 2005, a jury found Petitioner guilty of second degree murder and shooting at an occupied vehicle. People v. Price, No. D048215, 2009 WL 62979, *1 (Cal. Ct. App. Jan 12, 2009), see also (Doc. No. 18 at 1.) The jury found that Petitioner had committed these offenses for the benefit of a criminal street gang within the meaning of Cal. Penal Code § 186.22. Price, 2009 WL 62979, at *1; see also (Doc. No. 18 at 1.) The jury did not reach a decision on two remaining counts, attempted robbery and assault with a firearm. (Doc. No. 18. at 1.) The court declared a mistrial on those counts. Id.
On November 30, 2005, at a retrial, a second jury found Petitioner guilty of the attempted robbery and assault with a firearm. Id. at 1. The jury found that Petitioner's commission of these offenses had met the requirements for the firearm enhancements but not for the gang enhancements.*fn1 Price, 2009 WL 62979, at *2. On March 2, 2006, Petitioner was sentenced to 28 years to life in prison. (Doc. No. 18 at 1.)
I. Scope of Review and Applicable Legal Standard.
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party objects to any portion of a magistrate judge's report, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made." Id. A federal court may review a petition for writ of habeas corpus by a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000).
Petitioner filed this petition after April 24, 1996, and therefore the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the petition. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). The amended Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") 28 U.S.C. § 2254(d) provides the following standard of review applicable to state court decisions:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
A federal court may grant habeas relief under the "contrary to" clause of § 2254(d)(1) if a state court either (1) "applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a ...