FINDINGS AND RECOMMENDATIONS
Robinson, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue are his 2006 convictions in the Sacramento County Superior Court, case number 05F03831, for which he is serving a life sentence without the possibility of parole.
The California Court of Appeal summarized the facts of Robinson's offenses in an unpublished opinion on direct review:
On Thursday, May 5, 2005, in the early evening hours, R.T. was hanging out in the Oak Park area of Sacramento when he overheard an acquaintance, Markus Mayers, and another man, Gerald Ellis, say something about doing a "lick" on the "pill man." They asked R.T. to participate, but he declined.
In the parlance of the street, a "lick" is a robbery. The "pill man" was an individual named Donald Willis, who lived in Sacramento and purportedly sold pills containing methylenedioxymethamphetamine, commonly known as Ecstasy. Mayers had been an acquaintance of Willis for many years and had visited his house perhaps a month earlier. He and Ellis mentioned that Willis used to live in their neighborhood but had gotten money and began acting "funny" and "big headed."
R.T. hitched a ride to Oakland in Ellis's car with Mayers, Ellis and a fourth man. They arrived at 77th Avenue in Oakland around 10:00 or 11:00 p.m. and got out of the car. Later, Mayers and Ellis told R.T. they were going back to Sacramento, but R.T. decided to stay in Oakland. In the early morning hours of Friday, May 6, R.T. saw Mayers and Ellis get back into the car with Carlos Foster and [Robinson] and drive away.
At the time, Willis was living at 1019 Clinton Road in Sacramento with his girlfriend, A.J., and A.J.'s daughter D. Also present in the home that night were D.L. and D.L.'s boyfriend, R.S.
At approximately 5:30 a.m., on May 6, someone fired a shotgun into the side of the Willis home just below the master bedroom window. A.J. awoke to see a man climbing through the bedroom window holding a "Rambo gun" (the first intruder). The first intruder was followed closely by two others, the second intruder and the third intruder. The first and second intruder wore ski masks, but not the third intruder. The third intruder was armed with a handgun.
The first intruder immediately climbed onto the bed and began beating Willis on the head with his gun and asking where Willis kept his money. The second intruder walked through the bedroom and out the door, while the third intruder remained with the first. The first intruder eventually got off of Willis and searched through Willis's pants, which Willis had left on the floor. The first intruder then forced Willis to get up and he and the third intruder walked Willis into a nearby bathroom.
The third intruder remained with Willis while the first intruder searched the home. Later, the first intruder came back into the bedroom and asked A.J. for Willis's car keys. A.J. gave him the keys, and the first intruder walked out the front door of the house, followed at a distance by A.J. The first intruder ordered A.J. back into the house. The first intruder came back into the house and asked Willis where he was hiding the rest of the money. Willis directed him to a dresser drawer. The first intruder told A.J. to get the money from the drawer, and she did so. A little while later, the first intruder walked past the bathroom, said something to the third intruder, and then walked out of the house. The third intruder shot Willis in the head with the handgun and then he too left.
Willis was pronounced dead at the house at 6:05 a.m.
A.P. lived near Willis. That morning he was letting his cats outside when he heard a loud bang followed by screams. He heard footsteps and saw someone run past his house. A.P. then observed a car go by that matched the description of the one in which R.T. had traveled to Oakland. It was accelerating rapidly and had three or four people inside.
At the time of the murder, Ellis was living in Sparks, Nevada. C.B. is Ellis's mother-in-law, Mayers's aunt and the aunt of [Robinson]'s sister. On the morning of May 6, C.B. was baby-sitting Ellis's daughter at his house, because Ellis was supposed to be gone for a couple of days. However, at approximately 8:30 a.m., she saw someone walk into the back yard, followed by Mayers and [Robinson]. She then saw Ellis walk into the house. At that point, C.B. departed. C.B. later identified the first person who came into the yard as Foster.
Later that day, Ellis borrowed a car from L.C., paying him $100, and telling L.C. he needed the car to pick up his family in Sacramento. Ellis told L.C. he would return the car later that evening. L.C.'s wife accompanied L.C. and Ellis to Ellis's house to turn over the car. While there, she observed [Robinson], Mayers and a third man she did not recognize.
Ellis did not return the car as promised.
The next day, Oakland police officers arrested R.T. after they found him in possession of a handgun. R.T. claimed Foster had given him the gun seconds earlier.
On Sunday, May 8, at approximately 10:39 a.m., police officers discovered L.C"s car parked on 76th Avenue in Oakland. Inside were [Robinson] and Foster, both of whom were asleep. The officers approached and observed a handgun in the waistband of Foster's pants and a shotgun between [Robinson]'s legs. The officers secured the weapons and arrested the two men. They found a magazine clip and 13 bags of marijuana in the car and $587 on Foster. [Robinson] gave the officers a false name.
It was later determined a shotgun shell discovered in the Willis residence after the murder was fired from the shotgun found with [Robinson], and the bullet that killed Willis was fired from the handgun found in Foster's waistband.
A.J. later identified Foster in a photographic lineup as the third intruder.
Mayers, Ellis, Foster and [Robinson] were charged with murder and robbery. Foster was also charged with enhancements for having fired a firearm causing great bodily injury, [Robinson] and Ellis were charged with enhancements for personally using a firearm in connection with the offenses, and Mayers was charged with enhancements for being armed. The four were tried together before three juries, one each for Mayers and Ellis and one for [Robinson] and Foster.
People v. Robinson, No. L 1483126, 2009 WL 1483126, at 1 -3 (Cal.App. 3 Dist., 2009).
On this evidence, a jury convicted Robinson of robbery and murder and found true that he used a firearm in connection with each offense. The trial court sentenced him to life without the possibility of parole for the murder plus 10 years for the weapon enhancement; sentencing on the robbery count was stayed.
Robinson appealed his convictions to the California Court of Appeal, Third District, where judgment was affirmed in an unpublished opinion. Petition for review to the California Supreme Court was denied. The parties agree that Robinson exhausted state remedies with respect to the claims presented. Respondent asserts, however, that two of the grounds are procedurally barred in this court, as will be discussed herein.
The petition presents five grounds for relief:
A. Admission of R.T.'s May 8, 2005 involuntary out-of-court statements violated Robinson's right to a fair trial;
B. Defense counsel rendered ineffective assistance at trial by failing to object to the admission of R.T.'s out-of-court statement;
C. R.T. gave perjured trial testimony which prosecutor knew or should have known in advance would be false;
D. The prosecutor committed prejudicial misconduct during closing argument; and
E. Insufficient evidence supported the first degree murder conviction.
For the reasons that follow, these grounds are without merit and relief should be denied.
IV. 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 be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. ...