The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Jose Humberto Magana-Torres, 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 aggregate indeterminate sentence of 62 years to life in prison after a jury convicted him of several crimes related to, among other acts, the home invasion and attempted murder of an elderly couple. A jury found him guilty of: (1) three counts of auto theft (Cal. Veh. Code § 10851(a)); (2) conspiracy to commit robbery (Cal. Penal Code § 182(a)(1)); (3) residential burglary (Id. § 459); (4) two counts of home invasion robbery in concert (Id. §§ 211, 213(a)(1)(A)); (5) theft from an elder (Id. § 368(b)); (6) false imprisonment (Id. § 236); (7) false imprisonment of an elder (Id. § 368(f)); (8) assault with a deadly weapon (Id. § 245(a)(1)); (9) two counts of conspiracy to commit murder (Id. §§ 182(a)(1), 187); (10) two counts of attempted premeditated murder (Id. §§ 664, 187(a)); (11) arson causing great bodily injury (Id. § 451(a)); (12) causing injury to an elder (Id. § 368(b)(1)); and, (13) three counts of receiving stolen property (Id. § 496). The jury also found true several enhancements for causing great bodily injury (Id. § 12022.7).
Petitioner raises four claims in this federal habeas petition; specifically:(1) the introduction of Petitioner's co-conspirator's plea agreement into evidence violated Petitioner's confrontation rights guaranteed by the Sixth Amendment ("Claim I"); (2) the introduction of Petitioner's co-defendant's statement to police and the limitation on cross-examination of the interviewing officer violated Petitioner's rights of confrontation and to present a defense ("Claim II"); (3) the reopening of closing arguments based upon a question from the jury, without the jury declaring a deadlock, violated Petitioner's constitutional rights ("Claim III"); and, (4) the trial court erred in instructing the jury on various components of attempted premeditated murder ("Claim IV"). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND*fn1
In the early morning of June 4, 2004, 68-year-old Cesario Pinon awoke to the sounds of people walking and making noises in his house at 7429 Apple Hollow Loop in Roseville. He woke up his live-in partner Sarah Jedrzynski and warned her to keep quiet because he had heard noises. A few minutes later, three strangers, who had their faces covered, entered the bedroom. One of the men, speaking in both Spanish and English, ordered Pinon and Jedrzynski to lie face down on their bed, to keep still, and to tell them where their money was. The intruders tied the couple at the wrists and ankles with electrical cord and duct tape, and proceeded to ransack their home. Pinon initially denied having any money, but after one of the men struck him multiple times on the left shoulder with a flat object, he gave the men the combination to their lockboxes. Pinon managed to work his hands somewhat free, but one of the men returned and retightened his bindings.
When Pinon no longer heard any noises, he climbed out of bed with his hands and ankles still bound. He noticed that the room was full of smoke and there were flames in the closet. As he hopped around the end of the bed, trying to locate Jedrzynski, Pinon tripped, fell, and lost consciousness. Jedrzynski managed to untie her hands, pushed herself through a window and ran to a neighbor's house, who then called 911.
Police officers and firefighters rescued Pinon from the burning bedroom and extinguished the fire. Pinon was taken to the hospital where he was treated for smoke inhalation and a high level of carbon monoxide.
Firefighters discovered that telephone cords had been cut, several small fires throughout the house had been intentionally set, and the range knobs on the gas stove were turned to the "on" position.
The couple's 2004 Buick LeSabre was missing from their garage. Parked down the street from the home was a 1994 Mercury Grand Marquis with no license plates, which had been stolen that morning from Daniel Dillon.
That day, a 1992 Nissan Sentra SER owned by Nathanael Merrill was stolen from in front of his house. Inside the Sentra were various items of personal property, including a Bible, circular saw and various construction tools.
On June 3, 2004, someone also broke into a Ford pickup truck-a company vehicle assigned to Jody Leach-stealing a laptop computer, cell phone and camera.
Because the Buick LeSabre had been stolen from the victims' garage, the police activated its OnStar GPS system and located the vehicle in a carport at Edison and Bell in Sacramento. Inside the LeSabre, police discovered Jedrzynski's purse, Pinon's driver's license, a piece of the radio from the stolen Nissan Sentra, and some of the items stolen from Merrill and Leach.
On June 5, 2004, shortly after midnight, two Sacramento County Sheriff's deputies pulled over a blue Pontiac Sunbird that was missing its rear window and had expired registration tags. The steering column of the Sunbird had been peeled. Gomez-Perez was driving and his passenger was Magana-Torres. A search of the Sunbird yielded a Bible belonging to Merrill and the keys to the Buick LeSabre. There was also a cell phone displaying the name of "Heiner" plugged into the car charger.
At Gomez-Perez's apartment, officers discovered multiple items that had been stolen from the Pinon-Jedrzynski home and from the auto theft victims. Magana-Torres's fingerprints were found on Merrill's stolen Nissan Sentra, on Dillon's stolen Grand Marquis, and on Pinon's driver's license. Heiner Villeda's FN2 prints were found on the Sentra and on the LeSabre.
FN2. Heiner Orlando Villeda was charged with the present crimes along with Gomez-Perez and Magana-Torres. However, he pleaded guilty to several of the counts prior to the commencement of trial.
After waiving their constitutional rights, Magana-Torres and Gomez-Perez were interviewed separately by Roseville Police Department Detective Calvin Walstad, with the assistance of a Spanish translator. When he was shown a photograph of Villeda, Magana-Torres stated, "He is Heiner. He's the person who did everything." When Gomez-Perez was shown the same photograph, he stated, "He is Heiner" and "he is the one who told me to do everything." Gomez-Perez also said that $1,500, a computer, telephone, jewelry, and digital camera were taken from the victims' house on Apple Hollow Loop. He denied hitting anyone but said he saw Villeda hit the male victim three times with a file from a knife block in the house. Walstad then traveled to Pinon's house. In the bedroom, he discovered a sharpening steel from a knife block in the kitchen. The handle of the sharpening steel had been broken in half.
II. 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)).
III. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner alleges that the introduction into evidence of his co-conspirator's guilty plea violated his right to confront the witnesses against him guaranteed by the Sixth Amendment. Petitioner was tried along with his co-defendant and co-conspirator, Octavio Gomez-Perez. Prior to trial, Petitioner's second accomplice, Heiner Villeda, entered a guilty plea to a number of offenses related to the home invasion robbery. At Petitioner's trial, the prosecution attempted to call Villeda as a witness. Outside of the presence of the jury, a hearing was held to determine whether he would testify. Rep.'s Tr. at 879. Villeda, though he had already plead guilty and was granted immunity from prosecution, refused to testify against his accomplices, citing the Fifth Amendment. Id. at 882-83, 1231-32. In response, the prosecution asked the court to take judicial notice of Villeda's plea. Id. at 1162. Over Petitioner's objection on Confrontation Clause grounds, the trial court allowed the prosecution to introduce evidence of the plea through an exhibit listing the crimes Villeda had plead guilty to. Id. at 1162, 1166; See Lodged Doc. No. 2 (Clerk's Supplemental Exhibits on Appeal). The exhibit did not include any admission that Petitioner or his co-defendant were also involved in the crime. Subsequently, the prosecutor relied on the plea when making his closing argument. See Rep.'s Tr. at 1512-13, 1523.
On direct appeal, the California Court of Appeal assumed that the Confrontation Clause had been violated, but, applying Chapman v. California, 386 U.S. 18, 24 (1967), concluded that the violation was harmless beyond a reasonable doubt. Slip Op. at 9. The court found that Villeda's plea had no effect upon the verdict because: (1) there was ample other evidence, such as fingerprints and the defendants' statements, that Villeda was involved in the crime and (2) the evidence of Petitioner's guilt was "compelling." Id. at 9-10. Here, Respondent does not maintain that the admission of Villeda's plea was constitutional, but argues that the error was ...