The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER FINDINGS AND RECOMMENDATIONS
Petitioner, Phanhnha Xabandith, 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 serving an aggregate determinate sentence of thirty years four months in state prison after a jury convicted him of assault with a deadly weapon, shooting from a motor vehicle, two counts of possession of an assault weapon, three counts of being a felon in possession of a firearm, and a sentencing enhancement for committing the crime for the benefit of a street gang. The jury also found true a sentencing enhancement that Petitioner personally and intentionally discharged a firearm causing great bodily injury for which Petitioner was sentenced to an additional and consecutive indeterminate term of twenty-five years to life. Petitioner raises seven claims in this federal habeas petition; specifically: (1) Petitioner's right to confront the witnesses against him was violated when the victim testified that he recognized Petitioner from a photo lineup "because his friend Kelly said so" ("Claim I"); (2) the court failed to instruct the jury that his accomplices wife, Lani Chann, who testified for the prosecution, was an accomplice as a matter of law ("Claim II"); (3) "sentencing issue" with regard to the enhancement for personal discharge of a firearm causing great bodily injury ("Claim III"); (4) ineffective assistance of counsel for failing to obtain a declaration from Mrs. Chann's attorney that she was testifying in order to avoid criminal charges, a "secret deal" ("Claim IV"); (5) ineffective assistance of counsel for failing to question Mrs. Chann about the secret deal ("Claim V"); (6) ineffective assistance of counsel due to counsel's failure to file a motion to suppress evidence, including the gun used in the shooting, found in an apartment ("Claim VI"); and, (7) failure to instruct the jury that in order to find Petitioner guilty of shooting from a motor vehicle they must find proof of every element of the crime beyond a reasonable doubt ("Claim VII") . For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND*fn2
One night in March 2004, Lani Chann was driving home from a bar with a friend named Kelly Visamoun. Sang Saelee, the father of Visamoun's baby, pulled up next to them on the freeway and pointed a gun at them. When Lani Chann got home, she told her husband, Tim, what had happened, and he became angry.
That evening, the Channs went to a Taco Bell three or four blocks away from the house where Saelee and Visamoun lived. While they were there, defendant arrived in a pickup truck with another person. Defendant waved at the Channs, they walked toward his truck, and Tim Chann got in the driver's seat while defendant lay in the truck bed. Tim told Lani to go home, but she followed them instead.
The details of what happened when Lani followed them will be set forth below, in connection with defendant's argument on the accomplice issue. For now, suffice it to say the evidence supported the conclusion that Tim Chann drove to the house where Saelee lived, and defendant popped up from the truck bed and fired over 20 rounds from a rifle toward the house, striking one man in the leg.
Later that night, police, conducting a probation search of an apartment after receiving a noise complaint, found five firearms in a closet. Ballistics evidence showed that one of the firearms in the closet was used in the shooting.
Defendant was charged with attempted murder, assault with an assault weapon, shooting from a motor vehicle, possession of an assault weapon (two counts), and being a felon in possession of a firearm (three counts). The jury found defendant not guilty of attempted murder but guilty of the remaining charges and also found various enhancement allegations true. The trial court sentenced him to an aggregate determinate term of 30 years 4 months in prison consecutive to an indeterminate term of 25 years to life.
After Petitioner's conviction, he directly appealed to the California Court of Appeal, Third Appellate District. In his direct appeal Petitioner raised, amongst other claims not raised in this petition, his claim that the trial court failed to instruct the jury that Lani Chann was an accomplice as a matter of law (Claim II in the current Petition). The Court of Appeal affirmed Petitioner's conviction. See Slip Op. Petitioner's petition for direct review in the California Supreme Court was denied. See Lodged Doc. No. 4 (California Supreme Court Denial Order). Thereafter, Petitioner filed a state petition for habeas corpus in California Superior Court for the County of Sacramento. See Lodged Doc. No. 5 (Petition for Writ of Habeas Corpus).
In his state petition, Petitioner raised each of the claims that he now raises in his federal petition, including his claim that the jury should have been instructed that Chann was an accomplice. The Superior Court, in a written order, concluded that Petitioner was barred from raising his claims, other than his ineffective assistance of counsel claims, in a state habeas petition because they were either (1) raised on direct appeal or (2) were based on the trial record and should have been brought on direct appeal. In determining Petitioner's claims were barred, the Superior Court relied upon the California Supreme Court's decisions in In re Waltreus, 62 Cal.2d 218 (1965), In re Dixon, 41 Cal.2d 756 (1953), and In re Harris, 5 Cal.4th 813 (1993). The Superior Court went on to conclude that Petitioner's three ineffective assistance of counsel claims lacked merit and denied relief. See Lodged Doc. No. 6 (Superior Court Habeas Denial Order).
Petitioner then filed petitions for habeas corpus with the California Court of Appeal and the California Supreme Court. Both were summarily denied. The California Supreme Court's order denying the petition stated as follows: "The petition for writ of habeas corpus is denied. (See In re Swain (1949) 34 Cal.2d 300, 304.)" Lodged Doc. No. 10. The California Supreme Court has cited that page of In re Swain for the proposition that a petitioner must allege why he could not have raised particular claims on direct appeal.
Next, Petitioner filed the instant action seeking federal relief in a petition for habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed an amended petition on November 20, 2009. (ECF No. 12). Thereafter, Respondent moved to dismiss the petition on the grounds that it was untimely. (ECF No. 17). That motion was denied. (ECF Nos. 24 & 27).
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. ANALYSIS OF PETITIONER'S CLAIMS
Respondent has asserted that Claims I, II, and VII are procedurally barred. See Answer at ¶ 4. As discussed above, Petitioner failed to raise these claims on direct review from his conviction and, in ruling on Petitioner's state habeas petition, the Superior Court determined that, under California procedural rules, the claims should have been brought on direct appeal and, thus, did not address the merits of Petitioner's claims.
Procedural default is an affirmative defense, and the state has the burden of showing that the default constitutes an adequate and independent ground. Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir. 2005); Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. Bennett, 322 F.3d at 585-86. "The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. at 585. If the petitioner meets his burden, the ultimate burden to prove adequacy goes back to the state. Id. Thus, "it is the law of this circuit that the ultimate burden is on the state, not the petitioner, to show that a procedural state bar was clear, consistently applied, and well-established at the time the party contesting its use failed to comply with the rule in question." Insyxiengmay, 403 F.3d at 666.
In this case, Respondent met his initial burden of adequately pleading the "existence" of a state procedural bar when he asserted in his answer that "Any claims not properly presented in state court under state rules are barred . . . as procedurally defaulted" and then argued in his memorandum of points and authorities in support of his answer to the same effect. See Answer at ¶ 4, p. 6, 11; Mueller, 322 F.3d at 586. In Petitioner's traverse he disputes Respondent's conclusion that the claims are procedurally barred. Traverse at 2. Petitioner does not cite to authority, but asserts the failure to bring the claims on appeal is a result of ineffective assistance of appellate counsel. Id. at 2, 13-15; see id., Ex. A (Letter from Petitioner's appellate counsel to Petitioner stating he would not raise certain claims on appeal, including the claims Respondent now claims are procedurally barred.). As such, Petitioner has met his burden of placing the procedural bar in issue and the ultimate burden now rests upon Respondent to show that the procedural bar is clear, consistently applied, and well-established. Insyxiengmay, 403 F.3d at 666.
Respondent has not met that burden. In conclusory fashion, Respondent maintains that Petitioner's claims are procedurally barred. See Answer at 6. Respondent, however, cites to no authority from which this court could conclude that the procedural bar in question is adequate, independent, and consistently applied. As discussed above, in finding Petitioner's claims procedurally barred, the Superior Court relied upon In re Dixon, 41 Cal.2d 756 (1953), and In re Waltreus, 62 Cal.2d 218 (1965). Waltreus does not form a basis for procedural default in federal court. Hill v. Roe, 321 F.3d 787, 789 (9th Cir. 2003) (A Waltreus denial is neither a ruling of procedural default nor a ruling on the ...