The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Aaron Grey, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Grey is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the High Desert State Prison. Respondent has answered, and Grey has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Grey was convicted by a jury in the Sacramento County Superior Court of attempted murder, Cal. Penal Code §§ 664/187(a), and discharging a firearm from a vehicle, Cal. Penal Code § 12034(c). The jury also found that Grey had personally discharged the firearm, causing great bodily injury, Cal. Penal Code § 12022.53(d), but that the gang enhancement allegation, Cal. Penal Code § 186.22(b)(1), was untrue. In September 2007 the trial court denied Grey's motion for a new trial and sentenced Grey to an indeterminate prison term of twenty-five years to life. The California Court of Appeal, Third Appellate Division, affirmed Grey's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on April 1, 2009. Grey filed a petition for habeas relief in the Sacramento County Superior Court on January 25, 2010, which was denied on March 18, 2010. The record does not reflect that Grey sought further post conviction collateral relief in the California state courts. Grey timely filed his Petition for relief in this Court on May 16, 2010.
The factual basis underlying Grey's conviction, as recited by the California Court of Appeal:
At approximately 8 p.m. on October 10, 2006, V. was in a parked truck at a store waiting for her husband (the victim) to finish shopping; her baby daughter and her teenaged daughter Y. were with her. V. heard Y. telling someone that Y. "wasn't looking at her," and then V. heard a girl from a car parked next to V.'s truck saying "stuff" to Y, using "foul language." V. testified that both girls were "mouthing off to each other" and being rude. Y. got out of the truck and asked the other girl why she was calling out names, but got back in the truck when V. told her to. Then a "guy" from the car told V. to shut up, called her names, and said "he was calling some people, I guess to beat me up. [¶] He said that he-he was going to kill me, my daughter, my baby. And then he said after that, bring your husband, I got something for him, too." V., when reminded of her statement to police, conceded that the man had mentioned the "Piru" gang. She identified defendant in court as this man, and testified he had had a "grill," a shiny gold plate on his teeth. After the victim returned to the truck, [Grey] "called my daughter names and said that, come out [of] the car and fight my sister or girlfriend, whatever she was to him. And my husband didn't pay no mind and drove away. [¶] And they threw a milkshake at the window. We went home." [Grey] had said, "let the bitch come out of the car and fight me." After they unloaded groceries at home, V.'s husband went back to the store with M., their 17-year-old son.
Y. testified she had turned 16 years old the month before this event. She first noticed a car next to her family's truck, when someone began yelling at her, calling her "the B word and just saying a lot of stuff[.]" Y. got out of the truck, mad and expecting a fight, and called the girl a bitch, but when another female began yelling at her, saying things like "you are messing with my sister," and her mother told her to get back in the truck, Y. returned to the truck. The females in the car "started cussing and then they started cussing out my mom, calling her a fat bitch, and that I was a bitch and my little sister was a bitch." A man with braids and a gold grill on his teeth "said that we were bitches and that we needed to shut up, and . . . I got something for you and your mom and your little sister, and that's it." "He said something about it's Piru or something like that," and "stars up;" Y. used to know a boy in the gang and he would use that expression, so she understood this to mean the man was also in the gang, which frightened her. When her father arrived and they drove off, one of the girls threw a milkshake at their truck. Her father grew mad on the way home, and left the house with her brother. She testified her father took pride in his truck and would be upset by someone throwing a milkshake on it.
The victim, Y.'s father, testified that after he loaded the groceries in his truck and began to drive away from the store, a man told him "to take my [fucking bitch] daughter out of the car." The man was wearing a red jacket and had gold teeth. As the victim continued to back his truck out of the parking space, "Some females came out and started throwing stuff at the truck, at that time I was afraid."
After unloading the groceries at home, the victim went back to the store because he had forgotten an item, and he took his son M. with him. He also testified that he had it in his mind to confront the man. He drove to the other car and conceded that photographs showed he parked so as to block it, though he did not remember doing so. This would have been about 25 minutes after he left the parking lot. The victim asked the man why he disrespected the victim's wife. He may have used foul language while asking this question, and asked the man to get out of his car, and he may have punched the man. Then the victim stepped back from the man's car window and "felt something hot." Later he saw a scratch on his truck.
The victim had been shot in the shoulder.
While at the hospital, the victim told an officer he became angry when he heard that a female in a white sweater had "disrespected my wife," and went with his son to the store to ask the people in that car why they had done so.
M. testified he did not see anything but heard his father yell for him after he was shot. He also testified he saw a flash. He then saw the other car drive off, and saw that the driver had a red jacket and gold teeth. He ran after the car and threw his cell phone at it. He remembered the driver with a gun but did not remember telling Detective Ramos that the man pointed it at him before M. threw the cell phone. He identified defendant as the driver in open court.
Elk Grove Police Detective Gabriel Ramos testified that V., M. and Y. all separately identified [Grey's] picture from a photographic lineup; M. was sure (10 out of 10), but V. and Y. were less sure (6 out of 10). When Ramos arrested [Grey] on December 18, 2006, [Grey] was wearing a red shirt and a gold grill with the letters "MVP" on his teeth. The screen saver on [Grey's] cell phone said "Meadowview Piru," and [Grey's] tattoos included "Piru" on his left forearm.
When Detective Ramos took V.'s statement, she did not mention that [Grey] had threatened her baby, and had said that M. was shopping with the family. M. had told Detective Ramos that he had actually seen the shooting, and that he had seen [Grey] point a gun at him. When interviewed on November 30, 2006, M. was wearing a red and white shirt and hat, and blue shorts with red trim.
Elk Grove Police Officer Paul Grant testified that when he arrived at the scene, the victim's truck was parked blocking several parking spaces. The victim had a bullet hole in his shoulder and was taken to the hospital. Officer Grant spoke with M., who said he had been shopping with his father and the rest of the family before he and his father returned to the store. M. told Officer Grant that he saw his father punch the man in the face, the man fired two shots at his father, then M. pushed his father out of the way and threw his cell phone at the man's head.
The parties stipulated that the Meadowview Piru is a criminal street gang, and that Detective Robert Strange would testify that [Grey] "is a validated member of the Meadowview Pirus also known as the Bloods." The trial court then instructed the jury as follows:
"You may consider evidence of gang activity only for the limited purpose of deciding whether the Defendant acted with the intent, purpose and knowledge that are required to prove the gang-related crimes and enhancements, or the Defendant had a motive to commit the crimes charged, or the Defendant actually believed in the need to defend himself, or the Defendant acted in the heat of passion. "You may also consider this evidence when you evaluate the credibility or believability of a witness. And when you consider the facts and information relied on by an expert witness in reaching his opinion, you may not consider this evidence for any other purpose. You may not conclude from this evidence that the Defendant is a person of bad character or that he has a disposition to commit crime."
This limiting instruction was also read to the jury after closing arguments were delivered.
Elk Grove Police Detective Robert Strange testified as a gang expert without objection. He described the Meadowview Piru gang, how the police validate members, and testified its members used violence to gain respect. "[T]ypically in the gang subculture[,] power and influence and respect . . . are gained through the commission of acts of violence." "[T]he thing most important, is the ability to commit violence and the willingness to do so and actually committing those acts of violence." This causes the community to fear gang members and discourages crime reports. In his opinion the instant offenses were gang-related, because defendant injected mention of the Piru into a verbal spat for intimidation and to increase his stature. A gang member such as [Grey] could not allow his dignity to be challenged, therefore he had to respond to the victim's punch with a firearm or "he would have looked like a punk." "He has that gun to shoot somebody with it. You know, it's so many times people conveniently say it's self-defense when they shoot people in these situations. But that was an opportunity that presented [itself,] that now instead of fighting this guy, I'll just shoot this guy." Gang members typically will escalate violence, and respond to a punch with a weapon or by having a group beat the person up: "It's not going to be a fair fight."
There was evidence that at the time of his arrest [Grey] had a "teardrop" tattoo on his face, which he had not had on April 6, 2006; Detective Strange opined that if defendant had not had it before the shooting on October 10, 2006, that might be a sign, understood by gang members, that [Grey] had shot someone, a kind of badge of achievement. However, he conceded this was his "gut feeling" and "nobody has really given me a set answer on it."
Vanessa Pedroza Grey, [Grey's] girlfriend at the time of the shooting, but wife at the time of trial, testified she was in her car during this incident, along with her daughter A. (aged 4) and her two sisters, I. (aged 11) and G. (aged 17). She was also pregnant with [Grey's] child. She heard Y. and G. arguing, both were being rude and threatening, and she heard Y. say "I'll beat your ass, Blood, or something." [Vanessa] testified she told her sister to go into the store, that it was not worth fighting over, but when G. went to the store with the younger girls, and Y. got back into the truck, Y.'s mother "started mouthing off," saying "Puerto Rican pride" and "fuck you, bitch. All kinds of stuff." [Grey] had not said anything during this time. He then said "be quiet. No one is even saying nothin'. Nobody is trying to argue with you." [Vanessa] then told Y.'s mother V. to "get out [of] the car then," meaning come out to fight, or "put up or shut up[.]" At about this point V. said she was going to call her "boyfriend/husband something" and [Vanessa] saw V. make a phone call from inside the truck. About 8 to 10 minutes later the victim came from the store, looked at the people in [Vanessa's] car, loaded his groceries and drove away, but then he stopped nearby and made a telephone call from inside his truck. He circled the truck by [Vanessa's] car "and the little girl and the mom were arguing, just still yelling stuff out." [Vanessa] threw a juice at the truck "so they would leave" but her juice fell short. [Grey] never threatened anybody, and never mentioned gangs, all he did was tell V. to be quiet.
[Vanessa] testified that after a period of calm, in about five minutes, the truck returned, blocking her car. But before the truck did that, she had become concerned about a "green Escalade or Tahoe SUV" that was circling the parking lot, driven by a "dark-skinned bald-headed Mexican guy" that had loud music playing. She also mentioned a black sedan behind the victim's truck. The victim came running toward [Vanessa's] car, opened the driver's side door "and he punches Aaron and kicks him 'cause his foot is in my car." Then she saw the victim's son M. coming, "he's yelling for someone to come this way. And then I just hear a gunshot." M. threw something at [Vanessa's] car and [Grey] had to hit the victim's truck in order to drive off. [Vanessa] called her sister, G., who was still in the store, and told her to stay there, then [Vanessa] and [Grey] left.
[Vanessa] claimed [Grey] got the teardrop tattoo before this incident, in June 2006. When contacted by the police about one month after the shooting, she lied and told them the man in her car was Marcus Johnson; she did this to protect [Grey] and because Detective Ramos threatened to take away her daughter, and also to protect her sister, who had already spoken to the police.
Elk Grove Police Officer Chris Reece testified that the victim said he became mad on the way home from the store when his wife told him a Hispanic woman had called her a "fucking bitch," and after dropping his family off at home he took his son back to the store to confront the people. V. told the officer that her husband was quick to anger.
Detective Ramos testified that [Vanessa] was evasive when he interviewed her, and she claimed that "Marcus Johnson" was in the car with her on the night of the shooting. She told him that the people in the truck had been saying things like "Puerto Rican this, Puerto Rican this. L.A. this," and someone in the truck referred to Bloods, "Blood this, Blood that." The next day, when Detective Ramos confronted [Vanessa] about lying, she began to cry and claimed she was afraid "of Marcus and his gang." ...