The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner 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 in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Madera, following his conviction by jury trial on April 8, 2008, of first degree murder with special circumstances (Cal. Penal Code § 187). (CT*fn1 280-281, 311.) On June 16, 2008, Petitioner was sentenced to serve a term of life without parole plus ten years. (CT 323.)
Petitioner filed a timely notice of appeal. On August 11, 2009, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Lodged Doc. No. 4.) Petitioner then filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 5.) On October 22, 2009, the petition was summarily denied. (See Lodged Doc. No. 5.)
Petitioner also filed a petition for writ of habeas corpus in the California Supreme Court on September 25, 2009. (See Lodged Doc. No. 6.) The petition was denied on March 10, 2010, with citation to People v. Duvall, 9 Cal.4th 464, 474 (1995).
Petitioner filed the instant federal habeas petition in this Court on April 23, 2010, presenting the following three claims for relief: 1) He alleges he received ineffective assistance of counsel; 2) He contends the admission of his co-defendant's statement to the police violated his federal constitutional right of confrontation; and 3) He claims his sentence constitutes cruel and unusual punishment. On February 4, 2011, Respondent filed an answer to the petition. Petitioner did not file a traverse.
Theodore Betts and Gabriel Martin lived together in a remote area of Raymond, Madera County. Martin and Betts had a large amount of marijuana at their home. On March 21, 2005, an SUV pulled into Martin and Betts's driveway. A young woman, Marissa Rubianes, was driving.
Rubianes asked Martin if he knew of an apartment or house for rent in the area. Martin said he did not and asked her to turn the car around and leave. As Rubianes started to back up, two men, Anthony Burciaga and [Petitioner], jumped out of the back of the SUV holding guns. Burciaga ordered Martin to keep his dog away and told Martin to walk back toward the house. Burciaga was pointing a shotgun at Martin.
When Martin, Burciaga, and [Petitioner] got close to the house, Betts came out with a shotgun. Burciaga shoved Martin and ran toward the back of the house. Betts told Martin to go get another gun and Martin ran inside the house.
Martin was inside the house reaching for a rifle when he heard a shotgun blast coming from the back of the house. Betts came inside, stating he had been shot. Martin went outside, did not see anyone, and fired a round into the air. Martin then went inside to call 911.
Officer Cliff Kirkes was the first to respond to the scene. Betts had six gunshot wounds in his left shoulder and was covered in blood from his shoulder to his feet. Betts died shortly after the paramedics arrived.
Deputy Roy Broomfield also responded to the scene. On his way to the house, he saw [Petitioner] and Burciaga walking down the road toward his vehicle. They were out of breath and their pants and shoes were wet and muddy. Broomfield got out of his patrol car with his weapon drawn and detained both men. Broomfield placed the men in his patrol car and continued heading toward the scene.
On the side of the road, Broomfield and Deputy Charles Bump noticed shoe prints in the dirt. One print matched the pattern on the sole of Burciaga's shoes; the other print matched the pattern on the sole of [Petitioner]'s shoes. The deputies tracked the shoe prints to the scene of the shooting. While following the shoe print tracks, the deputies found a shotgun hidden underneath a tree limb and a handgun in a hole. The shoe prints continued up the driveway to Martin and Betts's house and went all the way around to the back of the house. A shotgun shell found at the back of the house was determined to have come from the shotgun found under the tree limb.
On the day of the shooting, Rudy Castillo was interviewed by Detective John Grayson and provided a statement to law enforcement. Castillo's statement was recorded and a redacted version of the statement was played for the jury. The tape was redacted to omit any references to [Petitioner]. A written, redacted transcript of Castillo's statement also was provided to the jury.
Castillo told officers that around March 2004, a friend of his had told him that he knew a man who had a lot of marijuana and that Castillo should go and get it. The friend, Bob, told Castillo that it would be easy to take the marijuana because the man who had it was in a wheelchair, could be tied up, and no one would have to be hurt. Bob said the man had 200 to 300 pounds of marijuana on the side of his house.
About two months later in May 2004, Bob drove Castillo to the man's house to show Castillo where it was located. Later, Castillo went to the man's house by himself to be sure he remembered its location. On March 20, 2005, Castillo and Bob discussed the marijuana with Burciaga. Castillo claimed Burciaga "took care of it from there" and planned the robbery.
On March 21, 2005, [Petitioner], Castillo, and Burciaga were in the SUV with Rubianes. A shotgun and pistol were in the car. When they got to Martin and Betts's property, Burciaga and [Petitioner] got out of the car with the weapons. Castillo was lying down on the back seat.
Castillo heard a commotion and sat up. He saw Burciaga and [Petitioner] walking Martin toward the house. Castillo stepped out of the car. At this point, Betts came out of the house pointing a gun. Castillo heard Martin say, "no, no" to Betts.
Castillo then turned and ran back to the SUV. About the time Castillo climbed into the car, he heard a gunshot. Castillo told Rubianes to go and she took off as they heard a second gunshot. They drove toward Madera. Castillo had Rubianes leave him by the side of the road, where law enforcement officers picked him up.
Grayson also interviewed [Petitioner]. [Petitioner]'s interview was recorded and played for the jury. A transcript of the interview also was provided to the jury.
When Grayson asked [Petitioner] what happened, [Petitioner] responded, "I fucked up." [Petitioner] stated he was helping Burciaga steal some marijuana and called Burciaga "the mastermind." Burciaga and he had planned to steal the marijuana for about two months. [Petitioner] stated that when Rubianes stopped the SUV, he and Burciaga climbed out. Burciaga was holding the shotgun and [Petitioner] was holding the pistol.
[Petitioner] claimed he was there to steal marijuana and to protect his cousin, Burciaga.
[Petitioner] was walking behind Burciaga. When he saw Betts with a gun, [Petitioner] claimed he told Burciaga to get out of the way and then he started running. As he was running, [Petitioner] heard three gunshots. (See Lodged Doc. No. 4.)