FINDINGS AND RECOMMENDATIONS
Petitioner, Joseph W. Alvarez, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate sentence of life without the possibility of parole plus twenty-five years to life with the possibility of parole following his 2005 conviction in the Sacramento County Superior Court for first degree murder intentionally perpetrated under the special circumstance of discharging a firearm from a motor vehicle, with a penalty enhancement for use of a firearm.*fn2 Here, Petitioner challenges the constitutionality of his conviction.
Petitioner presents several grounds for relief. Specifically, the claims are as follow:
(1) The trial court improperly denied his motion for a new trial based on ineffective assistance of counsel.
(2) Insufficient evidence supported his conviction.
Based on a thorough review of the record and applicable law, it is recommended that both of Petitioner's claims be denied.
The basic facts of Petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follow:
In the early morning hours of June 21, 2004, defendant fatally shot Damon Jacob. Amanda Razick, Lanette Watson, and Moriah Charley testified regarding the circumstances of the shooting.
Razick testified that early on June 20, 2004, defendant and his girlfriend, Moriah Charley, came to Razick's residence where they all smoked marijuana. Defendant and Charley left around noon, but returned about 9:00 p.m. and smoked more marijuana as well as methamphetamine. Later that night, all three left in Charley's Cadillac, with defendant driving, Charley in the front passenger seat, and Razick in the back.
While defendant was driving on Highway 99, a Mercedes Benz drove alongside, and the driver - - later identified as Damon Jacob - -motioned for defendant to roll down his window. Defendant did so, and Jacob yelled, "Can I holler at that bitch in the back," meaning he wanted to speak with Razick. Charley told defendant that she thought Jacob was the "black dude" with whom Charley's brother had a problem a week earlier. Razick stated she was not interested in talking to Jacob, but defendant said, "Well, you can tell him that," and pulled off the freeway.
Defendant stopped at a side street, and the Mercedes Benz stopped behind him. As Jacob approached the Cadillac, Razick thought he might have said, "It's all cool, right? Everything's all good." Jacob asked Razick some questions about her social life and whether she wanted his phone number. Thinking that getting Jacob's phone number would satisfy him, Razick leaned down to get her cell phone and heard a gunshot. When Razick sat up, she saw Jacob on the ground. During Razick's conversation wtih Jacob, the only item she saw him holding was a cell phone; she did not see him with any weapon, nor had there been any argument or yelling preceding the shooting.
Defendant immediately drove off and, at Razick's request, dropped her off at a motel.
Charley testified, confirming Razick's testimony concerning their smoking methamphetamine the night of the shooting. Charley added that she and defendant smoked "a lot" of it and that they were both high. While all three were driving on Highway 99 in Charley's Cadillac, which she had just purchased from her brother about a month before, Jacob drove alongside them in his Mercedes Benz and indicated for them to pull over. Charley told defendant that she did not know Jacob, but that he looked like the "dude" who had a problem with her brother and who was driving a Mercedes Benz. Her brother had warned her to "look out because . . . there ain't no tellin' what these Niggas goin' do." Charley suggested they pull over and find out whether Jacob was the person about whom her brother had warned her.
After pulling off the freeway, Jacob got out of his Mercedes Benz and asked, "Is it cool to come to the car?" Someone said, "Yeah, it's cool," and Jacob walked to the car. As he did so, he had his hands under his shirt in the area of his belt. Being suspicious that Jacob may have a gun, Charley closely watched Jacob as he approached the car and spoke with Razick. Although Charley did not see a gun, suddenly there was a flash and they drove off. Charley did not know until the next morning that Jacob was killed.
Lanette Watson testified that she was riding with Jacob, who was a friend, when the Cadillac driven by defendant pulled alongside Jacob's Mercedes Benz. Jacob said that the female in the back of the Cadillac was nice looking and that he wanted to talk to her. Jacob indicated to defendant that he wanted to speak with Razick and followed defendant off of the freeway. Jacob got out of the car and asked, "Am I safe gettin' out of my car?" He then walked to Razick's window. While Jacob was smiling and talking with Razick, he looked at Watson like, "Oh, no." Watson saw that defendant had his arm extended and was holding a gun; defendant then shot Jacob in the head, killing him instantly. Defendant immediately drove back onto the freeway.
Investigation led to a warrant being issued for defendant's arrest for the killing of Jacob. On September 29, 2004, following a high-speed chase that ended when defendant collided with another vehicle, defendant was arrested. During a police interview, defendant repeatedly told the investigator that he knew nothing about the shooting or a white Cadillac.
Following Petitioner's conviction, he hired new counsel who filed a motion for a new trial based on a claim that Petitioner had received ineffective assistance of counsel at trial. The motion was denied on January 27, 2006. Petitioner timely appealed his conviction to the California Court of Appeal, Third Appellate District. The court affirmed his conviction with a reasoned opinion on July 30, 2008. He then filed a petition for review of the appellate court's decision in the California Supreme Court. The court denied his petition without comment on October 28, 2008. Petitioner subsequently petitioned for habeas corpus relief in the California Supreme Court. The court denied his petition without comment on April 14, 2010. ...