The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction for two counts of attempted murder (Cal. Penal Code §§ 187(a) and 664)), two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)), discharging a firearm at an occupied vehicle (Cal. Penal Code § 246), intentionally and personally discharging a firearm in connection with the attempted murder charges (Cal. Penal Code § 12022.53(c), and personally using a firearm in connection with the assault charges (Cal. Penal Code § 12022.5(a)(1)). Petitioner is serving a sentence of 34 years imprisonment.
This action is proceeding on the amended petition filed June 27, 2011. Petitioner raises the following claims: 1) jury instruction error (three claims); and 2) ineffective assistance of counsel.
After carefully reviewing the record, the undersigned recommends that the petition be denied.
II. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Federal habeas corpus relief is not available for any claim decided on the merits in 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 the State court proceeding.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein:
On March 10, 2008, [Tomazena] Higgins and [Adrina] Hall attended a birthday party for Gina Oakley, the girlfriend of Higgins's friend Michael Motley. The party was at the home of Oakley's aunt Mildred Dossman and defendant. Defendant and Dossman had been in a long term relationship, and Oakley considered defendant her uncle. Defendant and Dossman lived at 6612 Burdett Way in Sacramento.
Defendant was at the party. He stuck out because he was "big, like a linebacker almost." No one else at the party was close to defendant's stature. The party was a "predominantly female event." In addition to defendant, the only men at the party were Dossman's three sons, Motley, and Motley's friend, Joshua Johnson.
Higgins and Hall arrived at the party at approximately 10:00 p.m. that evening. Higgins drove herself and Hall to the party in Higgins's Buick. Among the cars parked outside the party was a white Chevy Tahoe. While they were at the party, Higgins, Hall, Motley, Oakley, and others went outside to smoke some marijuana. Motley and Oakley got into a "heated" argument because Oakley, who was three months pregnant with Motley's child, was drinking. Motley began "screaming and hollering" at Oakley, hit her, and pushed her on the ground. FN3.
FN3. Higgins testified Motley shoved Oakley. She denied that Motley hit Oakley or that Oakley fell on the ground.
At that point, Higgins and Hall decided it was time to leave. They, along with Motley's friend Johnson, left in Higgins's car. After leaving the party, Higgins turned down a couple of streets before making her way onto 47th Avenue. While they were stopped at the intersection of 47th Avenue and Martin Luther King Jr. Boulevard, the Chevy Tahoe that had been parked outside the party "came diagonal toward" Higgins's car, drove "over [an] island," and stopped in front of Higgins's car such that Higgins's "headlights [were] on his side on his door...." The driver of the Tahoe rolled down his window, stuck out his right arm, pointed a gun at Higgins's car, and began shooting. He fired 10 or 11 shots.
Thereafter, the Tahoe sped away, and Higgins drove toward a nearby light rail station. Higgins's car broke down on the way, and Higgins and Hall took off running, while Johnson "disappeared."
Higgins's car had three bullet holes in the hood, one in the left headlight, one in the bumper, one in the grill, and two in the front passenger door.
At approximately 11:45 p.m. that evening, Sacramento County Sheriffs Deputies Lizardo Guzman and Ricardo Martin received several calls regarding shots fired in the area of 47th Avenue and Martin Luther King Jr. Boulevard. One caller specified that the shooting involved a white Chevy Tahoe and a four-door vehicle. Guzman and Martin responded and found Higgins's car nearby. As they began to assess the damage to the car, Higgins and Hall ran up screaming.
Martin took a statement from Higgins, and Guzman took a statement from Hall. Higgins described the shooter as "a very large black male," 6'3' to 6'6', and 300 pounds. She identified the vehicle involved in the shooting as a white Chevy Tahoe. She said both could be located at 6612 Burdett Way and explained that she had been at a party at that location earlier that evening.
Hall also described the shooter as a "big man," 6'5', and 300 pounds. She said she had seen him at a party earlier that night, and identified the vehicle involved in the shooting as a white Chevy Tahoe, which she also had seen at the same party. She volunteered to take Guzman back to the house where she believed the shooter lived.
Higgins and Hall accompanied the deputies to 6612 Burdett Way. A white Chevy Tahoe was parked on the lawn in front of the house. Higgins identified the Tahoe as the same car that was involved in the shooting. Defendant, who matched Higgins's and Hall's descriptions of the shooter, walked outside and was detained. At the time of the incident, defendant was 6'5' and weighed 300 pounds.
Both Higgins and Hall separately identified defendant as the shooter. Higgins was 100 percent certain of her identification.
At trial, Hall denied identifying defendant as the shooter or telling a law enforcement officer that "the big black guy from the party" was driving the Tahoe and was the shooter. She said she was unable to see inside the Tahoe and could not see who was shooting. She did state that the Tahoe parked on the lawn after the shooting was the same vehicle that was involved in the shooting.
Pheng Her was stopped next to Higgins's car at the time of the shooting and telephoned 9--1--1. During the call, he described the car involved in the shooting as a brown Ford Bronco. At trial, he said he was not sure it was a Ford Bronco and may have been some other vehicle "like a Trail Blazer." When asked about the color, he said, "[I]f I have to pick one. I know it wasn't yellow. I know it wasn't green. It was a dark color." Her saw "two African
American[s]" in the car. He believed the driver had the firearm. He could not identify the driver, but said he was an African American man.
Shortly after the shooting, four .40--caliber dispensed shell casings and one "disfigured slug" were recovered at the intersection of 47th Avenue and Martin Luther King Jr. Boulevard. Two of the casings were PMC-brand and two were S & W-brand. One PMC-brand .40--caliber shell casing was also found "on the dash near the vehicle identification plate on the exterior of" the white Chevy Tahoe parked outside 6612 Burdett Way after the shooting. The PMC-brand casings found at the scene and that found on the Tahoe contained markings indicating they were fired from the same gun. It is possible that the S & W brand ...