The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Michael Aaron Davis, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Davis is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano.
Respondent has answered, and Davis has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial in January 2006 Davis was convicted in the Sacramento County Superior Court of attempted murder, Cal. Penal Code §§ 664, 187, with firearm enhancements, Cal. Penal Code §§ 12022.53(b)-(d). The trial court sentenced Davis to an indeterminate prison term of twenty-five years to life, plus seven years for the firearm enhancements. The California Court of Appeal affirmed Davis's conviction, but modified his sentence, in a partially published and partially unpublished opinion,*fn2 and the California Supreme Court denied review on March 11, 2009. Davis timely filed his Petition for relief in this Court on April 20, 2009.
The California Court of Appeal summarized the factual basis for Davis's conviction as follows:
Defendant Javier Munoz made and received several calls on his mobile telephone before and after he and several other men, including defendant Michael Davis, Preston Baldwin and John Hernandez, drove to the Meadowview Light Rail station in two SUVs to retaliate against "some brothers" who had "jumped" Hernandez's nephews. Instead, the men trapped a car driven by Demario Chappell, who had nothing to do with "jumping" Hernandez's nephews, and fired pistols at the car. Although a number of nine-millimeter and .45-caliber shots were fired, only one bullet struck Chappell. The bullet lodged in Chappell's brain, but miraculously did not kill him.
Chappell drove to the Meadowview station in his white Chevrolet Corsica with his cousin Marquis Landers as a passenger, in order to pick up Arielle Jones, Landers's friend. She got in the back seat and Chappell started to drive her home. It was about 9:30.
Although the various witness accounts were not entirely consistent, a white or silver SUV cut Chappell off, requiring him to brake hard, and inducing him to make an unfriendly comment to the SUV's driver. Munoz's green SUV trapped Chappell's car. A number of men got out of the SUVs, and when Chappell saw a man pointing a gun at him, he drove off, hitting the second SUV in his effort to get away. After he blacked out he stopped the car and then Jones drove him to the hospital. Landers testified one shooter got out of each SUV, but later he testified he did not know this, and he had so told an officer before trial.
Two passersby heard someone in the green SUV yell "Bitch, ass, Niga" as it left; one heard laughter and described this yell as "Celebrating, sort of."
Many shots had been fired at Chappell's car; four 9 millimeter and seven .45-caliber shell casings were found. Two 9 millimeter bullets were found in the car, and a .45-caliber bullet was extracted from Chappell's brain.*fn3
II. ISSUES PRESENTED/DEFENSES
In his Petition, Davis raises seven grounds for relief: (1) that the trial court erroneously allowed into evidence wiretap recordings of conversations that exceeded the scope of the warrant, i.e., concerning non-targeted offenses; (2A) the trial court erroneously allowed admission of wiretap recordings into evidence that had not been properly maintained under seal; (2B) as an alternative to Ground 2A, ineffective assistance of counsel for failing to require that the prosecution establish that the tape recordings had been properly sealed; (3) the trial court erroneously allowed admission of Davis's conversations with a co-defendant into evidence in which Davis allegedly threatened the victim; (4A) the introduction of evidence of Davis's prior conviction for shooting at two thirteen-year-old girls constituted prosecutorial misconduct; (4B) as an alternative to 4A, trial counsel's failure to object to evidence of Davis's prior conviction for shooting at the girls constituted ineffective assistance of counsel; (5A) the trial court failed to sua sponte instruct on the limited admissibility of the bad act evidence (CALJIC 2.50); (5B) as an alternative to 5A, trial counsel's failure to request a limiting instruction constituted ineffective assistance of counsel; (6) insufficiency of the evidence to support the firearm enhancement; and (7) the trial court erred in giving a "kill zone" instruction (CALJIC 8.66.1). Respondent asserts that Davis's first and both parts of his second grounds are procedurally barred, and both parts of his fourth ground are unexhausted and procedurally barred. Respondent raises no other affirmative defense.*fn4
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn7 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn8 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn9 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn10 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn11 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn12 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn13
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn14
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn15 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn16 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn17
The California Court of Appeal held that Davis forfeited review of the claims related to admission of the wiretap evidence, the first ground and part A of the second ground, because Davis had not made a timely and proper objection in the trial court.*fn18 Respondent contends that this constitutes an adequate, independent state procedural ground that bars review in this Court.*fn19
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn20 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn21 "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."*fn22 A discretionary state procedural rule can be firmly established and regularly followed, so as to bar federal habeas review, even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.*fn23
The California contemporaneous objection rule is "clear, consistently applied, and well- established" where, as here, a party fails to make a proper objection to the admission of evidence.*fn24 The rule is therefore operative in the case at bar as an "adequate and independent" state procedural bar.*fn25 Moreover, the California rule is entirely consistent with federal law as established by the United States Supreme Court, which also requires that an objection state the specific ground or grounds on which it is based.*fn26
This Court agrees with Respondent that, because Davis's first ground and part A of his second ground were defaulted in state court on an adequate and independent state ground, they will not be considered in federal habeas proceedings unless Davis can demonstrate cause for the default and actual prejudice.*fn27 To prove a fundamental miscarriage of justice, Davis must show that a constitutional violation probably resulted in his conviction despite his actual innocence.*fn28
Although at the gateway stage the petitioner need not establish his innocence as an "absolute certainty," the petitioner must demonstrate that more likely than not, no reasonable juror could find him guilty beyond a reasonable doubt.*fn29
If a petitioner has procedurally defaulted on a claim, a federal court may nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust the claim; and (2) prejudice from the purported constitutional violation; or (3) demonstrates that not hearing the claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S. 333, 339--40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the prejudice prong if he demonstrates "that the errors . . . worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). A petitioner can demonstrate a fundamental miscarriage of justice by "establish[ing] that under the probative evidence he has a colorable claim of factual innocence." Sawyer, 505 U.S. at 339, 112 S.Ct. 2514 (quotation marks omitted).*fn30
It is important to note that, in this context, "'actual innocence' means factual innocence, not mere legal insufficiency."*fn31 To make the requisite showing of actual innocence, Davis must produce "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial" and "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."*fn32 Davis has not met this standard. Thus, Davis is procedurally barred from raising his first ground and subpart A of his second ground in this proceeding.
Davis contends in his Traverse that an evidentiary hearing is necessary to establish the validity of his first and second grounds. The Supreme Court made clear in Pinholster that "review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."*fn33 "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings."*fn34 "If the state-court decision 'identifies the correct governing legal principle' in effect at the time, a federal court must assess whether the decision 'unreasonably applies that principle to the facts of the prisoner's case.'"*fn35 As the Supreme Court noted, "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."*fn36 Although under Pinholster an evidentiary hearing in a federal habeas proceeding is not absolutely precluded, Pinholster also made clear that the discretion to grant a request for an evidentiary hearing is cabined by § 2254(e)(2),*fn37 which provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Davis's request in this case does not meet that standard. Because Davis's claims, that the wiretap evidence was improperly admitted, are procedurally barred from review in this Court, there is no factual conflict to resolve that would require this Court to hold an evidentiary hearing.
With respect to subpart B of his second ground, the ineffective assistance of counsel claim, as noted in the discussion of that claim in subpart D, below, Davis has not presented a factual basis sufficient to support his claim. The Court of Appeals, also noting the lack of a sufficient factual basis, indicated Davis would have to seek a writ of habeas corpus to develop the necessary facts.*fn38 Davis did not seek habeas relief in the state courts. Therefore, it does not appear from the record that the state courts precluded Davis from developing the factual basis for his claim.*fn39
Consequently, Davis's request for an evidentiary hearing will be denied.
Respondent contends that, because Davis did not include his fourth ground in his petition for review in the California Supreme Court, he has not properly exhausted his available state- court remedies. This Court may not consider claims that have not been fairly presented to the state courts.*fn40 Exhaustion of state remedies requires the petitioner to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.*fn41 A petitioner fairly presents a claim to the state court for purposes of satisfying the exhaustion ...