The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
George Johnson, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Johnson is currently in the custody of the California Department of Corrections, incarcerated at the California Medical Facility. Respondent has answered and Johnson has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Upon retrial,*fn1 a Sacramento County Superior Court jury convicted Johnson of one count of Murder in the First Degree, Cal. Penal Code § 187(a), and one count of Stalking, Cal. Penal Code § 636.9(a). The jury also found true the allegation that Johnson had used a firearm during the commission of the murder, Cal. Penal Code §§ 1203.06(a)(1), 12022.5(a)(1). The trial court found true the allegations that Johnson had suffered a prior conviction, Cal. Penal Code §§ 667(a), 667(b)-(i), 1170.2. In May 2006 the trial court sentenced Johnson to a prison term of fifty years to life, plus nineteen years. The California Court of Appeal, Third Appellate District, affirmed Johnson's conviction and sentence in a partially published opinion,*fn2 and the California Supreme Court denied review on October 1, 2008. Johnson timely filed his Petition for relief in this Court on May 21, 2010.*fn3
Johnson's conviction arose out of the murder of Johnson's wife, Linza, on December 16, 1996. The facts of the crime, as summarized by the California Court of Appeal:
Defendant arrived at the house between 8:00 and 9:00 a.m. in his sister's blue Honda Accord. He approached George, Jr., who was standing in the front yard. Defendant demanded the keys to the house, saying, "You're not leaving-you're not going anywhere." He grabbed the keys, unlocked the front door, and headed for the kitchen with George, Jr., right behind him. A scuffle ensued. Defendant pulled a small black revolver from his back pocket. George, Jr., knocked the gun from defendant's hand, but it landed within defendant's reach. Fearing that defendant would shoot him, George, Jr., ran from the house. He and Stansfield's son went to a neighbor's house to call 911.
When defendant reached the kitchen, he pulled the telephone wire from the wall and threw the phone on the floor. Linza came out of the master bedroom telling defendant to put the gun down so that they could talk. Defendant responded that he was going to kill her. He and Linza struggled in the hallway and inside the master bedroom. Stansfield heard the bedroom door slam, Linza saying, "George, George, stop, George stop," then three gunshots.
Stansfield tried to get out of the house through the garage, but the door was locked. When defendant left the house, Stansfield went back inside the house to call 911 from George, Jr.'s room. Defendant was on the porch and Linza was at the front door. Stansfield heard defendant say, "Bitch, you lied to me." Linza had her hand over the deadbolt, talking with defendant. She was trying to get defendant to calm down and leave, but defendant continued to demand that she unlock the door. Stansfield described defendant's voice as "mean and ugly."
While making the 911 call in George, Jr.'s, room, Stansfield heard shooting. She hid in the closet. When Stansfield came out, she saw Linza laying on the floor near the front door.
There were two witnesses to what occurred on the front porch. George, Jr., who was across the street calling 911 from the neighbor's house, saw defendant standing close to the front door. He heard defendant scream, "Open up the door." At that point, George, Jr., heard two or three more gunshots. Defendant had a gun in his left hand when he turned and walked toward Linza's car.
Tsugio Tomono, the Johnson's neighbor, saw defendant arrive at the house around 9:00 a.m. Shortly after defendant entered the house, Tomono saw two young men run across the street and heard gunshots. He then heard glass breaking and "three pops." Both George, Jr., and Tomono watched defendant leave the scene.
Paramedics arrived at the Johnson house at 9:27 a.m. They were unable to revive Linza. The forensic pathologist testified that Linza died from a gunshot wound to the chest.*fn4
II. GROUNDS RAISED/DEFENSES
Johnson raises four grounds for relief: (1) denial of his motion to substitute retained counsel on the eve of trial denied him his Sixth Amendment right to counsel of his choice; (2) admission of prior uncharged conduct (domestic violence) was unduly prejudicial; (3) an improper jury instruction allowed the jury to convict on a standard less than beyond a reasonable doubt; and (4) prosecutorial misconduct (improper closing argument misstating the reasonable doubt standard improperly shifting the burden of proof to Johnson).*fn5 Respondent asserts no affirmative defense.*fn6
Johnson requested an evidentiary hearing and appointment of counsel, which requests were denied without prejudice. In his Traverse, Johnson has renewed his request for an evidentiary hearing and appointment of counsel.
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."*fn7 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."*fn8 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.*fn9 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.'"*fn10 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."*fn11 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.*fn12 "[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.'"*fn13 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.*fn14 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.*fn15
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.*fn16
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn17 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.*fn18 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.*fn19
Ordinarily, a federal evidentiary hearing is required only if the trier of fact in the state proceeding has not developed the relevant facts after a full hearing.*fn20 In this case, Johnson was given the opportunity to develop the factual basis for his claims in the Sacramento County Superior Court. Thus, it cannot be said on the record that the state courts precluded him from developing the factual basis for his claim.*fn21 It does not appear from the record that the California appellate courts made any independent evidentiary findings, and review in this case is based upon the findings of the Sacramento County Superior Court, which did hold a full hearing developing the facts. Johnson has ...