ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition filed March 24, 2010, petitioner brings claims for Brady*fn1 error, prosecutorial misconduct, insufficiency of evidence and ineffective assistance of counsel.
On December 6, 2007, petitioner was convicted by a jury of first-degree murder, in violation of Cal. Penal Code § 187(a)*fn2 , while engaged in a robbery and a burglary, both special circumstances under §190.2(a)(17).*fn3 Clerk's Transcript ("CT") 2 at 343. Petitioner was sentenced to life imprisonment without the possibility of parole. Id. at 404-05.
On August 12, 2008, petitioner appealed to the California Court of Appeal, Third Appellate District. LD 4. On March 24, 2009, the state appellate court denied petitioner's direct appeal and affirmed the judgment. LD 8.
On April 29, 2009, petitioner appealed to the California Supreme Court. LD 9. On June 25, 2009, the state supreme court summarily denied review. LD 10.
On September 29, 2009, petitioner filed a petition for writ of habeas corpus with the California Supreme Court. LD 11. On March 10, 2010, the state supreme court summarily denied the petition for review. LD 12.
Petitioner initiated this action on March 24, 2010. Respondent filed an answer on June 24, 2010. Petitioner filed a traverse on July 8, 2010.
Daryl Sussdorf owned and operated Nugget Auto Sales, a used car dealership in Sacramento. He ran the business by himself, without any employees. He provided the financing for his customers; they would purchase their cars and make payments at the dealership later. Sussdorf recorded the payments on account cards and in a receipt book. When an account was paid off, Sussdorf would deliver the title document to the customer.
Most of Sussdorf's customers paid with cash, so he often had a lot of cash at the dealership. He commonly carried several hundred dollars in his wallet or pocket. He did not make a bank deposit every day; instead, he would do so after accumulating a lot of money. He kept a moneybag in the office for making deposits.
The door to the dealership's office locked automatically, so Sussdorf knew who was coming and going. The office had two floors. There were security cameras outside the dealership but they did not work. On two occasions, co-defendant Russell Jones had purchased cars from Sussdorf.
In January 2005 (all of the events described herein occurred in 2005 unless otherwise indicated), Sussdorf's wife was suffering from terminal cancer. Their daughter, Kathy Jenson, was caring for her. Sussdorf and Jenson spoke by telephone approximately five to 10 times per day.
On January 21, at about 4:15 p.m., Lon'ette Cannon went to the dealership and paid Sussdorf $400. He was alone. Cannon chatted with him for a few minutes and then left at 4:30 p.m.
Jenson last spoke to Sussdorf at about 5:00 p.m. that evening. After that, she telephoned him several times but he did not answer or return her calls. He would usually arrive home at about 6:45 p.m. or call to say that he was running late.
By 7:00 p.m., Jenson was very concerned because neither she nor her mother had heard from Sussdorf. She sensed something was wrong, so she picked up her fiance, Chris Valenzuela, and went to the dealership. While enroute, Valenzuela telephoned 911 and told the Sacramento County Sheriff's Department about the situation.
Jenson and Valenzuela arrived at the dealership at about 8:15 p.m., and her brother, Dale Sussdorf, arrived soon afterward. Valenzuela started looking around. The office door was locked and the blinds were closed, but Valenzuela could see inside by looking through the gaps between each blind. He saw a large amount of blood and papers scattered about.
Sacramento County Sheriff's Deputy Quis Formoli arrived a few minutes after Jenson and Valenzuela. Dale Sussdorf kicked open the door and Formoli went inside.
There was blood in many places on the first floor of the building, including on the floor, on the blinds, and under the desk chair. Skull fragments and soft tissue were on a wall, and body tissue was on the floor. In addition, there was blood on the staircase, blood dripping down an upstairs wall, and blood on an upstairs carpet.
Sussdorf was sitting on a chair on the second floor. His jeans were down below his knees. His head was bleeding profusely and he was gasping for air. He did not respond to Deputy Formoli.
Deputy Formoli went back downstairs and told Valenzuela about Sussdorf's condition. Valenzuela, who was a firefighter and emergency medical technician, went upstairs with Formoli. They administered first aid until paramedics arrived.
The paramedics removed Sussdorf's clothing in order to treat him. A detective later examined Sussdorf's jeans and observed that the right rear pocket had been torn from the seams that attached it to the pants. There was no money in any of the pockets.
Behind the desk on the first floor, sheriff's deputies found an empty tan wallet. It looked very similar or identical to Sussdorf's wallet. A bank bag was present in the office.
A receipt book was on the desk on the first floor. It contained a receipt dated January 21 for "400" from Lon'ette Cannon. Also on the first floor, deputies found an account card with co-defendant Jones's name written in Sussdorf's handwriting. There was blood on the bottom of the card. The card was found with other account cards and was not the only card with blood on it. No money was found in the office.
Sussdorf had suffered 11 blows to his head. Ten days later, he died of his injuries. The injuries were consistent with blows from a hammer. [Petitioner]'s admissions to J.B.
J.B. met [petitioner] in 1992 or 1993. They lost contact but in 2004 they resumed their social relationship and used heroin together. J.B. later stopped using heroin and underwent Methadone and Cyboxin treatment.
One day during a telephone conversation, [petitioner] told J.B. that [petitioner] was in trouble. [Petitioner] began to say that he had been with someone who had "beat[en a] man up side his head . . . with a hammer." J.B. told [petitioner] to stop talking because the police might be listening, and to speak with him in person instead.
J.B. then met [petitioner] at the Methadone Clinic in Sacramento, where they both were patients. [Petitioner] told J.B. the following: he and another "guy" went to "hit a lick," which means to rob someone, at an auto dealership. The victim was an old man. They "stripped" (robbed) the victim and, while they were doing so, [petitioner]'s cohort "went crazy" and started beating the victim with a hammer. This "spooked" [petitioner], who went outside and acted as a lookout.
[Petitioner] told J.B. that he and his companion took $800 from the victim. Afterward, they used the money to purchase crack cocaine and heroin and got high. [Petitioner] did not tell J.B. that the victim had died; J.B. learned that from the news.
J.B. informed investigator Andre Lemay of the California Department of Justice that he knew about the crime. Lemay put J.B. in contact with the Sacramento Sheriff's Department. J.B. then told Detectives Cabral and Kolb what [petitioner] had told him.
J.B. later learned that a foundation was offering a $5,000 reward in connection with this crime. He told Lemay that he hoped to qualify for the reward. He could get the reward if there was a conviction.
In 1998, J.B. had been convicted of felony burglary. Then in 2004, he had been convicted twice of that offense. He served a prison sentence for the 1998 conviction. After that conviction, he became a police informant. He had provided information to Andrew Lemay on occasion. He had also provided information to the Oakland Police Department. For his convictions in 2004, he received consideration in sentencing because he was providing information to law enforcement.
J.B. informed the Sacramento County District Attorney's Office that [petitioner]'s friends and family had called him and threatened his life. The District Attorney's Office relocated him for his safety. The office spent about $22,300 on J.B., including moving expenses, hotel stays, periodic rent payments, and return trips to safety. The office does not pay his daily living expenses. That was the only money that J.B. received for providing information about this case. [Petitioner]'s arrest and statements to law enforcement
On February 23, after speaking with J.B. and obtaining an arrest warrant, Detectives Cabral and Kolb, together with other officers, arrested [petitioner] in San Francisco. During the ride back to Sacramento, [petitioner] waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [17 L.Ed.2d 694]) rights and spoke with the detectives. The conversation was recorded but road noise made the recording difficult to hear.
[Petitioner] told the detectives that he and co-defendant Jones walked from Jones's home to the dealership to do a "lick," which means a robbery. [Petitioner] waited at the corner while Jones went inside. When Jones came back outside, they walked to a bus stop.
The detectives interviewed [petitioner] on videotape when they returned to Sacramento. During the interview, [petitioner] said the following: J.B. was a family friend. On the day of the crime, Jones was wearing a puffy black jacket and red gloves. Jones was in Sussdorf's office for a total of 10 to 15 minutes. Jones told [petitioner] that he had hit Sussdorf "several times" because he did not want Sussdorf to come after him. During the bus ride afterward, Jones showed [petitioner] Sussdorf's wallet, which contained checks from Nugget Auto Sales. Jones took $860 from Sussdorf's pocket, and he and [petitioner] spent it on drugs and a motel room. The duo stayed in the motel from the Friday to the Sunday following the murder. The murder weapon, a hammer, was disposed of there. Jones was worried about blood being on his jacket.
[Petitioner] told the detectives that a "lick" was "like a petty theft" or "like going into a grocery store." It also meant getting money from someone. At one point during the interview [petitioner] stated that, prior to the robbery, Jones would not tell him how he was going to get the money. At another point, [petitioner] stated that Jones had told him he might be able to get into the office and grab some cash while the person who worked there was dealing with customers. [Petitioner] did not know that Jones planned to carry out a "strong-armed robbery." [Petitioner] denied ever leaving the sidewalk during the robbery, and he told the detectives that they should check the security cameras to verify this.
[Petitioner] was consistent in his story to the detectives. He expressed willingness to help the detectives, and he volunteered to wear a wire, to make a pretextual telephone call to Jones, or to be placed in a room with Jones and have the conversation recorded. The detectives used the last two techniques.
It was stipulated that on the day of the attack, [petitioner] and Jones checked into a Motel 6 in Sacramento, checked out two days later, and paid in cash.
Searches of Jones's residence
Jones's house was searched on the day of his arrest. The search yielded a pair of gloves that were made of red fibers that matched fibers found on Sussdorf's jeans.
The search also yielded a receipt dated April 21, 2003. "Daryl" had handwritten on the receipt that he received $250 from Jones and was still owed $1,158.
The search also yielded a hammer.
A few days after the search, detectives returned to the Jones residence and asked Jones's mother whether she had a black puffy jacket. Jones's mother retrieved a black puffy jacket from Jones's bedroom closet. Bloodstains on the jacket contained Sussdorf's DNA. Jones's mother testified that she did not know whose jacket it was, but she had seen Jones wearing a puffy jacket. A photograph of Jones taken the month before the attack appeared to show him wearing the jacket.
J.B. had been relocated to Sacramento after having testified in a San Francisco homicide. In an affidavit supporting [petitioner]'s arrest warrant, Detective Kolb wrote that J.B. was a "mercenary informant," meaning a person who supplied information for money. The affidavit also said that J.B. was known as a reliable informant who had provided reliable information on serious cases in the Bay Area.
One or two days after the attack, Detective Kolb posted reward notices near the dealership. The notices said that Sussdorf had been brutally assaulted at his place of business. There was news coverage of the crime, and the police held a press conference. At the conference, the police did not release the details of the homicide, such as the fact that Sussdorf had been beaten. When J.B. spoke with Kolb, he provided information that had not been released to the public.
Co-defendant Jones did not present any evidence.
People v. Adcock et al., slip op. at 2-10.
I. Standards for a Writ of Habeas Corpus
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, 405-406 (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 ...