The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on June 12, 2008, of first degree murder. (CT*fn1 1352.) The jury also found true enhancements for having served prior prison terms. (CT 1352.) On July 28, 2008, Petitioner was sentenced to an indeterminate prison term of twenty-seven years to life. (CT 1352.)
Petitioner filed a timely notice of appeal. On May 11, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed the judgment. (See Lodged Doc. No. 4.) Petitioner filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 5.)
On September 1, 2010, the petition was summarily denied. (See Lodged Doc. No. 6.)
On July 8, 2011, Petitioner filed the instant federal habeas petition. He presents five (5) grounds for relief: 1) The conspiracy instruction given allowed the jury to convict Petitioner of murder on the basis of an agreement after the fact, violating Petitioner's constitutional rights; 2) The trial court deprived Petitioner of due process and a fair trial in violation of his constitutional rights when it provided extemporaneous instructions on reasonable doubt, the prosecution's burden of proof, and the presumption of innocence; 3) The shackling of Petitioner violated his right to self-representation, due process and a fair trial; 4) The trial court's requirement that Petitioner provide testimony in a question-answer format, rather than a narrative, unduly burdened his right to testify in violation of his constitutional rights; and 5) Petitioner was denied his right to counsel in violation of his constitutional rights. On November 10, 2011, Respondent filed an answer to the petition. On December 15, 2011, Petitioner filed a traverse.
On June 12, 2006, the body of Courtney Rice was discovered in the bed of an abandoned pickup truck at a tow yard in Fresno. Subsequently, appellant, Enrique Lopez, Michelle Dolores Molina, and Albert Joseph Vargas (collectively, the defendants) were charged with murder (Pen.Code, § 187),FN2 forcible rape (§ 261, subd. (a)(2)), attempted forcible rape (§§ 664/261, subd. (a)(2)), and false imprisonment by violence (§ 236) with a number of special circumstance and sentence enhancement allegations.
FN2. Further statutory references are to the Penal Code unless otherwise specified.
On January 8, 2008, the case went to trial. The prosecution presented evidence to support its theory that Rice, who worked as a prostitute for Lopez, was bound and gagged, raped, and killed by the defendants inside Molina's apartment because Lopez accused her of being a snitch or informer. The prosecution also presented evidence to show the crimes were committed for the benefit of the Bulldogs criminal street gang.
On February 21, 2008, the jury returned its verdicts. As relevant here, the jury found appellant not guilty of rape and attempted rape but was unable to reach verdicts and the court declared a mistrial as to the murder and false imprisonment charges.
On May 12, 2008, appellant's second trial began. In pretrial motions, appellant moved to represent himself and appear at trial without physical restraints. The trial court granted appellant's motion to represent himself and appointed appellant's attorney from his first trial as standby counsel. However, the court denied appellant's motion to appear without physical restraints and required him to be tethered to his chair during trial except during jury voir dire. The court indicated that, during voir dire, appellant would be permitted to appear without restraints and move to a limited degree between counsel tables.
During the second trial, appellant testified on his own behalf, called several witnesses, and presented cellular phone records and other evidence to support his claim that he did not kill Rice and was not present at Molina's apartment when the alleged crimes took place. Appellant also claimed he did not help move or dispose of Rice's body, although he initially agreed to help after he learned she was deceased.
On June 12, 2008, the jury returned its verdicts, finding defendant guilty of first degree murder but not guilty of false imprisonment. The jury also returned not true findings on the gang enhancement and gang special circumstance contained in the murder count. (See Lodged Doc. No. 4.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his 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.
28 U.S.C. § 2254(d); Harrington v. Richter, __ U.S. __, __, 131 S.Ct 770, 784, 178 L.Ed.2d 624 (2011); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must "'squarely address  the issue in th[e] case' or establish a legal principle that 'clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009), quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008); see Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.
If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of," [the] clearly established Federal law." Lockyer, 538 U.S. at 72, quoting 28 U.S.C. § 2254(d)(1). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405, quoting Webster's Third New International Dictionary 495 (1976). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. If the state court decision is "contrary to" clearly established Supreme Court precedent, the state decision is reviewed under the preAEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en banc).
"Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the 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 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists could disagree on the correctness of the state courts decision, the decision cannot be considered unreasonable. Id. If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669 (9th Cir.2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).
AEDPA requires considerable deference to the state courts. "[R]review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits," and "evidence introduced in federal court has no bearing on 2254(d)(1) review." Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398-99 (2011). "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), citing 28 U.S.C. § 2254(e)(1). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963), overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
III. Review of Claims A. Instructional Error - Cal. Penal Code § 416
In his first claim for relief, Petitioner alleges the conspiracy instructions given, CALCRIM No. 416, allowed the jury to convict him of murder as a coconspirator based upon overt acts that occurred after the homicide. He claims the trial court failed to give CALCRIM No. 419 sua sponte, which would have told the jury that a defendant could not be held responsible for acts done before he joined the conspiracy, and that evidence of acts or statements made before the defendant joined the conspiracy could not be considered to prove the defendant was guilty of crimes committed before he joined the conspiracy.
Petitioner presented this claim on direct appeal to the Fifth DCA. It was rejected in a reasoned decision on May 11, 2010. (See Lodged Doc. No. 4.) Petitioner then presented the claim to the California Supreme Court in a petition for review. The petition was denied without comment on September 1, 2010. (See Lodged Doc. No. 6.) When the California Supreme Court's opinion is summary in nature, the Court must "look through" that decision to a court below that has issued a reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3 (1991). The Fifth DCA analyzed the claim as follows:
Appellant contends his conviction must be reversed because the trial court's conspiracy instructions permitted jurors to convict him of murder based on overt acts that occurred after the homicide. We disagree that reversal is required.
"'A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree to conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy.'" (People v. Lee (2006) 136 Cal.App.4th 522, 528-529.) An overt act is an element of the crime of conspiracy "in the sense that the prosecution must prove it to a unanimous jury's satisfaction beyond a reasonable doubt. But that element consists of an overt act, not a specific overt act." (People v. Russo (2001) 25 Cal.4th 1124, 1134.)
A conspiracy usually ends when the substantive crime for which the co-conspirators are being tried is either attained or defeated. (People v. Leach (1975) 15 Cal.3d 419, 431.) The precise end of a conspiracy is a question of fact to be determined based on the nature and purpose of the conspiracy of each case. (Ibid.) Under the particular circumstances of a case, a conspiracy may extend beyond the substantive crime to activities contemplated and undertaken in pursuit of the objectives of the conspiracy. (Ibid.) However, acts to avoid detection and punishment committed after accomplishment of the criminal objective are not considered overt acts in furtherance of a conspiracy absent evidence that the conspiracy was still operative. (Id. at pp. 431-433; People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8., 551, 560.)
In this case, the trial court instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (2008), CALCRIM No. 416, in relevant part, as follows:
"The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done ...