The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Rudolph Marshall, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Marshall is currently in the custody of the California Department of Corrections and Community Supervision, incarcerated at the Salinas Valley State Prison. Respondent has answered, and Marshall has replied. At Docket No. 31 Marshall filed a Motion for Appointment of Counsel.
I. BACKGROUND/PRIOR PROCEEDINGS
Marshall was convicted by a jury in the Sacramento County Superior Court of two counts of kidnapping with the intent to commit robbery, Cal. Penal Code § 209(b)(1), two counts of second degree robbery, Cal. Penal Code § 211, two counts of carjacking, Cal. Penal Code § 215(a), two counts of possession of a firearm by a felon, Cal. Penal Code § 12021(a)(1), and one count of assault with a semi-automatic firearm, Cal. Penal Code § 245(b). The jury also found that Marshall had used a firearm in the commission of these offenses, Cal. Penal Code §§ 1203.06(a)(1), 12022.5(a), and 12022.53(b). In a separate trial the trial court found that Marshall had been previously convicted of a serious felony, Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d), and that he had served a prior prison term, Cal. Penal Code § 667.5(b). The trial court sentenced Marshall to two consecutive terms of life with the possibility of parole, plus a determinate term of thirty-six years, four months. The California Court of Appeal, Third Appellate District, affirmed Marshall's conviction and sentence in an unpublished decision,*fn2 and the California Supreme Court denied review on December 10, 2008.
On December 17, 2009, Marshall filed a petition for habeas corpus relief in the Sacramento County Superior Court. The Sacramento County Superior Court denied the Petition in an unreported, reasoned decision on February 10, 2010. Marshall timely filed his Petition for relief in this Court on March 7, 2010. On March 17, 2010, Marshall filed a petition for habeas relief in the California Court of Appeal, which was summarily denied without opinion or citation to authority on March 25, 2010. Marshall then filed a petition for habeas relief in the California Supreme Court on May 14, 2010, which was also summarily denied on May 20, 2010.
The facts underlying Marshall's conviction were recited by the California Court of Appeal: August 21, 2005-Counts 1-4
On August 21, 2005, Jagdeep Johal was working the graveyard shift at the Penny Saver. On his lunch break, at about 11:00 p.m., he drove to the California Bank and Trust on Broadway. Johal deposited a paycheck of about $120 and withdrew $40 from his account. He got back in his car and headed toward the freeway to go back to work.
While Johal was stopped at a traffic light on the way to the freeway, an Hispanic woman approached the passenger side of his car and started talking to him. As she spoke with him, an African-American man, [Marshall], came up to the driver's side of the car and asked for a lighter. Johal told him he did not have a lighter as he did not smoke, and [Marshall] pulled a semiautomatic handgun from his pants, pointed it at Johal, and told him to turn off the car. Johal offered [Marshall] his wallet and the car keys so they would leave him alone. [Marshall] insisted Johal get into the back seat of the car. [Marshall] and the woman got into the car, and [Marshall] drove away. [Marshall] told Johal to keep his head down and threatened to shoot him. They drove around for 20 to 30 minutes.
[Marshall] reached into the back, felt Johal's pockets, and pulled out Johal's wallet and a pocket knife Johal carried. The woman went through Johal's wallet and took out his ATM card. [Marshall] asked him for his PIN and threatened to shoot him if Johal gave incorrect information. A few minutes later, they stopped at an ATM and tried to use Johal's ATM card. They unsuccessfully attempted to withdraw $280 or $300, then $200, then $100, and then $80. They did successfully withdraw $60 from Johal's account.
They drove around for another five to 10 minutes and then parked the car. [Marshall] told Johal not to look up for 10 minutes or he would shoot him. [Marshall] also told Johal he was going to throw his keys in the street, and after 10 minutes, Johal should pick up his keys, drive off, and not report the incident. [Marshall] also took Johal's cell phone, and [Marshall] told him not to deactivate it so [Marshall] could use it.
Johal kept his head down and heard them get out of the car. A few minutes later, he heard another car and people talking, and then he heard the car drive away. He could not hear the people talking anymore, so he got out of the car, retrieved his keys, and left the area. Johal and the car had been driven to the Fruitridge Road/Stockton Boulevard area.
Johal saw his wallet on the floor of the car, but the ATM card was gone. His cell phone and pocket knife were also taken. Johal spotted a police car, pulled up beside it, and told the officers he had just been carjacked.
About two months later, Johal was asked to look at a photographic lineup. After being given the standard admonition, Johal immediately identified [Marshall] as the person who had carjacked him. [Marshall's] fingerprints were also found on a manila envelope in Johal's car.
Johal's bank records showed a deposit of $126.45 and a simultaneous withdrawal of $40 were made on August 21, 2005, at 11:41 p.m. About 20 minutes later, a withdrawal of $81.50 was made from an ATM identified in the bank records as North Florin. Forty minutes after that, a $62 withdrawal was made from a Fruitridge Manor ATM. Johal did not make the latter two withdrawals.
Surveillance tapes from the bank at Fruitridge Manor showed an African-American man and a Hispanic woman in the front seat of Johal's car. While the woman was making the withdrawal from a drive-up ATM, it appeared the man was talking to someone in the back seat of the car.
[Marshall] denied kidnapping, carjacking, or robbing Johal. He denied ever being in Johal's car, but could not explain how his fingerprints were in the car or on the envelope. [Marshall] denied owning a chrome or black handgun. September 14, 2005-Counts 5-9
On September 14, 2005, Jose Lara worked at the Olive Garden restaurant in the Arden Fair Mall area. He had gotten off work around 11:00 p.m. and stopped at an ATM about 11:30 p.m. to get some cash on his way home. The ATM was at Florin Road and Stockton Boulevard near the Florin Mall. Lara parked his car and walked toward the ATM.
When he was about 13 feet away from the machine, two African-American men, one of them [Marshall], approached him and asked if he had a light. Lara told them he did not have a light. Then [Marshall] pulled out a semiautomatic handgun and pointed it at Lara. [Marshall] told Lara to get in the back seat of his car and the two men got in the front seats, with [Marshall] driving. [Marshall] reached into the back seat area and took the car keys from Lara. Lara was told to put his head between his legs. [Marshall] drove around for a while, parked, and asked Lara where his wallet was. [Marshall] then took Lara's wallet from his pants pocket, took $60 from Lara's shirt pocket, and asked for Lara's ATM PIN. Lara gave him the wrong number.
The other man got out of the passenger side of the car, and as Lara looked up he saw a blonde woman passing by the car. Lara heard car doors opening and closing, and the other car drove away. A few minutes later, [Marshall's] cell phone rang and Lara was again asked for his PIN. After giving [Marshall] the incorrect number once again, Lara gave him the correct number.
[Marshall] then asked for the PIN for Lara's wife's credit card, which was in Lara's wallet. Lara told him he did not know the number as it was not his card, and [Marshall] hit him in the head with the gun. [Marshall] asked Lara if he wanted to die. [Marshall] continued to speak on the cell phone, drove around for about 15 minutes, then stopped again. [Marshall] got out of the car; Lara heard [Marshall] open the trunk and take his CD player out.
[Marshall] again asked Lara if he wanted to die and Lara answered, "No." [Marshall] told him he was going to leave, throw his keys in the street, and that Lara was not to get up until at least 10 minutes had passed. [Marshall] then took an imitation fire extinguisher Lara had in his car, quarters from the ashtray, Lara's wallet, a ring his wife had given him, and his cell phone. Lara heard another car pull up, doors opening and closing, and the other car driving away.
About 30 seconds after [Marshall] left, Lara retrieved his keys from the street and went home. After informing the bank, credit card company, and cell phone provider that the cards and cell phone had been stolen, Lara and his wife went to a nearby sheriff's substation to report the crimes.
In the course of Detective Mike French's investigation of the case, he learned a Mary Walker might have been involved in the robbery. French showed Lara surveillance images from the ATM that depicted Walker using the ATM at the time Lara's account was accessed. Lara identified her as the woman he had seen walk by his car. After being given the standard admonition, Lara was shown a photographic lineup and again identified Walker as the blonde woman who had walked by his car. A few days later, in a live lineup, Lara once again identified Walker. Lara was separately shown a photographic lineup that included [Marshall], and Lara identified [Marshall] as the man holding the gun during the robbery. Walker and [Marshall] were friends prior to [Marshall's] arrest in this case.
Transaction records from Lara's bank show that between 12:29 a.m. and 12:37 a.m. on September 15, 2005, there were multiple attempts to withdraw money from Lara's account. There was an initial attempt to withdraw $500 at Wells Fargo's North Florin branch. Then there was an account inquiry and a successful withdrawal of $300 at the same machine. A few minutes later, still at the same location, there were two unsuccessful attempts to withdraw $100 and $40. Then, at a Bank of America at Florin Mall, very close to the North Florin branch of Wells Fargo, there were two unsuccessful attempts to withdraw $302 and $102. At 1:08 a.m., 1:16 a.m., and 1:19 a.m. there were three successful point-of-sale transactions for $7.01, $73.55, and $58.05, respectively.
Detective French later learned that the Sacramento Police Department had a similar case and [Marshall's] fingerprints had been recovered. He also learned of a connection between Walker and [Marshall]. Using the same photographic lineup previously prepared by the Sacramento Police Department, French showed Lara the photo lineup and Lara identified [Marshall] as the person who had been armed during the robbery. In a separate photographic lineup, Lara also identified the second suspect, who had been in the passenger seat. After [Marshall] was arrested, Lara went to a live lineup that included [Marshall]. The people in the lineup were told to say, "What is your PIN number." Based on his facial complexion, features, and voice, Lara identified [Marshall].
[Marshall] denied carjacking, kidnapping, robbing, or assaulting Lara. [Marshall] denied owning a chrome or black handgun. [Marshall] stated Walker was his ex-girlfriend. He also acknowledged the woman depicted in the ATM surveillance photographs at Lara's bank "probably" looked like Walker.*fn3
II. GROUNDS RAISED/DEFENSES
In his Petition Marshall raises four grounds for relief: (1) ineffective assistance of counsel for failure to object to the consolidation of the two crimes; (2) prejudicial exclusion of evidence of third-party culpability; (3) ineffective assistance of counsel for failing to investigate and introduce an alibi witness; and (4) the fingerprint evidence was introduced in violation of his Sixth Amendment right to confrontation. Respondent contends that Marshall's second ground (exclusion of evidence) and third ground (failure to investigate alibi defense) are 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 ...