ORDER SETTING EVIDENTIARY HEARING
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on November 18, 2004 in the Sacramento County Superior Court on two counts of attempted murder with personal use of a firearm. He seeks federal habeas relief, in part, on the grounds that: (1) he received ineffective assistance of trial counsel due to his counsel's conflict of interest, and (2) the prosecutor violated his right to a fair trial by failing to disclose exculpatory evidence to the defense.
The habeas petition pending before this court was filed on December 8, 2008. Respondent filed an answer on February 9, 2009, and petitioner filed a traverse on May 6, 2009. On May 11, 2009, petitioner filed a request for an evidentiary hearing on the above-described claims of ineffective assistance of counsel and prosecutorial misconduct. (Doc. No. 29.)
On July 27, 2010, this court appointed counsel for petitioner. (Doc. No. 36.) On October 12, 2010, after two status conferences, the court issued an order allowing petitioner to file a second motion for evidentiary hearing and/or discovery. (Doc. No. 46.) Pursuant to that order, petitioner filed a motion for discovery and an evidentiary hearing on October 29, 2010. (Doc. No. 47.) On January 10, 2011, after a hearing, this court granted petitioner's motion, in part, and ordered a limited evidentiary hearing on petitioner's claims of prosecutorial misconduct and ineffective assistance of counsel. (Doc. No. 52.) On March 31, 2011, respondent's motion for reconsideration of the January 10, 2011 order was denied by the assigned district judge. (Doc. No. 61.)
On April 4, 2011, the Supreme Court decided the case of Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011). On April 7, 2011, this court issued an order advising the parties that, in light of the Pinholster decision, the court intended to sua sponte reconsider its January 10, 2011 order granting a limited evidentiary hearing in this case. The court directed the parties to file briefing addressing the impact of the decision in Pinholster on petitioner's request for an evidentiary hearing. (Doc. No. 62.) Respondent filed a responsive brief on April 26, 2011. (Doc. No. 64.) Petitioner filed a responsive brief on April 27, 2011. (Doc. No. 65.)*fn1 For the reasons described below, the court concludes that an evidentiary hearing remains appropriate with respect to petitioner's claims of prosecutorial misconduct and ineffective assistance of counsel.
I. Factual Background Regarding Petitioner's Crime of Conviction
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn2 , the California Court of Appeal for the Third Appellate District provided the following factual summary regarding petitioner's crime of conviction:
Defendant Yong Lor appeals after a jury convicted him of two counts of attempted murder and found true gang and personal firearm use enhancements . . . .
FACTS AND PROCEDURAL BACKGROUND
Defendant is a member of a gang known as the Asian Family Gangsters (AFG), which is part of the Hmong Nation Society (HNS), a gang based in the northern area of Sacramento. A rival gang, the Masters of Destruction (MOD), and an associated gang calling itself the Young Mafia Society (YMS), consider the southern area of Sacramento to be their territory. During the summer of 2001, the rival gangs were at war, with at least a dozen shootings between them.
On July 18, 2001, defendant, armed with a loaded weapon, drove into the Meadowview area of southern Sacramento. He accosted T.V., a 15-year-old boy who was a member of the YMS. T.V. had a loaded .32 caliber semiautomatic handgun in his pocket, and was carrying a pit bull puppy to show his friend who was waiting at the market of a nearby gas station. Using gang parlance, defendant asked T.V. about his gang membership. Not recognizing defendant, T.V. denied being a gang member, but asked defendant "where are you from." Defendant responded with the letter "H," which signified both his membership in the HNS and an aggressive intent, since he was confronting T.V. in MOD territory.
T.V. ignored defendant's response and proceeded to the market, where he met Zang Her, also a MOD member, and Her's wife, Helen. Upon arriving, he put the puppy down, turned in defendant's direction, raised his arms in the air and said, "What's up?" The gesture and words were intended to force defendant either to return and fight T.V., or to leave.
Upon seeing the gesture of engagement, defendant turned his car around and drove directly toward T.V. and his two companions. Defendant stuck his gun outside the driver's side window, stopped the car about 20 to 36 feet from T.V., and fired at least a dozen shots at T.V. and Her. Several shots were aimed at T.V.'s head.
T.V. returned fire. After several rounds hit the side of defendant's car, defendant sped away.
T.V. was shot in the hand and elbow. Her was shot in the buttocks. The puppy was also injured.
Defendant's car was found later that night at an apartment complex in North Sacramento. It had three bullet holes in the driver's side door, which had been recently taped and painted. Defendant was arrested in Wisconsin several months later. The arresting officer told defendant that he was being arrested on a California warrant involving a homicide case. Defendant asked, "Did the guy die?" Defendant testified that he was the victim of an unprovoked assault. He explained that he was in the Meadowview area because he had just finished taking his five-year-old stepdaughter to visit his sister. While stopped at an intersection, he heard his car's glass shatter, and believed he was being attacked. Shielding the child from the assault, defendant returned fire with a gun he kept under the front seat. Then he stepped on the gas. Defendant admitted he used to be a member of HNS, but denied being an active member on the day of the shootings.
II. Legal Standards for Evidentiary Hearings
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
Prior to the enactment of AEDPA, the decision to grant an evidentiary hearing on claims raised in a habeas petition was "generally left to the sound discretion of district courts." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). AEDPA did not change that basic rule. Id. However, 28 U.S.C. § 2254(e)(2) does set forth certain limits on the holding of an evidentiary hearing:
(e)(2) 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 fact finder would have found the applicant guilty of the underlying offense.
Under this statutory scheme, a district court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support a petitioner's claims and, if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). In determining whether to grant an evidentiary hearing, the federal court must apply the AEDPA deferential standards to legal and factual questions necessarily reached by the state courts. Landrigan, 550 U.S. at 474 ("[b]ecause the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.").
If the facts do not exist or are inadequate and a hearing might be appropriate, the court must determine whether the petitioner has "failed to develop the factual basis of a claim in State court." 28 U.S.C. § 2254(d); Landrigan, 550 U.S. at 474 n.1. See also Insyxiengmay, 403 F.3d at 669-70. A petitioner will only be charged with a "failure to develop" the facts if "there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 437 (2000) ("comity is not served by saying a prisoner 'has failed to develop the factual basis of a claim' where he was unable to develop his claim in state court despite diligent effort."). See also Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) ("[A]n exception to this general rule exists if a petitioner exercised diligence in his efforts to develop the factual basis of his claims in state court proceedings."). The petitioner must have "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams, 529 U.S. at 435. "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in the state court in the manner prescribed by state law." Id. at 437.
Here, petitioner requested an evidentiary hearing in state court on both of the claims upon which he now seeks an evidentiary hearing in this court. Specifically, on January 25, 2008, petitioner filed a petition for writ of habeas corpus in the California Superior Court, in which he claimed, as he does in the instant petition, that he received ineffective assistance of trial counsel due to his counsel's conflict of interest and that the prosecutor violated his right to a fair trial by failing to disclose exculpatory evidence to the defense. (Resp't's Lod. Doc. 8, Pet., Grounds One and Three.) In his prayer for relief, petitioner requested "that a formal evidentiary hearing be conducted so that the facts relevant to the claims can be ascertained in a reliable manner." (Id. at 45.) The Superior Court denied that petition on the merits of petitioner's claims, without holding an evidentiary hearing or addressing petitioner's request for such a hearing. (Id. at "Page 1 of 6" to "Page 6 of 6.").
Petitioner next raised his claims of ineffective assistance of trial counsel and prosecutorial misconduct in a petition for writ of habeas corpus filed in the California Court of Appeal. (Resp't's Lod. Doc. 9, Grounds One and Three.) Therein, in his prayer for relief, petitioner requested a "formal evidentiary hearing." (Id. at 48.) Moreover, attached to the petition was a separate motion for an evidentiary hearing with respect to petitioner's claim of prosecutorial misconduct. (Id., "Motion for Evidentiary Hearing.") The state appellate court summarily denied that petition without holding an evidentiary hearing or ruling on petitioner's motion for a hearing. (Id. at consecutive p. 1.)
Finally, on May 21, 2008, petitioner raised his claims of ineffective assistance of counsel and prosecutorial misconduct in a petition for writ of habeas corpus filed in the California Supreme Court. (Resp't's Lod. Doc. 10, Grounds One and Three.) Therein, in his prayer for relief, he requested an evidentiary hearing on all of his claims. He also attached a separate motion for evidentiary hearing on his claim of prosecutorial misconduct. (Id. at p. 48 and attached "Motion for Evidentiary Hearing.") Again, the California Supreme Court summarily denied that petition without holding an evidentiary hearing or ruling on petitioner's motion for such a hearing. (Id. at consecutive p. 1.) In light of petitioner's numerous attempts to obtain an evidentiary hearing on his claims in state court, it is clear that he has satisfied the diligence requirement contained in 28 U.S.C. § 2254(d).
The next step in determining whether an evidentiary hearing is appropriate in this federal habeas action is to consider whether the petitioner has shown a "colorable claim for relief and has never been afforded a state or federal hearing on this claim." Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted). See also Landrigan, 550 U.S. at 474 ("In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle he applicant to federal habeas relief."). Thus, a hearing is required if: "(1) [the petitioner] has alleged facts that, if proven, would entitle him to habeas relief, and (2) he did not receive a full and fair opportunity to develop those facts [.]" Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). As described below, petitioner has satisfied this requirement because the allegations set forth in the instant habeas petition raise a colorable claim for relief.
In Pinholster, the Supreme Court held that federal review of habeas corpus claims under § 2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits." 131 S. Ct. at 1398. Therefore, evidence introduced at an evidentiary hearing in federal court may not be used to determine whether a state court decision on the merits of a petitioner's habeas claim violates § 2254(d)(1). Id. See also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) ("when a petitioner seeks habeas relief under 28 U.S.C. § 2254(d)(1), federal courts are restricted to the state court record when deciding claims previously adjudicated on the merits by the state courts."). Accordingly, an evidentiary hearing in federal court on a claim that was adjudicated on the merits in state court is appropriate only if a petitioner can "overcome the limitation of § 2254(d)(1) on the record that was before that state court." 131 S. Ct. at 1400.
In his concurring opinion in Pinholster, Justice Breyer explained the effect of the majority's interpretation of § 2254(d) (1) as follows:
An offender who believes he is entitled to habeas relief must first present a claim (including his evidence) to the state courts. If the state courts reject the claim, then a federal habeas court may review that rejection on the basis of the materials considered by the state court. If the federal habeas court finds that the state-court decision fails (d)'s test (or if (d) does not apply), then an (e) hearing may be needed.
Id. at 1412 (Justice Breyer, concurring in part and dissenting in part).
In Pinholster the Supreme Court did not specifically address habeas review pursuant to § 2254(d)(2). However, courts that have done so in the aftermath of the decision in Pinholster appear to be in agreement that evidence introduced in a federal evidentiary proceeding is also irrelevant to § 2254(d)(2) review. See Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011); Rountree v. Balicki, 640 F.3d 530, 538 (3d. Cir.), cert. denied. ___U.S.___, 132 S. Ct. 533 (2011); Coddington v. Cullen, No. CIV. S 01-1290 KJM GGH, 2011 WL 2118855 at *2 (E.D. Cal. May 27, 2011); Reyes v. Ercole, No. 06 Civ. 5525(SHS), 2011 WL 1560800 at *2 (S.D.N.Y. Apr. 25, 2011) ("Pinholster restricts federal habeas review of claims adjudicated on the merits in state court to the record that was before the state court, regardless of whether review of those claims is sought in federal court pursuant to section 2254(d)(1) or (2)"); see also Pinholster, 131 S. Ct. at 1400 n.7 (noting "[t]he additional clarity of § 2254(d)(2) on this point"). Therefore, following the decision in Pinholster, the holding of an evidentiary hearing in a federal habeas proceeding would be futile unless the court has determined that the state court's adjudication of the petitioner's claims was contrary to or an unreasonable application of clearly established federal law, and therefore not entitled to deference under § 2254(d)(1), or that the state court unreasonably determined the facts, and therefore deference is not warranted pursuant to § 2254(d)(2).*fn3
Here, as set forth below, petitioner's claims regarding ineffective assistance of counsel and prosecutorial misconduct were, in large part, adjudicated on the merits by the Sacramento County Superior Court. Thus, pursuant to Pinholster, an evidentiary hearing on petitioner's claims in this federal court would be futile unless petitioner can overcome the limitations of §§ 2254(d)(1) or (d)(2) with respect to those claims on the record that was before the state court.
III. Petitioner's Claims of Prosecutorial Misconduct and Ineffective Assistance of Counsel
A. Prosecutorial Misconduct: Brady Claim
In one of his claims for habeas relief petitioner alleges that the prosecutor violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963) by failing to produce exculpatory evidence to the defense. (Doc. No. 1 at 7.)*fn4 As noted above, petitioner was charged with and convicted of attempted murder with use of a firearm. Petitioner alleges that the victim, Andy Vang, was also arrested and charged with assault with a firearm in connection with this very incident, and may have been convicted of that crime. (Id. at 7-8.) Petitioner argues that the prosecutor should have provided this evidence to the defense and/or elicited the information from Andy Vang and Detective Kang, the prosecution's gang expert, when they testified at petitioner's trial. (Id.) Petitioner contends that this evidence was relevant to his self-defense theory presented at his trial and would have been valuable impeachment evidence against both Andy Vang and Detective Kang. (Id. at 8-9.) Petitioner notes that Det. Kang was called as a witness by the prosecution but was not asked about the assault charge filed against Vang. (Id. at 8.)
Petitioner argues that information that Andy Vang was arrested and charged with assault in connection with this incident "transcends being merely 'impeachment evidence' as it goes directly to the very heart of this case; who initiated the violence." (Id. at 7-8.) He argues that the fact the prosecuting authorities had enough evidence to charge Vang with assault raises a significant question with regard to the identity of the aggressor in this case and, if it had been divulged, could have given rise to a reasonable doubt as to petitioner's guilt. Put another way, petitioner argues that the prosecutor's failure to fully disclose the facts surrounding the assault charges brought against Andy Vang in connection with this same incident "adversely impacted" the presentation of his defense based upon self-defense because "had he been able to show that the alleged victim had been charged, arrested, possibly convicted of being the initiator of the violence there is substantially more than a mere probability of a different outcome." (Id. at 9.) Petitioner also argues that evidence that Andy Vang was charged with assault in this case would have "adversely affected" the credibility of prosecution witnesses Vang and Det. Kang, as well as "the prosecution itself." (Id. at 8.)
Petitioner also claims that evidence regarding the charges brought against Vang, including the evidence relied on to support those charges, was relevant to impeach the credibility of Det. Kang, who "spent more time on the witness stand than anybody in Petitioner's case, never mentioned that he had arrested Vang on the P.C. 245(a)(1) and never mentioned to the court or jury that Vang had been charged with that offense." (Id. at 8.) According to petitioner, because this undisclosed ...