The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C.§ 2254. He challenges convictions entered in 2006 for four counts of first degree robbery. He presents two claims.
On direct appeal, the California Court of Appeal summarized the facts presented at petitioner's trial as follows:
On April 24, 2006, Canh Van Le, age 78; his 72-year-old wife Nhan Dang; their 32-year-old son Huyen Le; and their 20-year-old granddaughter (Huyen's niece) Truc Anh Le lived together in a South Sacramento residence. The doorbell rang after 1:00 p.m. and Nhan answered to find a young Black man asking her questions. She did not speak English, so Nhan asked her granddaughter Truc for help.
Truc, who understood only a little English, went upstairs to get her English-speaking Uncle Huyen, but noticed she was being followed by a man with a gun. Two Black men and one Hispanic man had pushed the door open and entered the house. The victims described one of the Black robbers as short and thin while the other as big and tall. In a field identification, Truc and Huyen identified [Titante] Scott as the large Black robber and [Roosevelt] Heng as the Hispanic robber. [Kevin] Morris is five feet five inches tall and weighed 132 pounds while Scott is five feet ten inches tall and weighed 235 pounds. While neither Truc nor Huyen could identify Morris in a field identification, at trial all four of the victims identified the defendants [Heng, Morris and Scott] as the robbers. Truc knocked on the door of Huyen's upstairs bedroom and told him robbers were in the house. Huyen opened the door to let her enter and call 911. He closed the door, but Morris and Scott broke the door down and entered the room. Scott and Morris, both armed, told Truc to put the phone down. Scott eventually left the room to check the rest of the upstairs.
Morris remained in the room and pointed a gun at Huyen's head. Canh entered and threw himself on Huyen to keep his son from being shot. Huyen, Canh, and Truc were taken downstairs to join Nhan.
All four victims were tied up and made to lie face down next to each other. Heng took a pistol from Morris and questioned Huyen about whether there was any money in the house. When Huyen replied they had no money Heng said, "You Asian punk, you know we hear -- somebody told us you have the money. That's why -- what we come here for. And if you don't tell me the money, I'm gonna kill your dad, your mom and I gonna rape your niece. Is that what you want?" (Sic.)
Huyen pleaded with Heng. Heng asked Huyen who owned the car parked in front of the house. Huyen lied, telling Heng it was his brother's car, and that he had no wallet having left it in his car. Heng hit Huyen in the head three times with the gun, asking him where the money was between strikes. Heng then did the same to Huyen's elderly parents, repeatedly striking them in the head with his gun. Each time asking Huyen to look at the firearm before he struck them.
Heng told Huyen he was going to rape Truc "right now" and took off his shirt. He chambered a bullet form the magazine by pulling the slide back, put the gun to Truc's head, telling her, "Do you feel it?" and then slowly moved the weapon down her back and to her buttocks.
Fortunately, the robbers had left their stolen SUV running in front of the house. Sacramento police officers were dispatched to the home to investigate the suspicious vehicle. Before Heng could do anything more to Truc, one of the other robbers exclaimed from upstairs "Hey, there are cops outside. There are police outside," which caused all of the robbers to run out of the house.
Heng was apprehended by the police officers as he tried to leave through the back door. Morris and Scott fled by jumping to the roof of the house next door before going back to the ground, where they were chased by police on foot and separately caught.
The robbers took credit cards and $1,500 in cash belonging to Canh and Nhan. Cahn kept these in a suitcase reserved for special documents hidden in his bedroom closet. The money was for the rent on the family's house.
Officers found a nine-millimeter Baretta semiautomatic handgun and a BB gun at the residence. Cash in the amount of $950 was found on Scott. The stolen credit cards were found on Morris. The ...