The opinion of the court was delivered by: Bernard G. Skomal United States Magistrate Judge
(1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; EVIDENTIARY HEARING; AND APPEALABILITY (2) DENYING REQUEST FOR (3) DENYING CERTIFICATE OF
William Tucker ("Petitioner"), a state prisoner, has filed a First Amended Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions of attempted first degree murder (Cal. Penal Code §§ 664/187(a); 189) and assault with a deadly weapon (Cal. Penal Code § 245(a)(2)), with firearm enhancements (Cal. Penal Code, §§ 12022.5(a) & 12022.53(b-d)). In his Petition he contends: (1) insufficient evidence supports his attempted murder and assault convictions; (2) even if he was the shooter, the evidence was insufficient to support the attempted first degree murder conviction; (3) the trial court erred in finding an implied waiver following the abbreviated Miranda advisement in violation of his Fifth and Fourteenth Amendment rights; (4) Petitioner received ineffective assistance of counsel when trial counsel failed to hold the prosecution case to adversarial testing; and (5) his Sixth Amendment rights to effective assistance of counsel were violated when trial counsel failed to obtain evidence in support of the defense case. (Doc. No. 4.)
The parties consented to the jurisdiction of Magistrate Judge Skomal pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (See Doc. No. 4 at 11; Doc. No. 13.) This Court has considered the Petition, Respondent's Answer, Petitioner's Traverse, and all the supporting documents submitted by the parties. Based on the documents and evidence presented in this case, and for the reasons set forth below, the Court DENIES the Petition.
This Court gives deference to state court findings of fact and presumes them to be correct. Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts are entitled to statutory presumption of correctness). The facts as found by the California Court of Appeal, Fourth District, Division One on Plaintiff's direct appeal are as follows:
At around 7:46 p.m. on October 3, 2005, the shooting victim in this case, Jerry
Wright Jr. (Wright), was sitting on the stairs near his apartment in the Bay Vista Apartment complex on Logan Avenue in San Diego. The Lincoln Park street gang claimed Lincoln Park--the area where the Bay Vista Apartments are located in southeastern San Diego [footnote omitted] as their territory, and many members of that gang lived in that apartment complex. Although the Lincoln Park and O'Farrell gang were both affiliated with the Bloods, they had been rivals for over a decade.
Although Wright did not claim membership in any street gang, his brother had been a member of the O'Farrell Park gang. [footnote omitted] Tucker is a documented member of the Lincoln Park gang, and his gang moniker was "Finny Boy."
During the evening in question, as he was sitting on the stairs, Wright saw a group of seven or eight males standing nearby, and he heard someone in the group say something about "cleaning up the set." In the area where Wright lived, gangs were sometimes referred to as "sets," and Wright understood the phrase "cleaning up the set" to mean cleaning up Lincoln Park.
Tucker was one of the males in the group. Wright recognized him because he had seen Tucker near the apartment complex on previous occasions and had also seen him at the complex earlier in the day. Wright went to the basketball courts at the apartment complex. After he saw the group of males disburse, Wright decided to go back home.
As he was walking up the stairs leading to his apartment, Tucker approached him quickly from a dark "backside" area near the stairs and asked Wright for a "swisher," which is a cigar. Tucker was wearing a black hooded sweatshirt and a black beanie on his head.
As he continued to walk up the stairs, Wright heard a noise and saw a male he knew as "Hankie"--identified at trial as Scott by Scott's girlfriend--who was falling and stumbling, and making noise because he hit a gate. Scott was wearing a black hooded sweatshirt and a green bandanna over the lower portion of his fact, "Ninja style" with just the eyes showing. Scott, whom Wright had also seen on prior occasions, was one of the males Wright had seen in the group earlier that evening. Scott was stooped over behind Tucker and making "trembling" noises. He had shot himself in the upper buttocks and down through his front left leg in the groin area.
Wright, who was on the fifth or sixth stair, jumped down off the stairs and started to run because what was happening was "too much commotion" for him, and he felt that Tucker was "trying to get" him. Wright did not look at Tucker as he turned to run. As Wright was running in front of Tucker, who was at most a few steps away, Wright heard a "pow" noise and a bullet hit him in the back. As he continued to run a second bullet hit him in the right arm. Wright ran through the basketball courts and out to the street where he passed out. At the hospital, Wright told his father that "Finny Boy"--Tucker--shot him. At trial Wright denied telling San Diego Police Department Detective Johnny Keene that he saw Tucker pointing a gun at him.
Detective Richard King, a City of San Diego police officer, testified that on October 3, 2005, he was on duty patrolling near the Bay Vista Apartments. He received a radio call reporting that shots had been fired at around 8:10 p.m. While en route to the Bay Vista Apartments he received information on the radio that the shooting victim could not be found. Because he had worked in the area for a long time, he knew that shooting victims often went to Paradise Hospital. Detective King drove to the hospital and learned that the shooting victim, Wright, had arrived moments before he arrived.
Detective King contacted Wright, who was on a gurney, conscious, and wearing an oxygen mask. Wright told him that he was shot by two men near his apartment in the Bay Vista Apartments. He said he had been going toward his apartment when a black male asked him for a swisher. Wright said he looked at the male and then saw another male come up. Wright saw that each male had a gun in his waistband, and they were pulling out the guns. He turned to run, heard a shot, felt pain in his back and in his arm, and ran out toward Logan Avenue. Wright told Detective King he thought he had previously seen them around the complex and would recognize them if he saw them again.
Detective Keene, who was assigned to the Street Gang Unit of the San Diego Police Department, testified that he interviewed Wright at the hospital on October 4, 2005, and he was accompanied by another detective. Wright was in some pain, but resting comfortably, and was alert and able to speak without slurring his words. Wright told Detective Keene that on October 3, as he was sitting on the steps that lead up to his apartment door, he saw a group of Lincoln Park gang members and overhead (sic) them talking about needing to clean up Lincoln and make it more Lincoln. Wright said he thought to himself that they were talking about him, but he did not think any drastic steps would be taken.
Wright told Detective Keene that after he went to the basketball courts, when he was six or seven steps up the stairs to his apartment, a male came toward him from under the stairs and asked him for a swisher. Wright then saw a second male coming toward him from behind the first male, and the second male was wearing a green bandanna over the lower portion of his face. Wright realized something was about to happen and, rather than run up the stairs and bring problems to his mother's apartment, he turned and ran down the stairs in an attempt to get away. As he did so, he heard gun shots and felt pain in both his back and right arm, ran through the basketball court and collapsed on Logan Avenue.
Wright also told Detective Keene that when he first saw the second male wearing the bandana, he looked back at the first male and saw the first male raising a gun in his direction. This was the moment when he turned and ran. Before he interviewed Wright, Detective Keene was informed that the shooter's nickname was Finny Boy, but he did not discuss with Wright the name of any person suspected of being involved in the shooting.
Detective Keene brought two separate photo line-ups to the hospital to show to Wright. The first photo line-up contained a picture of Tucker. After Wright gave his statement, Detective Keene gave a photo line-up admonishment to Wright and then showed him the first photo line-up. Wright viewed the line-up, pointed to the photograph of Tucker, and said that he had seen him around the Bay Vista Apartments, and that he (Tucker) could have been involved in the shooting.
Detective Keene then showed Wright the second photo line-up, in which there was a photograph of Scott. Wright viewed the line-up, pointed to the photograph of Scott, and said that he knew Scott, that Scott was a Lincoln Park gang member, and that he had seen Scott around the Bay Vista Apartments. Wright also told Detective Keene that the second suspect had a green bandanna covering the lower portion of his face, and that Scott could be the second suspect, but he could not be sure.
Detective Keene returned to the hospital a couple of days later on October 6 to interview Wright again because Wright appeared to go right to the photographs of the two people that Keene thought were the suspects, and he wanted to ask Wright whether he was afraid. Wright repeated his account of what happened.
Tucker's grandfather, Tinny Tucker, testified he was at home "kind of late" on a Monday night, and Tucker was with him. He stated he thought it was on October 3, 2005, but "maybe it's another date." He helped Tucker work on Tucker's car. Later that night he and Tucker went into the house and Tucker watched a football game on television. He had never seen Tucker wear a black "hoodie" sweatshirt.
Tucker's brother, Leonard Ingram, stated that on October 3, 2005, Tucker was at home watching a football game on television. He saw Tucker leave in the evening with Jeanine Hamilton.
Tucker's friend, Jeanine Hamilton, stated she and Tucker left his house and went to Wal-Mart at round 9:30 p.m. She identified herself and Tucker in a Wal-Mart surveillance video that was dated October 3, 2005, and time stamped 9:30pm. A receipt from Wal-Mart indicated they left the store at around 9:52 p.m.
Tucker's grandmother, Elizabeth Sabathia, testified that Tucker called her on October 3, 2005, at around 8:30 p.m. or earlier. (Lodgment 7 at 2-4.)
III. PROCEDURAL BACKGROUND
On March 15, 2006 a Superior Court of the State of California, County of San Diego jury found Petitioner guilty of assault with a firearm in violation of California Penal Code section 245(a)(2) with a firearm enhancement in violation of California Penal Code section 12022.5(a). (Lodgment 1 at 76.) The jury also found Petitioner guilty of attempted murder in violation California Penal Code sections 664 & 187(a) with firearm enhancements in violation California Penal Code section 12022.53(b-d). (Lodgment 1 at 77.) On March 21, 2006, Petitioner with the assistance of counsel, waived his right to a trial and entered an admission on his first prison prior pursuant to California Penal Code sections 667.5(b) and 668; his first serious felony prior pursuant to California Penal Code sections 667(a)(1), 668, and 1192.7(c); and his one strike prior pursuant to California Penal Code sections 667(b) thru (i), 1170.12, and 668. (Lodgment 1 at 235-36.) On November 8, 2006, the superior court sentenced Petitioner to state prison for life with the possibility of parole, plus 25 years to life plus a consecutive five years. (Lodgment 1 at 241-42.)
On July 26, 2007 Petitioner filed a direct appeal in the California Court of Appeal. (Lodgment No. 4.) Petitioner contended (1) the evidence was insufficient to support the attempted first degree murder and assault convictions and gun use enhancement because the only evidence linking him to the shooting was the victim's hunch or "common sense" suggesting Petitioner was the shooter; (2) even if Petitioner was the shooter, the evidence was insufficient to support his conviction for attempted first degree murder; (3) the trial court erred in finding an implied waiver of his rights following an abbreviated Miranda advisement; and (4) the failure of the prosecutor to offer, or the court to grant, use immunity to a witness who invoked his Fifth Amendment rights violated Petitioner's rights to present a defense and to have a fair trial. On April 24, 2008, in an unpublished opinion, the court of appeal affirmed the judgment of the trial court. (Lodgment
On May 30, 2008 Petitioner filed a petition for review with the California Supreme Court. (Lodgment 8.) This petition raised the same four grounds for relief presented at the California Court of Appeal. (Id.) On July 23, 2008, the California Supreme Court denied the petition for review. (Lodgment
On January 13, 2009 Petitioner filed a state habeas corpus petition in the San Diego County Superior Court. (Lodgment 10.) Petitioner contended (1) he received ineffective assistance of counsel because the trial attorney failed to hold a critical portion of the prosecution's case to adversarial testing and (2) his Sixth Amendment rights to effective assistance of counsel were violated when his trial attorney failed to obtain evidence in support of his defense case. (Id.) On March 10, 2009, the San Diego Superior Court denied the petition for writ of habeas corpus. (Lodgment 11.) On April 9, 2008, Petitioner filed a Motion for Rehearing of Writ of Habeas Corpus in the San Diego Superior Court. (Lodgment 12.) On May 11, 2009, that court denied the motion. (Lodgment 13.)
On June 9, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (Lodgment 14.) Petitioner raised the same two grounds for relief that he did at the at the San Diego Superior Court. (Id.) On September 30, 2009, the court of appeal denied the petition with a written opinion. (Lodgment 15.)
On November 17, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment 16.) Petitioner raised the same two grounds for relief that he did at the San Diego Superior Court and the California Court of Appeal. (Lodgment 16). On June 9, 2010, the petition was denied without comment. (Lodgment 17.)
The instant Petition was filed November 3, 2010. (Doc. No. 1.) Respondent answered on February 14, 2011. ( Doc. No. 10.) Petitioner filed a traverse on June 21, 2011. (Doc. No. 23.) On July 13, 2011, Petitioner filed a supplemental traverse on his fifth ground for relief in the instant Petition. (Doc. No. 25.)
Petitioner contends: (1) insufficient evidence supports his attempted murder and assault convictions;
(2) even if he was the shooter, the evidence was insufficient to support the attempted first degree murder conviction; (3) the trial court erred in finding an implied waiver following the abbreviated Miranda advisement in violation of his Fifth and Fourteenth Amendment rights; (4) Petitioner received ineffective assistance of counsel when trial counsel failed to hold the prosecution case to adversarial testing; (5) his Sixth Amendment rights to effective assistance of counsel were violated when trial counsel failed to obtain evidence in support of the defense case. (Doc. No. 4.)
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a) (emphasis added).
The current Petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). As amended, 28 U.S.C. § 2254(d) reads:
(d) 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.
28 U.S.C. § 2254(d)(1)-(2) (emphasis added).
To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). See
Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets § 2254(d)(1) as follows:
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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412-13; see also Lockyer v. Andrade, 538 U.S. 63, 73-74 (2003).
The Supreme Court further stressed that "an unreasonable application of federal law is different from incorrect application of federal law." Harrington v. Richter, 131 S.Ct. 770, 785 (2011) (citing Williams, 529 U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004). Further, the more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations. Id.
Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based upon an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) Miller-El II). A state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). In considering a challenge under 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the "burden of rebutting this presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Miller-El II, 545 U.S. at 240. However, it is only the state court's factual findings, not its ultimate decision, that are subject to 2254(e)(1)'s presumption of correctness. Miller-El I, 537 U.S. at 341-42. ("The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions.").
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Richter, 131 S.Ct. 770, 784-85. "Where a state court's decision is unaccompanied by an explanation, the ...