The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, SUPPLEMENTAL FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner and is proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of attempted murder, discharge of a firearm from a motor vehicle and possession of a firearm by a convicted felon. The jury also found true that Petitioner committed the offenses for the benefit of, at the direction of, and in association with, a criminal street gang, and that he was one of the principals who intentionally and personally discharged a firearm.
On June 14, 2006, the Superior Court sentenced Petitioner to: (1) "life in prison, consecutive to 25 years to life," on attempted murder; (2) "five years, consecutive to 25 years to life, stayed pursuant to section 654," on discharging a firearm from a motor vehicle; (3) "two years plus three years, stayed pursuant to section 654," on being a felon in possession of a .40 caliber handgun; and (4) "a concurrent two-year term" on being a felon in possession of a .380 caliber handgun. (See Resp't's Lodged Doc. 1, at p. 2.).
Petitioner raised the following claims as stated in his federal habeas petition:
(1) "Petitioner was denied his Fourteenth Amendment guaranteed right to due process of law and his Sixth Amendment guaranteed right to present a defense when the trial court ruled that his alibi witness was unavailable and proceeded with the trial despite defense counsel's motions for continuance and mistrial" (Pet'r's Am. Pet. at p. 15.) ("Claim I"); (2) "The Court violated both Petitioner's Sixth and Fourteenth Amendment rights by allowing the prosecutor to elicit prejudicial information from a witness in front of the jury after she expressly refused to testify and had previously been held in contempt by the Court" (Pet'r's Am. Pet. at p. 26.) ("Claim II"); and (3) "The Court's cumulative errors denied Petitioner his Constitutionally protected guarantees to due process of law and to a fair trial" ("Pet'r's Am. Pet. at p. 33.) ("Claim III"). On December 8, 2010, the undersigned issued findings and recommendations which recommended that the habeas petition be denied. On September 30, 2011, the District Judge adopted the findings and recommendations as to Claims II and III. The District Judge declined to adopt the findings and recommendations "as to petitioner's claim that the court erred by finding witness Roediger unavailable and thus denied him the right to compulsory process." (Dkt. No. 33 at p.
2.) Upon considering the issue returned to the undersigned for further findings, the argument does not merit granting federal habeas relief. Furthermore, in light of the District Judge's order that Claim I was not completely analyzed in the previous findings and recommendations, Petitioner's Claim III of cumulative error may need to be reexamined. Upon reexamining Claim III, taking into account the additional issue analyzed in this supplemental findings and recommendations, Claim III continues to not merit granting federal habeas relief.
II. FACTUAL BACKGROUND*fn1
The Shooting One evening in the summer of 2006, 16-year-old Angelo S. delivered some baby clothes to the home of [Petitioner's] cousin Rudy, for Rudy's pregnant sister. Angelo previously belonged to the Franklon gang, a subset of the Nortenos. Rudy believed Angelo belonged to the Norteno gang because he wore baggy pants and carried a rag in his pocket. Rudy had been previously validated as a Norteno gang member.
As Angelo stood in the street, talking on the phone in front of Rudy's house, he saw a car drive by. Angelo heard about six gunshots and fell to the ground. The gunfire wounded Angelo in the back, leg, and stomach, leaving him paralyzed. At trial, Angelo testified he did not see who was driving the car. However, prior to trial Angelo told a detective that even if he knew who shot him, he would not reveal the shooter's identity. At trial, Angelo testified he did not know [Petitioner] and did not recognize him. He also denied telling Rudy someone named Perry shot him.
Rudy testified he was upstairs checking on his grandmother when he heard loud popping noises. In an earlier statement to detectives, Rudy stated he was outside when the shots were fired.
A neighbor identified Rudy's house as the Almeda house. For five or six years, the neighbor saw [Petitioner] at the house several times a week. The neighbor heard the shots but did not see a car. He ran outside to help Angelo, who did not answer when asked who shot him. Immediately after the shooting Manuel Lopez and his daughter saw a white car with a "T-top" speed away. Since the car windows were tinted, the pair could not see who was driving. Lopez's daughter testified she recognized the car but had seen only an older, grey-haired man driving it before. Previously, she told an investigator she had seen [Petitioner] driving the car prior to the night of the shooting.
A police officer located two .40-caliber shell cases on the ground near Angelo. The cases were fired from the same gun. Officers also found a red towel and an expended bullet at the scene.
At trial, Rudy testified he did not see Angelo lying in the street and denied he saw a car drive by the house. Previously, Rudy told detectives [Petitioner] drove the car and the shots came from the passenger side through the back window. Rudy also stated the car was a T-top. At trial, Rudy denied making the statements.
The Aftermath About two weeks after the shooting, detectives arrested [Petitioner]. Initially, the officers conducted a traffic stop for the car [Petitioner] was believed to be driving. They arrested Perry Trujillo, the driver, and detained a passenger, Irene Medina. Trujillo was a Norteno gang member. Shortly after officers arrested Trujillo, they arrested [Petitioner] at a nearby residence. [Petitioner] had keys for a Nissan Murano in his pocket that he wanted to give to a friend. Officers impounded the Murano as evidence. When they later obtained a search warrant for the vehicle, they located under the front passenger seat a .380-caliber handgun containing nine live rounds. The gun yielded no identifiable prints. [Petitioner's] girlfriend, Jevon Brown, testified she owned the Murano. Before leaving on a trip the day before [Petitioner's] arrest, Brown gave the car to her mother. She never gave [Petitioner] permission to drive the car while she was gone. Brown did not own a gun. A detective testified Brown told him she gave her mother the car keys so that [Petitioner] could pick up the car and put new rims on it. Brown also told the detective the gun found in the car must have been [Petitioner's]. At trial, Brown denied the comments.
Gang Evidence A gang expert testified that he believed [Petitioner], Perry, Rudy, and Angelo all belonged to the Norteno gang. The expert also testified that various Norteno factions sometimes clash. According to the expert, Angelo was responsible for shooting [Petitioner] in the leg about a year before Angelo was shot. Based on the evidence, the expert opined that the shooting was committed for the benefit of, and in association with, the Norteno gang.
Defense Case [Petitioner] presented his own gang expert. [Petitioner's] expert stated the term "Norteno" refers to an identity as opposed to a particular gang. Based on the evidence, the expert could not determine the shooting was related to gang activity. (Slip Op. at p. 2-5.)
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's 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 state court. See 28 U.S.C. 2254(d).
As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly 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. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "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. 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 an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
V. ANALYSIS OF PETITIONER'S CLAIMS
In the September 30, 2011 order, the District Judge found that the undersigned addressed the denial of the mistrial and continuance within Claim I, but not Petitioner's argument that the court denied him his right to compulsory process by discharging the bench warrant even though the witness was not truly unavailable. (See Dkt. No. 33 at p. 1-2.) Subsequently, the District Judge only adopted the findings and recommendations as to Claims II and III. Therefore, it appears as if the portions of Claim I that addressed the state court's denial of a mistrial and a continuance have not yet been decided by the District Judge. Accordingly, those two issues will also be addressed in this supplemental findings and recommendations.
i. Denial of Motions for Continuance and Mistrial In Claim I, Petitioner argues his Sixth and Fourteenth Amendment rights were violated "by the Court's improper ruling . . . that petitioner's alibi witness was legally unavailable and that the trial should proceed despite defense counsel's requests of continuance and mistrial." (Pet'r's Am. Pet. at p. 16.) Petitioner asserts his "alibi witness, Faye Roediger, was never allowed to testify due to" this ruling. (Id.)
The California Court of Appeal rejected this claim, stating, in part:
Motions for Continuance and Mistrial
[Petitioner] argues the trial court erred in denying both his motion for a continuance and motion for a mistrial. According to [Petitioner], the court denied him his right to present a defense by proceeding to trial even though an alibi witness was considered unavailable. [Petitioner] contends that under Evidence Code section 240, the witness should not have been deemed unavailable. Background An investigator for Trujillo interviewed Faye Roediger, who stated [Petitioner] was with her at a hotel in Sacramento at the time of the shooting. Roediger also provided the investigator with a statement from the hotel, showing she had been registered on the date in question and had charged movies, music, and phone calls to her room.
According to Roediger, she met Trujillo around noon the day of the shooting. The pair picked up [Petitioner] and a woman named Monica, and the quartet went to a hotel. Roediger rented a room and for the rest of the day the group stayed in the room. Around 11:00 p.m., Roediger left to get dinner.
Roediger gave a similar account to [Petitioner's] investigator. Roediger stated she and her friend Christina picked up Trujillo on the afternoon of the day of the shooting. They picked up [Petitioner], Monica, and Irene Medina that evening. Everyone went to the hotel, and Roediger and [Petitioner] split the cost of the room. Everyone stayed in the room until 11:00 p.m., when Roediger and Christina went out to buy food. Roediger stayed in the room for an hour after she returned. She went home, leaving everyone else in the room.
Defense counsel served Roediger with a subpoena commanding her presence at trial on March 26, 2007. Roediger failed to appear. The trial court issued a bench warrant. On April 26, 2007, during opening statement at trial, defense counsel informed the jury he intended to call Roediger as a witness, and she would testify that [Petitioner] was with her at a hotel at the time of the shooting.
On May 8, 2007, the trial court determined that there were two outstanding warrants for Roediger's arrest. The court also stated: "As a material witness [Roediger's] testimony is highly relevant and important to the defense since the defense in this case appears to be alibi." Roediger's attorney told the court that she was under medical supervision and was not able to leave the medical facility. He stated Roediger was not "avoiding court forever" but was "simply asking for a recess until she's medically cleared."
The following day, the trial court recalled and dismissed the bench warrant since Roediger was unable to leave the medical facility. The Betty Ford Center in Rancho Mirage sent a letter to Roediger's attorney, stating: "This letter is to inform you that Faye Roediger is presently attending the Intensive Outpatient Program at the Betty Ford Center. She was admitted May 07, 2007 and her projected discharge date is June 29, 2007." [Petitioner] moved for a continuance and, in the alternative, for a mistrial. The court allowed additional time for counsel to determine whether a conditional examination of Roediger was a possibility. Roediger's attorney stated he believed the facility would not allow the use of video cameras.
On May 14, 2007, defense counsel stated he did not know Roediger's location. Roediger's attorney notified the court that Roediger remained at the facility, the facility's attorneys had been contacted, and that it would be a "long and involved process."
The court denied both of [Petitioner's] motions. The court found Roediger unavailable. Next, the court inquired as to whether any exception to the hearsay rule would permit the admission into evidence of Roediger's prior statement to an investigator, and concluded no exception applied.
The court also indicated it was not inclined to order the county sheriff to travel to a far county to retrieve the witness. The court noted that not only was the witness far away, but Roediger was also receiving drug therapy and medical personnel would not allow her to travel. The court excluded Roediger's prior statements to investigators.
Unavailability of Roediger At the outset, the parties disagree over the meaning of the court's determination that Roediger was "unavailable." [Petitioner] argues the trial court erred in finding Roediger unavailable, invoking Evidence Code section 240, subdivision (a). The People disagree, arguing section 240 does not apply. [Petitioner] concedes a finding of witness unavailability under Evidence Code section 240 "more often arises in cases where a party moves to introduce prior testimony of a witness who cannot testify in person at trial, [but] nothing in that statute limits that definition to those situations, and the definition is equally applicable to the facts here."
Unfortunately, [Petitioner] provides absolutely no authority for his assertion that Evidence Code section 240 applies to the situation in the present case. Nor did the trial court invoke section 240 during the discussions over Roediger's "availability." The court simply determined Roediger was unavailable as a witness at that time. Section 240 is not relevant to the resolution of this appeal. Continuance [Petitioner] argues the court erred in denying his motion for a continuance. When a party seeks a continuance to secure the attendance of a witness, the party must show: (1) he or she has exercised due diligence to secure the witness's attendance, (2) the witness's expected testimony is material and not cumulative, (3) the ...