FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 judgment of conviction entered against him in the San Joaquin County Superior Court on a charge of second degree robbery, with prior felony and prison term allegations. He seeks relief on the grounds that his right to due process was violated by jury instruction error and prosecutorial misconduct, and that his appellate counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Factual Background*fn1
Defendant Patrick Odonald Jackson was tried by jury and found guilty of second degree robbery. (Pen.Code, § 211.)*fn2 In a bifurcated hearing, the trial court found that defendant previously had been convicted of assault with a firearm (§ 245, subd. (a)), a serious felony within the meaning of section 667, subdivision (a), as well as a "strike" conviction within the meaning of the "three strikes" law. The trial court also found that defendant served a prior prison term within the meaning of section 667.5, subdivision
(b). The trial court sentenced defendant to 11 years in state prison and imposed other orders.
On appeal, defendant alleges several instructional errors, asserts that the trial court prejudicially abused its discretion by allowing the prosecutor to engage in misconduct, and claims that an unlawful sentence was imposed because the trial court imposed and then stayed a one-year sentence enhancement for defendant's prior prison term. We disagree with each contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The People's Case On a September night in 2007, just after midnight, Laura Orsua was returning to her room at the Crest Motel in Stockton, California. Orsua testified that as she opened her door, defendant came up from behind and "forced his way" into the room by throwing Orsua to the floor. As she was getting to her feet, a friend by the name of Kirby Wyrick called her cell phone. Orsua answered the call and exclaimed: "Kirby, help me. Help me." Defendant responded: "Who the hell you talking to? Give me that phone." As Orsua and defendant struggled for control of the phone, he grabbed her by the hair and threw her into a wall. Orsua released the phone. At this point, Orsua heard someone yelling her name from outside the room. Defendant departed with the phone and the following warning: "You better shut up before I fucking really hurt you."
According to Orsua's testimony, shortly after defendant left the room, she also departed and headed toward the front of the motel. When she got outside, she saw Wyrick standing in front of defendant. The two men "had words." Defendant told Wyrick to "mind his own business." Wyrick walked away from defendant and followed Orsua toward the front of the motel. Instead of taking this opportunity to depart, defendant followed, grabbing Wyrick and punching him several times. Defendant continued the assault even after Wyrick fell to the ground. At this point, Orsua and a friend who also lived in the motel, Jennifer Glaser, tried to push defendant away from Wyrick. Defendant pulled a "knife or screwdriver" out of his jacket. A third woman then opened the door to Glaser's motel room, and Orsua and Wyrick went inside. As Orsua was entering the room, she saw defendant hit Glaser before he "took off running."
Jennifer Glaser testified that she entered the story when she heard "yelling and screaming" and what "sounded like a rag doll being thrown around the room" coming from Orsua's motel room. Orsua's front room window previously had been broken, so Glaser could hear the confrontation clearly through the open window. Glaser then went to Orsua's door and heard a male voice saying: "Who is this Kirby [Wyrick] dude? Who is this white dude? What's he got? I'm going to get him. I'm going to rob his ass. Where's he at?" Wyrick and Glaser were friends, so Glaser spoke up loudly through the open window: "That's what you are not going to do." Defendant then opened the door and confronted Glaser, demanding: "What the fuck you going to do, white bitch?" Glaser turned around and returned to her room. Before she was able to get inside, she saw Wyrick approaching from across the street. At this point, Orsua was still in her room.
Glaser again emerged from her room and saw defendant punching Wyrick. Orsua was outside of her room trying to break up the fight; Glaser also tried to pull defendant off of Wyrick. Defendant then pulled "something shiny" out of his jacket and said: "I'll show you what I do to a white bitch like you. I'll kill a bitch like you ." While Glaser did not get a good look at the object, she believed it was a knife. Defendant then grabbed Glaser's hair, pulled her head back, and stabbed her in the roof of the mouth. Glaser fell to the ground; defendant left the scene.
Officers of the Stockton Police Department arrived within five minutes. Officers Michael Otten and Marcus Davenport were dispatched to the scene. Officer Otten testified that he received a description of the suspect over the radio, and that he was exiting the Crest Motel parking lot on foot when he "saw a subject matching the description" approximately half a block from the motel, walking southbound on Sierra Nevada Street toward Park Street. The subject made a right turn onto Park Street, walking away from Officer Otten, passed a row of bushes, stepped over a small fence, and lay down on the ground behind a house. Officer Otten pursued and ordered the subject off of the ground while Officer Davenport placed him in handcuffs.
A screwdriver was found in the bushes the subject passed before he hid in the yard. A black jacket was found on the ground next to the subject; a search of the jacket revealed a Metro PCS cell phone. The subject was identified as defendant. The phone recovered from defendant was identified as the phone taken from Orsua at the motel.
The Defense Case Defendant testified that he purchased the cell phone for $20 from a man named Danny. The transaction took place at the Chevron gas station two or three blocks from the Crest Motel. Defendant acknowledged that the phone was possibly stolen. According to defendant, he was walking back to the motel to visit a friend when he was confronted by Orsua at the intersection of Wilson Way and Park Street. Despite the facts that Orsua and defendant did not know each other and that she never saw the phone in defendant's possession because he had the phone in his pocket the entire time, somehow Orsua knew that defendant had her phone. After a brief "heated" conversation regarding the phone, defendant walked away. A short time later, defendant was apprehended while lying on the ground "avoiding police." Defendant believed he had outstanding traffic warrants, so when he spotted the police, he stepped over a short fence into someone's yard and lay down on the ground.
Procedural Overview Defendant was charged by amended information with attempted murder (§§ 664/187), first degree burglary (§ 459), assault by use of force likely to cause great bodily injury (§ 245, subd. (a)(1)), and second degree robbery (§ 211). The information also alleged defendant had previously been convicted of assault with a firearm (§ 245, subd. (a)), a serious felony within the meaning of section 667, subdivision (a), as well as a strike conviction within the meaning of the three strikes law, and that defendant served a prior prison term within the meaning of section 667.5, subdivision (b). A jury convicted defendant of second degree robbery and acquitted him on the remaining counts. Following a bifurcated hearing, the trial court found the enhancement allegations to be true; sentenced him to 11 years in state prison (middle term of three years on the robbery, doubled pursuant to the three strikes law, plus five years for the prior serious felony enhancement); and imposed other orders.
People v. Jackson, No. C058334, 2011 WL 1040317 (Cal.App. 3d Dist. April 20, 2009) (hereinafter Opinion), at **1-2.
Petitioner subsequently filed a petition for writ of habeas corpus in the California Supreme Court, in which he raised the same claims that he raised on appeal. Resp.'s Lodg. Doc. 5. The Supreme Court summarily denied that petition by order dated August 18, 2010. Lodg. Doc. 6.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle ...