The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, Nathaniel Pope, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of thirty-two years to life following his 2006 conviction in the Sacramento County Superior Court for attempted murder with a penalty enhancement for personally and intentionally discharging a firearm causing great bodily injury. Here, Petitioner challenges the constitutionality of his convictions.
Petitioner presents multiple grounds for relief. Specifically, his claims are as follow:
(1) The trial court violated his due process right to a fair trial by improperly responding to jury inquiries during deliberations.
(2) Trial counsel rendered prejudicially ineffective assistance by advising him that he should not testify in his own defense.
(3) The prosecutor committed misconduct during her closing argument when she informed jurors that they could infer intent from the pulling of a handgun.
(4) The trial court violated his right to due process of law during sentencing by failing to put the aggravating factors on the record.
(5) The prosecutor violated his right to due process of law by misleading the jurors to believe that his case was gang related.
(6) Trial counsel rendered prejudicially ineffective assistance by failing to enter an objection when the prosecutor informed the jury during her closing argument that they could infer Petitioner's actions that he intended to kill the victim.
(7) Appellate counsel rendered prejudicially ineffective assistance by failing to raise the above claims on direct appeal.
Petitioner's second, sixth, and seventh claims all present allegations that he received ineffective assistance of counsel and, therefore, they will be addressed together. Likewise, Petitioner's claims three and five, both alleging that the prosecutor committed misconduct at trial, will be addressed together. Petitioner's remaining claims will be addressed individually. Based on a thorough review of the record and applicable law, it is recommended that both of Petitioner's claims be denied.
The relevant facts of petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follows:
At the Florin Mall on an October night in 2005, Sheela A. and Treasure R. were confronted by Mimi A., a former school rival of Sheela's. Mimi was accompanied by Mona F.FN1 Sheela admitted using "gang-related" language (e.g., "Blood") and wearing red during the confrontation. Sheela informed Mimi that while she (Sheela) could not fight Mimi because she might be pregnant, Sakiron D., a friend of Sheela's whom Sheela had cell-phoned during the confrontation, could step in. Sakiron, in turn, informed her friends, Shantel C. and Brittany L., what was underway. And Sakiron and Shantel then drove together to the Florin Mall.
FN1. Although all of the actors involved in the incident were at least 18 years old, we will use their first names for simplicity, as each of the parties has done on appeal.
In the meantime, Sheela and Treasure had been "shown the door" by a mall security guard. Out in the parking lot, these two then ran into Sakiron and Shantel, as well as Brittany and her then-boyfriend, defendant (aka "Mack June"). The confrontation with Mimi was discussed, Sheela and Treasure left, and Brittany and defendant entered the mall and encountered Mimi and Mona.
With defendant essentially behaving like a fight promoter, he and Brittany returned to the parking lot and told Sakiron and Shantel that Mimi wanted to fight someone. Then Mona came out to the parking lot, accompanied by the principal victim in this case, Semisi V. Mona and Semisi were apparently Tongans, and both were much bigger than Sakiron, Shantel, and defendant (Brittany had left by this point). Semisi stood six feet two inches tall and weighed 280 pounds. Defendant was five feet four inches tall and weighed 130 pounds. Mona and Semisi were talking "smack," making fun of Sheela and the whole situation.
Given the Tongans' size and behavior, Sakiron and Shantel felt nervous. As Semisi spoke, he paced and moved his hands in his pockets or behind his back; he was also wearing blue. Semisi initially thought that it was defendant who wanted to fight a girl; if that was the case, Semisi would take defendant on.
Semisi said to defendant, "where you from, Cuz"? (Evidence indicated this was a Crip identification.) Defendant replied, "from Oak Park Blood." More banter ensued, with Semisi accusing defendant of "BS-ing" him. Defendant appeared nervous, pacing side to side. When Semisi asked defendant how come he had never seen defendant in Oak Park, defendant said something like, "this is why" and pulled out a handgun and fired six shots. Five of the shots hit Semisi (the sixth, apparently a stray, hit a nearby innocent bystander in the foot). Semisi was hit in the chest, abdomen, groin and hand. Seconds passed between each shot.
Although Semisi at trial denied being a Crip, additional evidence showed otherwise. Following his arrest for the shooting, defendant told police officers that he "felt threatened" by Semisi, a Crip, who had "walked toward [him] . . . acting like he wanted to do something to [him]." Defendant also told officers that Semisi had shot at him during a prior altercation. But two other recorded statements about the incident (two in-custody statements from defendant to friends, including one to Brittany) did not raise or even allude to the issue of self-defense.
People v. Pope, 2008 WL 4358683 at *1-*2.
Following a jury trial, Petitioner was convicted of attempted murder. In addition, the jury found true a penalty enhancement for personally and intentionally discharging a firearm and causing great bodily injury. Petitioner was sentenced to a term of thirty-two years to life imprisonment with the possibility of parole.
Petitioner timely appealed his conviction to the California Court of Appeal, Third Appellate District on the grounds that the trial court improperly responded to jury inquiries during deliberations, claim one in his federal habeas corpus petition. The court affirmed his convictions with a reasoned opinion on September 24, 2008. He then petitioned the California Supreme Court for review of the appellate court's decision. The court denied review without comment on December 23, 2008. Petitioner next sought habeas corpus relief in the California Superior Court on claims two through seven, as identified in his federal habeas corpus petition. The court denied his petition with a reasoned opinion on November 25, 2009. He then filed a habeas corpus petition raising identical claims in the California Supreme Court. The court denied his petition without comment on October 12, 2010. This federal petition for writ of habeas corpus was filed on November 9, 2010. Respondent filed its answer on April 18, 2011 and Petitioner filed his traverse on September 6, 2011.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
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.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011).
Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "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. 652, 664, 124 S.Ct. 2140 (2004).
Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) -- i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, supra, 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court.
Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Finally, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. James v. ...