The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Fresno, following her conviction by jury trial on July 6, 2007, of two counts of first degree murder (Cal. Penal Code § 187). (CT*fn1 584.) The jury further found true a special circumstance multiple-murder allegation (Cal. Penal Code § 190.2(a)(3)), and an allegation that Petitioner had committed the murders for the benefit of, or in association with, a criminal street gang (Cal. Penal Code § 186.22(b)). (CT 545-546, 584.) On November 30, 2007, Petitioner was sentenced to serve two indeterminate, concurrent terms of life without the possibility of parole. (CT 584.)
The gang enhancement was imposed but stayed. (CT 584.)
Petitioner timely filed a notice of appeal. On February 19, 2009, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Lodged Doc. No. 1.) On March 25, 2009, Petitioner filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 2.) On May 13, 2009, the petition was summarily denied. (See Lodged Doc. No. 3.)
Petitioner also sought collateral relief in the state courts. On December 17, 2009, she filed a habeas petition in the Fresno County Superior Court. (See Lodged Doc. No. 4, Attachments.) On February 5, 2010, the petition was denied. (See Lodged Doc. No. 4, Attachments.) She then filed a petition for writ of habeas corpus in the Fifth DCA on February 22, 2010. (See Lodged Doc. No. 6.) On March 3, 2011, the petition was denied. (See Lodged Doc. No. 6.) On March 16, 2011, she filed a habeas petition in the California Supreme Court. (See Lodged Doc. No. 4.) On October 12, 2011, the California Supreme Court denied the petition with citation to In re Swain, 34 Cal.2d 300, 304 (1949). (See Lodged Doc. No. 5.)
On March 21, 2012, Petitioner filed the instant federal habeas petition in this Court. The petition presents the following grounds for relief: 1) Petitioner claims she was denied the effective assistance of counsel; 2) She claims the prosecutor committed misconduct; 3) She claims her due process rights were violated when the defense was only provided transcripts for ten of fifty taped interviews. On June 25, 2012, Respondent filed an answer to the petition. On July 16, 2012, Petitioner filed a traverse.
Although Mangsanghanh is not a member of the criminal street gang known as the Asian Boyz (Boyz), the father of her child, Sopheak Chhang, is a member. Mangsanghanh sometimes went with Chhang when he was associating with gang members because she was afraid Chhang, who has a limited mental capacity, would be influenced by gang members. On January 31, 2007, the night of the murders, Mangsanghanh was with Chhang at Yann's home, along with a number of other gang members. Mangsanghanh had known Yann for a long time. He was a long-time Boyz member, and his house was known as a gang hangout. Also present that evening were gang members Chea, Perkins, Peter Khounvixay, Keo Som, Panya Channita, Jose Perez, and several others.
The Boyz have long been involved in a "war" with the Tiny Rascal Gang (TRG). There had been at least 30 shootings involving these two gangs within the four years preceding the murders. Several days prior to the murders, Som was jumped and assaulted by members of the TRG. In retaliation for the assault, several Boyz members executed a drive-by shooting in TRG territory. The TRG immediately retaliated with a drive-by shooting directed at Som's parents' house. After the shooting at Som's parents' house, Yann borrowed a loaded .45-caliber semiautomatic handgun from fellow Boyz member Victor Alvarez.
On the night of the murders, the gang discussed the recent shootings and the need to retaliate. The group was talking "trash" about the TRG. Yann was angry and wanted to retaliate. According to Som, Mangsanghanh noted the need to retaliate for the death of Boyz member Olina Mung, who had been killed a year earlier by the TRG. Alvarez was not there the night of the murders, but his gun was present. Channita testified that he saw Yann give Alvarez's semiautomatic handgun to Perez. Som testified the handgun was on the television stand at Yann's house and Perez took it from that location. Som, Channita, and Khounvixay left to find more guns. They returned with an AK-47 and ammunition they had gotten from Boyz member Laja Oupathame. Chea racked the AK-47. Yann told the group if they were "going to do something, do it smart."
Chea, Perez, Chhang, and Mangsanghanh left to do a retaliatory shooting shortly after midnight. Mangsanghanh drove to Easterby Elementary School in Fresno and parked. Across from the school was an apartment complex known to be a TRG hangout. Chea and Perez got out of the car, telling Mangsanghanh to wait. Mangsanghanh and Chhang stayed behind in the car. Mangsanghanh heard numerous gunshots. Chea and Perez ran back to the car with the guns. Mangsanghanh drove off.
A number of young women were in the parking lot of the apartment complex and testified that, shortly after midnight on February 1, 2007, they were fired at as they sat in or around cars in the parking lot. Nath Ouch, who was eight months pregnant, was shot in the back and died from her wounds. Her unborn child also died.
A large number of bullets and spent casings were found at the scene of the shooting and at the elementary school. These were traced back to the AK-47 and the .45-caliber handgun. There was bullet damage to signs and cars near the site establishing the trajectory of the bullets as coming from the school grounds. Alvarez retrieved his gun after the murders. The .45-caliber handgun ultimately was located under the seat of Alvarez's truck.
When contacted by police and told that her car was to be impounded, Mangsanghanh became angry and told police, "fuck that pregnant roach bitch, she got what she deserved." "Roach" is a derogatory term used to refer to TRG members. Mangsanghanh told police that the shooting was retaliatory. She also said that she was angry that police had not yet solved the Mung murder. She appeared pleased when told that this was wrong and that the suspect was in custody. Ouch was not a gang member, but she was the wife of a TRG member who was implicated in the Mung murder.
The prosecution's gang expert Detective Villalvazo testified that, in his opinion, the murders were done to benefit the Boyz in that it sent a message to the TRG that they were not to mess with the Boyz. Villalvazo also testified that some of the Boyz's primary activities were to engage in criminal acts such as possession of firearms, firing at residences, attempted murders, murders, stealing cars, drug sales, and intimidation of witnesses. There was also proof of a number of recent predicate gang offenses committed by Boyz members. There is no dispute that the TRG and Boyz are criminal street gangs active in the United States, specifically in Fresno.
Alvarez testified pursuant to a plea agreement, according to which he entered a plea of guilty to accessory after the fact in exchange for his testimony. Som, Khounvixay, Channita, and Oupathame also negotiated plea agreements. They entered a plea of guilty to voluntary manslaughter in exchange for their testimony. Perez remained a fugitive at the time of trial. Chhang was declared incompetent to stand trial. (See Lodged Doc. No. 1.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that she suffered violations of her rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed ...