The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner in both cases, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The above two cases were consolidated on January 20, 2011. Petitioner filed a motion to stay in the 2006 case to exhaust additional claims. When all claims were exhausted, petitioner filed a new petition, the 2010 case, rather than in the stayed case. Thus, both cases involve the exhausted petition filed on August 27, 2010, in case No. 2:10-cv-2316 RRB GGH P. Doc. 1. Respondent filed an answer on August 9, 2011, and petitioner filed a traverse on September 7, 2011.
Petitioner was convicted of multiple counts of attempted voluntary manslaughter, attempted robbery and various other related crimes. Petitioner was sentenced to a determinate term of nine years and four months in state prison and an indeterminate, consecutive term of twenty-five years to life.*fn1 Petitioner raises the following claims in this petition: (1) the superior court in ruling on his state habeas petition erred in refusing to reverse his convictions for attempted voluntary manslaughter and assault with a firearm; (2) the court of appeal erred in refusing to decide whether the use of his juvenile adjudications to enhance his sentence violated his constitutional rights; (3) he received ineffective assistance of appellate counsel when his counsel failed to raise on appeal the issue that co-defendant Coilton successfully raised; and (4) the trial court infringed on his constitutional rights when it found witness Watkins to be unavailable and allowed her preliminary hearing testimony to be admitted at trial.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
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 (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 (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 (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 (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. 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. Ryan, 679 F.3d 780, 802-803 (9th Cir. 2012).
The California Court of Appeal set forth the following factual summary that the court adopts below.
Antonio and Gerardo Moreno and their nephew, Ruben, were doing landscaping work at a neighbor's house. While they were taking a break, co-defendant Bridget Coilton and another woman drove up to the house in a gray Toyota Corolla and offered the Morenos sex for money. The Morenos declined the offer, and one of the women asked Gerardo for $5. Gerardo again refused, but said he would treat them to a beer. The women and Gerardo went to the store and Gerardo bought them beer.
The trio returned to the house and again the women sexually propositioned the Morenos. The Morenos again declined the offer, but one of the women who was sitting on Antonio's lap grabbed his back pocket which contained $350 folded over. Antonio refused to give the women the money, as it was for the landscaping job they were doing. The women left the house, and Antonio thought they were angry when they left, as they slammed the door of the car.
Coilton, Tasheba Shon't Watkins, and [petitioner's] sister were residents of the same apartment complex. Watkins considered Coilton a good friend. Coilton and petitioner also "hung out" together at the apartment complex. On the day of the robbery, Watkins saw Coilton drive up to the complex in a gray car, possibly a Toyota.
When Coilton got out of the car, she spoke with Watkins and told her she had some type of "come up," a way to get some money. She also said "she had a trick with some Mexicans that had bought her some beer." Later, Watkins heard Coilton speaking on the phone and heard Coilton say, "I got a 'lick.' [FN3]. Do you want to do it?" Watkins also heard Coilton say she was going to get a condom, which Watkins understood was going to be used "to do a trick." Watkins understood this "trick" to be one of the Morenos. A few minutes later, [petitioner] came down from his sister's apartment and got in the car with Coilton and at least one other person.
FN3. A "lick" is slang for a robbery or theft. (People v. Cummins (2005) 127 Cal.App.4th 667, 673.) Watkins testified it means to take some money from someone.
About 20 minutes after Coilton and her friend had left the house where Antonio and Gerardo were working, [petitioner] arrived with a loaded .45 handgun. Gerardo had seen Coilton's car pass by the house about 10 minutes before [petitioner] arrived. Antonio was sitting on a box in the living room. [Petitioner] walked through the door and shot Antonio three times. The first two shots grazed him on either side of his head and the third shot entered his neck just below his chin. Antonio did not recall [petitioner] asking for money from him before he was shot. Since Gerardo was in the bathroom at the time the shooting started, he also did not hear a demand for money.
Antonio attempted to defend himself. Gerardo came out of the bathroom and came to his brother's aid. Despite his efforts, Gerardo was shot in the leg. However, in the struggle with [petitioner], Antonio pulled a clump of hair from his ...