The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS /
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 9), respondent's answer (Doc. 26), and petitioner's reply (Doc. 29).
The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
About 10:30 p.m. one night in February 2005, Rogers drove Monica Bracamonte (who was the sister of Roger's brother's girlfriend) to the store in his Cadillac to get some milk for Bracamonte's niece. At the store, Rogers received a phone call from Howard to pick him up at Howard's house and take him to the park to meet Howard's girlfriend. After picking up Howard, Rogers drove with Howard and Bracamonte to the park. At the park, Howard walked to a nearby building, talked on the phone for a few minutes, came back to the car, and asked Rogers to get out. Rogers complied, and he and Howard walked around the building out of Bracamonte's sight. Less than five minutes later, Bracamonte heard two gunshots.
About 10 minutes after the gunshots, Howard returned to the car with Murphy, and he asked Bracamonte to get out of the car. Thinking nothing of it, Bracamonte complied. Murphy got in the car where Bracamonte had been sitting. Howard told Bracamonte that Rogers wanted to speak with her. As Bracamonte walked to the building with Howard behind her, she heard a clicking noise and something fall to the ground. She turned around and saw Howard, who was now wearing gloves, pick up a gun off the ground and place it under his arm. He told her to go back to the car, and she complied.
Howard drove Rogers's Cadillac a couple blocks to where Murphy's Jeep was parked. Murphy got out of the Cadillac and into her Jeep. Murphy followed Howard as he dropped off Bracamonte at Bracamonte's sister's apartment. As Bracamonte got out of the Cadillac, she heard Murphy say, "Pop her too." When Bracamonte got to the apartment, she told her sister and Rogers's brother what had happened. Roberts's brother tried to call Rogers but received no answer.
Rogers's brother and Bracamonte's sister went to the park and found Rogers's dead body. He had been shot in the back of the head and in the abdomen. His pants were pulled down and one of his pockets turned inside out.
Howard and Murphy were both arrested on February 10, 2005. They were interviewed by police separately and then placed in an interview room together.
The state court then outlined the following summary of Howard's defense:
Howard's defense was that he was the "duped pawn" and Murphy was the "queen." To support his defense, he introduced the testimony of Tawon Woodruff, who had met Howard on a number of occasions. According to Woodruff, Howard was "weak-minded," unintelligent, and did things he did not want to do. Howard also introduced the testimony of his sister, Leslie Knight. According to Knight, Howard was slow to understand things and gullible.
As to petitioner's defense, the court stated: Murphy's defense was that she did not shoot Rogers, she never intended to kill him, and she never intended to rob him. Howard said he wanted to take Rogers "off the map" due to a car Rogers had stolen. Later, Howard said he was not planning on killing Rogers, just reclaiming and taking his money.
Defendants Gerald Howard and petitioner Carmel Murphy were tried in a joint trial with separate juries and found guilty of first degree murder while armed. Petitioner was also found guilty of robbery. Petitioner was sentenced to a term of life without the possibility of parole. The conviction and sentence were affirmed in an unpublished decision issued by the California Court of Appeal on January 8, 2010, and the California Supreme Court denied direct review on April 22, 2010. On habeas review, the Sacramento County Superior Court denied relief in an opinion issued on October 15, 2010. The California Court of Appeal denied habeas relief without comment or citation on February 10, 2011, and the California Supreme Court did likewise on August 10, 2011.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings unless ...