The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING
CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT ON CERTAIN
CLAIMS, AND APPOINTING COUNSEL FOR
PETITIONER TO FURTHER DEVELOP AND ADDRESS THE REMAINING CLAIMS
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
Following a jury trial in the Fresno County Superior Court, Petitioner was convicted of first degree robbery (Cal. Penal Code*fn1 § 211; count one), attempted first degree robbery (§§ 664/211; count two), assault with a firearm (§ 245, subd. (a)(2); count three), first degree burglary (§§ 459/460, subd. (a) count four), felon in possession of a firearm (§ 12021, subd. (a)(1); count five), and participating in a criminal street gang (§ 186.22, subd. (a); count six). The jury also found the gang and firearm enhancements to be true.
Petitioner was sentenced to a total term of 31 years and four months in state prison.
Petitioner filed a timely notice of appeal. On March 1, 2011, the California Court of Appeal, Fifth Appellate District affirmed the judgment.
On April 11, 2011, Petitioner filed a petition for review in the California Supreme Court. The petition was denied on June 15, 2011.
Petitioner filed the instant federal petition for writ of habeas corpus on May 3, 2012. Respondent filed an answer to the petition on August 14, 2012.
On January 12, 2008, Eduardo Vidales, Rosalinda Duarte, Jose Martinez, and Elizabeth Gonzales were all inside an apartment. Carlos Gonzales (hereafter Gonzales) entered and asked Vidales and Martinez, "where are you from? Who do you run with?" Both men responded that they were not gang members, after which Gonzales left the apartment. Duarte told Vidales and Martinez to hide in the bedroom because Gonzales had a temper.
Gonzales returned with Maximino Acosta; Gonzales was carrying a handgun and Acosta held a sawed-off shotgun. Gonzales and Acosta went to the bedroom and Gonzales placed the handgun at Martinez's head and demanded Martinez and Vidales empty their pockets. Before they could do so, Gonzales reached into Martinez's pocket and removed an MP3 player. Vidales had nothing in his pockets.
Acosta and Gonzales left the apartment. Duarte followed them outside and took back Martinez's MP3 player. After this, Acosta and Gonzales went into another apartment nearby.
Officers responding to the scene could see through the window and observed Acosta and Gonzales in the apartment holding weapons. After arresting Acosta and Gonzales, officers found two guns hidden in the apartment.
Gonzales was charged with first degree residential robbery, attempted first degree residential robbery, assault with a firearm, first degree residential burglary, possession of a firearm by a felon, and street terrorism. It also was alleged (1) the offenses were committed for the benefit of and in association with a criminal street gang, and (2) Gonzales personally used a firearm.
Gonzales requested that the trial court bifurcate the gang charge and the gang enhancement. The trial court denied the request.
At trial, Anthony Gates testified as a gang expert. Gates investigated and found nine jail classifications in which Gonzales had admitted being a member of the Calwa Bulldog gang. Apart from the jail classifications, Gonzales had admitted being a Calwa Bulldog on two other occasions. Gonzales also had numerous gang tattoos, including a tattoo of a bulldog on the back of his head. Gonzales had been arrested in the past with known Calwa Bulldog gang members; he had been contacted in the past while in the company of Calwa Bulldog gang members; and Acosta was an admitted active member of the Calwa Bulldogs. Gates opined that Gonzales was a Calwa Bulldog gang member who actively participated in the criminal street gang.
Gates testified that he was of the opinion the crimes were committed for the benefit of the Bulldog gang as well as in association with a criminal street gang. Gates stated that Gonzales would benefit from committing the crimes because gang members earn respect by committing crimes. Gates testified this was especially true in this case because Gonzales had committed the crimes with another gang member, Acosta, who could verify that Gonzales committed the crimes.
Daniel Vasquez testified for the defense. He opined that Gonzales did not intend to promote or assist a gang when he committed the offenses. Instead, Gonzales acted out of misplaced family loyalty by trying to interject himself into the social lives of two female cousins who had male visitors in their apartment.
Jury deliberations began on Friday, May 8, 2009, and continued until 4:30 p.m. when the jury was excused for the day. When the jury reconvened on May 11, Juror No. 17 called in sick and was replaced by Alternate Juror No. 2.
After deliberating, the jury informed the trial court that it was unable to reach a unanimous verdict on all counts and enhancements. Ultimately, the trial court excused Juror No. 32 when that juror reported he was unable to perform the duties of a juror because he would not judge another human being.
The trial court substituted Alternate Juror No. 1 for Juror No. 32 on May 12 and instructed the jurors to begin deliberations anew on all charges and enhancements. The jury began deliberating at 9:39 a.m. and reached its verdict at 10:00 a.m.
(Ex. A, to Answer, at 2-4.)
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 he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the 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, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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.
28 U.S.C. § 2254(d). "Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of [the Supreme] Court." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011) (citing 28 U.S.C. § 2254(d)(1) and Williams v. Taylor, 539 U.S. 362, 412 (2000). Habeas relief is also available if the state court's decision "involved an unreasonable application" of clearly established federal law, or "was based on an unreasonable determination of the facts" in light of the record before the state court. Richter, 131 S.Ct. 785 (citing 28 U.S.C. § 2254(d)(1), (d)(2)). "[C]learly established ... as determined by" the Supreme Court "refers to the holdings, as opposed to the dicta, of th[at] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412. Therefore, a "specific" legal rule may not be inferred from Supreme Court precedent, merely because such rule might be logical given that precedent. Rather, the Supreme Court case itself must have "squarely" established that specific legal rule. Richter, 131 S.Ct. at 786; Knowles v. Mirzayance, __ U.S. __, 129 S.Ct. 1411, 1419 (2009). Moreover, the Supreme Court itself must have applied the specific legal rule to the "context" in which the Petitioner's claim falls. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 737 (2011). Under § 2254(d)(1), review is limited to the record that was before the state court adjudicated the claim on the merits. Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398 (2011). "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." Richter, 131 S.Ct. at 786.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784.
III. Trial Court Decision to Dismiss Juror No. 32
A. Dismissal of Juror No. 32
Petitioner contends the trial court erred by dismissing Juror No. 32 after finding that he could not ...