The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Joseph Bruno-Martinez, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Bruno-Martinez is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pelican Bay State Prison. Respondent has answered, and Bruno-Martinez has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Bruno-Martinez was convicted by a jury of attempted murder (Cal. Penal Code §§ 664/187), shooting at an occupied vehicle (Cal. Penal Code § 246), and having committed both offenses for the benefit of a street gang (Cal. Penal Code § 186.22(b)(1)). He was also convicted of using a firearm in connection with the attempted murder (Cal. Penal Code § 12022.53(c)). In November 2008 the Sacramento County Superior Court sentenced Bruno- Martinez to a determinate term of twenty-seven years on the attempted murder count and a concurrent indeterminate term of fifteen years to life on the shooting at an occupied vehicle count. Sentencing on all other counts was stayed under Cal. Penal Code § 654. The California Court of Appeal, Third Appellate District, affirmed Bruno-Martinez's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on July 14, 2010. Bruno-Martinez timely filed his Petition for relief in this Court on October 7, 2011.
The facts underlying Bruno-Martinez's conviction, as recited by the California Court of Appeal:
On the evening of August 4, 2007, Roland R., Edgar E., Marco C., and Carmen M. attended a birthday party at a restaurant in Rancho Cordova. They arrived around 10:00 p.m. in Carmen's vehicle. At approximately 1:30 a.m., they began to depart. However, as Roland stepped outside the front door, he was approached from behind by [Bruno-Martinez]. [Bruno-Martinez] said something about the tattoo on Roland's arm, which read "M.O.B.," and asked Roland where he was from. [Bruno-Martinez] was wearing a red shirt and red khaki shorts, and there were six or seven others with him.
Roland interpreted [Bruno-Martinez's] question as a reference to gang affiliation and responded that he was not a gang member. However, [Bruno-Martinez] did not accept this denial and "started cussing at Roland" and said something about "Fruitridge." Roland said he did not want any trouble and began moving toward Carmen's vehicle. Meanwhile, [Bruno-Martinez] pulled a handgun out from under his shirt.
Roland and the others reached Carmen's vehicle and got inside. However, they could not get it started. At the same time, [Bruno-Martinez] shot once into the air and then began shooting at the vehicle. Roland and the others climbed out and ran.
In all, at least seven shots were fired, five from a .40 caliber gun and two from a .45 caliber gun. Carmen's vehicle was hit multiple times and one of the windows was shattered. None of Roland's group was hit by the shots.
Roland and the others were later shown a photographic lineup and they all selected [Bruno-Martinez]. They were also shown a photograph of [Bruno-Martinez] taken earlier that evening inside the restaurant and identified him as the shooter.
[Bruno-Martinez] was charged with attempted murder of Roland R., with enhancements for personal use of a firearm and commission of the offense for the benefit of a criminal street gang. He was also charged with discharging a firearm at an occupied vehicle, also with a gang enhancement.
At trial, none of the four in Roland's group was able to identify [Bruno-Martinez] in the courtroom as the shooter. Carmen testified she did not remember much about what happened and could not recall who was doing the shooting.
Detective Jason Ramos, a gang expert, testified that [Bruno-Martinez] is a validated member of the Nortenos criminal street gang and that this was "absolutely" a gang shooting. Ramos relied on the following factors: [Bruno-Martinez] was wearing red at the time, he was in the company of another who was wearing red and sporting a Mongolian haircut, [Bruno-Martinez] said something about "Fruitridge" at the time of the incident, gang members typically verbalize the area they are from before committing crimes, [Bruno-Martinez] confronted an individual about a tattoo on his arm and asked where he was from, and such question is a common precipitator of gang violence.
[Bruno-Martinez] was found guilty on both charges and all enhancements were found true. He was sentenced on the attempted murder charge to a determinate middle term of seven years, plus 20 years for the weapon enhancement. On the charge of shooting at an occupied vehicle, [Bruno-Martinez] received a consecutive, indeterminate term of 15 years to life by virtue of the gang enhancement (see § 186.22, subd. (b)(4)(B)).*fn2
II. GROUNDS RAISED/DEFENSES
Bruno-Martinez raises three grounds: (1) the trial court erred in giving a "kill zone" instruction; (2) the trial court erred by failing to question the entire jury on a jury tampering question; and (3) that there was insufficient evidence to establish the gang-related enhancement. Respondent contends that the second ground is procedurally barred and the third ground unexhausted. Respondent raises no other affirmative defenses.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn3 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn4 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn5
Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn6 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn7 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn8 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn9 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn10 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn11
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner 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.*fn12
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn13 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn14 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn15
Ground 1: "Kill-Zone" Instruction
As described by the California Court of Appeal, the following occurred before the trial court.
During a discussion of jury instructions outside the presence of the jury, the court indicated it would be giving CALCRIM No. 600 on the elements of attempted murder without an optional paragraph relating to a kill zone theory. The parties acquiesced, with the prosecutor indicating he was not pursuing such a theory and defense counsel indicating he had not proceeded against such a theory. The jury was instructed as follows:
"The defendant is charged in Count 1 with attempted murder. To prove that the defendant is guilty of attempted murder, the People must prove that:
"1. The defendant took direct but ineffective steps toward killing another person; and "2. The defendant intended to kill that person. "A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the end plan."
During deliberations, the jury sent out the following question: "On Count 1 do we have discretion to find guilty of attempted murder charges without specifying Roland [R.]?" After discussion with counsel, the court gave the following response: "No. The victim alleged in the charge is 'Roland [R.]' However, you may consider the following instruction of law as a supplement to Instruction 600." The court then read the following modified version of the optional kill zone paragraph in CALCRIM No. 600:
"A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of Roland [R.], the People must prove that the defendant not only intended to kill anyone in Carmen [M.]'s car but also either intended to kill Roland [R.], or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Roland [R.] by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Roland [R].*fn16
Bruno-Martinez presents the same argument to this Court as he did before the California ...