The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner currently confined at California State Prison-Sacramento, is proceeding pro se with a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case proceeds on the third amended petition filed September 30, 2011. (Dkt. No. 37 ("Ptn.").) Petitioner challenges his 2005 conviction for first degree murder and attempted robbery with a special circumstance and a sentencing enhancement. Petitioner claims that he was entitled to jury instructions on lesser-included offenses, and that the trial court excluded certain impeachment evidence in violation of his due process rights. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus be denied.
In its affirmation of the judgment on appeal on November 29, 2006, the California Court of Appeal, Third Appellate District, provided the following factual summary, in which petitioner is identified as "Defendant":
Guy Godfrey, Shawn Ingle and Bryan Breen were cousins and close friends. Godfrey and Breen spent the evening of September 18, 2003, at a friend's house where they used methamphetamine. Later, in the early morning hours of September 19, Godfrey and Breen met Ingle at a 7-Eleven store at the corner of Northgate and El Camino. Ingle was driving a car he had stolen on Darwin Street near where Godfrey lived with his mother. The three young men decided to buy a $10 bag of marijuana. Godfrey rode with Breen and Ingle followed in the stolen car. Although they made two or three stops, they were unsuccessful in finding any marijuana to purchase.
Eventually, the three young men decided to go to Godfrey's apartment on Darwin Street. Ingle stopped at the AM-PM store a couple of blocks from Godfrey's apartment, hoping to buy marijuana at that location. Godfrey and Breen drove to Darwin Street, parked outside the apartment complex, and waited for Ingle. Ingle saw a black van outside the AM-PM store and signaled the people around the van by putting two fingers to his lips as if he were smoking. A man later identified as defendant approached Ingle and asked what he wanted. Ingle told defendant he was looking for $10 worth of marijuana. Defendant said they had it. Because Ingle had no money, the two agreed that defendant would ride with Ingle two blocks to where Godfrey was waiting on Darwin Street, and the van would follow.
Once on Darwin Street, defendant instructed Ingle to make a U-turn and park his car in front of the car where Breen and Godfrey were sitting. The van parked across the street facing the opposite direction.
Defendant got out of Ingle's car, walked up to the driver's window of Breen's car, and asked Breen if he wanted some weed. Breen said, "Just a ten sack." Breen opened his wallet, took several bills out, and held them in his hand. Defendant took all of the money and said, "[Y]ou might as well get a 20." Defendant walked to the van, leaned in the driver's window, reached for something with both hands, and tucked an object in his sleeve.
Returning to Breen's open car window, defendant said, "Hey, Homie, check out this sack," and struck Breen in the head. Defendant told Breen and Godfrey to take off their seat belts and give him "all [their] shit." When defendant discovered there was no money in Godfrey's wallet, he threw it back at him.
Breen did not move. Defendant reached in, unbuckled Breen's seat belt, pulled Breen out, threw him roughly against the car, and went through his pockets. Godfrey saw a red disposable lighter fall out of Breen's pocket. When Godfrey got out of the passenger side of the car and stood up, he saw Breen facing the car with his head on the roof and his hands spread out. Defendant was standing behind Breen holding a gun to his head.
Godfrey started moving toward the back of the car. He heard the driver of the van yell "[H]urry up" and "Kill that motherfucker." A female voice from inside the van called out, "[H]urry up and kill him. Shoot him." Another male voice yelled, "Kill that White Bitch." Godfrey told defendant, "[J]ust take the wallet.... Whatever. Just don't shoot us." Someone in the van responded, "[S]hoot him too. He's gonna snitch."
Defendant backed up, still holding the gun, until he was three feet away from Breen. Godfrey told Breen not to worry. Breen remained where he was against the car, but put his arms down. Defendant shot Breen three times in quick succession. He pointed the gun at Godfrey, who was eight to ten feet away, and Godfrey got on the ground. At that point, defendant ran back to the van, and the van drove off.
Ingle, who had watched everything from his car, made a U-turn and stopped to talk to Godfrey. Ingle and Godfrey agreed that Godfrey would stay with Breen and Ingle would chase the van.
Godfrey helped Breen walk toward the apartment complex, but Breen ended up on the ground. He was still breathing and had a pulse when sheriff's deputies arrived. Deputy Jeffrey Brace performed CPR until medical personnel took over, but Breen died of the gunshot wounds at the scene.
Ingle pursued the van on the freeway and called 911 on his cell phone. He reported that he was following a van and one of the occupants had just shot his cousin. During the chase, Ingle rammed the back of the van. He left the freeway and returned to Darwin Street when he saw the law enforcement vehicles enter the freeway.
Sheriff's deputies contacted the occupants of the van when they left the freeway and pulled into a gas station at Florin Road and East Parkway. Deputy Brace drove Godfrey to the gas station where Godfrey recognized the van and identified defendant as the shooter. Godfrey also identified the driver, Jaquan Johnson. At the scene, the deputies identified the front passenger as Thomas Frazier and the left rear passenger as Kenyetta Reeves.
Homicide detective Will Bayles searched the van. He noticed a three-inch depression in the rear bumper. Bayles recovered a Smith and Wesson five-shot revolver in a green container in the back of the van. Deputies found two spent cartridge cases on the back seat. No marijuana was found in the van.
On Darwin Street, at the scene of the shooting, officers recovered one spent round on the street eight to ten feet from the car Breen had been driving. They also found a red disposable lighter on the ground 18 to 24 inches away from the car. Criminalist Faye Springer concluded the spent bullet had been fired from the gun found in the van. She also testified the spent cartridges found on the back seat of the van had been fired by the same gun. Springer examined the gun residue kits collected from the four occupants of the van. Based on the particles found, she concluded that both defendant and Reeves had fired a gun, handled a fired gun or fired ammunition, or had been near a gun when it was fired.
Detective Ron Garverick questioned defendant at the Sheriff's Department around 10:00 a.m. on September 19, 2003, and videotaped the interview. Defendant described meeting Ingle at the convenience store and riding with him to Darwin Street. He told Garverick that he had shot a gun around dusk the day before. At that point, defendant asked to speak with Kenyetta Reeves, the woman who had been with him in the van. Detective Garverick put them in the same interview room and taped their conversation. The prosecution played the tape for the jury. Defendant told Reeves: "They don't-they have no motive. They have nothing but the two cats saying they can identify me.  ...  They know I-I'm the only one that came back positive that shot that gun. I'm going to do some-I-I can't beat the-they got the murder weapon. They-fuck them all. They got the murder weapon. Then they got the gunpowder positive on my hands. It's all bad.  Ain't nobody prints on it. I wiped it down when (Unintelligible) (Unintelligible) from when you gave it to me and I was trying to re-load it. No fingerprints is on there. So I was telling you before I-you seen me dealing with-you know, went like this or-this or-you don't touch a gun. I-I deal with things, too, and you don't touch guns.  Dude died-he died ... right there.  ...  I shot him all them bullets went through his body to the car. I shot him closer than you-what-what me and you is. That's how I know I ain't going to miss him." Detective Garverick resumed his questioning of defendant after Reeves left. During this conversation, defendant stated at times that he was not the shooter and at other times that he was. Defendant denied that he had robbed Breen. The defense presented no evidence at trial.
Near the end of defendant's trial, defense counsel filed a written request for a pinpoint instruction of voluntary manslaughter on a theory of imperfect self-defense. In support of her request she acknowledged in her argument that the prosecutor had decided, "to proceed strictly on a theory of felony murder, robbery murder, and not on a theory of premeditation and deliberation or any lesser-included offenses." Rejecting the suggestion there were no lesser included offenses in felony murder, defense counsel maintained it was arguable there was no attempted robbery, but "what was going on was a drug deal in which chaos erupted and a killing occurred." Citing People v. Valdez (2004) 32 Cal.4th 73, she argued the jury should be allowed to determine the degree of the killing. Defense counsel asserted the evidence supported an inference that defendant held an unreasonable but honest belief in the need for self-defense.
The court denied the request for an instruction on voluntary manslaughter, finding: "[T]here is no substantial evidence to support a voluntary manslaughter instruction on actual but unreasonable self-defense or heat of passion. The arguments posited by the defense, although creative, are based sheerly on speculation. All the evidence which has been presented during the course of this trial, which the jury will evaluate, pointed to a botched robbery. No marijuana was ever found in the van or [at] the scene. There is no evidence the victim was armed or took any aggressive action at all towards the defendant to justify his being shot in the back three times. The only evidence is that he passively complied.  Further, there is no evidence of heat of passion.  It does not legally matter if the killing is intentional, unintentional or accidental if it was done in the course of an attempted robbery."
In closing argument, defense counsel conceded that defendant shot Breen but argued there was insufficient evidence of an attempted robbery. Instead, defense counsel maintained the victim was shot in a drug deal gone bad. The jury rejected the defense theory.
(Lod. Doc. 12 at 2-9.)*fn2
Petitioner's first trial for the murder of Bryan Breen began in March 2005 in the Sacramento County Superior Court. Jury deliberations began on April 5, 2005. On April 13, 2005, the trial court declared the jury to be deadlocked and discharged the jurors. 4 Record of Transcript ("RT") 989.
Petitioner's second trial for the murder of Bryan Breen took place in June 2005 in the Sacramento County Superior Court. The jury found him guilty of first degree murder in violation of California Penal Code section 187(a) and attempted robbery in violation of California Penal Code sections 211 and 664. The jury found, as a special circumstance, that the murder was committed while petitioner was engaged in the commission or attempted commission of the crime of robbery. See Cal. Penal Code § 190.2(a)(17). The jury further found true a sentencing enhancement allegation that petitioner had caused great bodily injury. See Cal. Penal Code § 1202253(d). 2 Clerk's Transcript ("CT") 356-57. On August 19, 2005, petitioner received an aggregate sentence of twenty-five years to life imprisonment, plus a consecutive indeterminate term of life imprisonment without the possibility of parole. 2 CT 412.
Petitioner appealed the judgment to the California Court of Appeal for the Third Appellate District.*fn3 (Lod. Doc. 9.) On November 28, 2006, the judgment was affirmed in a reasoned opinion. (Lod. Doc. 12 ("Opinion").) Petitioner then filed a petition for review in the California Supreme Court. (Lod. Doc. 1.) On February ...