The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2009, petitioner was convicted by a jury of first degree murder in 2009 in San Joaquin County Superior Court and sentenced to a term of 25 years to life with the possibility of parole. Petition, p. 1. Petitioner challenges his conviction on the ground that his federal due process rights were violated by the trial court's failure to provide a jury instruction on involuntary intoxication. Petition, p. 4.
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, 974 (2006).
In an unpublished opinion, the Third District Court of Appeal provided the factual background of this case.*fn2
In the early morning of March 21, 2008, Neal Singer was drinking beer at Jack's Back, a bar in Lodi. Between 1:30 and 2:00 a.m., Singer played a game of pool with defendant. After the game, Singer and defendant became embroiled in an altercation over a $40 pool bet. Defendant told Singer, "I won, let me get my money." Shortly before closing time the altercation moved outside in front of the bar. Defendant appeared to be drunk and agitated, and his eyes were heavy and bloodshot. Singer was acting "drunk and obnoxious."
At approximately 2:00 a.m., residents of a nearby apartment building were awakened by a disturbance in an adjacent parking lot. Singer was screaming, "Help me, I need help, help me." The residents watched as defendant threw rocks and a piece of concrete at Singer, who was lying face down on the ground. Defendant also kicked Singer in the head. As defendant stood over Singer, he said, "I'm going to kill you." When a resident told defendant to leave Singer alone and threatened to call the police, defendant responded, "I don't care, call the police." He then walked slowly, in staggered fashion, away from the scene.
Lodi police officers arrived at the scene and found Singer's body lying face-down in a pool of blood. His face had been crushed in. An autopsy revealed that Singer died of repeated blows to the head. He had sustained at least 56 distinct blunt force traumas. The injuries to the back of his head were likely caused by a 14-pound bloody piece of concrete recovered from the scene. Singer also suffered stomping injuries, including an injury bearing the imprint of a metal-toed shoe on his face.
An officer responding to the scene noticed defendant walking at a hurried pace. The officer contacted defendant and noticed blood on his mouth and alcohol on his breath. Defendant was arrested and transported to jail, where a preliminary alcohol screening (PAS) revealed a blood-alcohol level of 0.129 percent. Defendant's blood was drawn and tested positive for Valium, a benzodiazepine.*fn3 [Footnote 1]
An examination of defendant's sweatshirt, shoes, and jeans revealed bloodstains matching Singer's DNA. The blood on defendant's face also matched that of Singer. Several areas on the bloody piece of concrete recovered from the scene tested positive for Singer's DNA. Additionally, acetaminophen pills found in defendant's pockets ...