The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Tulare, following his conviction by jury trial on August 27, 2010, of first degree murder (Cal. Penal Code § 187) with personal and intentional discharge of a firearm (Cal. Penal Code § 12022.53(d)).
Petitioner timely filed a notice of appeal. On December 21, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (Resp't's Answer, Ex. A.) Petitioner then filed a petition for review in the California Supreme Court. On April 13, 2011, the petition was summarily denied. (Lodged Docs., Order Denying Pet. for Review.)
On March 23, 2012, Petitioner filed the instant federal habeas petition in this Court. The petition presents the following grounds for relief: 1) The trial court committed prejudicial error when it prevented Petitioner from impeaching Charles Jimenez with out-of-court statements contradicting his incriminating statements; 2) The trial court erred when it told jurors that Paul Olmos was an accomplice as a matter of law; 3) The trial court erred when it refused to tell jurors that they should not consider Olmos' guilty plea as evidence against Petitioner; 4) The trial court committed prejudicial error when it admitted evidence that Petitioner was a gang member; 5) The trial court committed prejudicial error when it admitted Michael Chavez' taped statement to police; and 6) The trial was rendered fundamentally unfair by cumulative error. On October 3, 2012, Respondent filed an answer to the petition. Petitioner did not file a traverse.
The Fifth DCA summarized the facts of the case, as follows:
Early in the morning on November 18, 2006, a police officer found Nathan Buford lying non-responsive on the shoulder of a road in Porterville, bleeding from a head wound. He died five days later. The cause of death was a single gunshot wound to the head with a trajectory from back to front. A jury found Jesus Valdez Ruiz guilty of his murder. (Resp't's Answer, Ex. A.) The facts were discussed in greater detail in the appellate court's analysis of each claim and will be set forth with respect to each claim below.
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 asguaranteed by the U.S. Constitution. The challenged conviction arises out of Tulare 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 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner 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); Harrington v. Richter, __ U.S. __, __, 131 S.Ct 770, 784, 178 L.Ed.2d 624 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must "'squarely address  the issue in th[e] case' or establish a legal principle that 'clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009), quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008); see Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.
If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of," [the] clearly established Federal law." Lockyer, 538 U.S. at 72, quoting 28 U.S.C. § 2254(d)(1). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at
72. "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405, quoting Webster's Third New International Dictionary 495 (1976). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. If the state court decision is "contrary to" clearly established Supreme Court precedent, the state decision is reviewed under the preAEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en banc).
"Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists could disagree on the correctness of the state court's decision, the decision cannot be considered unreasonable. Id. If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669 (9th Cir.2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).
AEDPA requires considerable deference to the state courts. "[R]review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits," and "evidence introduced in federal court has no bearing on 2254(d)(1) review." Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398-99 (2011). "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), citing 28 U.S.C. § 2254(e)(1). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963), overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
A. Exclusion of Charles Jimenez's Statements
Petitioner first alleges the trial court erred by preventing Petitioner from impeaching witness Charles Jimenez with his out-of-court statements.
This claim was presented on direct appeal to the Fifth DCA. The Fifth DCA denied the claim in a reasoned decision. (Resp't's Answer, Ex. A.) Petitioner then raised the claim to the California Supreme Court in a petition for review. The California Supreme Court denied the claim without comment or citation of authority. (Lodged Docs., Order Denying Pet. for Review.) When the California Supreme Court's opinion is summary in nature, the Court must "look through" that decision to a court below that has issued a reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3 (1991). In this case, the appellate court analyzed and rejected the claim as follows:
Ruiz argues that the court's ruling denying his request to impeach a witness's incriminatory statement was a prejudicial violation of his federal constitutional right to confrontation. The Attorney General argues that Ruiz's argument on appeal is outside the scope of his offer of proof at trial, that he forfeited his right to raise a federal constitutional issue on appeal by failing to articulate a federal constitutional objection at trial, and that confrontation clause error, if any, was harmless.
At the preliminary hearing, Rudy Jimenez testified he told Detective Sonia Silva that his brother Charles Jimenez said in a panic and in "shell shock" that Ruiz had shot Buford. Silva testified her investigation showed that Charles heard the bang and saw Buford slump and that "a lot of blood and brain matter" was "everywhere" in Buford's car.
Shortly before the swearing of the jury, the court held an evidentiary hearing to determine whether Rudy's statement fell within the spontaneous statement exception to the hearsay rule. (Evid.Code, §§ 402, 1240.) Silva, the investigating officer and the sole witness at the hearing, testified that Charles, Ruiz, Buford, and Paul Olmos left Rudy's house on the night of the shooting and that Charles came back later-terrified, in "shell shock," and almost in a panic-and said Ruiz had shot Buford. Silva had not heard of a statement that defense counsel said Charles made to a district attorney's investigator about never having seen Ruiz or anyone else with a gun. The court noted Charles had a motive to deny everything once he had time for reflection after he told Rudy about the shooting. Silva opined on the basis of her investigation that Rudy's statement, like the witness statements putting Charles in the car at the time of the shooting, were true. The court took judicial notice of Rudy's preliminary hearing testimony and ruled his statement admissible "within the purview of Evidence Code Section 1240." No mention was made at the hearing of Evidence Code section 1202, the statute governing the admissibility of evidence relevant to the credibility of a hearsay declarant.
At trial, Olmos and Rudy, both of whom considered Buford a friend, testified about his death. Olmos testified that he and Buford left together in Buford's car on the night of the shooting. Buford stopped and picked up Charles, Ruiz, and a person Olmos had never seen. Charles is big, so Olmos got out of the front seat to let him sit there, and Olmos got into the back seat, with Ruiz on his left behind Buford and the stranger on his right behind Charles. As soon as the last person got in, Olmos saw ...