The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Jamual Broadbent, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Broadbent is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison. Respondent has answered, and Broadbent has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Broadbent and his co-defendant Humberto Diaz were convicted by a Sacramento County Superior Court jury of three counts of attempted murder (Cal. Penal Code §§ 187(a), 664) arising out of a gang-related shooting. In December 2007 the trial court sentenced Broadbent to an aggregate prison term of thirty-five years plus an indeterminate term of fifty years to life. The California Court of Appeal, Third Appellate District, affirmed Broadbent's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on February 10, 2010. Broadbent filed his Petition for relief in this Court on June 22, 2011.
The factual basis underlying Broadbent's conviction were summarized by the California Court of Appeal.
In January 2006, Dorrate Hicks, who was 15 or 16 years old at the time, was walking from his house near 26th Avenue and Martin Luther King, Jr. Boulevard in Sacramento with his friend, Michael Jordan. As they were walking, Dorrate saw four men standing around a street corner talking. Dorrate suggested turning back, but Jordan kept going, and Dorrate stayed with him. As they passed the men, Jordan stopped, shook someone's hand, and asked where Ricky was. Dorrate kept walking. One of the men told Jordan they did not know where Ricky was but they would let Jordan know if they saw him. Jordan then caught up with Dorrate.
As they continued walking, one of the men (later identified as Diaz) asked, "[W]here you all from?" Dorrate took this as a "kind of . . . threatening question," meaning "what gang do you belong to?" Jordan responded, "I'm from L.A. but I don't gang bang." Diaz said something like, "[A]re you all from L.A? You all got to get [the fuck] up out of here. You all don't belong here." He also said something like, "Oak Park all mines," which Dorrate understood to mean it was their territory. Dorrate told the men they were leaving. Diaz told Dorrate, "Shut up, bitch or I'll slap you."
Dorrate (followed by Jordan) walked quickly to Christian Brothers High School, where there was more light, to call his brother Tykeymo Harrison to come get him because he did not want to walk home. Dorrate told Harrison about the incident with the four men. Harrison said he would come.
Harrison picked up Dorrate at the school next to Christian Brothers in an Oldsmobile. (Jordan had left already.) Harrison was driving, and with him in the car were their brother, Dorral; Dorral's best friend, Anthony Watson; and Harrison's friend, Javan Gaut. Harrison told Dorrate to tell him where the men were because he wanted to know why they were messing with Dorrate.
About 15 minutes after Dorrate had first encountered the men, he and the others in the Oldsmobile arrived back at the corner. The men were still there. They all got out of the car, which Harrison left running, and Diaz came into the middle of the street, as did Harrison, Watson, and Gaut. Harrison said something like, "my brother just told me one [of you] all from down here was messing with him," and Diaz turned and said something to two of the other men. In response, they walked from one corner to another and around the back of a house. Dorral and Harrison heard Diaz tell one of the other men something like, "go get a gun" or "go get the gun." Diaz then turned back and said Dorrate was not supposed to be there, "This is Oak Park Bloods. We don't know who your brother is."
At that time, Dorral recognized Diaz as someone he had seen before at a jewelry store. Dorral told Diaz he knew him, Diaz responded that he knew Dorral too, they shook hands, and Diaz said, "[E]verything cool."
Dorrate then saw the two men coming back. Gaut told the others that "they was on point and let's get up out of here." Dorrate understood "on point" to mean the men had a weapon. The two men were walking toward the car; the one in the lead was later identified as Broadbent. Dorrate was the first one to get back in the car, then Gaut, followed by Harrison. Before Dorral and Watson got back in, Dorral looked at Broadbent and told him everything was cool and they were leaving. Dorral then got back in the car, and as Watson was getting in, Broadbent started shooting from just a few feet away. The windows on the passenger side shattered, and Watson was hit in the head. Dorrate thought there were about six gunshots; Dorral thought probably eight. Only after the shooting stopped was Harrison able to drive away.
Dorral was shot twice-one bullet hit him in the upper right arm and traveled through his arm and chest, stopping in his neck; the other bullet struck his left wrist. Harrison was shot in the shoulder. Watson was shot twice-one bullet hit his left hand, but the other hit him in the head, leaving him in a vegetative state.
After the shooting, a police crime scene investigator examined the car at the hospital and saw bullet holes in the right rear passenger door and a bullet hole in the lower left front windshield.
Diaz and Broadbent were charged in a consolidated complaint with three counts of attempted murder-one count each for Watson, Dorral, and Harrison. The complaint included various enhancement allegations, including criminal street gang enhancements on each charge.
At trial, Sacramento Police Detective Wendy Brown testified she was working in the gang suppression unit in January 2006 and was the officer who arrested Broadbent. She was also present at Diaz's arrest two days later. When he was arrested, Diaz had rock cocaine in a plastic baggie.
Detective Brown also testified as the prosecution's gang expert. She testified that Ridezilla (also known as Zilla, Underworld Zilla (U.Z.), and Clap City) is a neighborhood-based gang that is made up primarily of members of the Oak Park Bloods, along with members recruited from other neighboring gangs. Ridezilla is a "very, very violent gang" and its primary activities are "[h]omicides, attempt[ed] homicides, narcotics dealings, [and] assaults with deadly weapons." "The rivals of Ridezilla are anyone who challenges Ridezilla." Ridezilla members "are very, very often armed, and they are not afraid to use them." Diaz and Broadbent were first validated as members of Ridezilla in 2005, based in part on their own admissions of gang membership. Detective Brown expressed her opinion that the shooting was committed for the benefit of Ridezilla because "the gang . . . benefits by a show of force in answering disrespect."*fn2
II. GROUNDS RAISED/DEFENSES
Broadbent raises eight grounds: (1) CALCRIM 600, the "kill-zone" instruction violates the due-process clause; (2) ineffective assistance of counsel in failing to object to the prosecutor's improper concurrent intent argument; (3) exclusion of Broadbent's father and brother deprived him of his Sixth Amendment right to a public trial; (4) the California ten-point test for gang validation constitutes an invalid criminal profile; (5) to the extent that the gang- expert's testimony was based upon hearsay it violated the Confrontation Clause of the Sixth Amendment; (6) the evidence was insufficient to establish special allegations; (7) failure to strike non-responsive answers in cross-examination resulted in the denial of a fair trial; and (8) denial of bifurcation of gang-related allegations rendered the trial fundamentally unfair. Respondent contends that the Petition is untimely; and that his third (denial of public trial), fourth (gang validation test), and fifth (gang-related testimonial hearsay) are procedurally barred.
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
Respondent simply contends, without further explanation that "[i]t appears the Petition is untimely by at least 30 days, 28 U.S.C. § 2244(d)(1)(A)." The limitations period of § 2244(d)(1)(A) is an affirmative defense that must be pleaded by the Respondent.*fn16 The record in this case indicates that the California Supreme Court denied review on February 10, 2010. Broadbent's conviction became final on direct review 90 days later when his time to file a petition for certiorari in the Supreme Court expired,*fn17 Monday, June 14, 2010. 28 U.S.C. § 2244 provides:
(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
As relevant to this case, because there were no state post-conviction proceedings involved, only one provision of § 2244 is involved, (d)(1)(A) (date the judgment of conviction became final).
Thus, Broadbent's time to file his Petition in this Court expired on June 14, 2011, eight days before Broadbent filed his Petition. An untimely petition is subject to dismissal.*fn18 Broadbent contends that the limitations period was equitably tolled because of his mental disability. ADEPA'S statutory limitations period may be tolled for equitable reasons.*fn19 To warrant equitable tolling, a petitioner "bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."*fn20 While a petitioner is required to pursue his rights diligently to warrant equitable tolling, the appropriate standard is "reasonable diligence," not "maximum feasible diligence."*fn21 A panel of the Ninth Circuit has held that equitable tolling of the limitations period governing a habeas petition is permissible when the petitioner can show mental impairment so severe that he or she was unable personally to understand the need to timely file or prepare a petition, and that the impairment made it impossible under the totality of circumstances to meet the filing deadline despite petitioner's diligence.*fn22 The panel then set forth the following guide:
In practice, then, to evaluate whether a petitioner is entitled to equitable tolling, the district court must: (1) find the petitioner has made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing; (2) determine, after considering the record, whether the petitioner satisfied his burden that he was in fact mentally impaired; (3) determine whether the petitioner's mental impairment made it impossible to timely file on his own; and (4) consider whether the circumstances demonstrate the petitioner was otherwise diligent in attempting to comply with the filing requirements.*fn23
In his Petition Broadbent affirmatively alleged his mental disability and its adverse impact on his ability to timely file his Petition. In response, other than to assert the bare conclusory defense of untimeliness, Respondent does not address the issue. In short, it does not appear that Respondent disputes what was implicitly raised in the Petition, that the limitation period was equitably tolled. Because Respondent bears the burden of establishing entitlement to an affirmative defense and because the Respondent does not dispute Broadbent's contentions, it does not appear that an evidentiary hearing is required. Based upon the record before it, this Court finds that Broadbent has made a prima facie showing that he was unable to timely file his Petition for relief in this Court due to circumstances beyond his control, i.e., his mental impairment, and Respondent has not countered that showing. Accordingly, the Petition was timely filed.
Respondent contends that Broadbent's third (denial of public trial), fourth (gang validation test), and fifth (gang-related hearsay testimony) are procedurally barred. A federal habeas court will not review a claim rejected by a state court "if the decision of [the state] court rests on a ground that is independent of the federal question and adequate to support the judgment."*fn24 "The state-law claim may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits."*fn25 Procedural default does not preclude federal habeas review unless the last state court rendering judgment in a case, clearly and expressly states that its judgment rests on a state procedural bar.*fn26 "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."*fn27 A discretionary state procedural rule can be firmly established and regularly followed, so as to bar federal habeas review, even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.*fn28 The Court agrees with Respondent that, because Petitioner's claims were defaulted in state court on an adequate and independent state ground, they will not be considered in federal habeas proceedings unless Petitioner can demonstrate cause for the default and actual prejudice, i.e., a miscarriage of justice.*fn29
To prove a fundamental miscarriage of justice, Broadbent must show that a constitutional violation probably resulted in his conviction despite his actual innocence.*fn30 Although at the gateway stage the petitioner need not establish his innocence as an "absolute certainty," the Petitioner must demonstrate that more likely than not, no reasonable juror could find him guilty beyond a reasonable doubt.*fn31
If a petitioner has procedurally defaulted on a claim, a federal court may nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust the claim; and (2) prejudice from the purported constitutional violation; or (3) demonstrates that not hearing the claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S. 333, 339--40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the prejudice prong if he demonstrates "that the errors . . . worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). A petitioner can demonstrate a fundamental miscarriage of justice by "establish[ing] that under the probative evidence he has a colorable claim of factual innocence." Sawyer, 505 U.S. at 339, 112 S.Ct. 2514 (quotation marks omitted).*fn32
Ground 3: Denial of Public Trial
The trial court excluded Broadbent's father and brother from the courtroom. Broadbent contends that this violated his Sixth Amendment right to a jury trial and that the right of a public trial is so fundamental that it cannot be waived by a failure to object at the time of trial. The California Court of Appeal rejected Broadbent's arguments.
Broadbent contends his "constitutional right to a public trial was violated when the court excluded his father and brother from the audience without a finding that would support an 'overriding interest' or even a 'substantial basis' to justify the infringement upon his right to a public trial." We conclude Broadbent forfeited this argument by not raising it in the trial court, and we also reject his alternate argument that his trial attorney was ineffective for failing to make this argument in the trial court.
On the day of opening statements, as the court and counsel were addressing a supplemental motion in limine outside the presence of the jury, the prosecutor notified the court that Broadbent's father and brother, who were in the hall outside the courtroom, were wearing T-shirts that displayed some sort of message about freeing Broadbent. Broadbent's attorney left the courtroom and told them to leave and come back wearing something else. Counsel noted there were jurors in the hallway who saw the shirts. Accordingly, before opening statements began, the court reminded the jury not to be influenced by anything outside the courtroom, including "if you see anyone . . . wearing some clothing that might appear to be inappropriate."
The next morning, after Dorrate finished testifying, one of the jurors reported to the court that he had been in a stall in the bathroom when he heard two individuals discussing Dorrate's testimony. The juror identified one of the individuals as Broadbent's brother. (It was his identical twin.) The description of the other individual the juror provided matched Broadbent's father.
Immediately thereafter, one of the other jurors and one of the alternate jurors reported to the court that a member of the audience had tried to make small talk with them in the hallway. Their description of that person matched Broadbent's father.
Diaz's attorney requested a separate trial based on the actions of Broadbent's father and brother. Broadbent's attorney asked that the juror who overheard the conversation in the bathroom be excused. The prosecutor opposed both requests but asserted that the court "ha[d] enough to dismiss [Broadbent's father and brother] right now so they don't come back at 1:30." The court asked if the matter was submitted, and all three counsel agreed it was.
The trial court denied the defense requests but found that Broadbent's father and brother had "made attempts to influence this jury. And I'm going to have them excused from this courtroom." After excusing the jury for lunch, the court informed Broadbent's father and brother that they were "banned from this courtroom during this pending trial" based on the shirt incident and the two conversations.
At no time did Broadbent's attorney object to or argue against the exclusion of Broadbent's father and brother from the trial.
The initial question we face is whether Broadbent's argument that the exclusion of his father and brother violated his right to a public trial is properly before us. Broadbent acknowledges that he did not make this argument in the trial court, but he offers three different reasons why ...