The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Rolando N. Gallego, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Gallego is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the High Desert State Prison. Respondent has answered, and Gallego has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Gallego was convicted by a Sacramento County jury of second degree murder (Cal. Penal Code § 187(a)) with a deadly weapon enhancement (Cal. Penal Code § 12022(b)(1)). In April 2009 the Sacramento County Superior Court sentenced Gallego to an indeterminate prison term of sixteen years to life. The California Court of Appeal, Third Appellate District, affirmed Gallego's conviction in a partially published and partially unreported decision,*fn1 and the California Supreme Court denied review on March 16, 2011. Gallego timely filed his Petition for relief in this Court on September 8, 2011. On March 23, 2012, Gallego, appearing pro se, filed an original petition for habeas relief in the California Supreme Court, which was summarily denied without opinion or citation to authority on June 13, 2012.*fn2
The facts underlying Gallego's conviction are well known to the parties and are unnecessary to a determination of the issues raised in his Petition. Therefore, they are not repeated herein.
II. GROUNDS RAISED/DEFENSES
In his Petition Gallego raises five grounds: (1) the use of scientific tests to determine his DNA constituted a violation of his Fourth Amendment search and seizure rights; (2) the trial could erred in (a) refusing to release juror information and (b) ordering the jury to continue deliberations after a second deadlock; (3) the trial court gave conflicting instructions on the evaluation and weight of hearsay evidence; (4) three evidentiary errors were individually and cumulatively prejudicial; and (5) the trial court erred in not applying sentencing statutes that were in effect at the time of Gallego's conviction.*fn3 Respondent asserts that Gallego's fourth ground, to the extent that it is based upon the trial court's refusal to allow the introduction of evidence that Gallego was willing to take a polygraph examination, is procedurally barred.*fn4
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."*fn5 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."*fn6 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.*fn7
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.'"*fn8 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."*fn9 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.*fn10 "[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.'"*fn11
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.*fn12 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.*fn13
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.*fn14
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn15 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.*fn16 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.*fn17
By failing to include them in his petition for review to the California Supreme Court, Gallego did not exhaust his third and fourth grounds on direct appeal;*fn18 however, he did raise them in his subsequent original habeas petition. Although the California Supreme Court could have denied the habeas petition for failing to raise those issues on direct appeal,*fn19 it did not.
Consequently, Gallego is not procedurally barred from bringing those claims before this Court.*fn20 Also, as Respondent notes, this Court may deny a habeas claim on the merits, the failure to exhaust notwithstanding.*fn21 Therefore, this Court will presume the California Supreme Court adopted the reasoning of the California Court of Appeal, the last decision that addressed the claims on the merits, and proceed to address the claims on the merits.
Ground 1: DNA Test Violated the Fourth Amendment
The detectives investigating the case surreptitiously obtained samples of Gallego's DNA by following him, then collecting a cigarette butt he had discarded on a public sidewalk. Gallego's DNA on the cigarette butt matched the male DNA obtained from a blood-stained towel found at the scene of the crime. As relevant to this proceeding, Gallego argues that the DNA testing of the cigarette butt violated his Fourth Amendment right to be free of unreasonable searches and seizures. The California Court of Appeal held in the published part of its decision that Gallego did not have a reasonable expectation of privacy in the DNA testing of the cigarette butt.*fn22
Gallego's Fourth Amendment argument is foreclosed by the Supreme Court decision in Stone.*fn23 Under the holding in Stone, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim," federal habeas corpus relief will not lie for a claim that evidence recovered through an illegal search or seizure was introduced at trial.*fn24 The Ninth Circuit has made it clear that all Stone requires is that the State provide a state prisoner a fair and full opportunity to litigate his Fourth Amendment claim.*fn25
"The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided."*fn26
California law provides such an opportunity.*fn27
Gallego is not entitled to relief under his first ground.
Ground 2: Jury Related Errors
After the jury stated it was deadlocked for the second time late on the third day of deliberations, after declining to declare a mistrial and denying Gallego's request for juror information to show that juror misconduct had occurred, the trial court excused the jury until the following morning. Gallego contends that the trial court coerced a guilty verdict and abused its discretion in denying a defense petition for juror information to show juror misconduct that related to that coercion. The Court of Appeal disagreed.
As summarized by the California Court of Appeal in the unreported part of its decision, the facts underlying Gallego's contention are:
After 16 days of testimony and arguments, jurors began deliberating on the afternoon of February 11, 2009. The jurors next deliberated on February 17, all day, and had some testimony read back to them. On February 18, at noon, the jury stated it believed it was deadlocked. The foreperson reported an eight-to-four split. The trial court polled the jurors individually. Juror No. 5 expressed hesitancy about a deadlock, indicating that he/she wanted to confer with fellow jurors. The trial court directed the jury to continue deliberating, and the court gave a proper instruction that suggested ways to break impasses (a so-called "dynamite" instruction). (See People v. Gainer (1977) 19 Cal.3d 835, 842, 856; People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1120.) The jury then deliberated for about two more hours that day.
After deliberating all day the next day, February 19, the jury informed the trial court at 4:00 p.m. that it was unable to reach a verdict. Upon inquiry, the foreperson did not think there was a reasonable probability that a verdict could be reached by deliberating further. However, the foreperson stated that the jury had taken only one additional ballot that day, after three previous ballots.
When the trial court asked for the numerical breakdown of the last ballot, the foreperson replied "nine [to] three," but two unidentified jurors said "No." The following exchange between the foreperson and the trial court then occurred:
"THE COURT: Nine to three? Okay. So it sound like it's news to the rest of the jury.
"JUROR NO. ELEVEN [Foreperson]: We took a vote. Somebody said to me afterward, said they wanted to change their ...