The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of first degree murder by a Sacramento County jury in 2007 and sentenced to a term of 25 years to life imprisonment. Clerk's Transcript (CT) , pp. 587-588 (Abstract of Judgment). Petitioner challenges his conviction on grounds that (1) the jury's verdict was coerced by a supplemental instruction given during deliberations, and (2) that the jury committed misconduct. Petition (Doc. No.1) pp. 5-6. The petition was filed on January 24, 2011. An answer was filed on May 23, 2011, following one extension of time.*fn1 Petitioner's traverse was filed on August 3, 2011 following two extensions of time.
I. Standards Governing Habeas Relief Under the AEDPA
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:
(d) 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.
Section 2254(d) constitutes a "constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus." (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000). It does not, however, "imply abandonment or abdication of judicial review," or "by definition preclude relief." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).
The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 131 S. Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (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 phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Clearly established federal law also includes "the legal principles and standards flowing from precedent." Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002) (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent may constitute "clearly established Federal law," but circuit law has persuasive value regarding what law is "clearly established" and what constitutes "unreasonable application" of that law. Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004).
A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Williams, 529 U.S. at 405. This includes use of the wrong legal rule or analytical framework. "The addition, deletion, or alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply controlling Supreme Court law under the 'contrary to' clause of the AEDPA." Benn v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002).
A state court decision "unreasonably applies" federal law "if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). This does not mean, however, that the § (d)(1) exception is limited to applications of federal law that "reasonable jurists would all agree is unreasonable." Williams, 529 U.S. at 409 (rejecting Fourth Circuit's overly restrictive interpretation of "unreasonable application" clause). State court decisions can be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when they fail to give appropriate consideration and weight to the full body of available evidence, and when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins, 539 U.S. at 526-28 & 534; Rompilla v. Beard, 545 U.S. 374, 388-909 (2005); Porter v. McCollum, 130 S. Ct. 447, 454 (2009).
The "unreasonable application" clause permits habeas relief based on the application of a governing principle to a set of facts different from those of the case in which the principle was announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA deference does not apply to the federal court's adjudication of the claim. Id. at 948.
Where the state court's adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to "the state court's actual reasoning" and "actual analysis." Frantz, 533 F.3d at 738 (emphasis in original). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786.
Relief is also available under AEDPA where the state court predicates its adjudication of a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly limits this inquiry to the evidence that was before the state court. Even factual determinations that are generally accorded heightened deference, such as credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). See, e.g., Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (rejecting credibility finding as unreasonable in light of the evidence before the state court).
To prevail, a habeas petitioner must establish the applicability of one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional invalidity of his custody under pre-AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) (en banc). There is no single prescribed order in which these two inquiries must be conducted. Id. at 736-37. The AEDPA does not require the federal habeas court to adopt any one methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
II. Factual and Procedural Background
Petitioner Chongt Yang and co-defendant Ge Lor Pao were charged with murder in relation to a gang-related shooting in Sacramento. In an unpublished opinion, the Third District Court of Appeal summarized the facts as follows:
The defendants are members of the Yang Boyz or YBZ gang, a subset of the Hmong Nation Society or HNS gang. The victim, Pra Sert Yang (Pra), was a member of the Menace Boys Crew or MBC gang. MBC and HNS are rival gangs.
On February 20, 2005, Pra was driving his red Honda in Sacramento, and the defendants, along with Bou Vang (Pao's girlfriend) and Cheng Xiong Vang, were riding in a gold Toyota, also in Sacramento. Eventually, both cars were headed eastbound on Florin Road, near Stockton Boulevard, at the same time.
The red Honda stopped on Florin Road, at the intersection with Stockton Boulevard, in the left turn lane. The gold Toyota pulled to the right lane.
The defendants exited the gold Toyota in traffic -- Pao from the front passenger seat and Yang from the rear passenger seat. Each had a gun.
The defendants approached the red Honda. Each of the defendants shot multiple times at Pra, who was inside the Honda. He was hit six times and killed.
After the defendants returned to the gold Toyota, it went through the parking lot of a business on the corner and then onto southbound Stockton Boulevard.
People v. Chongt Yang, 2009 WL 3069579 at *1 (Cal. Ct. App. Sept. 28, 2009).
Both defendants were charged with murder. The district attorney alleged that the murder was committed for the benefit of a criminal street gang and that a principal in the offense used a firearm. The defendants were tried together, but with separate juries. Yang's jury convicted him of first degree murder and found true the allegation that he committed the crime for the benefit of a criminal street gang.
The jury found not true the firearm use allegation. The trial court sentenced Yang to state prison for an indeterminate term of 25 years to life.*fn2 People v. Yang, 2009 WL 3069579 at * 1.*fn3
Yang filed his opening brief on appeal, raising the same issues presented here, on July 17, 2008. The Third District Court of Appeal affirmed the conviction on September 28, 2009. A petition for review was filed in the California Supreme Court on November 2, 2009, and denied on January 13, 2010. In his pro sepetition to this court, Yang provides the barest outline of his claims and refers the court to his state court briefing and the record on appeal. Respondent has lodged the pertinent state court record, from which the following description of Yang's claims is largely derived.
III. Petitioner's Challenge to the Supplemental Jury Instruction
The jury began deliberations on May 21, 2007. On May 29, the jury submitted a written question to the trial court. There had been eight prior requests during five days of deliberations. The first six requests involved the evidence, including requests for read back of testimony.*fn4 The seventh and eight requests sought clarification of the instructions on aider and abettor liability.*fn5 The ninth request, at issue here, stated: "What is the procedure that would be taken when 1 or more jurors are unable to make up their mind/decision one way or the other?" CT 523.
The trial court prepared a proposed answer and allowed the prosecutor and counsel for Yang to review it. Counsel for Yang objected that the instruction was not appropriate:
The Court: Let's go back on the record outside the presence of the jury. Mr. Yang is present. Mr. Bowman. Mr. Norgaard.
I have asked you to be present in that I have received a question from the jury. "What is the procedure that would be taken when one or more jurors are unable to make up their minds slash decision one way or the other?"
I prepared a response based on the standard response that has been approved by the Third District Court of Appeal. I think Mr. Norgaard had no objections to it. I think, Mr. Bowman, you had objections, so I wanted to give you an opportunity to state the objections for the record.
Mr. Bowman: Yes, your Honor. First of all, I object to the guideline instruction in general. I think, first of all, the question appears to be, What is the procedure. It does not look like the jury is asking for further clarification or further instruction from the Court. They are just simply asking what the procedure is and the procedure is you inform the Court you are unable to reach a decision. You inform the Court as such. So I think this instruction may be premature.
Defense counsel also specifically objected to the first paragraph of the proposed instruction, which was an introduction stating that it was the court's experience that a jury having difficulty may ultimately succeed in rendering a verdict:
[Mr. Bowman:] And, secondly, um, specifically as to the instruction itself, I'm- - with the first paragraph, In response to your questions it has been my experience that juries initially reporting difficulty reaching a verdict may nonetheless ultimately be able to arrive at a verdict, and then it goes on to say, I suggest the following. I'm not sure it's really - - I understand that this instruction has been approved by the Third District Court, but I think it's not really appropriate to highlight the Court's experience with respect to other juries, their deliberations, and whether or not they are ultimately able to reach a verdict. It's of no consequence to this case.
The Court: I have no problem taking out the first paragraph. It adds - - I think the body of the instruction is really where the key issues are at. Mr. Norgaard, any comments?
Mr. Norgaard: The only thing is I don't have the opinion in front of me. Is that first opinion in the Third's opinion?
The Court: It's in there.
Mr. Norgaard: It would be my request to give it. The Third has made it pretty clear not to toy with this thing, that this is the instruction they want given. So I would ask that it be given unmodified. That is the safest course of action.
The Court: I will take out the first paragraph. I understand the objections. The reason I will take it out, this instruction is given orally to the jury when, in fact, the jury reported they are deadlocked. Here I don't have a report of deadlock. I simply have a report that one can reasonably infer reflects a certain measure of difficulty that the jury is having.
So my goal here is simply to give them some suggestions and ideas that hopefully would assist them in their deliberations and nothing more than that at this point in time. I will go ahead and modify the first paragraph and send that in.
The following written instruction was sent to the jury, with italics added here to highlight the portion of the instruction with which Yang found fault on appeal:
Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so, based solely on the evidence, without regard to emotional considerations or the consequences of a verdict, regardless of how long it takes.
Your duty is to carefully consider, weigh and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors. In the course of further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. It should be possible to inquire of jurors in the numerical minority as to the reasons upon which their opinions are based. This should be done in a respectful and dignified manner. Likewise, jurors in the numerical majority may also be required to explain their own opinions. You should not hesitate to change a view you once held if you are convinced it is wrong, or to suggest that other jurors change their views if you are convinced they are wrong. Fair and effective deliberations require a frank and forthright exchange of views.
As I previously instructed, both the People and the defendant are entitled to the individual judgment of each juror. Each of you must decide the case for yourself. But your decision should be made only after full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict ...