The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND DENYING CERTIFICATE OF APPEALABILITY
On September 8, 2011, Isidro Vasquez ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction. (Doc. No. 1 at 6-16.) On January 30, 2012, Matthew Cate ("Respondent") filed a response in opposition. (Doc. No. 11.) On May 7, 2012, Petitioner filed a traverse. (Doc. No. 19.) On July 27, 2012 the magistrate judge issued a Report and Recommendation to deny the petition. (Doc. No. 20.) Petitioner filed objections to the Report and Recommendation on November 5, 2012. (Doc. No. 23.) For the following reasons, the Court denies the petition for writ of habeas corpus.
Petitioner seeks relief from his February 2007 conviction of first degree murder with a firearm and criminal street gang enhancements. (Doc. No. 1.) The following facts are taken from the California Court of Appeal's February 5, 2009 decision affirming Petitioner's conviction and sentence. (Lodgment No. 6.) The facts are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1).
At all pertinent times, Rosemary Santillano lived in a house in the 3100 block of Clay Street in San Diego. Clay Street Park is across the street from Santillano's home. On October 9, 2004, Santillano was preparing for a party at her home and was cleaning up her yard and setting up tables throughout the day. In the afternoon and evening she noticed that a group of African-American males were gathering at a house adjacent to the park. Santillano saw a group of African-American males arrive at the house across the street in a red Jeep Cherokee, leave in the Jeep Cherokee and then return a short time later. Santillano also observed [Petitioner] with the group of African-American males. According to Santillano, [Petitioner] was the only Hispanic she ever saw in the company of the African-American group that regularly congregated at the house and park across the street from her house.
Because the African-American males were drinking and playing loud music and because she was afraid of them, Santillano decided to move her party inside her house. At approximately 8:30 p.m., Santillano was on her porch and noticed an SUV and a white car driving up Clay Street; according to Santillano the group across the street became quite agitated and several members of the group shot at the white car. After the white car left Clay Street, several members of the group across the street, including [Petitioner] got in the red Jeep Cherokee and drove away. Santillano also saw two members of the group leave the area in a beige or grayish Cadillac.
According to Santillano, the Cadillac returned to Clay Street later in the evening and at midnight Santillano saw that [Petitioner] had also returned. A boy who lived in the house across the street, Isaac G., came over to Santillano's house and asked if he could spend the night with Santillano; Isaac's brother [is] a member of the WCC and Isaac said he did not want to stay at home that night because he heard [Petitioner] and another WCC member, "Killa Kev," saying they blasted a "Blood" in the head.
On October 9, 2004, 10-year-old Griselda P. lived with her mother on Boston Avenue in another neighborhood in southeast San Diego. At approximately 10:30 p.m., she was on the second-story balcony of her apartment hanging laundry to dry. The balcony overlooked an alley behind the apartment. Griselda saw a red Jeep Cherokee drive into the alley, turn out its lights and stop at the end of the alley. Griselda noticed the driver of the Jeep had a bandana which covered his face from the nose down. Notwithstanding the bandana, Griselda was able to identify the driver as a Mexican. She also saw that there was an African-American in the passenger seat. Shortly after the Jeep stopped, Griselda heard gunshots and went back into her apartment. From her apartment window, Griselda saw two men come from a dirt lot next to the apartment building and get in the Jeep, which drove quickly away with its lights out.
Shortly before Griselda heard the shots, Robinson [, the victim,] was sitting in a car parked at 4056 Boston Avenue. Two males approached the car and shot Robinson with a shotgun and a 9 millimeter handgun. Robinson's wounds were fatal. Robinson was an identified member of the 5/9 Brim, which claimed Boston Avenue area as its own.
About four blocks from where Robinson was shot, near the intersection of 39th Street and Logan, Howard Yoakum was smoking a cigarette in his back yard. Yoakum heard gun shots which he believed were coming from the area of Boston Avenue. A short time after he heard the shots, Yoakum saw a red Jeep Cherokee run through the stop sign at the intersection of 39th and Logan and stop near a Cadillac. Yoakum saw two African-American males get out of the Jeep, throw guns they were carrying into the trunk of the Cadillac and drive away. The Jeep drove away as well.
The prosecution presented evidence from a number of police officers who testified to the effect that the 3100 block of Clay Street was a known hang out for members of the WCC. The police officers testified that they saw [Petitioner] on the 3100 block of Clay Street on a number of occasions over a number of years and always in the company of other members of the WCC. The officers also testified that although there were approximately 400 known members of the WCC, there were only two Hispanic ...