The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
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 in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of life without the possibility of parole plus a twenty-five-years-to-life enhancement and five concurrent twenty-five-years-to-life terms, pursuant to a judgment of the Superior Court of California, County of Tulare(the "Superior Court"). (Doc. 1, p. 1; Clerk's Transcript ("CT") 624-625). His sentence is as a result of a June 27, 2010 conviction for one count of first degree murder (Cal. Pen. Code § 187(a)); one count of shooting at an occupied motor vehicle (Cal. Pen. Code § 246); and five counts of attempted willful, deliberate, and premeditated murder. (Cal. Pen. Code §§ 187(a), 664). (Doc. 1, p. 1).
Petitioner filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"). On August 11, 2009, the 5th DCA, in an unpublished decision, affirmed Petitioner's 3 conviction. (Doc. 16, Lodged Documents ("LD") 1). Petitioner then filed a petition for review in the 4 California Supreme Court. (LD 2). On October 22, 2009, the Supreme Court denied Petitioner's 5 petition for review. (LD 3). 6
On June 22, 2010, Petitioner filed the instant petition. (Doc. 1). On August 12, 2010, Respondent filed its Answer. (Doc 15). On October 13, 2010, Petitioner filed his Traverse. (Doc. 8 19). Respondent concedes that the all grounds for relief in the petition have been fully exhausted. 9
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:
At or about 1:00 a.m. on May 21, 2006, someone fired shots at Curiel's green SUV at an intersection in Dinuba, striking his passenger and fellow Sureno Luis Ramirez. Curiel told police some Nortenos had come after him. Ramirez told police someone wearing a red shirt had shot him. Surenos often wear blue clothing, and Nortenos often wear red clothing.
On May 27, 2006, Shaw drove five of his skateboarder friends, none of whom was a gang member, in his pickup to a quinceanera in Sultana where Curiel and Sureno Miguel Carisalas, who wore a semiautomatic gun at his waist, were among the guests. After a lot of people mad-dogged them, Shaw and his friends-Alexander Barrientoz, Daniel Castillo, Henry Castillo, Roger Castillo, and Joseph Mateus-left. Outside, witnesses heard Daniel Castillo yell "Norte" and saw him put four fingers of one hand up-short for "14" (a reference to the 14th letter of the alphabet), which stands for the "N" in Norteno-before Shaw drove away. Curiel and Carisalas sped off in Curiel's green SUV.
Two to three miles away from the quinceanera, as Shaw slowed down for a stop sign, gunfire from a green SUV hit his pickup. Shaw accelerated, but the green SUV followed, and after more gunfire hit his pickup he lost control and crashed. Shaw died of a gunshot wound to the face and blunt force trauma from the crash. Daniel Castillo suffered a fractured skull and a broken ankle from the crash. Shaw's truck showed seven bullet strikes, all on the left side. (LD 1).
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, 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 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is 2 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 3
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), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other 7 grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after 8 statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore 9 governed by its provisions.
II. Legal Standard of Review
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S. at 412-413.
A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams v. Taylor, 529 U.S. 326, 405-406 (2000). A state court decision involves an "unreasonable application" of clearly established federal law "if the state court applies [the Supreme Court's precedents] to the facts in an objectively unreasonable manner." Id., quoting Williams, 529 U.S. at 409-410; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)(per curiam).
Consequently, a federal court may not grant habeas relief simply because the state court's decision is incorrect or erroneous; the state court's decision must also be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 511 (2003) (citing Williams v. Taylor, 529 U.S. at 409). In Harrington v. Richter, 562 U.S. ___ , 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an 2 "unreasonable application" of federal law is an objective test that turns on "whether it is possible that 3 fairminded jurists could disagree" that the state court decision meets the standards set forth in the 4
AEDPA. If fairminded jurists could so disagree, habeas relief is precluded. Richter, 131 S.Ct. at 786. 5
As the United States Supreme Court has noted, AEDPA's standard of "contrary to, or involv[ing] an 6 unreasonable application of, clearly established Federal law" is "difficult to meet," because the 7 purpose of AEDPA is to ensure that federal habeas relief functions as a "'guard against extreme 8 malfunctions in the state criminal justice systems,'" and not as a means of error correction. Richter, 9 131 S.Ct. at 786, quoting Jackson v. Virginia, 443 U.S. 307, 332, 99 S.Ct. 2781, n. 5 (1979)(Stevens, J., concurring in judgment). The Supreme Court has "said time and again that 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "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 of fairminded disagreement." Richter, 131 S.Ct. at 787-788.
Moreover, federal "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S.Ct. at 1398 ("This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at the same time--i.e., the record before the state court.")
The second prong of federal habeas review involves the "unreasonable determination" clause of 28 U.S.C. § 2254(d)(2). This prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "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." Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500 (when reviewing a state court's factual determinations, a "responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment"). A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be 2 debatable among reasonable jurists." Id. ; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 3 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004). 4
The AEDPA also requires that considerable deference be given to a state court's factual findings. 5 "Factual determinations by state courts are presumed correct absent clear and convincing evidence to 6 the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a 7 factual determination will not be overturned on factual grounds unless objectively unreasonable in 8 light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 9 537 U.S. at 340. Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. See Lambert v. Blodgett, 393 F.3d 943, 976-077 (2004).
To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court decided the petitioner's claims on the merits but provided no reasoning for its decision, the federal habeas court conducts "an independent review of the record...to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Where the state court denied the petitioner's claims on procedural grounds or did not decide such claims on the merits, the deferential standard of the AEDPA do not apply and the federal court must review the petitioner's 's claims de novo. Pirtle v. Morgan, 313 F.3d at 1167.
The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by the AEDPA alleges ineffective 2 assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice 3 standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila 4 v. Galaza, 297 F.3d 911, 918 n. 7 (9th Cir. 2002); Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 5 2009). 6
III. Review of Petitioner's Claims.
The instant petition itself alleges the following as grounds for relief: (1) error in instructing the 8 jury that specific intent was an element of second degree murder; (2) error in refusing to bifurcate the 9 trial on the gang enhancements; and (3) insufficiency of the evidence.
Petitioner initially contends that the trial court erred in instructing the jury that specific intent was an element of second degree ...