The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 1]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Merced County Superior Court, Petitioner was convicted of premeditated attempted murder (Cal. Penal Code §§ 664(a), 187)*fn2 with enhancements for personal use of a firearm causing injury (§ 186.22(b)(5)), and separate counts of discharging a firearm at an inhabited camper (§ 246) and unlawful participation in a criminal gang (§186.22(a)). Petitioner was sentenced to an indeterminate term of 40 years to life.
Petitioner filed a timely notice of appeal. On November 9, 2010, the California Court of Appeal, Fifth Appellate District issued a reasoned decision affirming Petitioner's conviction.
On January 12, 2011, the California Supreme Court denied review.
Petitioner filed the instant federal petition for writ of habeas corpus on November 28, 2011. Respondent filed an answer to the petition on June 29, 2012. Petitioner did not file a timely traverse.
A. Ruben's and Rudy's Testimony
Ruben was born in 1955. He lived in the small community of Livingston. Timothy was one of Ruben's nephews; Ruben knew him since birth. Ruben knew M.E. his entire life. Ruben was familiar with Steven, who he knew by a nickname, but they did not socialize.
Ruben became a Norteno gang member in his 30's after a failed marriage. He suffered two felony drunk driving convictions in 1991 and 1992. He was convicted of felony drunk driving for the third time in 1996 and sent to prison. After his release, he had some parole violations for unspecified acts.
Ruben went to church services while he was imprisoned. In 2007, he gave his heart to God. He quit drinking and partying and quietly dropped out of the Norteno gang by ceasing to associate with other gang members. No one bothered him; he was accepted as an "older guy" who went to church.
Ruben's son, Rudy, was a member of the Livas set of the Nortenos. Timothy, M.E. and Steven were fellow gang members. In 2009, Rudy decided to drop out of the gang. Rudy believed that Timothy, Steven and M.E. were criticizing him for this choice. Rudy decided to confront and fight them. He was going to let them "beat him up or whatever" to get the "satisfaction that they wanted."
Rudy asked his father to accompany him to a gathering of gang members. He stated, "Just in case, Dad, they beat me down." Don't let them kill me. Don't let them beat me, Dad." Ruben was going to stand by and watch, "[j]ust in case to pick him up in case he got knocked out."
Rudy drove to Steven's house with Ruben and an unidentified third person. None of them was armed. When Rudy got out of the car, he was approached by M.E. and Timothy. They were both armed with handguns. M.E. handed his gun to Timothy, who then passed it to a third person. Steven and about seven or eight other gang members also were present.
Rudy and Steven began arguing. Rudy hit Steven, briefly knocking him unconscious. Timothy and M.E. attacked Rudy. Ruben was struck in the head.
Rudy fell to the ground. Ruben grabbed M.E. and was about to hit him but stopped when he heard someone ask for a gun. Rudy and Ruben retreated back to their car because they did not have any weapons.
Rudy saw Steven grab a shotgun from a closet in the garage. Steven's mother and father came outside. They tried to take the shotgun from Steven. M.E. grabbed it from Steven. M.E. exclaimed that he would shoot Ruben.
Later that evening, Ruben and another son, Robert, were watching television and talking. Ruben was lying down. He heard a loud banging on his door and someone asking for Rudy. Ruben jumped up and opened the door. Although it was dark outside, the area was illuminated by an interior overhead light near the door. [FN 5] Timothy, Steven and M.E. were standing outside. Timothy and M.E. were each holding handguns. Steven was holding either a rifle or a shotgun.
As Ruben began to move backward, all three assailants started shooting. Ruben suffered five gunshot wounds. Numerous bullets struck the trailer's interior.
They stopped shooting. Ruben, who had fallen to the ground, thought "they were going to walk up and finish me off." Ruben reached for a gun. He told Robert to turn off the light and Robert broke it. The shooters left.
Ruben did not identify the shooter to the responding police officers. However, he did tell an officer that three people shot him; he did not say that two people shot at him. He does not remember telling an officer that he was asleep when someone knocked on his door.
On May 5, a drive-by shooting occurred at Rudy's house. Rudy testified that shots were fired through his front window on May 5. He was hit in the right forearm and his granddaughter was hit in the chest and one of her hands. Rudy believed the shooting was committed by members of the Livas set of Nortenos. It was stipulated that the identities of the assailants were unknown.
Ruben believed the drive-by shooting was gang related. Ruben prayed and sought counsel from a friend. He was reluctant to identify his nephews as his assailants. Yet, Ruben "was mad at why would they shoot a little innocent girl."
About six weeks after Ruben was shot, he went to the police. He identified Timothy, Steven and M.E. as the people who shot him because the violence has "got to stop somewhere." Ruben identified them "[m]ostly because they shot an innocent little girl." Ruben thought by identifying his assailants, he could protect Rudy and his granddaughter.
B. Other Prosecution Evidence
Merced County Sheriff's Deputy Brandon Soto reported to the crime scene. He testified that Ruben told him that he was sleeping when he heard a knock at the door. "He got up, answered the door and what he believed was two individuals standing there with what he thought were rifles started shooting at him." Soto asked Ruben if he could describe either of them and Ruben replied that he did not remember anything. Soto testified that when he and another deputy approached the ...