The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Petitioner, a state prisoner, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for first degree burglary, attempted sodomy, assault with intent to commit sodomy, two counts of forcible rape, and related enhancements, for which he was sentenced to an indeterminate term of 25 years to life plus a consecutive determinate term of 21 years, four months. (Dkt. No. 1 ("Ptn.") at 1; Dkt. No. 13-1 (state court opinion) at 2-3.) Respondent has filed an answer to the petition, and petitioner has filed a traverse. (Dkt. Nos. 13, 24.) The parties have consented to this court's jurisdiction. (Dkt. Nos. 7, 9.) Upon careful consideration of the record and the applicable law, the undersigned will deny the petition.
In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, provided the following factual summary of the events resulting in petitioner's conviction:
Late at night in September 2003, J.W. and her boyfriend C.T. were drinking Hennessy, smoking marijuana, and watching cartoons at their apartment in North Sacramento. C.T. "sold drugs and shot dice" as a means of generating income and occasionally sold drugs out of the apartment. After watching cartoons, C.T. and J.W. had unprotected sex in their bedroom. A short time later, C.T. answered a knock at the front door and told J.W. that he was going to the mini-mart to get a Swisher cigar and not to close the front door because the lock was broken. J.W. remained in bed and fell asleep.
She awoke about 30 minutes later to loud rustling noises coming from inside the apartment. By the time she opened her eyes, defendant and two other men were standing over her bed. Defendant was armed with a handgun, wore a black ski mask that covered his nose and mouth, and had dreadlocks. He grabbed J.W., who remained unclothed, and threw her on the ground, demanding: "Where's the money at, bitch?" J.W. responded that she did not have any money, prompting defendant to strike her in the head with the handgun and insist: "I'm not playing with you. Where's the money at?" Bleeding from the head, J.W. curled up in the fetal position and told defendant that she had $100 in a skirt that was in the closet. One of the other men took the money from the skirt and said: "I got the money. Let's go." Defendant's accomplices then left the bedroom and continued to ransack the apartment.
Defendant remained in the bedroom and sexually assaulted J.W. He first tried to sodomized her. When that was unsuccessful, he flipped J.W. onto her back and raped her, penetrating her vagina with his penis several times over the course of three to four minutes. The assault came to an end when the other men returned to the bedroom and told defendant several times: "[C.T.] is coming. [C.T.] is coming." Defendant then "finished," pulled up his pants, and went to the bathroom before leaving the apartment. J.W. believed that defendant used a condom during the assault, but also heard a "pop" sound, which she believed to be the condom breaking.
While defendant and the other robbers were still inside the apartment, C.T. was outside enlisting the assistance of his neighbor, J.J. He told J.J. that some-thing strange was going on at his apartment and that he needed to find a gun. J.J. then walked to a corner of the apartment complex with a clear view of the apartment and saw a young African-American man leaving the apartment. This man had dreadlocks and was holding a handgun. Deciding to patrol the neighborhood, J.J. went back to his house to get his truck. As he pulled out of the apartment complex gate, he saw the same man, accompanied by several others, in a car pulling out of another nearby apartment complex. J.J. followed in pursuit, chasing the car down Howe Avenue at a high rate of speed. When the pursued vehicle turned onto Auburn Boulevard, it lost control and crashed into a fence. J.J. then drove back to the apartment complex to pick up C.T.
Meanwhile, J.W. came out of the apartment and told C.T. what happened. She then went to his mother's apartment across the street to call 911. At this point, J.J. drove C.T. to the crash site, dropped him off, and then found a police officer to flag down. By the time the police officer arrived at the crashed vehicle, the occupants had fled the scene.
J.W. was taken to UC Davis Medical Center, where a sexual assault examination was performed. Back at her apartment, police collected a used and torn condom that was discovered on the bathroom floor. Police also collected evidence from the crashed vehicle, which was a rental car that had been rented to Kenneth Hill, defendant's former cell mate. Hill and defendant were released from jail about two weeks prior to the home invasion robbery and sexual assault.
Defendant was not identified as a suspect until April 2006. Shortly thereafter, J.W. picked defendant out of a photo line-up, stating: "Probably [defendant], but I'm not positive. I'm basing that on his eyes because I never saw the lower half of his face. His eyes were real small and kind of almond shaped. [Defendant] looks like the guy who sexually assaulted me." Police then questioned defendant and obtained a sample of his DNA. Defendant admitted to having sex with J.W., but claimed that he met her at the mini-mart and that she invited him into the apartment to smoke marijuana. According to defendant, after they smoked the marijuana they had consensual sex, at which point three men broke into the apartment and started to hit defendant, prompting him to flee from the apartment.
Defendant's DNA was a match for that collected from semen samples taken from J.W.'s anal and vaginal areas. Defendant's DNA was also a match for that collected from the torn condom found on the bathroom floor. Defendant's DNA also matched that collected from a cigarette, a red hat, and a white t-shirt found in the crashed vehicle.
People v. Belton, 2011 WL 2571312, **1-2 (Cal. App. 3 Dist., June 30, 2011).
On September 21, 2009, following a trial in the Sacramento County Superior Court, a jury found petitioner guilty on the following counts: first-degree residential burglary (count 1; Cal. Penal Code § 459*fn2 ), first-degree robbery (count 2; § 211), attempted sodomy count 3; (§§ 664/286(c)(2); assault with intent to commit sodomy (count 4; § 220); and rape (counts 5 and 6; § 261(a)(2)). (Lod Doc. 1 at 450-55, 458-63*fn3 .) The jury also found that petitioner personally used a firearm during the commission of the offenses in counts 1 and 2 (count 1; §§ 1203.06(a)(1)/12022.5(a)(1); count 2, §12022.53(b)). The jury also found that petitioner committed the offenses in counts 3, 5, and 6 during the commission of a burglary and personally used a firearm (§ 667.61(e)(2), (e)(4)).
On November 20, 2009, the court sentenced petitioner to an aggregate term of twenty-five years to life, plus twenty-one years and four months, in state prison. (Ptn. at 1; Lod. Doc. 1 at 538-41.)
Petitioner appealed the judgment to the Court of Appeal for the Third Appellate District, which affirmed the judgment in a reasoned opinion on June 30, 2011. (Lod. Docs. 5-7; Dkt. No. 13-1.) Petitioner then filed a petition for review in the California Supreme Court. (Lod. Doc. 8.) On October 12, 2011, the California Supreme Court denied the petition "without prejudice to any relief which . . . [petitioner] might be entitled after this court decides People v. McCullough, S192513." (Lod. Doc. 8.)*fn4
Petitioner commenced the instant action on December 19, 2011. (Ptn.) Respondent filed an answer to the petition (Dkt. No. 13), and petitioner filed a traverse (Dkt. No. 24).
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
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.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S. Ct. 770, 785 (2011).
Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of 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 Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S. Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410 (2000).
"A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id.
"Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) -- i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338 (2006).
The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority.
Woodford v. Viscotti, 537 U.S. 19 (2002). Specifically, the petitioner "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." Harrington, supra, 131 S.Ct. at 786-787. Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable."
Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits -- but that presumption can in some limited circumstances be rebutted." Johnson v. Williams, No. 11-465, slip op. at 10, 568 U.S. ____ (Feb. 20, 2013). "When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to" de novo review of the claim. Id., slip op. at 13.
II. Petitioner's Claims*fn5
Petitioner alleges that the trial court "acted without good cause and in violation of his rights to a unanimous and impartial jury" and his constitutional right to a fair trial when the court dismissed two jurors during deliberations. (Ptn. at 24.*fn6 ) Petitioner contends that "the trial court improperly continued questioning and pressuring Jurors [Nos.] 6 and 12 after they had assured the court they were presently willing and able to deliberate." (Id. at 27.)
Addressing petitioner's claim on appeal in the last reasoned decision on this issue, the Court of Appeal for the Third Appellate District set forth the relevant facts as follows:
After two full days of deliberations, the jury sent the trial court a note advising that they were unable to reach a decision. In response, the trial court sent the jury a questionnaire asking with respect to each count: (1) the number of votes taken; (2) when the last vote was taken; and (3) the numerical breakdown of the jury on its first and last vote. The jury responded that it had taken a single vote that morning, and that the numerical breakdown was six-five-one as to each count.
When the foreperson returned the questionnaire, she advised the bailiff of her concern that three of the jurors were "trying to rush through everything" and were not "taking their obligation seriously." The trial court then questioned the foreperson, who explained that Juror No. 12 "seemed biased" because she stated, " 'not guilty' " when she first entered the deliberation room. The foreperson also explained that this juror, a high school biology teacher, "seem[ed] to be in a hurry and wanting to get this trial over with," repeatedly commenting that she "stays up until 11:00 at night [correcting paperwork] and then has to be back at the high school at 6:30 in the morning to drop off the paperwork." The foreperson also complained that Juror No. 6 asked the other jurors whether they were being paid for their jury service.
When several jurors answered that they were being paid, he responded that it was "not fair," and that he did not seek to be excused for economic hardship because "he wanted to see what it was like" to be on a jury. FN1
FN1. The foreperson also complained that Juror No. 5 appeared to be texting on his cell phone and had also fallen asleep during deliberations. When the trial court questioned this juror, he explained that he had been sick over the weekend, and the medication he took that morning made him "kind of groggy." He denied texting on his cell phone. He also stated that he felt "much better" and promised to fully participate in deliberations from that point forward. The trial court did not remove him from the jury.
The trial court then questioned Juror No. 6. When asked whether he was being paid by his employer for his jury service, the juror responded that he was not. And when asked whether that created a hardship, the juror responded: "Kind of, yes, since it has been going on for so long. If it continues, it will." The trial court then asked how he supported himself without this source of income. The juror answered: "I get help from whoever I can." When asked whether he was thinking about how he was going to pay his bills, the juror responded: "Well, right now I don't have too many bills to pay, but, kind of, yeah."
The following exchange then took place: "[Trial court:] So if you were to-if the jury were to need to deliberate for another week-you kind of put your teeth together.  [Juror No. 6:] Yeah.  [Trial court:] I have to mark things on the record.  [Juror No. 6:] Yeah, it is kind of inconvenient. But if I'm needed, I guess I can do it.  [Trial court:] Well, could you promise us that you can continue to deliberate without thinking about 'I want to hurry and get this over with?['] [Juror No. 6:] Umm. A hundred-percent truthfully, no, probably not." The trial court then asked: "Can you promise us not to think about when will this be over, meaning deliberations, if I were to send you back into the jury deliberation room?" The juror answered: "No, I can't."
The trial court also questioned Juror No. 12. The juror confirmed that she had been staying up late correcting papers and getting up early to return them to the high school before returning to the court to continue deliberations. She denied making any statement that she wanted to "get this over with." She also stated that she was committed to participating in deliberations, discussing the evidence with the other jurors, and allowing each juror to participate in deliberations "[r]egardless of how long it takes." The trial court decided not to remove Juror No. 12 from the jury.
The trial court then called Juror No. 6 back into the courtroom and asked two questions in order to "make sure" that continued participation would not result in a hardship. First, the trial court asked: "Can you focus on the evidence regardless of how long jury deliberations take?" He responded: "No." Second, the trial court asked: "Can you put aside your concern regarding the time it is taking and your not getting paid and your bills and focus just on the evidence?" He responded: "No, ma'am." Defense counsel objected to the removal of this juror, but candidly stated: "I think those were clear answers, ...