ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
JON S. TIGAR, District Judge.
Petitioner seeks federal habeas relief from his state convictions. For the reasons stated herein, the petition for such relief is DENIED.
In 2008, an Alameda County Superior Court jury convicted petitioner of first degree murder and attempted murder, consequent to which he received a sentence of life in state prison without the possibility of parole. He was denied relief on state judicial review. This federal habeas petition followed.
Evidence presented at trial demonstrated that in 2003 petitioner, while robbing a gas station, shot and killed cashier Paul Bajwa, and shot and severely wounded another employee, Sohan Singh. Singh, who did not regain consciousness for several months after the shooting, identified petitioner as the perpetrator at the preliminary hearing and trial, though he failed to identify petitioner's picture in a photo line-up while in the hospital. Petitioner was identified by his wife, Undeener Foots, and her mother, Rommie Holmes, as the person in the gas station video surveillance footage recorded on the night of the robbery. Foots, who had no prior knowledge of the robbery, recounted at trial that petitioner, some time after the robbery, said, "I fucked up. I fucked up big... Shit didn't go like it was supposed to go." In a later telephone conversation, he said, in Foots's words, that "he robbed some shit, it all went bad and blew up." (Ans., Ex. D-8 at 1-3).
As grounds for federal habeas relief, petitioner claims that (1) the trial court violated his due process and jury trial rights when it denied his motion to sever; (2) the trial court violated his right to confront witnesses when it denied his request for information about the identity of an informant against him; (3) his right to a fair trial and due process were violated by the restitution imposed; (4) defense counsel rendered ineffective assistance; (5) there was cumulative error; (6) appellate counsel rendered ineffective assistance; (7) the admission of surveillance photographic evidence violated his rights to due process and trial by jury; (8) the admission of other crimes evidence violated his right to due process; and (9) the admission of evidence about his tattoos denied him due process.
STANDARD OF REVIEW
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." 28 U.S.C. § 2254(d).
"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
I. Motion to Sever
Petitioner claims without elaboration that the trial court's denial of his motion to sever unrelated charges violated his rights to a fair trial and a jury, and resulted in prejudice. This claim was raised only to the state supreme court, which summarily denied it. If there is no reasoned state court decision on a petitioner's claims, the federal court must conduct "an independent review of the record" to determine whether the state court's decision was an objectively unreasonable application of clearly established federal law. Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006).
The relevant facts are as follows. Petitioner first faced five criminal charges. The first three were based on the events at the gas station. The remaining two were based on a robbery of two people at a different location three weeks before the gas station robbery. Before trial, petitioner had pleaded no contest to the last two charges. The jury, then, was asked to try only the first three charges.
A federal court reviewing a state conviction under 28 U.S.C. § 2254 does not concern itself with state law governing severance or joinder in state trials. Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997). Nor is it concerned with the procedural right to severance afforded in federal trials. Id. Its inquiry is limited to the petitioner's right to a fair trial under the United States Constitution. To prevail, therefore, the petitioner must demonstrate that the state court's denial of his severance motion resulted in prejudice great enough to render his trial fundamentally unfair. Id. In addition, the impermissible joinder must have had a substantial and injurious effect or influence in determining the jury's verdict. Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). Of particular importance in assessing prejudice are the "cross-admissibility of evidence and the danger of spillover' from one charge to another, especially where one charge or set of charges is weaker than another." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (citations removed).
Habeas relief is not warranted here. First, petitioner's conclusory allegation does not provide any details or supporting information. Accordingly, this claim is DENIED because it does not meet the specificity requirements of Mayle v. Felix, 545 U.S. 644, 655 (2005). Second, there has been no showing of prejudice. The jury convicted petitioner of the charges arising from the gas station robbery. Petitioner's no contest plea removed the remaining charges from the jury's consideration prior to trial, therefore rendering moot his severance claim. That the trial court denied his motion to sever prior to his pleading guilty cannot have resulted in any perceivable harm - let alone caused a constitutional violation - to petitioner's defense at trial on the ...