The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner, is proceeding pro se with a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction for first degree murder with the use of a firearm, for which he was sentenced to a state prison term of fifty years to life with the possibility of parole. Petitioner claims that his first degree murder conviction was not supported by sufficient evidence; that the imposition of a consecutive sentence for the firearm enhancement violated principles of double jeopardy; and that jury instructions on the required mental state for murder were erroneous and prejudicial. (Dkt. No. 1 ("Ptn.").) Respondent has filed an answer (Dkt. No. 15), and petitioner has filed a traverse (Dkt. No. 25). Upon careful consideration of the record and the applicable law, the undersigned will recommend that the petition be denied. ////
In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, set forth the factual background as follows:
On January 17, 2007, three teenage boys - Jeremy Basped, Lamar Gasaway, and Shelby Freeman - took the light rail train to Florin Road. They went to a nearby mini-mart, where Basped saw defendant and another boy leaving the store. The three boys bought some items and left after three to four minutes. When they left, defendant, aged 14, and his companion were outside.
Defendant was standing by the door, where he exchanged words with Gasaway, who then punched defendant in the face. Gasaway hit defendant several times, but defendant did not strike back. Defendant put his head down and tried to grab Gasaway, but fell to the ground.
Gasaway stood up seven to eight feet away and faced defendant, who pulled out a pistol as he stood up. Gasaway saw the pistol and ran toward the street. Eyewitnesses heard several shots as defendant pursued Gasaway.
Gasaway was between 16 and 25 feet away when defendant started shooting. He fell once in a dirt area by the curb but got up and kept running onto Florin Road, where he fell in the middle of the street. Firefighters arrived shortly afterward but could not revive him. Gasaway died of a single gunshot wound to the chest from a .22-caliber bullet. The lack of stippling ruled out a contact wound. One eyewitness described the shooter as an African-American male of about 16 to 18 years of age, who was wearing a brown jacket with the number 32 on the back. The eyewitness saw the shooter run down a side street.
A search of the scene found no gun or bullet cases, but officers discovered a damaged cell phone registered to defendant and a baseball cap. The phone contained a partial sample of DNA that matched defendant's, with a probable random match of 1 in 50 for African-Americans, 1 in 240 for Caucasians, and 1 in 130 for Hispanics. DNA from the hat matched defendant's sample, with a random match probability of 1 in 28 billion for African-Americans, 1 in 17 billion for Caucasians, and 1 in 30 billion for Hispanics. Defendant's home was searched two days after the murder. Defendant's student identification card was found in one bedroom, along with writings and photographs attached to the wall. Among the writings were such phrases as: "nigga be a Star or nigga be a bitch, watch a FAB nigga slippin' and bust his shit," "It's random season, picking random niggas for no reason," "It's random season, killing random niggas for no reason," along with defendant's name and "9/17 of '06, aka Lil Stay." Defendant also had "South" and "SAC" tattooed on his arm, memorializing his claim to South Sacramento, the area around Florin Road.
Frederick Smith "kind of" knew defendant and was standing by the store with him on the day of the shooting. Defendant's nickname at the time was "Stay." They ran into three or four males inside the store, and met them again when they left. A fight broke out between defendant and one of the males, who tried to hit defendant in the face. Smith grabbed the attacker but was confronted by the attacker's two companions. Smith then blacked out, which happens when he gets mad.
Smith next remembered running through a parking lot to the house of a person named Reggie. He knew the Starz was a gang, but neither he nor defendant belonged to it.
Reginald Shamberger is a former member of the Starz gang. He was living with his mother on the day of the incident when defendant and his friend Freddy showed up at the house. He told the police that defendant was wearing a tan and black sweater with the number 32 on it. He let them in, and they stayed for about an hour. Defendant and his friend changed clothes before they left. Defendant later told Shamberger he had left a gun at the house. Shamberger, a convicted felon, took the gun, a white-handled pistol, and tried to sell it before his mother put it in her room. Davonte Stinson did not know if defendant was part of the Starz gang, and he denied providing details of the incident to the police. Stinson told the police Gasaway is a Blood, while defendant is part of the Starz gang. Gasaway said something about Oak Park, the neighborhood he was from, and hit defendant three times. Defendant then chased Gasaway with a gun, firing four rounds and hitting him.
Police searched the Shamberger residence. They found two handguns in a bedroom - a loaded, nine shot, .22-caliber revolver with white grips, and a loaded, nine shot, .22-caliber revolver with tan grips. The white revolver was the one Shamberger found at his house. Police also found a black and tan jacket with the number 32 on the back.
The bullet recovered from Gasaway's body could not have been fired from the tan revolver, but it could have been fired from the white one. There was gunshot residue on the jacket, but there was no way to determine when the jacket was exposed to gunshot. Expert testimony on African-American street gangs established that gangs gain respect through fear and intimidation, which may include fighting, stabbing, or shooting. Losing respect can cause a member to become ostracized.
There are several groups of the rival Crips and Bloods gangs in Sacramento. The Oak Park Bloods is the largest Bloods sect in Sacramento, and other Bloods sects are found in the Del Paso Heights and Meadowview neighborhoods. The letters "FAB" stand for the Fourth Avenue Bloods, a part of the Oak Park Bloods. There are several Starz sects in Sacramento, claiming territory in South Sacramento.
If a person from the FAB displayed to a Starz member clothing representing that he was a member of the FAB, it would show a lack of respect to the Starz, which would lead a Starz member to respond, possibly with violence. The presence of another Starz member would cause the responding person to react more violently. Some of the writing in defendant's room referred to gangs, being armed, handling disrespect, standing up for the Starz gang, and acts of violence. The phrase " 'watch a FAB nigga slippin' " referred to catching a member of a rival gang at a disadvantage, either by having more men or more weapons. Defendant testified*fn1 that he and Smith went to Shamberger's house before the shooting, where they drank Remy Martin alcohol and smoked marijuana. Shamberger gave him a gun, which defendant kept when he and Smith left the house to buy cigarettes for Shamberger.
Gasaway bumped into defendant at the store. Defendant told him to "watch out," and Gasaway replied: "[B]itch ass nigga, I ain't got to watch where the fuck I'm going." Defendant bought some food and left.
Outside, Gasaway approached defendant, said something to him, punched him in the face, and wrapped his arms around defendant in a "bear hug." Defendant was scared and pulled out the gun to defend himself, aiming above Gasaway in order to scare him. He fired two or three times out of fear, when Gasaway was about five feet from him.
Basped and Freeman attended live lineups after the shooting but were unable to identify anyone.
(Lod. Doc. 4. at 2-6.*fn2 ) The facts as set forth by the state court of appeal are presumed correct, 28 U.S.C. § 2254(e)(1), and are consistent with this court's review of the record.
On September 10, 2008, following a jury trial in the Sacramento County Superior Court, a jury found petitioner guilty of first degree murder (Cal. Penal Code § 187) and also found true allegations that he used a firearm (Cal. Penal Code § 12022.53, subd. (d)) and was at least 14 years of age at the time of the crime (Cal. Welf. & Inst. Code § 707, subd. (b)*fn3 ). (2 CT 301-302.) On November 12, 2008, the trial court imposed a sentence of twenty-five years to life for the first degree murder conviction and a mandatory additional term of twenty-five years to life for the firearm enhancement, for an aggregate term of fifty years to life.*fn4 (4 RT 1141.)
Petitioner appealed the judgment to the California Court of Appeal, Third Appellate District. (Lod. Doc. 1.) On August 9, 2010, the court of appeal affirmed the judgment in a reasoned decision. (Lod. Doc. 4.) Petitioner filed a petition for review in the California Supreme Court, raising the same claims as on appeal. (Lod. Doc. 5.) The California Supreme Court summarily denied review on November 17, 2010. (Lod. Doc. 6.)
Petitioner commenced the instant federal action on December 21, 2011. (Ptn.)
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 ...