RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on July 19, 2012. Respondent filed an Answer on November 13, 2012. Petitioner filed a Traverse on December 20,
A jury found Petitioner guilty of the first degree murders of Raul Cruz and Jessica Cipriano, the attempted wilful, deliberate and premeditated murder of Michaela Estrada, three counts of residential robbery of Cruz, Cipriano and Estrada, and one count of residential burglary of Cruz (Reporter's Transcript ["R.T."] 2001-05; Clerk's Transcript ["C.T."] 446-62, 522, 524). The jury found true the allegations that, with respect to the murders, attempted murder and robberies, Petitioner personally used a handgun, personally and intentionally discharged a handgun, and personally and intentionally discharged a handgun causing great bodily injury and death to Cruz and Cipriano and great bodily injury to Estrada, within the meaning of California Penal Code sections 12022.53(b), (c) and (d) (R.T. 2001-05; C.T. 446-47, 450-51, 454-55). The jury found true the allegation Petitioner personally used a firearm in the commission of the burglary, within the meaning of California Penal Code section 12022.5(a) (R.T. 2008; C.T. 462). The jury further found true the allegations that a principal was armed with a handgun, within the meaning of California Penal Code section 12022(a)(1) (R.T. 2002-08; C.T. 447, 451, 455). The jury found true the special circumstance allegations that Petitioner committed multiple murders and committed murders during a burglary (R.T. 2002; C.T. 448-49, 452-53). Petitioner received two consecutive terms of life without the possibility of parole plus 75 years and a term of life with the possibility of parole after seven years (R.T. 3040-47, 3056-67; C.T. 525-39, 544-47).
The Court of Appeal affirmed the judgment (Respondent's Lodgment D; see People v. Blackwell, 2012 WL 75743 (Cal.App. Jan. 11, 2012)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment F).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Blackwell, 2012 WL 75743 (Cal.App. Jan. 11, 2012). See Runningeagle v. Ryan , 686 F.3d 758, 763 n.1 (9th Cir. 2012), pet. for cert. filed (Nov. 15, 2012) (No. 12-894, 12A336) (presuming correct a statement of facts drawn from the state court decision); Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
The prosecution's evidence
On December 30, 2006, near midnight, Kevin Schantz (Schantz) was at his apartment on South Gramercy Place. He was getting high when Koontz, a neighbor in the building with whom Schantz regularly "hung out" and did drugs, and Blackwell came by. They were wearing black.
Schantz and Koontz had been buying cocaine from Raul Cruz (Cruz). Koontz complained that the drugs he bought from Cruz had made him sick. Appellants said they were going to "jack [Cruz], " meaning get drugs from Cruz without paying for them, and asked if Schantz wanted to join them. Schantz declined because he was friends with Cruz. Schantz noted that neither appellant had weapons or mentioned violence, guns or breaking into Cruz's home.
Near 2:00 a.m., on December 31, 2006, a surveillance video from a 7-Eleven store on Wilshire Boulevard showed appellants wearing beanies in the store, one of them appearing to make a purchase.
At approximately 3:30 a.m., appellants arrived at Cruz's one-bedroom apartment, where he resided with his wife, Micaela Estrada (Estrada), his 17-year-old step-daughter J.C. and his nine year old son, H.C. J.C. [Jessica Cipriano] ran into her parents' bedroom screaming for Cruz to wake up because "Mouse [was] trying to break in the window." J.C. knew Koontz as "Mouse, " as he had been at their house many times.
Cruz and J.C. went into the living room. When Estrada joined them, she saw Cruz struggling with Koontz, who had a metal bar in his hand. Cruz was kicking and scratching Koontz, who had a crazy look on his face. Estrada saw a Black male standing at the apartment entrance, pointing a gun. He was dressed in black, wearing a black beanie and at least one glove. Estrada asked Koontz, "Are you crazy? Don't do this. What's wrong? What is your problem?"
Estrada said she was going to call the police, grabbed the phone in the dining room and dropped it. H.C. heard Koontz asking, "Where's the money?" Koontz told the gunman to "Shoot these Motherfuckers." Estrada ran into the kitchen, broke a window and screamed for help. She saw the gunman begin shooting and was the first person hit by a bullet. H.C. got scared and ran back to his bed and hid underneath his blanket. Peeking out, he saw Koontz enter the bedroom, take a wallet and walk away. J.C. ran to the kitchen and fell on Estrada. Cruz ran from the apartment. He and J.C. were shot and killed, and Estrada was wounded.
At approximately 3:30 a.m., Candido Garcia (Garcia) was awakened by Estrada's screams for help. He left his apartment and went down the stairs, where he saw Cruz falling face first. Garcia returned to his apartment, dressed and ran downstairs again. Outside of Cruz's apartment, he came face-to-face with a White male, leaving Cruz's apartment, wearing a white shirt, dark pants, and a black beanie, holding a crowbar and with blood on his arm. The man walked past Garcia and out of the complex. Garcia was unable to identify the man from a photographic six-pack. Garcia then looked into Cruz's apartment and saw Estrada on the floor holding J.C.
At 5:00 a.m., Koontz arrived back at Schantz's apartment with blood on his bandaged hand. He told Schantz that Cruz was dead.
Los Angeles Police Officer Mauricio Salazar received a description of a White male suspect named "Mouse" from Estrada. He went to Koontz's apartment building and waited. When he saw Koontz, Koontz initially denied living in the building and gave a false name and birth date. After questioning, he ...