The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
(1) DENYING REQUEST FOR EVIDENTIARY HEARING; (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; and (3) ISSUING A LIMITED CERTIFICATE OF APPEALABILITY
Petitioner Deshawn Dundre Broadnax is a state prisoner proceeding pro se and in forma pauperis with a First Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 16.) Petitioner is serving two consecutive terms of life imprisonment without the possibility of parole, plus fifty-seven years-to-life, as a result of convictions in the San Diego County Superior Court for two counts of first degree murder with special circumstances, one count of dissuading a witness from testifying, and one count of attempted witness intimidation, each of which the jury found were committed for the benefit of a criminal street gang. (First Amended Petition ["FAP"] at 1-2*fn2 ; Lodgment No. 1, Clerk's Transcript ["CT"] at 621-27.) Petitioner requests an evidentiary hearing, and claims that: (1) the jury was permitted to draw unconstitutional inferences about guilt and the requisite mental states due to a faulty instruction; (2) the trial court erred in denying a new trial motion which was based on evidence withheld from the defense; and (3) insufficient evidence exists to support the verdict for dissuading a witness from testifying, or, alternately, an element of that offense was omitted from the jury instructions. (FAP at 1, 6-46.)
Respondent has filed an Amended Answer to the First Amended Petition, which is accompanied by a Memorandum of Points and Authorities in support, and a Notice of Lodgment. (ECF Nos. 21, 23.) Respondent contends that an evidentiary hearing is unnecessary, and that habeas relief is unavailable because claim one is procedurally defaulted, claim two does not present a federal question, any potential errors are harmless, and the state court's adjudication of the claims is objectively reasonable within the meaning of 28 U.S.C. § 2254(d). (Memorandum of Points and Authorities in Support of Amended Answer ["Ans. Mem."] at 13-23.)
Petitioner has filed a Reply. (ECF No. 25.) He contends Respondent has failed to demonstrate claim one is procedurally defaulted, argues that habeas relief is warranted on all his claims, and requests an evidentiary hearing be held on his second claim in order to determine whether evidence was withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963) (recognizing a constitutional duty of the government to disclose to the defense exculpatory evidence material to guilt or punishment). (See Reply at 1-19.)
For the reasons discussed below, Petitioner's request for an evidentiary hearing is DENIED, the Petition is DENIED, and a Certificate of Appealability is ISSUED limited to claim two.
In an unpublished opinion, the appellate court summarized the evidence presented against Petitioner:
Broadnax is an active participant in the Lincoln Park Bloods Street Gang (Lincoln Park). Anthony Torian is also a Lincoln Park gang member. Torian was introduced to Broadnax in 2006 by another Lincoln Park gang member. Torian usually "hung out" with Broadnax every day.
At all relevant times, Torian was dating Kimberly Cyr. Broadnax, Torian and Cyr had "hung out" together on occasion. [¶] Skyline is another street gang, and is a rival of Lincoln Park.
On December 5, 2006, Ahmad Lewis, a Lincoln Park gang member, was murdered in Lincoln Park gang territory. Lewis was associated with Broadnax and Torian. On December 6, 2006, Broadnax and Torian drove to the Meadowbrook Apartments (Meadowbrook), a Skyline hangout, to shoot a member of the rival gang in retaliation for Lewis's death.
While Torian drove Broadnax to Meadowbrook in his car, Broadnax showed him a gun he had under his shirt. When they arrived, Torian parked on the west side of Deep Dell Road, near a liquor store.
Torian entered the liquor store and bought a pack of cigarettes. Torian exited the liquor store and saw Broadnax walking toward a cul-desac. Then Torian lost sight of Broadnax. Torian heard approximately eight rapid gunshots. Then Torian saw Broadnax run from the cul-de-sac toward Torian's car. Broadnax got in the passenger side of the car and Torian got in the driver's side. Then they drove away.
During the car ride, Broadnax told Torian he had approached two "dudes" in the cul-de-sac, asked them for a cigarette, and then shot one of them in the head and the other as he tried to run away.
In reporting on the shooting later in the evening, a local television station displayed a photograph of Torian captured on the liquor store's surveillance video.
C. Broadnax Dissuades a Witness, Cyr
In further media reporting on the shooting, Torian's picture was also published in a local newspaper. Torian showed Cyr his photograph in the newspaper and told her that he had not been involved in the shooting. Torian told Cyr they needed "to come up with a story" about going to the movies on December 6, 2006, and stopping at the liquor store on the way.
On December 16, 2006, Cyr attended a party in Mission Beach. During the party, Cyr approached Torian and Broadnax. Broadnax told Cyr to "stick to the story" in a firm voice. Cyr testified that she felt threatened.
On December 19, 2006, Cyr was interviewed by police investigators. Cyr repeated the alibi she and Torian had agreed they would provide police.
On December 20, 2006, Broadnax arrived at Cyr's home. Cyr joined Broadnax outside and observed two men standing beside her car. Broadnax told Cyr in a firm voice: "Remember what we told you. Stick to the story and don't do anything stupid. We know where you live." Cyr testified that she felt scared.
Later, Cyr gave a true account of events to the police. Following Cyr's cooperation with police, she received witness protection services.
D. Broadnax's False Statements to Police
During an initial interview, Broadnax told police he could not remember what he was doing on December 6, and that he had not been in Skyline territory since 2004. At a later interview, Broadnax told police that on December 6, 2006, he had been at home with his mother. Broadnax stated he had not been to Meadowbrook. Broadnax also stated the last time he saw Torian was in September of 2006, and denied ever attending parties and going to the beach with Cyr.
Following Broadnax's arrest, a detective told Broadnax his DNA had been found on a cigarette at the murder scene. Broadnax denied being in the area and again explained that he had been at home. (Lodgment No. 6, People v. Broadnax, No. D054634, slip op. at 2-5 (Cal. Ct. App. Aug. 20, 2010).)
On February 26, 2007, a San Diego County Grand Jury returned a true bill of indictment accusing Broadnax and Torian with two counts of first degree murder, one count of dissuading a witness from testifying, and one count of attempted intimidation of a witness. (CT 1-4.) The indictment alleged that both defendants were principals in the murders, that at least one of them personally used a firearm and proximately caused death or great bodily injury, and that they committed the offenses for the benefit of a criminal street gang. (Id.) The indictment contained two special circumstance allegations regarding the murder counts: (1) The defendants committed more than one murder; and (2) they were active participants in a criminal street gang and intentionally committed the murders to further the activities of the gang. (Id.)
On October 15, 2007, prior to Broadnax's trial, Torian pleaded guilty to two counts of voluntary manslaughter, admitted the gang enhancement allegations, and admitted he was vicariously armed with a firearm. (Lodgment No. 2, Reporter's Transcript ["RT"] at 678-79.) The plea was subject to an agreement that he would receive a thirteen-year prison term if he testified truthfully at Petitioner's trial, and a sentence of twenty-three years and four-months otherwise, with the possibility that the deal could be negated and the murder charges reinstated if he was untruthful or failed to cooperate. (RT 675-77.) On December 19, 2008, a jury found Broadnax guilty of all counts and found all the enhancement and special circumstance allegations true. (CT 621-27.) On February 19, 2009, Petitioner's motion for a new trial and amended motion for a new trial were denied, and he was sentenced to two consecutive terms of life imprisonment without the possibility of parole, plus fifty-seven years-to-life. (CT 629; RT 1429-36, 1460-61.)
Petitioner appealed his convictions, raising the same claims presented here. (Lodgment No. 3.) The appellate court affirmed in all respects, finding claim one to have been waived because it had not been adequately preserved for review, and denying all claims on the merits. (Lodgment No. 6, People v. Broadnax, No D054634, slip op. at 5-14.)
Petitioner raised the same claims in a petition for review filed in the California Supreme Court, in which he also challenged the appellate court's finding that claim one had been waived. (Lodgment No. 7.) The state supreme court summarily denied the petition without citation of authority or a statement of reasons. (Lodgment No. 8, People v. Broadnax, No. S186803, order at 1 (Cal. Dec. 15, 2010).)
Petitioner filed a First Amended Petition, the operative pleading in this action, on May 1, 2012. Respondent filed an Amended Answer to the First Amended Petition on July 17, 2012, and Petitioner constructively filed a Reply on August 30, 2012.
Title 28, United States Code, § 2254(a), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a 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.A. § 2254(a) (West 2006).
As amended by AEDPA, 28 U.S.C. § 2254(d) reads:
(d) 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. 28 U.S.C.A. § 2254(d)(1)-(2) (West 2006).
A state court's decision may be "contrary to" clearly established Supreme Court precedent (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. An unreasonable application may also be found "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412. In order to satisfy § 2254(d)(2), a federal habeas petitioner must demonstrate that the factual findings upon which the state court's adjudication of his claims rest are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The Supreme Court has indicated that "[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." Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).) The Court in Richter, in interpreting section 2254(d)(1), explained:
As a condition for obtaining habeas corpus from a federal court, a state prisoner 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.
"If this standard is difficult to meet, that is because it was meant to be." Id. at 786. "It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court decision conflicts with this Court's precedents." Id.
The Court will begin its analysis with claims two and three, as they inform the discussion of claim one.
1. Claim Two: Denial of New Trial Motion
In claim two, Petitioner alleges that the trial court erred in denying his amended motion for a new trial, which was based on newly discovered evidence which he contends would have resulted in a different verdict had it been available at trial. (FAP at 28.) The motion was based on a letter Torian wrote and sent through the institutional mail before he testified, but which was not disclosed to the defense until after trial. (CT 507-13.) Petitioner argues that Torian downplayed his connection to the gang lifestyle at trial and was portrayed as frightened and intimidated by Broadnax during the murders, and as threatened and intimidated by Broadnax and other gang members while incarcerated, whereas the letter showed that gang involvement and a need to inflate his importance in the gang were important to Torian. (FAP at 34.) Petitioner argues that his trial counsel had very little with which to impeach Torian other than that he stood to gain more in the gang hierarchy from shooting rival gang members than did Broadnax, and the letter was direct, non-cumulative evidence showing how important his place in the gang hierarchy was to Torian. (Id. at 34-35.)
Respondent answers that Petitioner has not alleged a violation of federal law with respect to this claim, and that a state law violation cannot provide the basis for federal habeas relief. (Ans. Mem. at 16.) Respondent also contends that the denial of the claim by the state court, on the basis that the new evidence was cumulative and would have made no difference to the outcome of the trial, neither misapplied United States Supreme Court precedent nor involved an unreasonable determination of the facts. (Id. at 18.)
Broadnax replies that Respondent minimizes the importance of the new evidence and provides no support for finding it to be cumulative. (Reply at 8-11.) He argues that the letter is not cumulative because it is of a significantly different nature than the impeachment evidence at trial, which was based on Torian's inconsistent statements, his self-interest, and his plea agreement. (Id. at 9.) Petitioner does not challenge Respondent's contention that the claim fails to present a federal question.
Petitioner raised claim two in a petition for review filed in the California Supreme Court on direct appeal. (Lodgment No. 7, Petition for Review at 12-15, People v. Broadnax, No. SD2009701437.) That court denied the petition without citation of authority or a statement of reasoning. (Lodgment No. 8, People v. Broadnax, No. S186803, order at 1.) He presented the same claim to the state appellate court on direct appeal. (See Lodgment No. 3, Appellant's Opening Brief at 49-58, People v. Broadnax, No. ...