FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2010 judgment of conviction entered against him in the San Joaquin County Superior Court on charges of making criminal threats, possession of a firearm by a felon, and possession of ammunition by a felon. He seeks relief on the grounds that his trial counsel rendered ineffective assistance, the prosecutor committed prejudicial misconduct, and the cumulative effect of errors at his trial violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
The prosecution charged defendant with 10 offenses allegedly occurring on May 16, 2009: (1) attempted murder of police officer Emiliano Rincon (§§ 664, 187); (2) attempted murder of Sylvia Gaines (§§ 664, 187); (3) shooting a firearm at an occupied motor vehicle (§ 246); (4) shooting a firearm from a vehicle at Officer Rincon (§ 12034, subd. (c)); (5) shooting a firearm from a vehicle at Sylvia Gaines (§ 12034, subd. (c)); (6) assault with a firearm on Sylvia Gaines (§ 245, subd. (a)(2)); (7) assault with a semiautomatic firearm on Officer Rincon (§ 245, subd. (d)(2)); (8) criminal threats against Sylvia Gaines (§ 422); (9) felon in possession of a firearm (§ 12021, subd. (a)(1)); and (10) felon in possession of ammunition (§ 12316, subd. (b)(1)). Sentencing enhancement allegations included personal use of a firearm (§ 12022.5, subd. (a)), two prior serious felony convictions -- an assault with a firearm from 1999 and domestic violence from 2008 (§§ 667, subds.(a), (d), 1170.12, subd. (b)) -- and a prior prison term for the 1999 assault (§ 667.5, subd. (a)).
The trial court granted defendant's motion for judgment of acquittal after trial on count 4. (§ 1118.1.)
The evidence adduced at trial included the following: The incidents that resulted in the charges occurred around 1:30 a.m. on May 16, 2009. Before that, defendant spent several hours with his cousin, Regence Gaines.*fn2 They drove around, made three stops at liquor stores, picked up defendant's girlfriend around midnight, and around 1:30 a.m. stopped to greet another cousin, Howard Gaines aka Ray Ray. Regence testified defendant drank "a couple" of 24-ounce cans of malt liquor and snorted an unspecified amount of cocaine during the several-hour time period. Regence testified defendant and Howard started to argue. Defendant pulled a sawed-off .22 caliber rifle from the front passenger side of Regence's car and walked back to Howard. From what he could see in the dark, it appeared to Regence that defendant held the rifle in his right hand at his side.
Howard's mother, Sylvia Gaines, lived nearby. She testified she heard gunshots outside and heard someone ask, "you trying to shoot me in my back?" She looked outside and saw more than 10 people in a "bunch." She went outside, where she saw her son Howard*fn3 and defendant (Sylvia's ex-husband's nephew) arguing "neck to neck" and "going around in circles." She stepped between them. She saw that defendant was holding a gun about two feet long, pointed toward the ground. When asked if defendant said anything to her, Sylvia testified, "Words w[ere] going back and forth, and then he said, 'I don't give a fuck about being kin.'" When asked if defendant was talking to her or Howard, Sylvia testified, "I have no idea. We both w[ere] standing there."
Sylvia testified that Howard started to respond, but she grabbed him, covered his mouth, and whispered in his ear to be quiet because, "He [defendant] looks like he's high." Defense counsel objected, and the trial court overruled the objection but immediately instructed the jury, "The jury will consider that, if at all, for a limited purpose, and that is to explain the witness's actions, not for the truth of the notion that somehow the defendant was high."
When asked on cross-examination if she ever saw defendant high before, Sylvia said, "I seen [sic] Miguel [defendant] -- like right now, Miguel is fine. He looks like Miguel. That night Miguel's eyes were like beamin.'" Sylvia explained by "beamin'" she meant his eyes were "just big" -- "his eyes and pupils like he's on something." Sylvia has previously seen people high.
Sylvia testified that, after she told Howard to be quiet, "some people were pulling me. I don't know who they were, but they were pulling me and I turned around and he [defendant] had the gun up pointing." The gun was pointing at Sylvia and Howard. Sylvia said she would call 911. Someone called for defendant to get in the car. Defendant said "I'll be back," and then he got in the car and left. A police officer testified that Sylvia reported defendant had said he would come back and "kill all you motherfuckers"; Sylvia denied having reported that specific phrase; she did, however, testify that defendant had said he would be back and was "cussing." Sylvia testified she was shocked and "a little scared" that defendant pointed the gun in her direction. She still considered him her nephew despite her divorce from his uncle.
After defendant got into the car, Sylvia heard gunshots but did not know where they came from. They seemed to come "from all over." She called 911. Police Officer Emiliano Rincon responded in a patrol car. Rincon testified that, as he sat in his car speaking to Sylvia through the window, a black Mercedes drove by, and Rincon heard several gunshots that appeared to come from that car. The Mercedes drove away, hit a truck, and stalled. After the car stalled, defendant fled on foot.
Regence testified he was originally charged as a co-defendant in this case, but he reached an agreement with the prosecution to testify truthfully against defendant in exchange for a stipulated state prison term of 16 months on a charge of letting someone discharge a gun from his car, as opposed to a potential life sentence on the original charges.
Defendant's fingerprints were found on the Mercedes.
The defense did not call any witnesses.
The jury found defendant guilty on counts 8, 9, and 10 (criminal threats and felon in possession of a gun and ammunition). The jury found defendant not guilty on the remaining counts.
In a bifurcated bench trial, the trial court found true the allegations of two prior serious felony convictions and one prior prison term. The trial court sentenced defendant, under the three strikes law (§ 667, subds.(b)-(I)), to a term of 25 years to life on count 8 (criminal threats), concurrent terms of 25 years to life on counts 9 and 10 (felon in possession of gun and ammunition), plus consecutive terms of four years for use of a firearm (§ 12022.5), five years for each of the two prior serious felony convictions (§ 667, subd. (a)), and three years for the prior prison term (§ 667.5). The total sentence was 42 years to life.*fn4
Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. Dckt. No. 12, Ex. A. Therein, he claimed that: (1) his trial counsel rendered ineffective assistance in failing to request a jury instruction on voluntary intoxication with respect to the charge of making criminal threats; (2) the prosecutor committed prejudicial misconduct; (3) a prior prison term sentence enhancement should be stricken as duplicative; and (4) cumulative error at his trial violated his right to due process. Id. The Court of Appeal struck the sentence enhancement but otherwise affirmed petitioner's judgment of conviction. Id.
Petitioner subsequently filed a petition for review, in which he raised the same claims that he raised on direct appeal. Resp't's Lodg. Doc. 13. That petition was summarily denied. Id.
Petitioner subsequently filed two petitions for writ of habeas corpus in the California Superior Court. Resp't's Lodg. Docs 15, 17. Those petitions were denied on procedural grounds. Resp't's Lodg. Docs. 16, 18.
Petitioner initiated the instant action by filing a petition for writ of habeas corpus in this court on October 31, 2011. Respondent filed an answer on March 5, 2012, and petitioner filed a traverse on April 6, 2012.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn5
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "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)). Accordingly, "[a]s 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." Richter,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "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." Richter, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "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, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.
However, the Ninth Circuit has held that when it is clear that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn6
1. Ineffective Assistance ...