Petitioner is a state prisoner proceeding through appointed counsel with an application for writ of habeas corpus under 28 U.S.C. § 2254. Therein petitioner challenges a 2006 judgment of conviction entered against him in the Solano County Superior Court on charges of second degree robbery (Cal. Penal Code § 211), assault by force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)), and an enhancement for personal infliction of great bodily injury (Cal. Penal Code § 12022.7(a)). The parties have consented to Magistrate Judge jurisdiction over this action under 28 U.S.C. § 636(c).
On appeal from his conviction in state court, petitioner claimed that the evidence introduced into evidence at his trial was insufficient to support his conviction on all of the charges against him and that his right to a fair trial was violated by jury misconduct. (Answer (Doc. No. 11), Ex. 1; Clerk's Transcript on Appeal (hereinafter CT) at 248.) The California Court of Appeal for the First Appellate District affirmed the judgment of conviction on June 25, 2008. (Answer (Doc. No. 11), Ex. 4.) The state appellate court's opinion provides the following factual summary of the case:
On September 16, 2003, at about 5:30 in the afternoon, Keith Vershay was driving along Pintail Drive in Suisun City, on his way home from his work at Travis Air Force Base. Because of the heat he had lowered the vehicle's windows on both sides. An African-American male stepped in front of the vehicle, and Vershay "slammed on the brakes." The man approached the vehicle, leaned through the open front passenger window, and made some remark as if accusing Vershay of trying to hit him. Vershay told the man he should "stay out of the road." The man then "took a jab" at Vershay. At that same moment Vershay felt a pain in the back of his head and "blacked out."
Other witnesses testified that several young adult African-American males converged on the driver side of the stopped vehicle, pulled Vershay out onto the street, and began beating and kicking Vershay's face and head. Two witnesses, attempting to intervene, began shouting at the males, who then ran off.
Vershay's injuries, in addition to surface lacerations, bruising, and a swollen eye, included seven facial fractures and two breaks in his lower jaw. Because of the fractures both cheekbones were "caved in." The injuries required some four hours of surgery to set and wire his jaw and restore the cheekbones to their proper position. Ultimately Vershay was left with scarring and a loss of muscle control in lower right side of his face.
Vershay testified that his basketball shoes had been taken. Another witness stated that he saw one of the attackers remove something from a wallet he had taken from Vershay's clothing, and toss the wallet onto the street before running from the scene.
An information filed January 6, 2004, charged defendant as one of those who had attacked Vershay. It alleged a felony violation of section 211 (second degree robbery), and a felony violation of section 245, subdivision (a)(1) (assault by means of force likely to produce great bodily injury). The information also included an enhancement allegation under section 12022.7, subdivision (a), to the effect that defendant personally inflicted great bodily injury in his commission of the robbery and assault. On January 12, 2004, defendant entered a plea of not guilty.
Defendant's jury trial commenced over two years later, in March 2006. On March 20, 2006, the jury returned a verdict that found defendant guilty of both counts and found true the enhancement allegation.
Defendant filed a motion for new trial on May 3, 2006, on the ground of juror misconduct. At the sentencing hearing, held on June 13, 2006, the trial court denied defendant's motion. The court went on to impose an upper term of five years imprisonment for defendant's conviction under section 211 and a consecutive term of three years based on the enhancement allegation under section 12022.7. The court stayed imposition of sentence for defendant's conviction under section 245, pursuant to section 654.*fn1 Defendant filed a notice of appeal the following day. (§ 1237, subd .(a).)
On August 9, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, claiming that his trial attorney rendered ineffective assistance. (Answer (Doc. No. 11), Ex. 5.) The state appellate court denied that petition in a reasoned decision dated June 26, 2008. (Id., Ex. 6.) Petitioner also filed two petitions for review in the California Supreme Court, both of which were summarily denied. (Id., Ex. 7.)
A. Earlier proceedings in federal court
Petitioner originally sought relief from this court on the following grounds: (1) his right to a fair trial and impartial jury was violated when some of the jurors discussed petitioner's decision not to testify and when one of the jurors discussed his own professional experience in law enforcement with photographic lineups;*fn2 (2) the evidence introduced at his trial was insufficient to support petitioner's conviction on the charges against him; (3) the trial court's imposition of the upper term sentence violated petitioner's right to a jury trial; and (4) petitioner's trial counsel rendered ineffective assistance. (Petition (Doc. No. 1).) On December 3, 2012, this court dismissed all claims except petitioner's allegation that he received ineffective assistance of counsel (IAC). (See Doc No. 28.) The remaining ineffective assistance of counsel claim focuses on the decision by petitioner's trial counsel, attorney Tim Pori, to tell the jury in his opening statement that they would hear from an alibi witness and his decision later not to call that witness to testify. The California Court of Appeal rejected this ineffective assistance of counsel claim, holding that attorney Pori had made a "tactical decision" -- a critical factual finding because it triggers the "virtually unchallengeable" presumption that a lawyer performed reasonably. See Strickland v. Washington, 466 U.S. 668, 690 (1984).*fn3
The California Court of Appeal reached its conclusion in spite of the most significant piece of evidence before it: a sworn declaration by Pori stating that, in fact, his failure to call an alibi witness after promising one to the jury in his opening statement was a "mistake" in part because he knew ahead of trial that the witness might present credibility problems if he testified. (Answer, Ex. A to Lodged Ex. 5 (Doc. No. 11-2), at ¶ 7.) Pori further specifically stated in his declaration that [s]pecifically detailing alibi evidence in my opening statement before hearing the prosecution's case was not the result of a tactical decision. I simply did not weigh the advantages against the disadvantages of promising the alibi evidence before hearing the prosecution's case. (Id. at ¶ 9 (emphasis added).) There was no evidence in the state court record suggesting that attorney Pori had weighed the advantages against the disadvantages of promising an alibi witness in his opening statement, nor did the California Court of Appeal grant an evidentiary hearing on any of petitioner's claims. Rather, attorney Pori's clear, sworn disavowal of having made a tactical decision stood alone.
After a full round of briefing, including supplemental briefing on a discrete procedural issue, this court held that "from the basis of no evidence, the state appellate court construed attorney Pori's conduct to be the product of a 'tactical decision,' a characterization exactly opposite from attorney Pori's uncontradicted, sworn assertion, and it did so without a hearing." (Order filed Dec. 3, 2012 (Doc. No. 28) at 44.) On that ground, this court concluded that the state appellate court made an unreasonable determination of fact and that 28 U.S.C. § 2254(d)(2) therefore applied to the IAC claim, rendering de novo review appropriate. (Id.); see Maxwell v. Roe, 628 F.3d 486, 494-95 (9th Cir.2010) (stating that "when a state court adjudication is based on an antecedent unreasonable determination of fact, we proceed to consider the petitioner's related claim de novo").
Before rendering a decision on the merits of the pending claim, however, this court concluded that it "should, indeed can only, be resolved after full development of the facts that informed trial counsel's decision to promise the alibi witness in his opening statement to the jury despite known weaknesses in that witness' credibility. The primary source of that evidence will be attorney Pori's live testimony." (Order filed Dec. 3, 2012 (Doc. No. 28) at 51.) The evidentiary hearing took ...