REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, 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.
On November 15, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody, " including attachments ("Pet. Att."). Respondent filed an Answer on April 11, 2013. Petitioner did not file a Reply within the allotted time.
A jury found Petitioner guilty of one count of second degree murder and two counts of attempted second degree murder (Reporter's Transcript ["R.T."] 3308-12; Clerk's Transcript ["C.T."] 461, 464, 466, 487-89). The jury also found true the allegations that Petitioner used a deadly and dangerous weapon (an automobile) in connection with each of the convicted counts, and personally inflicted great bodily injury upon Walter Hobson, within the meaning of California Penal Code sections 12022(b)(1) and 12022.7(a) (R.T. 3309-10; C.T. 461, 464, 466). The trial court sentenced Petitioner to a prison term of 28 years and four months to life (R.T. 3620-21; C.T. 487).
The Court of Appeal affirmed the judgment in a reasoned decision (Respondent's Lodgment 6). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 8).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Jiles, 2011 WL 4036157 (Cal.App. Sept. 13, 2011). See Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
A. Prosecution Case
Rose Falcone lived with her boyfriend Kyle Anderson and his two brothers in Los Angeles. On April 19, 2008, there was a party at the Anderson house to celebrate Anderson's birthday. Falcone hired Angela Veliz, a childhood friend, to bartend the party. Veliz brought her boyfriend Maurice, [Petitioner] (Maurice's brother) and two other friends with her to the party.
When Anderson introduced himself to one of Veliz's friends, the friend said he was from a gang. Anderson asked Falcone to tell Veliz that her friends had to leave. The men left. Maurice, [Petitioner] and another friend returned to the party 30 minutes later. Maurice told Anderson that they had dropped off the friend who was causing the problem. Anderson allowed them to stay.
Walter Hobson arrived at the party at approximately 9:30 p.m. Hobson flirted with Veliz; he did not know she had a boyfriend. Maurice and [Petitioner] "caught wind" of the flirting; Hobson saw them talking to Veliz behind the bar, gesturing as if they were upset. Hobson told Anderson that [Petitioner] and Maurice appeared upset. Anderson and his friend Jay Roy went to check on things. Anderson and Roy approached [Petitioner] and Maurice and overheard them say they were going to beat up someone. Anderson told [Petitioner] and Maurice to leave. "There was some resistance" and swearing, and [Petitioner] said, "If this were the streets, it would be different.'" When Anderson asked what [Petitioner] meant, [Petitioner] said, "Well, if we were at a different party or different place, then we would be asking you to leave.'" Anderson took the statements to be threats.
During the exchange, Maurice appeared agitated and was yelling and gesturing with his arms. Hobson saw [Petitioner] and Maurice gesturing while talking to Anderson. Hobson walked over and said, "Look, this is my home boy's party. You guys need to, you know, either chill out or leave.'" Maurice started walking towards Hobson and said, "Fuck you. You don't know where I'm from. You don't know me.'" Anderson punched Maurice in the face. Roy pulled Anderson off of Maurice. Veliz, Maurice, [Petitioner] and their friend were thrown out of the party.
Falcone and four male friends, including Johnny Martinez, escorted Veliz's group from the backyard to the front of the house and saw them get into Veliz's car, a blue Scion that was parked down the street from the Anderson house. [Petitioner] and Maurice suddenly jumped out the car and told Falcone they wanted to talk to Anderson. When Falcone told them it was not a good idea, they demanded to see Anderson. Falcone told [Petitioner] and Maurice to come back the next day to talk it out and went back to the party. At some point, [Petitioner] swung at Martinez. Although Martinez did not feel [Petitioner] make contact with his face, a wound just below his left eye started bleeding.
Shortly thereafter, someone told Roy, Hobson and Anderson that [Petitioner] and his friends were refusing to leave and had "cut Johnny in the face.'" Roy, Hobson, Anderson, and most of the party attendees, including Maziar "Mozzy" Tehrani, ran to the front of the house. It was chaotic outside; everyone was yelling. Maurice was screaming Anderson's name while "jumping up and down and throwing his hands up." Anderson ran towards Maurice, and they started fighting. Several people joined in beating on Maurice, but Hobson pulled them off so they could fight one-on-one. During the fight, Hobson saw [Petitioner] approach Anderson from behind. It looked like [Petitioner] was going to stab Anderson and had something in his hand. Before [Petitioner] reached Anderson, Hobson cut him off. [Petitioner] made jabbing motions towards Hobson. Hobson stood his ground. [Petitioner] backed off and walked away.
While the fight was going on, Veliz moved her car so it was parked next to the fight. Falcone told Veliz to get her boyfriend "out of there." Veliz jumped out of her car, leaving the ignition on and her car door open, and broke up the fight.
[Petitioner] ran around Hobson and got into the driver's seat of Veliz's car. Roy heard [Petitioner] say, "You should have never fucked with the niggas, '" before driving down the street away from the crowd. [Petitioner] made a U-turn and drove back towards the party. [Petitioner] looked "very angry" and was holding onto the steering wheel so tightly that his knuckles looked white. [Petitioner] revved the engine and maneuvered the car into the "oncoming traffic lane" towards the crowd of people outside of the party. Roy screamed out to Hobson that the car was coming. When Hobson turned around, he saw a car on the other side of the street turn towards him, heard the engine rev and saw headlights coming directly at him.
Hobson tried to dive out of the way, but the car "clipped" his left leg. Hobson flew up into the air and landed face-first on the concrete. Hobson had "road rash" across his face, hands and knees. Hobson sustained ligament damage in his face, knee and right shoulder.
Veliz, who was standing near Hobson, also tried to jump out of the way of the oncoming car. Veliz was hit in the hip. Tehrani, who was standing between Veliz and Hobson, could not get out of the path of the car. When [Petitioner] hit Tehrani, Tehrani's body "folded into the car, " his head hit the windshield, and his body flew into the air about 15 or 20 feet. Tehrani "landed on the ground, skidded across the asphalt and slammed against the curb." Tehrani died as a result of cranial cerebral trauma.
The car came to a stop on the front lawn of a neighbor. [Petitioner] jumped out of the car, looked around and said, "That's what you motherfuckers get for fucking with me.'" Maurice and [Petitioner] ran from the scene.
B. Defense Case
Veliz testified. [Petitioner] assisted Veliz tend bar by dispensing beer. At some point, Falcone asked Veliz why she had brought Shorty (Veliz's cousin) to the party. Maurice took Shorty home, and [Petitioner] remained at the party. [Petitioner] told Veliz that he felt uncomfortable - he detected other guests and Anderson were giving him funny looks. Maurice returned about 40 minutes later. [Petitioner] told Maurice of his discomfort.
Anderson approached the bar and asked Maurice and [Petitioner] if everything was okay. Maurice said they were good and wished Anderson a happy birthday. Anderson seemed to press the issue of whether everything was okay. Hobson said Anderson was his friend and "homey" and he had Anderson's back. Suddenly, Anderson punched Maurice causing Maurice to fly into the bar and onto the floor. Veliz said they had to leave. When Falcone approached and asked what was going on, Veliz said they were leaving because Anderson had struck Maurice.
Maurice, [Petitioner] and their friend were waiting at Veliz's car. When Veliz and [Petitioner] tried to put Maurice into the car, he kept calling out for Anderson. Maurice was intoxicated; he gets loud when he drinks too much. Anderson approached, which prompted Maurice to break loose, run toward him and fight. Veliz drove toward the two. Maurice was on the ground in a fetal position being punched and kicked by Anderson and at least four others. Veliz jumped out of the car and ran to help Maurice. As Veliz picked Maurice off the ground, she heard her car take off, an engine sound and then she saw headlights coming toward her as the car veered to its left. Veliz tried to jump from the path of the car in the middle of the street, but was struck on her right leg by the passenger side of the car.
After getting off the ground, Veliz went to the car, which had stopped on the front yard of a neighbor's house. Opening the door, Veliz saw [Petitioner] in the driver's seat looking startled. [Petitioner's] eyes were tracking side to side and he did not seem to know where he was. Veliz told [Petitioner] to leave, which he did. During the entire evening, [Petitioner] was never the aggressor and had even tried to help Veliz cool things down.
Maurice testified that after driving Shorty home, he returned to the party where [Petitioner] told him that "we need to get out of here.'" At that point, Anderson told Maurice and [Petitioner], "You mother fuckers gotta go.'" and "You're fucking up my party. I don't even know you fuckers.'" Maurice turned to Veliz and said they had to go; when he turned back, Anderson punched him in the mouth. Maurice and his group left the party. As Maurice went to the car, he saw Anderson behind him; the two men then fought as other guests gathered around. Someone from the crowd started punching Maurice in the back of the head. While on the ground being repeatedly struck and kicked, Maurice heard Anderson and others say, "Beat this nigger's ass. Beat this nigger's ass.'" During this time, [Petitioner] was in the street fighting with two or more other men. The beating stopped when Veliz interceded. As Maurice ran, he heard a boom sound and voices chasing him saying, "Get this nigger. They killed my home boy."
[Petitioner] testified he arrived at the party around 10:30 p.m. and assisted Veliz pass out beer. When Shorty became intoxicated and started saying things he should not have said, Anderson confronted Shorty and asked where he was from. Shorty responded, "a prison gang." Veliz told Maurice and [Petitioner] to take Shorty home, which Maurice did. Meanwhile, [Petitioner] was becoming anxious about the looks he was receiving from Anderson and his friends; [Petitioner] felt unwelcome and asked Veliz to leave.
Maurice returned, and they all agreed to leave after Veliz finished bartending. Maurice became agitated, and Anderson approached with some other guys and said, "What the fuck! Are you trying to cause any problems here in at my house?'" [Petitioner] answered no. Maurice butted in and exchanged words with Anderson, then Anderson punched Maurice in the face. [Petitioner] ran out from the party with Maurice trailing behind; they met up with Veliz at her car. Veliz and [Petitioner] tried to calm Maurice and get him into the car. [Petitioner] then noticed Anderson and about 15 others from the party approaching. [Petitioner] told Anderson they did not want any problems and were "cool, " but Maurice challenged Anderson, and Anderson responded by punching Maurice. [Petitioner] tried to intercede but was taken out by five or six others and injured in the process. Neither Hobson nor Roy were involved. [Petitioner] tried to punch back and pulled out a knife to ward off his attackers.
As [Petitioner] attempted to back away, Hobson asked, "Where the fuck are you going?'" Yelling out for Veliz and Maurice to follow, [Petitioner], now being pursued by Hobson, ran toward Veliz's car. The engine was running, the lights were on, and [Petitioner] got into the car and drove off in a panic. [Petitioner] made a U-turn at the intersection to come back for Veliz and Maurice, whom [Petitioner] believed were standing close to the curb near Anderson's house. Finding himself in the wrong lane, [Petitioner] drove toward the curb on the opposite traffic lane; he might have hit the accelerator harder than he should. [Petitioner] reached to the floor board and then the back seat in search of his knife. When [Petitioner] sat upright, he accidentally hit the accelerator; it was too late to avoid striking the person who hit the windshield.
By the time [Petitioner] regained control of the car, it was veering toward the house; he attempted to hit the brakes. Stunned and shocked, and hearing screaming and something about "I'm going to fucking kill you, '" [Petitioner] found his knife between the seat and the door. Veliz, who was standing right there, told [Petitioner] to run. [Petitioner] was found and arrested shortly thereafter and taken to the hospital for his injuries. [Petitioner] acknowledged initially lying to police about not driving the car, but then he ...