United States District Court, C.D. California, Western Division
MEMORANDUM DECISION AND ORDER
PAUL L. ABRAMS, Magistrate Judge.
SUMMARY OF PROCEEDINGS
On March 25, 2010, a Los Angeles County Superior Court jury convicted petitioner of two counts of attempted murder (Cal. Penal Code §§ 664/187(a)) and one count of shooting at an occupied motor vehicle (Cal. Penal Code § 246). (Reporter's Transcript ("RT") 2702-05; Clerk's Transcript ("CT") 188-90, 193-95). For each of the attempted murder counts, the jury also found that the offense was willful, deliberate, and premeditated; that petitioner personally used and discharged a firearm (Cal. Penal Code §§ 12022.53(b) & (c)), and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)(C)). (RT 2702-05; CT 188-89). The jury also found the gang allegation to be true for the shooting at an occupied motor vehicle violation. (RT 2704-05; CT 190). On May 13, 2010, petitioner was sentenced to state prison for two consecutive life terms plus 40 years. (RT 3011-13; CT 197-201).
Petitioner filed a direct appeal. On May 23, 2012, the California Court of Appeal affirmed his conviction in an unpublished decision. (Respondent's Notice of Lodging ("Lodged Document") Nos. 5-8). Petitioner filed a petition for review in the California Supreme Court, which was summarily denied without citation to authority on August 8, 2012. (Lodged Document Nos. 9-10).
Petitioner next filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, which was denied on December 19, 2012, for failure to show a prima facie case for relief. (Lodged Document Nos. 11, 12). Petitioner then filed a habeas petition in the California Court of Appeal. (Lodged Document No. 13). That petition was denied on March 25, 2013, "for failure to state sufficient facts demonstrating entitlement to the relief requested, " and with citations to People v. Duvall , 9 Cal.4th 464, 474-75, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995); In re Lindley , 29 Cal.2d 709, 723 (1947); and In re Clark , 5 Cal.4th 750, 765, 21 Cal.Rptr.2d 509 (1993). (Lodged Document No. 14). Finally, petitioner filed a habeas petition in the California Supreme Court, which was summarily denied without citation to authority on June 12, 2013. (Lodged Document Nos. 15, 16).
On July 18, 2013, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") herein, and he later consented to have the undersigned Magistrate Judge conduct all further proceedings in this matter. Respondent also consented to have the undersigned Magistrate Judge conduct all further proceedings. Following several extensions of time, respondent filed an Answer and Return ("Answer") on February 26, 2014. (See Docket No. 29). Following two requests for extensions of time, petitioner filed a Response ("Traverse") thereto on May 27, 2014 (Docket No. 38), along with an "Exhibit" on May 30, 2014 (Docket No. 39).
This matter has been taken under submission, and is ready for decision.
STATEMENT OF FACTS
The Court adopts the following factual summary set forth in the California Court of Appeal's Opinion affirming petitioner's conviction:
A. Prosecution Case
Eric Silva testified that on June 7, 2009, at about 11:30 p.m., he was driving his Oldsmobile Cutlass in Lynwood. His friend, Jose Velasquez, was a passenger in the vehicle. After stopping at an intersection, Velasquez noticed another Oldsmobile approaching the intersection and told Silva, "Check it out, it is a car like yours." Silva continued to his destination, and the other vehicle began following. After a while, Silva noticed the other vehicle was still following. As he turned left onto a school road, the other vehicle sped up and pulled alongside Silva's vehicle. Both vehicles were in an area illuminated by a street light.
Silva testified that [petitioner] was driving the other vehicle - a silver-gray Oldsmobile Cutlass. There was also a passenger in [petitioner]'s car. Silva further testified that after [petitioner] had pulled alongside him, [petitioner] asked, "Where you guys from?" Silva responded, "What do you mean?... I don't bang." [Petitioner] then stated, "You guys tuna fish. You guys tuna fish." Silva repeated that he did not bang. [Petitioner] then stated, "This is my block. This is my block." Silva responded, "Cool. You know what? I don't bang. So keep on banging the block. I don't do bang." [Petitioner] again said, "Tuna fish." Silva understood "tuna fish" to be a derogatory term for members of the Tortilla Flats gang.
Silva testified that [petitioner] continued saying "Tuna fish, " and Silva continued to reply, "No." [Petitioner] then pulled out a revolver with his left hand, and pointed it at Velasquez. In response, Silva immediately stepped on his accelerator and drove away. As Silva did so, [petitioner] fired four shots. Silva testified he drove without stopping until he reached a friend's house.
Silva's friend called the police. Silva noticed there were several bullet holes in his car, including one in the windshield and another in the rear quarter panel. Silva testified he was present when a deputy sheriff recovered a bullet from the trunk of his car.
Silva also testified that a few days after the shooting, he identified [petitioner] from a photographic six-pack. Silva further testified that he was shown some photographs of a car, and that he identified that car as the one [petitioner] was driving. Silva noted that [petitioner] drove a rare type of car. Silva knew that it was a rare car because "I know those type[s] of cars. I am a car person, that is what I do."
Silva's passenger, Velasquez, also testified at trial, providing testimony consistent with Silva's. Velasquez testified that [petitioner] pulled out a chrome.38 revolver and pointed it at his face. Velasquez identified [petitioner] as the shooter in court, and testified that he had previously identified [petitioner] from a photographic six-pack.
Deputy Sheriff Marc Antrim testified that he made a traffic stop of [petitioner] on June 10, 2009. [Petitioner] was driving a silver Oldsmobile Cutlass; the deputy took some photographs of the vehicle. Deputy Antrim also testified that he conducted a field interview of [petitioner] during the encounter. [Petitioner] "self-admitted" he was an El Segundo gang member with the moniker "X-Man." [Petitioner] also had a tattoo on his back consistent with membership in the El Segundo gang.
Detective Ben Torres testified that on August 5, 2009, [petitioner] was arrested, and his home was searched after [petitioner] and his mother consented. During the search, officers recovered a speedloader for a revolver handgun and some ammunition, including a.380-caliber bullet.
Senior criminalist Tracey Peck, a firearms examiner, testified she examined the bullet recovered from Silva's car. She determined that the fired bullet was consistent with the type of bullet commonly loaded into.380 auto caliber cartridges. Peck also stated that that [sic] it was possible to load and use automatic bullets in a revolver.
Detective Patrick Escamilla testified as a gang expert regarding the Lynwood El Segundo 13 and Tortilla Flats gangs. Detective Escamilla testified that the two gangs were rivals and had members living in parts of Lynwood. Detective Escamilla opined that Silva and Velasquez were not members of the Tortilla Flats gang.
Detective Hugo Reynaga also testified as a gang expert. Detective Reynaga opined that [petitioner] was a Lynwood El Segundo 13 gang member based upon [petitioner]'s admissions, and other indicia of gang membership, such as associating with two admitted gang members. After being presented with a hypothetical situation that mirrored the evidence in the instant case, Detective Reynaga opined that the shootings were committed for the benefit of a criminal street gang.
B. Defense Case
Marina Elbadry, [petitioner]'s mother, testified that [petitioner] was right-handed. She also testified that at the time of the incident, [petitioner] was on a school vacation. She stated that [petitioner] was not a gang member.
(Lodged Document No. 8 at 3-5).
1. Petitioner was denied his Sixth Amendment right to the assistance of counsel of his choice when the trial court refused to allow him to discharge his retained attorney. (Petition at 5-6).
2. Petitioner received ineffective assistance of trial counsel. (Petition at 5-6).
3. Petitioner's sentence constituted cruel and unusual punishment because the evidence presented at trial was insufficient to support his convictions for attempted murder, petitioner had no prior criminal record, and the victims were not injured. (Petition at 7-8).
4. Petitioner was denied his right to present a defense because the police impounded his car and sold it at auction before his trial, preventing him from collecting any exculpatory evidence. (Petition at 7-8).
5. The prosecutor committed misconduct by arresting petitioner's defense witnesses before trial. (Petition at 9).
STANDARD OF REVIEW
The Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA"). Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of this action. See Lindh v. Murphy , 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Under the AEDPA, a federal court may not grant a writ of habeas corpus on behalf of a person in state custody "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. § 2254(d). As explained by the Supreme Court, section 2254(d)(1) "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ ...