United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER DENYING HABEAS RELIEF AND DENYING A CERTIFICATE OF APPEALABILITY
MARGARET A. NAGLE, Magistrate Judge.
On July 23, 2014, Petitioner, a prisoner in state custody, filed a habeas petition pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner initially raised four grounds for relief, but voluntarily dismissed Grounds One and Four after the Court advised him that they were unexhausted. Respondent then filed an Answer to Grounds Two and Three and lodged the pertinent state record ("Lodg."). Petitioner filed a Traverse. Both parties have consented to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The matter is submitted and ready for decision.
On June 3, 2011, a Los Angeles County Superior Court jury found Petitioner guilty of one count of second degree robbery in violation of California Penal Code § 211. The jury found that Petitioner personally used a firearm within the meaning of California Penal Code § 12022.53(b) and (e)(1) and also found gang enhancement allegations under California Penal Code § 186.22(b)(1)(C) to be true. (Lodg. No. 1, Clerk's Transcript ("CT") 156.) On January 20, 2012, the trial court sentenced Petitioner to 23 years in state prison. (CT 184.)
Petitioner appealed. (Lodg. No. 5.) On June 8, 2013, the California Court of Appeal affirmed the judgment in an unpublished decision. (Lodg. No. 8.) Petitioner filed a petition for review in the California Supreme Court. (Lodg. No. 9.) On August 28, 2013, the California Supreme Court summarily denied review. (Lodg. No. 10.)
SUMMARY OF THE EVIDENCE AT TRIAL
The Court has reviewed the record in this case, as well as the California Court of Appeal's summary of the evidence in its opinion on direct appeal. The state court's summary is consistent with the Court's own review of the record. Accordingly, the Court has quoted it below to provide an initial factual overview. The relevant portions of the trial record will be discussed further in connection with the Court's analysis of Petitioner's claims.
On the early morning of September 13, 2009, Chad Chapman was returning to his home in Inglewood after work. He stopped to purchase Newport cigarettes and again to buy food at a Popeye's restaurant. The food was in a Popeye's bag and the cigarettes were still sealed. About 4:00 a.m. he parked his car on the street and crossed toward the gate to his building. A car rapidly pulled up in front of his building and two men jumped out and headed toward him at a fast rate of speed. He was aware there was a driver in the car, but could not see whether the driver was male or female. Chapman walked quickly toward the gate of his building in an effort to get away from the men, and he was able to open the security gate with a code. He was accosted by the men inside the gate. One had a knife and the other, identified by Chapman as [Petitioner], had a pump shotgun. The men stood on either side of him. The shotgun was aimed at Chapman's chest and head. [Petitioner] asked Chapman "Where are you from?'" Chapman replied "I don't gang bang.'"
The man with the knife then took the Popeye's bag out of Chapman's hand and started going through his pockets, taking the cigarettes and $116 (two $50 bills and some other bills). He handed a $50 bill to [Petitioner]. One or both of the men told Chapman to lift up his shirt and told him to say "Fuck NHP'". At that point, [Petitioner] was about five feet away. The man with the knife felt around Chapman's neck and looked at Chapman's stomach and arm. [Petitioner] also looked at Chapman's stomach. When Chapman hesitated about complying with a demand to turn over his watch, [Petitioner] jerked the shotgun toward Chapman and asked the man with the knife whether he should shoot Chapman in the leg. He had his finger on the trigger of the shotgun. The man with the knife said "No."
Chapman thought he was going to be shot and was so frightened he urinated on himself. He feared for his life. He gave up the watch and asked the men to let him go because he had a son upstairs. He repeated that he did not gang bang. [Petitioner] walked out of the gate toward the car. The man with the knife demanded Chapman's keys and cell phone. Chapman said they were for work, and he was allowed to keep them. Chapman described the knife as having a black handle and a blade about 11 inches long.
Before the men left, the man with the knife instructed Chapman to say "Fuck NHP.'" He repeated this demand several times. Chapman understood NHP referred to the Neighborhood Piru gang. The man with the knife also said "Fuck NHP'" three or four times, and said this loudly enough to be heard from 17 to 20 feet away. Chapman did not recall [Petitioner] saying "Fuck NHP'" and [Petitioner] did not instruct Chapman to say that phrase.
The two men got back into the vehicle in which they had arrived, a white Toyota Solara or Dodge Stratus. It drove away. Chapman called 911. An officer responded within five minutes. Shortly after that, the officer took Chapman to make a field identification. Chapman identified [Petitioner] and the car which was involved in the robbery.
Exhibit 2, a knife, had a blade and handle similar to the knife used in the robbery, but Chapman did not recognize a jagged edge (a hook) on the top part of exhibit 2. He described the shotgun as silver and black and about three feet long. It was not recovered. Chapman identified a sealed Newport menthol box of cigarettes later recovered from the car in which [Petitioner] was a passenger when detained (People's exhibit 3), as the brand he had purchased just before the robbery. It appeared to be the same pack taken from him in the robbery. Chapman also identified [Petitioner] from a lineup.
.... [Petitioner]'s girlfriend, Marisela Ricalde, testified to an alibi for the time of the robbery. [Petitioner] testified in his own defense and corroborated Ricalde's version of their whereabouts at the time of the crime. A defense expert testified about the inaccuracies of eyewitness identification under conditions like those presented here.
(Lodg. No. 8 at 2-4.)
PETITIONER'S HABEAS CLAIMS
Ground Two: The trial court's refusal to bifurcate the gang enhancement allegations violated Petitioner's right to a fair trial under the Fourteenth Amendment.
Ground Three: Defense counsel's failure to object to the prosecution gang expert's testimony that Petitioner's gang had murdered police officers violated Petitioner's Sixth Amendment right to effective assistance of counsel.
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner whose claim has been "adjudicated on the merits" cannot obtain federal habeas relief unless that adjudication: "(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." See also Harrington v. Richter, 131 S.Ct. 770, 784 (2011) ("By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).").
Clearly established federal law, for purposes of Section 2254(d)(1) review, means Supreme Court holdings in existence at the time of the relevant state court decision. Greene v. Fisher, 132 S.Ct. 38, 44-45 (2011); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1399 (2011); Richter, 131 S.Ct. at 785. Deference to a state court decision is required absent a Supreme Court decision that either "squarely addresses'" the issue in the case before the state court or establishes a legal principle that "clearly extends'" to a new context. Varghese v. Uribe, 736 F.3d 817, 824 (9th Cir. 2013) (citation omitted), cert. denied, 134 S.Ct. 1547 (2014); see also Richter, 131 S.Ct. at 786 (it "is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by" the Supreme Court) (citation omitted).
Under Section 2254(d)(1)'s first prong, a state court decision is "contrary to" clearly established federal law if the state court applies a rule that contradicts the relevant Supreme Court holdings or reaches a different conclusion than that reached by the high court on materially indistinguishable facts. Price v. Vincent, 123 S.Ct. 1848, 1853 (2003). "Thus, the contrary to' prong requires a direct and irreconcilable conflict with Supreme Court precedent." Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014).
Section 2254(d)(1)'s second, "unreasonable application" prong constitutes an objective standard that is not satisfied merely by finding that a state court erred in applying clearly established federal law. Richter, 131 S.Ct. at 785; Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 1174 (2003). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Landrigan, 127 S.Ct. at 1939; see also Xiong v. Felker, 681 F.3d 1067, 1074 (9th Cir. 2012) (a finding that the state court was incorrect or erroneous is insufficient, because ...