United States District Court, N.D. California
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
CHARLES R. BREYER, District Judge.
Petitioner, a state prisoner incarcerated at California's Men's Colony East, San Luis Obispo, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction from San Francisco County Superior Court. For the reasons that follow, the petition will be denied.
I. STATEMENT OF THE CASE
On February 2, 2007, a jury convicted Petitioner of committing the following offenses, committed on March 3, 2006 against two victims: first degree residential burglary, forcible oral copulation, sexual battery, assault with a deadly weapon, and criminal threats. The jury also found, under California's One Strike law, that Petitioner committed each count of forcible oral copulation during a burglary and that, for the purpose of weapons enhancements provided under California Penal Code sections 12022 and 12022.3, Petitioner committed the burglary, threats, forcible oral copulation, and sexual battery using a deadly and dangerous weapon. On November 8, 2007, the court entered judgement and sentenced Petitioner to life in prison with the possibility of parole after 75 years.
In a reasoned opinion issued on November 16, 2010, the California Court of Appeal reduced the felony restitution and parole revocation fines and increased the court security fee, but otherwise affirmed the judgment of the trial court. On February 23, 2011, the California Supreme Court denied review. Petitioner did not pursue state habeas relief.
On August 21, 2012, Petitioner filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. On February 4, 2013, this Court granted Petitioner's Motion to Appoint Counsel. On December 17, 2013, Petitioner, now represented by counsel, filed the instant First Amended Petition for Writ of Habeas Corpus. This Court found the claims in the petition cognizable under § 2254 and, on February 21, 2013, ordered Respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an Answer to the Petition for Habeas Corpus on October 20, 2014. On December 22, 2014, Petitioner filed a Traverse in support of his First Amended Petition.
II. FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
Jury selection first began before Judge Miller on October 23, 2006. On October 26, 2006, after a jury was sworn, but before the presentation of evidence, the court declared a mistrial. Jury selection for a retrial began immediately and the presentation of evidence took place in November 2006. On November 14, 2006, another mistrial resulted after the jury was unable to reach a unanimous verdict. Jury selection began for a third time on January 10, 2007, before Judge Cynthia Ming-Mei Lee. The following evidence was presented.
The Prosecution Case
On Thursday, March 2, 2006, Suzy and Claudia went to Place Pigalle, a neighborhood bar in San Francisco, arriving at about 10:00 or 10:30 p.m. They socialized with friends at the bar, including Claudia's neighbors Bobby Rivera and Freddy Fuentes. [Petitioner] approached Suzy and introduced himself as Valentine. Suzy testified that she, Claudia, Rivera, and Fuentes decided to go to Claudia's apartment to continue to party. Suzy invited [Petitioner] to come along because she felt sorry for him.
When the five arrived at Claudia's apartment, they drank whiskey and used cocaine, which Rivera and Fuentes had brought with them. Claudia testified that Suzy, [Petitioner], Rivera, and Fuentes were all intoxicated. Sometime between 12:30 and 1:00 a.m., Claudia excused herself to go to sleep because she had to work the next day. About an hour later, Suzy, who planned to stay overnight in Claudia's apartment, said she needed to go to bed because she also needed to work the next day. Rivera, Fuentes, and [Petitioner] left the apartment together and walked back to the bar. Rivera invited [Petitioner] to go back to the bar with him and Fuentes, but [Petitioner] said he was going to take a cab home. Rivera and Fuentes entered the bar at about 1:45 a.m. When they left the bar at 2:00 a.m., [Petitioner] was gone.
About 10 minutes after the three men had left the apartment, Suzy heard a knock on the door. She looked out the window and saw [Petitioner] standing outside the door in the rain. She opened the door and he asked if he had left his cell phone and keys in the apartment. She saw the phone on a table by the door and turned around to look for the keys. Because of the rain, she let [Petitioner] inside.
"[I]n a matter of seconds [Petitioner] had his arm around my neck, and the other hand... was holding a corkscrew to my neck." He was pressing "[p]retty hard" and "it was piercing into [her] skin." [Petitioner] then grabbed her arm and turned her around to face him. He told her to shut up and not to make any noise if she wanted to live. Suzy smiled because she thought he was just rough housing in play. When she asked if he was joking, he hit her at least three times on the top and side of her head. [Petitioner] was not slurring his words and he did not seem intoxicated. Suzy also did not feel intoxicated at that point.
[Petitioner] told Suzy to get on her hands and knees and act like a dog. She looked up at him in shock, and "he had these cold eyes, like he had so much hate in him." He told her not to look at him. Suzy got on her hands and knees and [Petitioner] hit her on the top of her head "really hard" three or four times with a closed fist. She thought she was going to pass out. [Petitioner] said he was going to get what he wanted and then leave. He grabbed Suzy by the hair and dragged her to the kitchen as she crawled along with him. When she said, "How could you do this?'" he punched her in the head, told her to shut up, ordered her not to look at him, and said she should be "a good doggie." Also, when she called him "Valentine, " he told her not to because it was not his real name. [Petitioner] told Suzy to suck on his finger "and do it good." As she did so, he moaned and seemed to be enjoying it. He then told Suzy to get up and kiss him, which she did.
[Petitioner] said he wanted to go into Claudia's bedroom. Suzy panicked because "I was afraid she was going to scream or-and I was afraid that he was gonna hurt her." [Petitioner] told Suzy to shut up and hit her on the head. He held Suzy with the corkscrew to her neck, went into the bedroom, and told Suzy to get on her hands and knees. Suzy climbed on the bed and rubbed Claudia's arm to wake her up as [Petitioner] stood next to Claudia. [Petitioner] then put his hand over Claudia's mouth and held the corkscrew to her neck or temple. When Claudia woke up and asked what was going on, [Petitioner] told her to shut up, hit her on the head with a closed fist really hard, and told her not to make any noise. He said he was going to rearrange her face if she fought him, and he was going to get what he wanted and then leave. [Petitioner] told Claudia to get on her hands and knees and act like a dog. Claudia got on her hands and knees on the bed next to Suzy.
Claudia testified that when she woke up, she felt a sharp object by her head and saw someone standing to her left. When she asked, "Who is that?" [Petitioner] punched her "pretty hard" in the mouth and said not to look at him. She started to get up, but [Petitioner] pushed her back onto the bed and said, "Do you want your face rearranged?'" [Petitioner] then put his left fingers in her mouth and felt her breasts under her shirt while telling her not to look at him. Claudia asked, "What are you doing?" and he punched her in the mouth again and told her not to look at him. Claudia tried to get off the bed and she felt [Petitioner] push her to the floor, where she landed on her hands and knees. [Petitioner] kicked her in the ribs and punched her in the left back. Suzy said, "Don't hurt her, " and [Petitioner] hit Suzy in the face. Claudia noticed [Petitioner] had a corkscrew in his hand and did not recognize it as something from her household. [Petitioner] was not slurring his speech or stumbling during the incident.
Claudia testified that they left the bedroom because she told [Petitioner] she had to go to the bathroom. [Petitioner] grabbed them by their hair, pulling Suzy off the bed, and took them to the bathroom as they crawled along with him. He kept telling them not to look at him. In the bathroom, Claudia was not able to relieve herself. [Petitioner] told both women to take off their clothes. Claudia had difficulty taking off her shirt, which was a karate top with ties in a knot.
Suzy stripped naked and [Petitioner] made her give him oral sex. Suzy was delayed by multiple buttons on her shirt and he punched her and told her to hurry up. When she got all her clothes off, [Petitioner] told her to stand in front of him and he caressed her breasts and moved his hand toward her pubic area while moaning, breathing heavily and saying things like, "Oh, yeah, that's nice." [Petitioner] told her to turn around and he caressed her waist and buttocks, making the same sounds. [Petitioner] then told her to get on her hands and knees and suck on his penis and "do it good." Suzy orally copulated [Petitioner] for about one minute while he moaned, said it was good, and called Suzy a "good doggie." [Petitioner] then told her to stop, and directed Claudia to take her clothes off. Claudia also had a hard time with her top and [Petitioner] told her to hurry up while continuously punching her in the head. He told Claudia to suck on his penis, which she did while on her knees next to Suzy, who was also on her knees. [Petitioner] was breathing very hard while she did so, and he still had his hand in Claudia's hair. He then pulled Suzy to her feet and told her to kiss him. Then he moved Claudia toward his penis and made her perform oral sex on him. At first, Claudia's mouth was so dry that she could not do it and [Petitioner] hit her on the back of the head with a closed fist and told her, "Do it right.'" Then she put her mouth on his penis because she was afraid. She was on her hands and knees on the floor and [Petitioner] was standing and kissing Suzy.
Claudia bit down on [Petitioner's] penis very hard. He screamed and pulled back, and Claudia stood up and started hitting him as hard as she could, smothering his face with her hands. She told Suzy to hit [Petitioner] as well because she could not see [Petitioner's] corkscrew. Suzy tried, but [Petitioner] was pulling her head down by her hair so she couldn't look up. [Petitioner] was also hitting back and they were all screaming. [Petitioner] said, "Let me go. I want to leave.'" They let him go and he fell back in the hallway, hitting his head against the wall, and ran out the front door. Claudia testified that, while they were fighting, she felt [Petitioner's] hand grab the left side of her hair and slam her head against the wall. She lost her vision for a second or two because of the blow. The next thing she remembered, [Petitioner] was in the hallway and he said, "I leave now, '" as he pulled up his pants.
Claudia slammed shut the door to the bathroom. Suzy was on the floor, crying hysterically, and Claudia asked her to help move a bathroom dresser to block the bathroom door, which they did. Suzy noticed her jacket was in the bathroom, so she took a cell phone out of the pocket and called 911. She made the call about two to five minutes after the incident occurred. The cell phone recorded that the call was made at 2:03 a.m.
A recording of the 911 call was played for the jury. Suzy provided the address and told the operator, "A gentleman just tried to rape me and my friend and we fought him and he ran out." When the operator asked if he had a weapon, she said, "Yes, he had a corkscrew. He threatened us that he'll kill us with it." She said they had met the man that night at a bar, he had come over with some of their friends, and he introduced himself as Valentine but later said that was not his real name. As she provided this information, Suzy repeatedly broke down crying, had trouble breathing, asked the operator, "Can you please hurry up?" and said, "I'm going to die. Okay. Okay. Okay." Claudia then got on the phone. She was distraught and asked the operator, "Could you please send the SWAT team or something?"
When told that officers were at the apartment, Claudia and Suzy pushed the dresser from the door and ran down the hallway to the front door. Claudia testified, "When we opened the door, we started just being hysterical. Like Suzy fell on the floor screaming and shaking and[ ]... I was just shaking. All I could feel was cold. And I [was] holding my head, because I had been hurt really bad on the side of my head." Suzy testified, "I remember the officers were standing up and I was sitting down, and I asked if they could sit next to me, because I had a really hard time with myself being sat down and someone being above me standing, because that was what was going on through most of the assault."
San Francisco police officer Eric Mahoney responded to the 911 call with another officer and arrived at the apartment at about 2:05 a.m. After knocking for two to three minutes, the door opened and two women came out. "[O]ne of them grabbed me in a bear hug and the other one grabbed my partner in a bear hug." The seemed very scared and they were crying and breathing very heavily, as if hyperventilating. After a few seconds, they went inside and Mahoney tried to separate the women to calm them down and try to find out what happened. It was difficult because they were clinging to each other and crying. After about five minutes in the bedroom, he brought Claudia back into the living room and she and Suzy began crying again and hugging each other. Mahoney did not notice any signs of intoxication in either woman. They provided an account of the incident and were seen by paramedics.
Mahoney took the women to San Francisco General Hospital's Trauma Recovery Center. Jessica Thayer, a physician's assistant and trained sexual assault response forensic examiner, examined each of them separately beginning at about 4:00 a.m. Inspector Sidney Laws of the San Francisco Police Department sexual assault detail was present during the verbal portions of the examinations, which she recorded. Thayer testified that Suzy was alert and oriented but tearful and upset. Laws testified that Suzy was "very emotionally upset." Both testified that Suzy did not appear to be under the influence of alcohol or drugs. Thayer's physical examination of Suzy revealed tenderness to the back of her head, some scratches on her neck, and some redness and tenderness on the back of her right arm. The scratches on her neck were very thin, as if "a sharp object had brushed across the surface of her skin" and seemed fresh. Thayer opined that the injuries were consistent with Suzy's description of the incident. Photographs taken at the hospital on March 3, 2006, showed a scratch right below her neck, a scratch on the side of her neck, and "fingerprint" bruises or marks on her arm.
Thayer and Laws testified that Claudia was very angry and crying when interviewed. She had no visible signs of intoxication. Thayer's physical examination of Claudia revealed some bruising and tenderness on her left temple, tenderness to her right jaw, tenderness to her midline back, redness and tenderness on the back of her right arm, and a small abrasion on her right knee. These injuries were consistent with Claudia's description of the incident. Thayer took photographs of Claudia on March 3 that showed scratches on neck and redness on her arm, but did not show the bruising on her temple or redness on her back. "[O]ften the photographs don't reflect what we see." Also, "bruising can occur over the next several days as the blood leaks out of the damaged vessels." Photographs of Claudia taken on March 6, 2006, showed a bruise, scrape and swelling on her left knee, which Claudia testified was caused by [Petitioner's] dragging her on the floor; bruising on her right knee; a bruise on her back, which she testified was probably caused by [Petitioner's] punching her on the back; a bruise on her rib, which she testified was caused by [Petitioner's] kicking her in the ribs; a cut on her left ring finger, which she testified was probably caused when she hit [Petitioner].
In the interviews with Laws, Claudia and Suzy initially denied using cocaine, but later admitted cocaine use when specifically asked by the inspector. Before Suzy testified at the earlier November 2006 trial, the prosecutor told her that she had no intention of prosecuting her for any drug use she admitted during her testimony. Claudia had not been told that she would not be prosecuted for consuming drugs on March 3, 2006, but the prosecutor told her it was unlikely she would be prosecuted.
Earlier, while at the bar, [Petitioner] gave Suzie his cell phone number, which she entered on her cell phone "[j]ust to be friendly." Suzy and Claudia gave Laws the number. Laws dialed the number, but it went to voice mail. Using a search warrant, Laws determined that the number was registered to Ali Rad. On March 6, 2006, Laws called another number associated with Rad, reached him, and told him she needed to speak to [Petitioner]. Rad agreed to give [Petitioner] her number. Laws called Rad again later in the day and Rad asked if it was about a fight with two girls. About a half hour later, [Petitioner] called and spoke to Laws. At about 6:00 p.m., [Petitioner] came to the police department voluntarily. He was placed under arrest almost immediately and photographs were taken of his penis, which showed bruising.
Prior Sexual Assault Evidence
Veronique P. (Veronique) testified that on June 29, 1996, at about 1:00 a.m., she entered her apartment building and was climbing an internal staircase when she realized people were behind her. As she approached her door, someone put his arm around her throat and shoulders, held a knife blade to her neck, and told her to open the door and enter the apartment. She later got a good look at this man, whom she identified in court as [Petitioner]. [Petitioner] and another man, Jouaneix, entered the apartment with Veronique. Soon after entering, they told Veronique to go into one of the bedrooms. [Petitioner] told her, "Watch out or else." At [Petitioner's] direction, Jouaneix searched Veronique's bag, found 600 francs and an ATM card, got Veronique's PIN number, and left to take money from her account.
[Petitioner] told Veronique to lie face down on the bed. He took rope from the apartment, tied her hands behind her back, and put a towel over her head. He then searched through the apartment, put some of her belongings in a bag. He then asked Veronique to suck his penis. She did not respond. He said, "I'm waiting. I'm waiting. Im waiting, " with an increasingly agitated and mean voice, and she said, "I would prefer not." He said, "[Y]ou are really disappointing me.'" He told her to keep her eyes closed and then grabbed her by the clothing near her neck and shoulder. She fell to the floor and he dragged her until she was able to get onto her feet and then pulled her into the living room and over to the sofa. [Petitioner] sat on the sofa, told Veronique to get on her knees, pulled down his clothes, and pulled her face toward his penis. As she orally copulated him, [Petitioner] said her performance was not that great and he told her to swallow his semen. After he ejaculated, Veronique spit out his semen and [Petitioner] said, "Careful. Do what I say." [Petitioner] took Veronique back to the bedroom, had her lie face down on the bed again, and put the towel back over her head as he continued to search her room.
He then took her back to the living room, sat down, pulled down his clothes, got Veronique on her knees, and pulled her head toward his penis. While she orally copulated him, he said, "Don't do what you did last time. This time, you better swallow my sperm, " and she did what he asked. He unbuttoned Veronique's shirt and moaned while he fondled her breasts. [Petitioner] then stood up, turned his back toward Veronique, and told her to lick his anus, which she did. He said her performance was not all that great and he said French women really did not know how to do that. He got dressed and took her back to the bedroom, putting the towel over her head again.
When Jouaneix returned, [Petitioner] gagged Veronique, tightened the rope around her hands, and tied up her feet. He told her, "I'm not worried about you. I assume you have got insurance. In any case, it's not in your best interest to lodge a complaint. And even if you file charges, I'll be out in five years. And if you do that, I will find you and-and if I am not the one who finds you, something will happen to somebody in your family." She felt terrorized. After they left, Veronique was able to get her feet free from the rope, open the front door with her teeth, and went for help.
The Defense Case
[Petitioner] testified that he arrived in San Francisco on February 10, 2006, for a one-month visit. [Petitioner] said that he went to a bar on March 2, 2006, with Ali, a Frenchman he met two or three days after arriving in San Francisco, and that he drank two small beers. [Petitioner] and his friends then went to Place Pigalle, where [Petitioner] had a glass of wine and a small beer. At Place Pigalle, [Petitioner] said that he started talking to Suzy, and "[v]ery quickly, there was great feeling between [them]." At one point, he went outside to smoke a cigarette and saw Suzy, Claudia, and a couple of their male friends. The men asked if [Petitioner] wanted to go with them to Claudia's apartment, but Claudia said "No. No." The men pulled Claudia along and waved to [Petitioner] to come along, and Suzy took Manai by the hand. "I didn't want to go, because Claudia didn't want me to. But Suzy insisted, and so in the end I went with them."
At Claudia's apartment, the others played music, put cocaine on a table, and started rolling joints of marijuana. [Petitioner] said that he tried cocaine for the first time, but did not feel any effect. [Petitioner] claimed that Suzy was dancing in a very sexy manner and turning her buttocks toward him, and that he felt uncomfortable. Suzy asked him to massage her shoulders. Later, Suzy massaged [Petitioner's] shoulders. After a while, [Petitioner] said it was late and he was going to leave. [Petitioner] gave Suzy his phone number and Rivera, Fuentes, and [Petitioner] all left together.
It was pouring rain outside, so the three men hurried toward the bar. Rivera and Fuentes asked [Petitioner] if he wanted to go in the bar with them, but he declined and said he would call a cab. After they went in the bar, [Petitioner] looked for his cell phone and could not find it. He checked for his money and hotel key and found the money but not the key, so he returned to Claudia's apartment to get his phone and key. When Suzy opened the door, he told her he left his phone and key. She invited him in, but he said it was late and he just wanted to get his things and go to the hotel. Suzy looked for the phone and key, but when she still had not found them a few minutes later she said, "Come in. Come in." [Petitioner] entered and Suzy handed him his phone from the table. [Petitioner] closed the door because of the rain and put the phone in his bag. Suzy handed [Petitioner] a towel and as she handed it to him she started kissing him. [Petitioner] said they engaged in "erotic foreplay." He claimed that Suzie then got on her knees and performed oral sex on him.
After several minutes, [Petitioner] said he saw Claudia to his right. "I had the impression that she stayed standing there for several seconds. She had no affect on her face. She was calm." Claudia approached, gently pushed Suzy to the side, grabbed [Petitioner's] penis with her left hand without looking at [Petitioner], and put the penis in her mouth. After a few seconds, she bit down on [Petitioner's] penis. There was a kind of rage on Claudia's face. She scratched down [Petitioner's] chest and tried to punch his face. [Petitioner] pushed Claudia back and she fell down. "Suzy... didn't understand what was going on. She looked at me. She looked at Claudia." Claudia got up and approached [Petitioner]. He tried to grab her by the shoulders and Suzy tried to get between them. Claudia started screaming, "You want problem? You want problem?" and she tried to punch [Petitioner] again. [Petitioner] pushed Claudia several times as she kept attacking and trying to hit him. Suzy intervened several times to try to stop Claudia. [Petitioner] testified that at one point Claudia "came up against me and I really got fed up. So with my toes, I kicked her." Claudia "fell back onto [a chair]" and Suzy held her down so [Petitioner] had a chance to get dressed. [Petitioner] took his bag and left the apartment, leaving his coat behind. In his coat was about $450 to $500, all the money he had on him that day.
[Petitioner] considered reporting Claudia to the police, and he discussed the incident the next day with friends, although he did not tell them Claudia bit his penis because he was embarrassed about that. Based on his friends' advice, he did not call the police. Later, Ali told him the police had called and wanted to speak to him. [Petitioner] called the inspector and described what happened in the apartment, and the inspector asked him to come down to see her. [Petitioner] already had a plane ticket to return to France the next day, but he went to her office. When he arrived, she read him his rights, arrested him, and asked if he wanted to explain what happened. [Petitioner] told her what happened.
As to his prior conviction for rape, [Petitioner] testified that when the incident with Veronique occurred in 1996, he had been celebrating his friend Jouaneix's graduation from university since midafternoon. They had visited at least 10 bars and three or four clubs, and he had consumed 15 to 20 drinks (cocktails and beers) and two doses of ecstasy. When they ran out of money, they decided to steal money for a cab so they could get to their car, which was on the other side of Paris. They walked the streets looking for a man to rob, and eventually noticed someone entering a building. They followed the person up the stairs and found themselves behind a woman about to open her door. [Petitioner] took out a pocket knife and held it up to her neck. He then "behaved like a gangster, " making her enter the apartment. He drank half a bottle of whiskey while in her apartment. He did not remember everything that happened in the apartment. The next morning, a police officer told him what happened and [Petitioner] started crying. "[W]hen I realized that I had conducted myself like a monster, I was in despair." In a March 1997 French judicial proceeding, [Petitioner] acknowledged that he had asked the victim to perform fellatio on him twice, asked her to swallow his sperm, asked her to lick his anus, and made comments on how she was licking his anus. [Petitioner] testified at this trial that he made those statements in 1997 based on the victim's own declarations, his codefendant's declarations, and some memories he had of the incident. "I repeated everything that the victim had said. And I assume[d] responsibility." In 1999, [Petitioner] was convicted by a French jury of rape. Although he was sentenced to eight years in prison, he served a total of four years in a detention center as part of a work program due to his young age and lack of criminal history.
Marine Vaisset testified that she met [Petitioner] through a friend one or two weeks after Manai arrived in San Francisco in February 2006. They all went out to a club and danced. Vaisset and [Petitioner] returned to her house, got in her bed, and started kissing. Then he performed oral sex on her. "I was aggressive with him. He didn't want to have sex with me." He only wanted to please Vaisset. They fell asleep and when they awoke in the morning, Manai smoked some cigarettes, talked to her friends, and left. He was never aggressive toward her and she never saw him act aggressively toward anyone else. She was with [Petitioner] and other friends at Place Pigalle in March 2006, and [Petitioner] did not seem drunk that night. When asked on cross-examination if her opinion of [Petitioner] would change if she knew he had been convicted of rape in France in 1999, she said, "I don't know."
Jeni McCoy testified that she met [Petitioner] at a bar in the Mission District. They spent the rest of the evening together and ended up spending the night at the house of McCoy's friend. McCoy and [Petitioner] slept in the same bed, but had no sexual contact and [Petitioner] did not try to force her to perform any sex act. The following day, McCoy and [Petitioner] spent the day together walking around San Francisco and discussing the nonviolent philosophy of Buddhism and she formed the opinion he was a nonviolent person. [Petitioner] never acted aggressively toward her and she never observed him act aggressively toward anyone else. McCoy later went with [Petitioner] and others at [sic] Place Pigalle and [Petitioner] did not seem drunk on that occasion. When she was asked on cross-examination if her opinion of [Petitioner] would change if she knew he had been convicted of rape in Paris in 1999, she said, "I can only tell you based on my experience with the defendant. I have no idea what his character was like 10 years ago."
Kenneth Allen Mark, a forensic toxicologist, testified for the defense as a qualified expert in the area of drug and alcohol use and their effects. He explained that, depending on a particular individual's tolerance level, a 0.10 percent blood alcohol level will often cause visible impairment such unsteadiness in walking or difficulty performing simple tasks like taking a license out of a wallet. A 0.15 percent blood alcohol level will cause about half of the population to become "grossly intoxicated, " what most people would call "drunk." "They stumble. They fumble around a lot. They are confused to a certain degree." When a person consumes both alcohol and marijuana, "[i]f the amount of marijuana that was smoked was an amount that would affect the individual, ... it makes a substantial increase in the effect of alcohol." Cocaine is a stimulant and can cause an increase in aggressiveness and libido or sexual drive. A person who drank alcohol, smoked marijuana, and then used cocaine (assuming significant quantities of each) would have impaired perception and judgment, increased aggressiveness, and possibly increased sexual drive. Ordinarily, a first time user of cocaine would be more dramatically affected than someone who had used it before.
A person five feet four inches tall and weighing 150 pounds (like Suzy) who consumed two pints of beer and three glasses of wine between 8:30 p.m. and midnight, two swigs or shots of whiskey and some cocaine between midnight and 2:00 a.m., and marijuana sometime between 8:30 p.m. and 2:00 a.m. would have a blood alcohol level of between 0.085 and 0.12 percent at 2:00 a.m., and the effects of this blood alcohol level would be enhanced by the marijuana and cocaine to cause the person's judgment to be compromised. At 4:00 a.m., the effects of the marijuana and cocaine would have worn off. If the same person consumed two pints of beer and three glasses of wine between 10:00 p.m. and midnight, two swigs or shots of whiskey and some cocaine between midnight and 2:00 a.m., and marijuana sometime between 10:00 p.m. and 2:00 a.m., she would have a blood alcohol level of between 0.12 and 0.14 percent at 2:00 a.m., and the effects of this blood alcohol level would be enhanced by the marijuana and cocaine to cause the person's judgment to be compromised. A person five feet three inches tall and weighing 110 pounds (like Claudia) who consumed one pint of beer and two glasses of wine between 8:30 p.m. and midnight, and one shot of whiskey and some marijuana and cocaine between midnight and 2:00 a.m. would have a blood alcohol level of about 0.07 percent at 2:00 a.m., and the effects of this blood alcohol level would be enhanced by the marijuana and cocaine. "You are going to have a person whose perception is affected. Their ability to recall might be affected, to a certain extent." At 4:00 a.m., the effects of the marijuana and cocaine would have worn off.
People v. Manai, No. A120316, 2010 WL 4621824, at *1-9 (Cal.Ct.App., Nov. 16, 2010) (footnotes omitted).
III. LEGAL STANDARD
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C § 2254(a). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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).
"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the reasonable application clause, ' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . Factual determinations by the state court are "presumed correct absent clear and convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322');"> 537 U.S. 322, 340 (2003). A writ of habeas corpus that challenges a state court's factual determination must be denied unless the petitioner can demonstrate that the state court's finding was "objectively unreasonable in light of the evidence presented in the state-court proceeding." See id.
"AEDPA's standard is intentionally difficult to meet.'" Woods v. Donald, No. 14-618, 2015 U.S. LEXIS 2123, at *5 (2015) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)). "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's rejection of the claim was "objectively unreasonable" in clearly established federal law. Harrington v. Richter, 562 U.S. 86, 99-100 (2011); Williams, 529 U.S. at 409. "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, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings must be "reasonably" applied. Clark, 331 F.3d at 1069. "It is settled that a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.'" Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013) (per curiam) (quoting Harrington, 562 U.S. at 101).
Finally, a federal court must consider whether any constitutional error at trial "had substantial and injurious effect or influence in determining the jury's verdict, " because petitioners "are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual ...