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Elias v. Kernan

United States District Court, S.D. California

March 29, 2017

EDWARD JESUS ELIAS, Petitioner,
v.
SCOTT KERNAN, Secretary, Respondent.

          REPORT AND RECOMMENDATION RE DENIAL OF PETITION FOR A WRIT OF HABEAS CORPUS

          KAREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE

         Petitioner Edward Jesus Elias is a state prisoner proceeding pro se and in forma pauperis with a First Amended Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 4.) He challenges his San Diego Superior Court convictions for two counts of first degree murder with special circumstances, for which he was sentenced to two consecutive terms of life imprisonment without the possibility of parole, later reduced to two consecutive terms of 25 years-to-life plus one year because he was 17 years old at the time of the crimes. (First Amended Petition [“FAP”] at 1-2.) He claims his federal constitutional rights were violated because insufficient evidence supports the guilty verdicts and the special circumstance findings (Claims 1-2), by prosecutorial misconduct (Claim 3), and instructional error (Claim 4). (Id. at 6-9, 15-30.)

         Respondent has filed an Answer and lodged portions of the state court record. (ECF Nos. 12-13.) Respondent argues habeas relief is unavailable because the state court adjudication of Petitioner's claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law within the meaning of 28 U.S.C. § 2254(d), and because any errors with respect to Claims 3 and 4 are harmless. (Memorandum of Points and Authorities in Support of Answer [“Ans. Mem.”] at 9-28.)

         After the Answer was filed, Petitioner filed a motion for leave to amend the First Amended Petition for the stated purpose of responding to the argument in the Answer that he had not satisfied the provisions of 28 U.S.C. § 2254(d). (ECF No. 16.) The Court construed that filing as a Memorandum of Points and Authorities in Support of the First Amended Petition. (ECF No. 17.) Petitioner has also filed a Traverse. (ECF No. 25.)

         For the following reasons, the Court finds that federal habeas relief is unavailable because Petitioner has not satisfied the provisions of 28 U.S.C. § 2254(d), as he has failed to show that the state court adjudication of any claim is contrary to, or involves an unreasonable application of, clearly established federal law, or that it is based on an unreasonable determination of the facts. In addition, even if Petitioner could satisfy those standards with respect to Claims 3 and 4, it is clear that any errors as to those claims are harmless. The Court therefore recommends the Petition be denied.

         I. PROCEDURAL BACKGROUND

         A two-count Second Amended Information filed in the San Diego County Superior Court on March 8, 2012, charged Petitioner and his codefendant Leopoldo Chavez with two counts of first degree murder in violation of Penal Code section 187(a), and alleged they were armed with a firearm within the meaning of Penal Code section 12022(a)(1). (Lodgment No. 1, Clerk's Tr. [“CT”] at 16-19.) Two special circumstance allegations charged that the murders were committed during the commission of a robbery within the meaning of Penal Code section 190.2(a)(17), and that the defendants committed more than one murder within the meaning of Penal Code section 190.2(a)(3). (Id.)

         On March 26, 2012, following a joint trial, a jury found Petitioner and Chavez guilty on both counts, and returned true findings on the firearm use and special circumstance allegations. (CT 420-24, 474-78.) On June 21, 2012, both defendants were sentenced to two consecutive terms of life without the possibility of parole plus one year. (CT 431, 485; RT 915-17.)

         Petitioner and his codefendant filed a consolidated appeal, raising, inter alia, the claims raised here. (Lodgment Nos. 3-4.) The appellate court affirmed the convictions but remanded for resentencing on the basis that both defendants were 17 years old at the time of their offenses and intervening law had modified the factors to be considered before sentencing juvenile offenders to life without parole. (Lodgment No. 5, People v. Chavez, et al No. D061946 (Cal. Sup.Ct. July 22, 2014).) Petitioner thereafter filed a petition for review in the California Supreme Court presenting the claims raised here. (Lodgment No. 6.) On October 29, 2014, the petition for review was summarily denied without a statement of reasoning or citation of authority. (Lodgment No. 7.) Petitioner was later resentenced to two consecutive terms of 25 years-to-life plus one year. (FAP at 1.)

         II. TRIAL PROCEEDINGS

         Because Petitioner is challenging the sufficiency of the evidence, the Court will review the trial testimony in detail. First, it is useful to set forth a brief summary of the evidence as provided by the state appellate court:

[T]he 20- and 23-year-old victims were sailors enlisted in the United States Navy, one of whom was driving a brand new Toyota pickup truck. The victims were murdered at a location where young adults, including other Navy personnel and their friends, frequently gathered to drink, listen to music and socialize around a number of bonfires. Multiple witnesses recalled that Chavez, who was 17 at the time of the killings, was at the scene of the bonfires shortly before the murders took place. The witnesses also uniformly recalled that Chavez was in the company of at least one other teenager or young adult and that Chavez and his companion were acting in a very aggressive and threatening manner toward other Navy personnel and their friends present at the bonfires. Four days after the murders, Chavez was stopped in Tijuana, Mexico while driving the 20-year-old victim's new Toyota pickup truck. Importantly, some years after the murders, investigators were able to match DNA retrieved from the pants pocket of the 20-year-old victim with Chavez's DNA.
The witnesses' identification of Chavez as being present at the bonfires shortly before the murders, his possession of the truck following the murders, and his DNA in the pants pocket of one of the victims, make a strong case Chavez participated in the truck robbery and the killings.
With respect to Elias, who was also 17 at the time of the murders, the record is sufficient to sustain his conviction and the special circumstances findings. Within just a few hours after the killings, investigators found a cigarette butt at the scene of the murders among items that had been taken out of the Toyota truck. Later, investigators were able to match DNA on the cigarette butt with Elias's DNA. Elias's DNA was also found on a cup recovered from inside the victim's truck when it was stopped in Tijuana after the murders. In addition to the DNA on the cup, Elias's fingerprints were found both inside and outside of the truck.
The cigarette butt Elias left at the scene of the murders, with ash still attached, very near items discarded from the truck and recovered very shortly after the murders, places Elias at that location at or near the time of the murders. Elias's DNA, found in the cup retrieved from the truck, and his fingerprints, found both inside and outside of the truck, place Elias in the truck with Chavez shortly after the time it was stolen and near the time of the killings. These circumstances support the conclusion Elias was Chavez's companion at the bonfires and an active participant in the robbery and killings.

People v. Chavez. 228 Cal.App.4th 18, 21, 175 Cal.Rptr.3d 334, 336 (2014).

         Rita Ellis testified that her son Cliff Ellis enlisted in the Navy and was stationed in San Diego in the summer of 1993. (Lodgment No. 2, Reporter's Tr. [“RT”] at 89-90.) She said Cliff always dressed nicely, including tucking in his shirt with a nice belt, and always carried a wallet, but his wallet, military identification card and the telephone calling card he used on a regular basis to call home were missing from his personal effects when they were returned to her after he was murdered. (RT91-93.) Cliff Ellis' father Charles testified that he co-signed a loan for Cliff to buy a new, white 1993 Toyota pickup truck when Cliff was stationed in San Diego. (RT 94-95.) Cliff was murdered less than two months later, and when the pickup truck was recovered in Tijuana and returned to Charles, it had less than one thousand miles on the odometer. (RT 95-96.)

         Willis Pope testified that he grew up in Mississippi with his friend Cliff Ellis. (RT 104-05.) They both joined the Navy and were stationed in San Diego in 1993, where they hung out together nearly every day. (RT 105-06.) Pope said Ellis was very proud of the new pickup truck he had purchased about two months before he was murdered, and that he kept it immaculately clean both inside and out. (RT 107-08.) Ellis always dressed well and had a laid-back, non-aggressive personality. (RT 108.)

         Pope testified that on September 24, 1993, Ellis came to Pope's barracks about 5:00 p.m., accompanied by Ellis's friend Keith Combs, and they were joined by Pope's friend Sean Milligan. (RT 108-09.) After dinner Ellis drove the four of them in his truck to an area in Imperial Beach near Palm Avenue and the 805 freeway. (RT 110.) Although that area was developed at the time of trial in 2012, Pope testified that in 1993 it was a rugged, undeveloped area used by off-road vehicles. (RT 110-11.) They hung out drinking around a bonfire, a typical activity for them growing up in Mississippi, and one of them had a camera and took pictures. (RT 111-14.) The four of them returned to the base about midnight, requiring them to show their military identification to get on base, and went to the barracks. (RT 115-16.) Pope left to make a 30 minute phone call home, and when he returned Ellis and Combs were gone and he never saw either of them again. (RT 118.) Pope testified that he had assumed they went back to their ship because he thought Combs had duty in the morning, but acknowledged that he had told an investigator in 1993 that Ellis wanted to go back to the bonfire area and keep partying and Pope declined because he had duty the next morning. (RT 118, 127.)

         Sean Milligan testified that he was friends with Pope when they were both in the Navy and stationed in San Diego in 1993, and that he met Cliff Ellis through Pope. (RT 130.) Milligan and Pope frequented a country and western bar on the 32nd Street Navy base called Anchors and Spurs, and Ellis accompanied them there once or twice. (RT 131.) On September 24, 1993, Milligan went to Pope's barracks and met Ellis and Combs there. (RT 132.) After the four of them ate pizza in the barracks, they grabbed some beer and Ellis drove them in his new pickup truck to an off-road area where they started a bonfire and hung out. (RT 133-34.) They all returned to the base together, which required showing their military identification, and he never saw Ellis or Combs again. (RT 137-38.)

         Stephen Forde testified that he was in the Navy in 1993, that he hung out at the Anchors and Spurs bar, and on three occasions had attended bonfires near Palm Avenue after the bar closed. (RT 160.) He attended a bonfire on September 24, 1993, arriving between midnight and 1:00 a.m., with a number of other young military people. (RT 160-64.) Forde said he parked his truck next to Cliff Ellis' truck, that there were twenty or more people around their bonfire, and that there were two or three other bonfires nearby. (RT 165-67.) Forde saw two young men in the area who concerned him because he thought were “kind of smart asses.” (RT 171-73, 176.) Although he did not remember at trial, he told an investigator in 1993 that those men were Mexican, and that their mannerisms caused him to move away from them to the other side of the bonfire. (RT 174.) Less than an hour after that incident, between 4:00 and 5:00 a.m., before sunrise, Forde left the area while Ellis' truck was still there. (RT 174-75, 189.) On February 9, 1994, Forde picked out a photograph of codefendant Chavez from a photographic lineup as resembling one of the two young Mexican men he saw that night. (RT 177-80, 399.)

         Justin Duvall testified that he was in the Navy in 1993, was stationed in San Diego, and went to the Anchors and Spurs bar nearly every weekend. (RT 194-95.) He had often heard of people going to the Palm Avenue area after the bar closed to hang out and drink beer around bonfires, and went for the first time during the early morning hours of September 25, 1993. (RT 195-96.) He had not been drinking at all that night, parked his - car at the end of Palm Avenue about 3:00 a.m., and walked to a bonfire. (RT 196-97, 200-01.) There were about fifty people around the bonfire, made up mostly of the Anchors and Spurs crowd, that is, short haired, clean-cut young Navy people dressed in an off-duty, country and western style. (RT 199.)

         Duvall testified that about 5:00 a.m., just as the sun was coming up and most of the people were leaving, three Hispanic males, about 17 or 18 years old, wearing baggy clothes, approached the group, and two of them asked for beer. (RT 201-02.) Duvall's ' group was playing country and western music, and the two young males said: “Fuck you, : White cowboy, ” and: “You fucking cowboys, we don't like your music.” (RT 202, 212.) Duvall testified they looked like gang members, and that one had his right hand behind his back “like he had a gun, ” although the trial judge instructed the jury to disregard those remarks.[1] (RT 202-03.) Duvall said that when his group did not give them beer they went to another bonfire, but he felt uncomfortable and decided to leave. (Id.) He told an investigator in December 1993 that those three young males had arrived in a light blue Ford Courier with a camper shell. (RT 204-05.) The investigator showed Duvall a photographic lineup, from which he identified codefendant Chavez as one of the three young Hispanic males who had approached him in an aggressive manner. (RT 209-10, 399.)

         Kristeen Kowalow testified that she and her roommate Pam Rios were at the Anchors and Spurs bar on the evening of September 24, 1993, and went to a bonfire near the 805 freeway and Palm Avenue after closing, as she had several times before. (RT 243-45.) She parked her car at the end of Palm Avenue and rode in with someone driving a truck. (RT 245.) There were about fifty people and ten vehicles around their fire, including a newer white pickup truck. (RT 245-48.) When interviewed by an investigator a couple of months later, she identified Cliff Ellis and his white pickup truck as being there that night, and said that Ellis' pickup truck was still there after most people left. (RT 249.)

         Kowalow said that at one point a small pickup truck with a camper shell and three 19 or 20-year old Hispanic men drove up, parked near the fire, and two of them sat on the back of their truck. (RT 250-51.) Kowalow spoke to them briefly but immediately felt uncomfortable and decided to leave because the two men did not fit in with the rest of the people around the fire. (RT 251-52.) She said that although the Anchors and Spurs group contained White, Black and Hispanic individuals, they were all short-haired, clean shaven military people in their twenties, whereas the two Hispanic males were teenagers dressed in baggy clothes with a “different demeanor.” (RT 254-56.) She had previously described them as “gang bangers, ” but the trial judge ruled that description inadmissible. (RT 253.) When she and her friends left around 5:00 a.m., the only people around the fire were two white male sailors and the two young Hispanic males, and the only vehicles were the pickup truck similar to Cliff Ellis' and the Hispanic males' pickup truck with the camper shell. (RT 255-56, 266.) Kowalow could not say for sure if Ellis was there that night, but she later picked codefendant Chavez from a photographic lineup, although she said she was not sure where she recognized him from. (RT 256, 266, 399.)

         Mary Macy testified that she and her friend Susan Stuhr were regulars at the Anchors and Spurs bar in 1993, and were part of a group of people from the bar who often went to bonfires in the area of the 805 freeway and Palm Avenue after closing, including September 25, 1993. (RT 285-86.) On that occasion she drove her Chevy Blazer there with Stuhr and two Navy men, and backed her vehicle up to the bonfire. (RT 286.) Just as they arrived a brand new pickup truck parked next to her with two Navy men who she thought were from Anchors and Spurs. (RT 289.) She remembered the truck because it was the type she wanted to buy, and identified it from a photograph as Cliff Ellis' truck. (RT 289, 298.) The truck later moved about thirty yards away, but was still by the bonfire. (RT 291.)

         At some point Macy noticed that the music had stopped and most of the other vehicles had left, which gave her a bad feeling. (RT 292-93.) Just before 5:00 a.m., while it was still dark, as she was getting into her truck to leave, a small pickup truck with a camper shell pulled up alongside her, and two young Hispanic males spoke to her, but she ignored them and waived them off because she did not want to speak to them. (RT 293-97, 306.) The only other vehicle there was Ellis' truck, and she decided to drive by it before leaving to make sure the men were not passed out or asleep inside, but nobody was inside the truck or around it, so she left. (RT 298.)

         Barbara Behmke testified that in 1993 she was a regular member of the group of people who attended bonfires near Palm Avenue after the Anchors and Spurs bar closed. (RT 312.) She went to the bar on the evening of September 24, 1993, and drove her Chevy Blazer to the bonfire afterwards with her roommate and two friends. (RT 313-15.) She knew Cliff Ellis and Keith Combs from the Anchors and Spurs bar, and saw them out at the bonfire that night in Ellis' white pickup truck. (RT 316.) About 4:00 a.m., her friend Sean was injured in a fight and she drove him to a hospital. (RT 317-19.) Behmke returned to the bonfire to pick up her friend and her jacket, arriving about 4:30 or 4:45 a.m. (RT 321-22.) There were still several vehicles and people at the bonfire, and she noticed four young Hispanic males who had not been there when she left. (RT 323-24.) Two of those men approached her vehicle and made her feel uncomfortable by making sexual gestures and saying things of a sexual nature, so she left after about five minutes. (RT 325-26.) Behmke said Ellis' pickup truck was still there, but she did not see Ellis or Combs. (RT 325.) In December 1993, she identified codefendant Chavez from a photographic lineup as one of the young Hispanic males. (RT 327-28, 399.)

         Scott Hultquist testified that in 1993 he regularly rode his dirt bike in the area around Palm Avenue and the 805 freeway, when it was undeveloped open space. (RT 340.) He arrived at the area around 6:00 a.m. on September 25, 1993, sat drinking coffee at the end of Palm Avenue waiting for the fog to lift, and did not hear any gunshots or see any vehicles leave the area. (RT 341-45.) Juanita Johnson testified that she and her daughter found two bodies in that area about 7:00 a.m. on September 25, 1993, and that it was very foggy at the time. (RT 140-45.)

         David Swiskowski, a retired San Diego Police Sergeant, testified that in 1993 he was assigned to the homicide team which investigated this case. (RT 349-51.) On September 25, 1993, he arrived at a dirt area near the 805 freeway and Palm Avenue and supervised the preservation and collection of evidence. (RT 351-65.) There were no wallets or identification found on the two victims, who were lying parallel to each other on their backs about sixteen feet apart, although two ball caps were lying by their bodies with their names written inside. (RT 368-69, 375.) Keith Combs had a gunshot wound in his back with powder marks and stippling which indicated it was fired from close range, about three or four inches away. (RT 369-71.) Combs also had two gunshot wounds to his head, one behind his ear and one on the top of his head, and a camera lying at his feet. (RT 371.) Cliff Ellis was shot once in the chest and twice in the head, had his shirt untucked and his belt buckle undone with dirt and vegetation stuck to his face and body, and looked as if someone had stepped on his body. (RT 372-74.)

         Six .22 caliber shell casings were recovered at the scene, one from underneath Combs' body, which in Swiskowski's opinion suggested he fell on the casing after he was shot. (RT 375-82.) The parties stipulated that all six .22 caliber shell casings were fired from the same gun. (RT 427.) A white box recovered near Ellis' body appeared to have come from his truck, and contained car wax, a scrub brush, a college pamphlet, a map, and a can of Armor-All cleaner. (RT 383-84.) A cigarette butt with the ash still attached was collected from between the two bodies. (RT 384-88.) Another cigarette butt with an ash attached was collected from closer to Ellis' body. (RT 388-90.) The fact that ash was still attached to the cigarette butts and they were lying in an area with many footprints and tire tracks indicated in Swiskowski's opinion they had been dropped recently. (RT 390-91.)

         On September 29, 1993, Swiskowski was notified that Ellis' pickup truck was in custody in Tijuana, along with Chavez who was stopped while driving it, and he went there with an evidence technician where they fingerprinted and collected evidence from the vehicle. (RT 395-97.) The keys were with the truck, and neither the ignition nor the door locks had been tampered with. (RT419.)

         Dr. Leena Jariwala testified that she was a deputy medical examiner for the County of San Diegoin 1993. (RT495.) She examined the bodies of Cliff Ellis and Keith Combs where they were found, and opined they had been killed between 1:30 a.m. and 5:20 a.m. (RT 504-06.) Dr. Jariwala later performed autopsies on the bodies. (RT 509.) The two bullet wounds in Combs' head were from a gun fired a few feet away, whereas the bullet wound to his back was from a gun fired very near the body; any of the three wounds could have been fatal, and blood in Combs' lungs indicated that he took at least a few breaths after all three shots and might have lived for a few minutes. (RT 509-24.) Combs had a blood alcohol level of 0.03 percent and no defensive wounds. (RT 525.) There were two bullet wounds to Ellis' head, one of which was caused with the gun almost touching the skin, and one to his chest with an exit wound in his back; all three wounds could have been fatal and any of them would have caused him to fall to the ground; Dr. Jariwala was unable to say in what order the wounds to either victim occurred, although Ellis was alive when he was shot in the head. (RT 526-40.) Ellis had a blood alcohol content of 0.03 percent, and abrasions and bruises on his face and leg, a scratch below his eye and around his neck, and an abrasion on the back of his head. (RT 540.)

         Dr. Glenn Wagner, the Chief Medical Examiner for San Diego County, testified that based on the trajectory of the bullets in Keith Combs' body, either the shooter, the weapon or Combs was moving at the time the shots were fired, and it did not appear that Combs was wearing his hat when he was shot in the head. (RT 551, 553.) He said Cliff Ellis would have been capable of movement after being shot in the chest and temple, but not after being shot in the back of the head. (RT 555.)

         Robert Michael Callison testified that he worked as an evidence technician for the San Diego Police Department homicide squad in 1993, collected the items of evidence identified by Swiskowski, and said the brand of the cigarette butts collected at the scene was Marlboro. (RT 421-34.) Lisa Combs testified that her husband Keith Combs smoked Marlboro cigarettes. (RT 100.) Gary Dorsett testified that he was employed as an evidence technician with the San Diego Police Department in 1993, and that he collected forty-six latent fingerprints from Ellis' truck, and five fingerprints from items in the truck, including a red cup and a plastic bottle. (RT 472-80.) There were stains on the floorboard of the truck and a clutter of trash inside, which included an ace bandage. (RT 478-81.)

         Gloria Pasqual, a latent fingerprint examiner with the San Diego Police Department, testified that she found Cliff Ellis' fingerprints on the college pamphlet recovered from the white box which came from Ellis' truck. (RT 564.) Pasqual found Petitioner's fingerprints on the rear view mirror, interior rear sliding window, interior passenger side window, front hood, and exterior passenger door of Ellis' truck, as well as on the plastic bottle found in the truck. (RT 565-72.) She found Chavez' fingerprints on the front passenger fender, interior rear sliding window, exterior driver's side door wing window, driver's door mirror, exterior driver's door handle, front hood, and driver's side door jamb, (Id.)

         Shawn Montpetit, a DNA technical manager with the forensic biology unit of the San Diego Police Department crime lab, testified that Combs and codefendant Chavez were major contributors to DNA found on the inside of the pockets of the pants Combs was wearing when his body was found. (RT 585-93.) Petitioner's DNA was found on the cigarette butt recovered between the two bodies near the white box, and Combs' DNA was found on the cigarette butt found closer to his body. (RT 389, 594-95, 602.) Chavez' DNA was found on the bandage found in Ellis' pickup truck, and DNA from Petitioner and Chavez were found on the red cup recovered from the truck. (RT 603-04.) Montpetit said that because the evidence sat at room temperature at police headquarters for fifteen to sixteen years, the DNA may have degraded and decreased the chances of more useful results. (RT 586-87.) The People rested. (RT611.)

         The defense moved for a directed verdict, arguing that because the jury was to be instructed that if there are two equally reasonable inferences to be drawn from the evidence, one of innocence and one of guilt, they must draw the inference of innocence, the only possible verdict would be not guilty because the circumstantial evidence in the case could lead only to an inference of innocence. (RT 668.) The trial judge denied the motion on the basis that the evidence provided a very powerful inference that Petitioner and Chavez had killed and robbed the victims, and a weak inference that they just happened to be in the area around the time someone else committed the crimes. (RT 669-70.)

         Lisa Dimeo, a forensic specialist, testified for the defense that she had examined the autopsy reports and photographs of the crime scene. (RT 677.) She opined that because the pool of Ellis' blood was not next to his head and there was debris on his clothing, he fell forward and laid on his stomach for minutes or hours before being rolled onto his back. (RT 679-83.) The defenses rested and there was no rebuttal evidence. (RT 711-12.)

         The jury was instructed. (RT 719-48.) Petitioner contends in Claim 4 here that the burden of proof was diluted by the instruction, which the People admitted on appeal was error under state law to give: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of murder based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed murder. The supporting evidence need only be slight and need not be enough by itself to prove guilt.” (RT 731.)

         Petitioner's defense counsel argued to the jury in closing that the circumstantial evidence compelled an inference which points to innocence because there was no gunshot residue found in the truck or in Combs' pants pockets where Chavez' DNA was found, which would have been expected if either of the defendants had shot the victims and stolen the truck, and that the evidence merely showed, at most, that Petitioner was at the scene near the time of the murders and had been in the Ellis' truck within four days of the murders. (RT 803-13.) Defense counsel also argued that the opinion of the defense expert that Ellis' body had been rolled over minutes or hours after he died allowed for an inference that Chavez came along after the murders, rolled Ellis over, took his keys and stole his truck, which, as with the evidence that Petitioner was merely at the scene at some point, was insufficient to support the murder charges. (RT 814-21.)

         The prosecutor argued in closing that Petitioner and Chavez were guilty of aiding and abetting premeditated murder, or aiding and abetting a robbery, that resulted in the death of the victims, because they waited until Ellis and Combs were the only ones left at the bonfire, going so far as to scare their friends off, including making unwanted sexual overtures to Mary Macy to chase her away when she returned after everyone else was gone, and because it must have taken at least two teenagers working together to kill two young strong sailors in a manner necessitating a struggle which left the usually well-dressed Ellis disheveled and covered in dirt and vegetation. (RT 753-81.) The prosecutor argued that the defendants eventually shot the victims execution-style, took the their wallets and Ellis' keys, left their DNA at the scene, and then stole the truck and were in continuous possession of it for several days as shown by their DNA and fingerprints in the truck and leaving the always immaculate truck filthy. (Id.) As relevant to Claim 3 here, the prosecutor argued that: (1) the victims were serving their country (RT 752, 756), which Petitioner argues was an appeal to the sympathy of the jury; (2) that: “The witnesses are dead. But just as my heart is beating in my chest, those two men stopped the heartbeats of Keith and Cliff (RT 767), which Petitioner contends was an expression of a personal opinion of guilt; and (3) said: “And I have to comment on the [defense] expert. How can I not? You can hire somebody and have them come in here and say anything” (RT 831), which Petitioner argues improperly disparaged the defense expert. Petitioner also claims the prosecutor argued facts not in evidence when she urged the jurors to speculate that the defendants had a preconceived “plan” to rob the victims because they arrived at the scene “with a loaded gun, ” that four young Hispanic males “surrounded” the victims, that Combs was shot first and Ellis then tried to escape, that Ellis “fought for his life, ” and that the crimes required multiple perpetrators. (RT 757-78, 827, 830.)

         After deliberating about two days, during which the testimony of Mary Macy and Barbara Behmkhe were read back, the jury found Petitioner and Chavez guilty of two counts of first degree murder, and found they were armed with a firearm during the commission of the murders. (CT 413-24, 474-78.) The jury also found true the two special circumstance allegations that the murders were committed during the commission or attempted commission of robbery, and that both defendants had been convicted of more than one count of first degree murder. (Id.) The defendants were each sentenced to two consecutive terms of life without the possibility of parole plus one year, later reduced to two consecutive terms of 25 years-to-life plus one year. (CT 427, 485.)

         III. DISCUSSION

         Petitioner claims his federal constitutional rights were violated because the evidence is insufficient to prove he was guilty of murder (Claim 1) and insufficient to support the special circumstance findings (Claim 2), because the prosecutor committed misconduct in closing argument by appealing to the sympathy of the jury, expressing a personal belief in guilt, arguing facts not in evidence, and denigrating the defense expert (Claim 3), and because the court erred in instructing the jury that Petitioner could be found guilty of murder based on his possession of stolen property plus other slight evidence of guilt (Claim 4). (FAPat6-9, 15-30.) Respondent answers that habeas relief is unavailable because the adjudication of the claims by the state court is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and any errors with respect to Claim 3 and 4 are harmless. (Ans. Mem. at 16-35.)

         Petitioner replies that because the evidence presented at his trial does not establish the elements of murder, aiding and abetting murder, or the special circumstances, the state court adjudication of Claims 1 and 2, on the basis that sufficient evidence supports the jury verdicts, is contrary to, or involves an unreasonable application of, clearly established federal law which requires that every element of a criminal offense, as those elements are defined under state law, must be established beyond a reasonable doubt. (Memorandum of Points and Authorities in Support of First Amended Petition [“FAP Mem.”] at 26-39; Traverse at 6-12.) He also argues that the determination by the state court that there was no prosecutorial misconduct and that the instructional error was harmless, is unreasonable, and that those errors are not harmless. (FAP Mem. at 39-43; Traverse at 12-17.)

         A. Stand ...


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