TIMOTHY J. BOMMER, Magistrate Judge.
Petitioner, Steven Allen Jones, is a state prisoner proceeding with a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of life in prison without the possibility of parole plus 75 years to life in prison after a jury convicted him of first degree murder, attempted murder, robbery, and several related enhancements. Petitioner raises five claims in this federal habeas petition; specifically: (1) his convictions violate due process as they are based on the uncorroborated testimony of an accomplice ("Claim I"); (2) trying Petitioner as the gunman where the state had previously alleged in a separate trial that a different accomplice was the gunman violated due process ("Claim II"); (3) the trial court's admission of evidence of past crimes violated due process ("Claim III"); (4) the trial court violated due process when it instructed the jury that it could find that petitioner fled from the crime and could infer consciousness of guilt from that finding, where the only evidence of flight was the uncorroborated testimony of an accomplice ("Claim IV"); and, (5) his trial counsel was ineffective for failing to object on Confrontation Clause grounds to the introduction of the statements of an accomplice who was tried at a separate trial ("Claim V"). For the reasons stated herein, the federal habeas petition should be denied.
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings 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 state court. See 28 U.S.C. 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "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." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).
In Claim I, Petitioner asserts that his conviction must be overturned because his conviction rests on the testimony of his accomplice, Leon Flanagan, and such testimony was not corroborated as required by California law.
Under California law, a "conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense." Cal. Penal Code § 1111. "An accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." Id.; People v. Verlinde, 100 Cal.App.4th 1146, 1158, 123 Cal.Rptr.2d 322 (2002).
Penal Code section 1111 "is a state law requirement that a conviction be based on more than uncorroborated accomplice testimony . . . . As a state statutory rule, and to the extent that the uncorroborated testimony is not `incredible or insubstantial on its face,' the rule is not required by the Constitution or federal law."
Nevertheless, "[a] State violates a criminal defendant's due process right to fundamental fairness if it arbitrarily deprives the defendant of a state law entitlement." Laboa, 224 F.3d at 979 (citing Hicks v. Oklahoma, 447 U.S. 343, 346 (1980)); Estelle v. McGuire, 502 U.S. 62, 72-73 (1991). In Laboa v. Calderon, the Ninth Circuit determined that a violation of Penal Code section 1111 amounted to the arbitrary deprivation of a state law entitlement in violation of Hicks v. Oklahoma, but ultimately concluded the accomplice's testimony was sufficiently corroborated. Laboa, 224 F.3d at 979. Since Laboa, courts within the Ninth Circuit have treated section 1111 as a state law entitlement creating a liberty interest. See, e.g., Jenkins v. Hedgpeth, 2010 WL 4449058 at *6 (C.D. Cal. 2010); Chagolla v. Gonzalez, 2011 WL 1344565 at *10 (C.D. Cal 2011); Tran v. Horel, 2008 WL 4414296 at *10 (N.D. Cal. 2008).
The Supreme Court of the United States has never held that a statute mandating the corroboration of accomplice testimony creates a liberty interest under the Due Process Clause. Recently, in Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per curiam), the Supreme Court had the opportunity to address the scope of federal habeas review when a state-created liberty interest is at issue. In that case, Cooke, a California state prisoner, was challenging the State's determination that he was ineligible for parole by means of a federal petition for habeas corpus. In California, a prisoner who is eligible for parole is entitled to be released unless "`some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." In re Lawrence, 44 Cal.4th 1181, 1191, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008); see also In re Shaputis, 44 Cal.4th 1241, 1253-54, 82 Cal.Rptr.3d 213, 190 P.3d 573 (2008); In re Rosenkrantz, 29 Cal.4th 616, 625-26, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002). Cooke filed a federal habeas petition alleging that California's parole statute created a liberty interest protected by the Due Process Clause and that the "some evidence" requirement was a component of that federally protected liberty interest. Cooke, 131 S.Ct. at 860. The Ninth Circuit agreed and concluded that the finding of some evidence in Cooke's case was an unreasonable determination of the facts in light of the evidence. Id. at 860-61 (citing Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010)).
The Supreme Court reversed the Ninth Circuit's judgment, concluding that if Cooke did, in fact, have a liberty interest in parole—a determination not reviewed by the Court—federal review was limited to whether Cooke received fair procedures for vindicating that right. Id. at 861-62 ("When . . . a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication—and federal courts will review the application of those constitutionally required procedures."). Thus, the only constitutional question presented when a petitioner asserts a State created liberty interest is one of procedure. It was not for a federal court to determine whether the "some evidence" standard was correctly applied by the State courts. Id. at 862; see also id. at 863 ("Because the only federal right at issue is procedural, the relevant inquiry is what process [was] received, not whether the state court decided the case correctly."); Carey v. Piphus, 435 U.S. 247, 259 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property").
In Petitioner's case, the trial court instructed the jury that Petitioner and Flanagan were accomplices as a matter of law and that Flanagan's testimony was subject to the rule requiring corroboration. Clerk's Tr. at 465. Petitioner does not allege that the state courts did not follow California law by failing to require corroboration, but rather challenges as erroneous the finding of corroboration under the facts of his case. Under Cooke, federal habeas review is limited to whether Petitioner was afforded an adequate opportunity to vindicate his liberty right. Petitioner received the quintessential, and most rigorous, form of procedural due process—a criminal trial before a jury of his peers subject to appellate review. See, e.g., Santosky v. Kramer, 455 U.S. 745, 754-55 (1982); Addington v. Texas, 441 U.S. 318, 423-27 (1979) (discussing varying standard of proof requirements depending on the interest at stake and concluding that the reasonable doubt standard is to be used when the risk to society of error is at its highest); I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038-44 (1984) (setting a criminal trial as the high water mark for procedural due process claims). The jury was instructed that they could not "find a defendant guilty based upon the testimony of an accomplice unless the testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense." Clerk's Tr. at 461. They were further instructed as to what must be shown to corroborate such testimony under California law. Id. at 462; see CALJIC 3.12. The jury concluded that Flanagan's testimony had been amply corroborated, and that determination was upheld by the California Court of Appeal.
Petitioner makes several arguments why Cooke does not foreclose relief on this claim.
Second, Petitioner argues that this court lacks the authority to "overrule" the Ninth Circuit's opinion in Laboa. However, when a decision of the Supreme Court is "clearly irreconcilable" with the decision of an intermediate appellate court, a district court is bound to follow the Supreme Court's reasoning and reject the reasoning of the Court of Appeals. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (when an intervening decision by the Supreme Court is clearly irreconcilable with a circuit authority "district courts should consider themselves bound by the intervening higher authority and reject the prior opinion."); United States v. Lindsey, 634 F.3d 531, 548 (9th Cir. 2011). Cooke states that a federal court should not inquire into the underlying merits of a state courts determination regarding a state-created liberty interest and that the only inquiry for a federal court is whether the state provided adequate procedures to protect the interest. To the extent the Laboa court's opinion reaches the substantive issue of whether the accomplice's testimony was actually corroborated, it is clearly irreconcilable with the Cooke decision. See Miller, 335 F.3d at 899-900;. Lindsey, 634 F.3d at 548. This court still remains bound by the Ninth Circuit's determination that California Penal Code section 1111 creates a state liberty interest.
Petitioner received adequate procedures to protect his state-created liberty interest that accomplice testimony be corroborated. He is not entitled to relief on this claim.
In Claim II, Petitioner alleges that his conviction was the result of the prosecution's use of inconsistent theories at two different trials stemming from the underlying robbery, murder, and attempted murder. Prior to Petitioner's trial, James Gordon, one of Petitioner's accomplices, was tried for the murder of John Jarvis. In that trial, the prosecution attempted to prove that it was Gordon who shot Jarvis and Gonzales. The state introduced testimony from a jailhouse informant that Gordon had admitted to the shooting. Clerk's Tr. at 125, 132-33. At the conclusion of Gordon's trial however, the jury returned a guilty verdict as to the murder charge, but did not find true the enhancement that he personally discharged a firearm. Rep.'s Tr. at 640, 2358. The jury thus concluded that while Gordon was involved in the crime, he was not the man who shot the victims. Petitioner, who was tried along with his co-defendant David Jones, was tried next. In the interim, Flanagan had accepted a plea in exchange for his testimony against the remaining defendants. The prosecution, through Flanagan's testimony, sought to prove that Petitioner was the man who pulled the trigger. The jury agreed, concluding that Petitioner had personally and intentionally discharged a firearm proximately causing great bodily injury or death to Jarvis and Gonzalez.
In support of Petitioner's theory, he cites to cases from the California Supreme Court, the Ninth Circuit, and the Eighth Circuit. Under the circumstances of this case, however, the writ of habeas corpus can only be granted where the state court unreasonably applied clearly established federal law, "as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). "Clearly established federal law `as determined by the Supreme Court, refers to the holdings, as opposed to the dicta of [the Supreme Court's] decisions as of the time of the relevant state-court decision.'" Earp v. Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005) (quoting Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004)). Petitioner cites to no authority from the Supreme Court where the Court has held that inconsistent theories of prosecution in separate trials violates the federal charter. Indeed, the Court "has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories." Bradshaw v. Stumpf, 545 U.S. 175, 190 (2005) (Thomas, J., concurring).
In Stumpf, the petitioner argued that his death sentence should be reversed because the State later argued that it was his accomplice, not the petitioner, who had fired the fatal shots. The facts of Stumpf are not significantly distinguishable from the present case:
Id. at 188 (Souter, J., concurring) (citations omitted). For various procedural reasons, a unanimous Court determined that it was premature to resolve the merits of Stumpf's inconsistent theory claim. Id. at 187. The Court, therefore, "express[ed] no opinion on whether the prosecutor's actions amounted to a due process violation." Id.
On remand, the Sixth Circuit determined that the use of inconsistent theories violated due process. Stumpf v. Houk, ___ F.3d ___, 2011 WL 3506101, at *9 (6th Cir. August 11, 2011). In doing so, the Sixth Circuit concurred with the judgment of several courts on which Petitioner relies, including: the California Supreme Court's decision in In re Sakarias, 35 Cal.4th 140, 25 Cal.Rptr.3d 265, 106 P.3d 931, 944 (2005) (The "use of irreconcilable theories of . . . culpability, unjustified by a good faith justification for the inconsistency, is fundamentally unfair, for it necessarily creates the potential for—and, where prejudicial, actually achieves—. . . increased punishment on a false factual basis for one of the accuseds."); the Eight Circuit's opinion in Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000); and, the Ninth Circuit's opinion in Thompson v. Calderon, 120 F.3d 1045, 1059 (9th Cir. 1997) (en banc), vacated on other grounds, 523 U.S. 538 (1998). Stumpf, 2011 WL 3506101, at *7.
Unlike Petitioner's case, however, Stumpf's federal habeas petition was governed by pre-AEDPA principles, Stumpf, 545 U.S. at 182, allowing the circuit court to grant relief without the Supreme Court having clearly determined the issue. As discussed above, under AEDPA Petitioner can only be granted relief if the state court unreasonably applied federal law, as determined by the Supreme Court of the United States. The Supreme Court is yet to address whether the use of inconsistent theories by the prosecution violates due process. Id. at 187; see also Fotopoulos v. Sec'y, Dep't of Corr., 516 F.3d 1229 (11th Cir. 2008), cert. denied ___ U.S. ___, 129 S.Ct. 217, 172 L.Ed.2d 171 (2008) (concluding that in light of Stumpf, there is no Supreme Court authority clearly establishing that use of inconsistent theories of prosecution violates due process). As such, Petitioner is not entitled to relief on this claim.
In Claim III, Petitioner alleges that the admission of evidence of his past crimes violated his right to due process. Petitioner's claim stems from the testimony of a prosecution witness, Nicole Inacio, a DNA technician with California Department of Justice. At trial, Inacio testified that she had discovered Petitioner's DNA on several pieces of evidence found in Flanagan's car. Rep.'s Tr. at 1861. Inacio also determined that a blood stain in the back seat of the car matched Petitioner's DNA. In discussing how she matched Petitioner's DNA, Inacio stated—over Petitioner's objection—that a sample of Petitioner's DNA matched samples in both the state and national DNA databases. Petitioner claimed that allowing Inacio to testify about the database matches was akin to telling the jury that Petitioner had been involved in previous crimes and had prior felony arrests or convictions. Purportedly, this permitted the jury to conclude Petitioner's guilt based on his propensity for crime, rather than upon the facts of the case.
To support his position that the admission of past crimes evidence amounts to a violation of due process, Petitioner relies upon McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir. 1993). In McKinney, the Ninth Circuit determined it violated due process to admit "other acts" evidence that was wholly irrelevant other than as character evidence to show the defendant acted in conformity therewith. Id. That was, however, before Congress enacted AEDPA, which, as discussed above, limits the grant of habeas corpus to cases where the state court unreasonably applied clearly established federal law, "as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006). In Alberni, the Ninth Circuit determined that after the enaction of AEDPA, McKinney no longer presented a basis for granting federal habeas relief. 458 F.3d at 864.
In Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991), the Supreme Court expressly refused to determine whether the introduction of prior crimes evidence to show propensity to commit a crime would violate the Due Process Clause.
This Claim challenges the trial court's jury instructions, specifically the instruction with regard to flight. At Petitioner's trial, the jury was instructed in accordance with California's standard instruction on evidence of flight, CALJIC No. 2.52: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient by itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." Petitioner alleges that this instruction violates due process because there was no evidence of flight.
In ruling on Petitioner's claim, the California Court of Appeal stated as follows:
Slip Op. at 23-25.
A faulty jury instruction will constitute a violation of due process only where the instruction by itself so infected the entire trial that the resulting conviction violates due process. Middleton v. McNeil, 541 U.S. 433, 437 (2004); McGuire, 502 U.S. at 71-72. The instruction must be more than merely erroneous; petitioner must show there was a "`reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.'" McNeil, 541 U.S. at 437 (citations omitted); Boyde v. California, 494 U.S. 370, 380 (1990); see also Cupp v. Naughten, 414 U.S. 141, 146 (1973). Further, "[i]t is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." McGuire, 502 U.S. at 72 (citation omitted); Naughten, 414 U.S. at 147. Under most circumstances, an instruction that violates the Constitution does not warrant habeas relief unless the "error `had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Petitioner argues that "[g]iving the flight instruction implied that the court believed that there was evidence to support it." Pet. at m-13. To the contrary, the instruction clearly informed the jury that it was for the jury to decide whether Petitioner had fled and, if so, what weight to give it. See McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994) ("The jury was expressly instructed that defendant's flight was evidence of guilt only if defendant's flight were proved."). Petitioner's jury was also read an instruction that "whether some instructions apply will depend upon what you find to be the facts," Clerk's Tr. at 554, further indicating to the jury that a particular instruction may or may not apply to the case based upon how the jury determined the facts. Moreover, any instruction given by a judge necessarily implies that it is possibly, though not certainly, applicable to the case before the jury. Judges do not give the jury instructions on the definition of murder in an assault case. But just because a instruction is given does not mean that the judge believes the evidence supports it. For instance, when a judge offers an instruction on a lesser included offense this does not imply that the judge believes the defendant is not guilty of the charged crime. Nor does the giving of a reasonable doubt instruction mean that the judge believes the prosecution has met its burden of proving its case. Petitioner's contention would render most jury instructions unconstitutional.
Furthermore, sufficient evidence was presented at Petitioner's trial to warrant the flight instruction. Petitioner's claim rests on the shoulders of Claim I as he argues that the only evidence of flight was through his accomplice's uncorroborated testimony. As discussed above, the trier of fact concluded that Flanagan's testimony was corroborated, a decision that is not to be disturbed by this court, and, as such, his testimony is capable of supporting a flight instruction. Petitioner does not dispute that Flanagan's testimony warranted a flight instruction. Pet. at m-13 ("there was no evidence of flight except for Flangan's testimony" (emphasis added)). Flanagan testified that after Petitioner shot Jarvis and Gonzales he returned to the car, urging his companions to "Get me out of here. Get me out of here. Please get me out of here." Rep.'s Tr. at 1226. They then drove away from the scene of the shooting. Id. Later, Petitioner and his co-defendant pushed the car they had been using off a cliff and disappeared. Id. at 1323-24. This all indicates an attempt to flee from the scene of the crime and provides support for the use of the flight instruction. Under these circumstances, a flight instruction does not violate due process. See Gomez, 19 F.3d at 469 (flight instruction not improper where prosecution made "strong showing" that it was petitioner who left scene of crime).
Lastly, Petitioner cannot show that he was prejudiced by the given instruction. CALJIC 2.52 is a protective instruction, designed to inform the jury that they cannot infer guilt from the defendant's actions after the crime. The instruction helped, not hindered, Petitioner and, as such, he did not suffer prejudice. See Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002); Brecht, 507 U.S. at 623.
For all the above reasons, the California Court of Appeal reached a reasonable determination when it concluded that Petitioner's trial was not rendered fundamentally unfair as a result of the flight instruction. Petitioner is not entitled to relief on this claim.
In his fifth and final claim, Petitioner asserts that his trial counsel provided ineffective assistance when he failed to challenge the potential admissibility of Gordon's previous testimony that Petitioner was the shooter. At Gordon's trial, Michael Waxler, a prisoner who had been in jail with Gordon, testified that Gordon had confessed the crime to him. Gordon denied making such statements and, instead, alluded to the fact that Petitioner was the shooter. At Petitioner's trial, Petitioner's counsel sought to introduce Waxler's testimony that Gordon had confessed to the crime, either through Waxler's in court testimony or through the introduction of his previous testimony at Gordon's trial. The trial court ruled that if Waxler's testimony regarding Gordon's confession was admitted, the prosecution would be permitted to introduce Gordon's previous trial testimony that denied or contradicted Waxler's. Petitioner contends, and it is now undisputed that, Gordon's previous testimony would have been inadmissible under the Confrontation Clause. Petitioner further alleges that his counsel's failure to object on Confrontation Clause grounds and his decision thereafter not to call Waxler as a witness amount to ineffective assistance of counsel which prejudicially effected the outcome of his trial.
In ruling on this Claim, the California Court of Appeal stated as follows:
Slip Op. at 35-39.
The Court of Appeal's decision represents an unreasonable determination of the facts in light of the trial record. See 28 U.S.C. § 2254(d)(2). In essence, the Court of Appeal's determination that Petitioner did not suffer prejudice relies on the fact that Waxler was available to testify and the trial court would only have allowed Gordon's previous testimony had Waxler been unavailable and his previous testimony read into evidence. See Slip Op. at 39 ("Since Waxler ultimately appeared in court, he was available, leaving Gordon's prior testimony inadmissible. Consequently, defense counsel could have called Waxler as a witness without being impeached with Gordon's prior testimony."). As the Court of Appeal's own rendition of the facts indicates, however, that is not how the trial court ruled. To the contrary, the trial court ruled that if evidence of Gordon's alleged confession to Waxler was admitted, either through Waxler's present or prior testimony, Gordon's prior testimony would be admissible to the extent that it contradicted or denied Waxler's testimony. The trial court stated:
Rep.'s Tr. at 2263.
While the transcript is somewhat ambiguous, a review of the surrounding record and the response of counsel indicates that the judge meant that if Waxler testified then Gordon's prior trial testimony would be allowed into evidence.
Reviewing Petitioner's claim de novo, it fails because he cannot show that he was prejudiced by the failure to object on Confrontation Clause grounds. This is not because Gordon's testimony was inadmissable if Waxler testified, as the California Court of Appeal determined, but because even if Waxler had testified without the admission of Gordon's testimony the result of the proceedings was not likely to be different.
The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. See id.
Second, a petitioner must affirmatively prove prejudice. See id. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Id. A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697).
At Petitioner's trial he had several opportunities to place into doubt the fact that he was present during the commission of the underlying offenses. Gonzales, who was shot twice in the back, said that he saw a black male pull a gun out of the trunk of the Taurus and shoot at Jarvis' truck from a distance of three to four feet. Rep.'s Tr. at 834. However, Gonzales could not identify Petitioner as the gunman or as being one of the four men in the car. Id. at 855-58. In fact, Gonzales had initially recognized another man seen in pictures developed from film found in the Taurus as the fourth person in the car on the day of the murder—a fact that was seized upon during cross-examination. Id. at 860-62, 895-96. Furthermore, Petitioner introduced the testimony of Steven Raines, who lived in the same pod as Flanagan in jail. Id. at 2238. Raines testified that Flanagan had told him three or four times that Petitioner was not present at the robbery and that Flanagan had set him up to be a "fall guy." Id. at 2239. Flanagan testified that he had never made such statements. Id. at 2230. Lastly, Petitioner introduced evidence of an alibi that he was at an anger management class in Richmond, California the day after the shooting. Considering Petitioner allegedly left the scene of the crime on foot, he contended it was impossible for him to be in Richmond the next day.
The evidence presented in Petitioner's defense was weighed against strong evidence that he was a participant in the crime. Petitioner's DNA was found on several items found in the car and matched a blood stain on the back seat. Flanagan gave detailed testimony regarding Petitioner's involvement in the crime, including the fact that Petitioner was the gunman.
Petitioner claims that had the additional testimony of Waxler, another jailhouse informant, been given to the jury, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. A review of the record shows that Waxler's testimony would have been largely cumulative to the testimony of Raines. Raines' testimony was in fact more probative as it called into question the credibility of the prosecution's only witness who identified Petitioner as the gunman, Flanagan.
Finally, Petitioner requests an evidentiary hearing on his Claims. Pet. at 20. A court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support petitioner's claims, and if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has presented a "colorable claim for relief." Earp, 431 F.3d at 1167 (citations omitted). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted). In this case, Petitioner's claims are readily determined by the record. Petitioner has not alleged any additional facts that, if true, would entitle him to relief and, therefore, Petitioner fails to demonstrate that he has a colorable claim for federal habeas relief. Moreover, the Supreme Court has recently held that federal habeas review under 28 U.S.C. § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits" and "that evidence introduced in federal court has no bearing on" such review. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 1400 (2011). Thus, his request will be denied.
Accordingly, IT IS HEREBY ORDERED that Petitioner's request for an evidentiary hearing is DENIED.
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DENIED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he elects to file, Petitioner may address whether a certificate of appealability should issue in the event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
