ORDER

EDMUND F. BRENNAN, Magistrate Judge.

Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the exercise of this court's jurisdiction pursuant to 28 U.S.C. § 636(c). Petitioner challenges a 2006 judgment of conviction entered against him in the Sacramento County Superior Court on a charge of first degree murder with use of a firearm. He seeks relief on the grounds that: (1) jury instruction error violated his right to due process, to present a defense, and to a fair trial; and (2) the trial court violated his rights to due process, a fair trial, compulsory process, and to present a complete defense improperly when it refused to admit certain statements into evidence at his trial. Upon careful consideration of the record and the applicable law, the undersigned denies petitioner's application for habeas corpus relief.

I. Factual Background1

respective drivers and occupants.

Dckt. No. 2-1 at 2-10.

II. Procedural Background

Petitioner's judgment of conviction was affirmed in its entirety by the California Court of Appeal for the Third Appellate District. Dckt. No. 2-1.5 Petitioner subsequently filed a petition for review in the California Supreme Court, which was summarily denied. Dckt. 2-3. Petitioner filed his federal habeas petition in this court on April 7, 2010.

III. Analysis

A. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010))

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.6 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'"). "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 v. Richter, 562 U.S.___,___,131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

B. Petitioner's Claims

1. Jury Instruction on Felony Murder

Petitioner's first claim is that the trial court violated his rights to due process, to present a defense, and to a fair trial when it gave an erroneous jury instruction that permitted the jury to convict him of murder without making essential findings regarding his state of mind. Dckt. No. 2 at 3-6. The California Court of Appeal explained the legal and factual background to this claim, and its ruling thereon, as follows:

Dckt. No. 2-1 at 10-16.

Citing Suniga v. Bunnell, 998 F.2d 664 (9th Cir. 1993), petitioner argues that the trial court's instructional error permitted the jury to convict him of felony-murder on "a theory of culpability that [does] not exist" under California law. Dckt. No. 2 at 4. Petitioner does not agree with the California Court of Appeal's conclusion that the jury would consider the erroneous instruction an "orphaned charge," that "meant nothing." Id. at 5. He argues, "it is not reasonably likely that the jury divined on its own that the erroneous instruction did not mean what it said." Dckt. No. 10 at 10.

Petitioner claims that the trial court's instructional error prejudiced him because: "(1) it permitted the jury to convict him of murder upon a simple showing that (a) he had aided and abetted Ly in a felonious, dangerous-to-life assault and that (b) Ly had caused the victim's death while committing that assault, without also making the essential finding that (c) the killing was accompanied by the subjective mental state on the part of Ly required for murder, i.e., express or implied malice; and (2) even if the jury were to find that Ly had acted with malice, the instructional error permitted the jury to convict petitioner for the murder without also making the essential finding that the malice murder was a `natural-and-probable' consequence of the planned assault that petitioner had aided and abetted, that is, that it was reasonably foreseeable to him." Dckt. No. 2 at 4-5. Petitioner summarizes his argument regarding prejudice as follows:

Id. at 5-6. Petitioner also contends that the California Court of Appeal utilized the wrong standard to determine whether the instructional error was harmless. Dckt. No. 10 at 28-30.

In Fry v. Pliler, 551 U.S. 112, 121-22 (2007), the United States Supreme Court clarified that the AEDPA did not replace the traditional test for prejudice on collateral review established in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).9 After Fry, a federal habeas court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set forth in Brecht 507 U.S. 619. Further, [w]hen a state court has found a constitutional error to be harmless beyond a reasonable doubt, a federal court may not grant habeas relief unless the state court's determination is objectively unreasonable." Towery v. Schriro 641 F.3d 300, 307 (9th Cir. 2010).10

The California Court of Appeal concluded that the instructional error in this case was harmless "beyond a reasonable doubt" because: (1) the erroneous jury instruction was an incomplete statement of the felony-murder rule, and was inconsistent with other jury instructions with regard to the requirement to find malice before reaching a guilty verdict on a murder charge, and was therefore unlikely to have been relied on by the jury in this case; (2) numerous other jury instructions informed the jurors that they had to find malice in order to convict petitioner and the other defendants of murder; (3) other jury instructions, including one which informed the jury that the malice element could be negated by other factors in the case, were inconsistent with a theory that the jury did not have to find malice in order to convict the defendants of murder; (4) it was unreasonable to conclude that the jury ignored the bulk of the jury instructions and instead found the defendants guilty of murder without a finding of malice, based on one incomplete instruction that did not tell the jurors they could dispense with the malice requirement; (5) the prosecutor specifically relied on a theory of first degree murder by lying in wait, which required a finding of malice; and (6) the jury found defendants guilty of first degree murder by lying in wait, which reflected that they did not rely on a felony murder theory to reach their verdict. This court agrees with the state appellate court that, under these circumstances, the instructional error in this case was harmless. Viewing the trial record as a whole, and for the reasons expressed by the California Court of Appeal, it is reasonable to conclude that the erroneous language contained in CALJIC No. 8.51 could not have had a substantial or injurious effect on the verdict in this case. Certainly the decision of the California Court of Appeal is not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87. Accordingly, petitioner is not entitled to habeas relief.

This court rejects petitioner's argument that CALJIC No. 8.51, as given, caused the jury to disregard all of the other, correct instructions on the need to find malice in order to return a first degree murder verdict. There is no evidence that this is the case, and "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge" Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The court also rejects petitioner's claim that the erroneous language prevented him from presenting his defense that he lacked the mental state required for a guilty verdict on the murder charge. That defense was fully presented to the jury. Finally, the court notes that none of the defendants in this case objected to the giving of CALJIC No. 8.51. "It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

Petitioner's reliance on Suniga v. Bunnell in support of this claim is misplaced. In Suniga, a case decided prior to the enactment of AEDPA, the court gave both a proper murder instruction and an improper felony-murder instruction. However, unlike here, the jury was specifically instructed that assault with a deadly weapon was a felony that is inherently dangerous to human life. 998 F.2d at 667. Further, in Suniga, it was not possible to determine with certainty whether the jury relied on the unconstitutional theory to reach its guilty verdict. Id. at 668, 669. The Ninth Circuit recognized that the erroneous felony-murder instruction permitted the jury to convict the defendant on the basis of a nonexistent legal theory. Id. In that court's view, under these circumstances the erroneous instruction "infected the entire trial," violated due process, and required that the defendant's conviction be set aside without a showing of harmless error. Id. Although the California Court of Appeal had found the instructional error to be harmless, the Ninth Circuit was not required to defer to this determination because it was not constrained by AEDPA.

Here, unlike in Suniga, the predicate offense for felony murder was not identified for the jury, and the verdict indicated that the jury did not rely on a theory of felony-murder to find the defendants guilty of murder. Indeed, the California Court of Appeal opined that it was "virtually certain that the jury did not arrive at a murder verdict by using the felony-murder rule." Dckt. No. 2-1 at 16. Suniga is therefore factually distinguishable and does not dictate the result here. See Townsend v. Knowles, 562 F.3d 1200, 1210 (9th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 193 (2009), abrogated on other grounds by Walker v. Martin, ___ U.S. ___ (2011) (distinguishing Suniga and rejecting petitioner's claim that an erroneous felony-murder instruction allowed his jury to find him guilty of murder without proof of malice aforethought, in part because the jury verdict indicated that "the jury must have found that he acted with malice" when they found petitioner guilty of second degree murder, which requires a finding of malice aforethought); Shackleford v. Hubbard, 234 F.3d 1072, 1077-79 (9th Cir. 2000) (distinguishing Suniga because, even though jury was instructed on non-existent felony murder theory, error was harmless because it was certain that the jury returned a guilty verdict on the legally correct theory of first-degree murder by torture); Williams v. Carey, No. C 05-3891 RMW(PR), 2010 WL 143465 at **4-5 (N.D. Cal. Jan. 5, 2010) (distinguishing Suniga and finding that erroneous felony-murder instruction did not violate petitioner's right to due process where the jury was not given any other instructions on the felony murder theory; the jury was not instructed on whether any other felonies would qualify as an inherently dangerous felony; the trial court properly instructed on second degree murder as well as express and implied malice; and the jury was instructed to consider the instructions as a whole and in light of all the other instructions); Thomas v. Lamarque, No. C 02-2981 VRW, 2005 WL 679745 at **6-7 (N.D. Cal. March 16, 2005) (distinguishing Suniga because the jury in that case was not instructed that assault with a deadly weapon is a felony and because "the [erroneous] instruction was a solitary and inapplicable statement of law among a large number of correct and applicable jury instructions"); Orellana v. Castro, No. C 00-2466 SI (PR), 2001 WL 590006 at *5 (N.D. Cal. May 23, 2001) (distinguishing Suniga on the basis that the predicate crime for felony murder was not identified for the jury).

Accordingly, for the reasons set forth above, petitioner is not entitled to habeas relief on this jury instruction claim.

2. Refusal to Give Proposed Jury Instruction Regarding Aiders and Abettors

Petitioner's next claim is that the trial court violated his rights to due process, to present a defense, and to a fair trial "when it refused to instruct the jury that one responsible under the natural-and-probable consequences doctrine for a homicide perpetrated by another nevertheless may be convicted of a lesser degree of homicide than the perpetrator, because only that lesser form of homicide was reasonably foreseeable." Dckt. No. 2 at 6. The California Court of Appeal denied this claim, reasoning as follows:

Dckt. No. 2-1 at 19-21.

Petitioner also argues that the trial court exacerbated its error in refusing to give his requested jury instruction when it responded to a jury question in a way that "could have been reasonably understood as precluding a jury finding that petitioner was guilty of a lesser offense than the individual who perpetrated the homicide." Dckt. No. 2 at 6. The background to this argument is the following. During deliberations, the jury asked the following question: (1) "We want to know, can you have second degree murder with lying in wait?" Reporter's Transcript on Appeal (RT) at 3496. The court responded, "Please clarify your question. Is your question as to the degree of murder or the special circumstance allegation within the meaning of Penal Code Section 190.2(a)(15)?" Id. The jury responded to the court's question by asking: "Is it possible for the jury to find the defendant guilty of second degree murder and lying in wait? Or is the finding of lying in wait significant in determining that the murder is first degree?" Id. at 3497. The trial court responded to this question as follows: "All murder which is perpetrated by means of lying in wait is murder of the first degree. You may find it helpful to refer to Instruction 8.25.11 If this answer does not sufficiently answer your question, or if you have additional questions, please set them forth in writing." CT at 1685. Petitioner argues that the trial court's response, "although technically correct as an abstract statement of the law," did not clearly apprise the jury that, under California law (the Woods decision), petitioner could be found guilty of a lesser crime than Ly if it was only that lesser crime that was reasonably foreseeable to petitioner. Dckt. No. 2 at 7.

Petitioner also raised this claim on direct appeal. He argued that "the court should instead have told the jury, pursuant to Woods, supra, 8 Cal.App.4th at page 1579, that an aider and abettor may be guilty of second degree murder, even if the perpetrator committed murder by lying in wait. Dckt. 2-1 at 38-39. The California Court of Appeal rejected this argument, reasoning as follows:

Id. at 39-40.

In his claim before this court, petitioner argues that the trial court "read the jury's request too narrowly." Dckt. No. 10 at 45. He explains, "whether or not the jury framed its inquiry specifically in terms of aiding-and-abetting liability, its question necessarily implicated the Woods doctrine, and the question could only be fully and correctly answered by an answer informed by that doctrine." Id. He also argues, "the fact that the trial court earlier had improperly denied petitioner's request that the jurors be educated on the Woods principle obligated the court to make up for its earlier error by addressing the issue squarely following the jury notes." Id.

Petitioner asserts that the correct answer to the jury's instruction was that it was indeed possible to find second degree murder with lying in wait because, under Woods, the jury could have found petitioner guilty of second-degree murder even if they found that Ly was guilty of first-degree murder by lying in wait. Id. at 44. Thus, petitioner argues, the trial court's answer could have misled the jury into thinking they could not convict petitioner of anything other than first-degree murder. Id. In other words, according to petitioner, the trial court's failure to give a Woods instruction made its response to the jury's question incomplete and potentially misleading. Id.

Petitioner also argues that the trial court's failure to give the requested jury instruction violated his right to present the defense that he was guilty of a lesser crime than first degree murder, and his right to a jury instruction on that theory of defense. Dckt. No. 2 at 7. Petitioner explains that the trial court's failure to give the Woods instruction violated the trial court's duty to clear up the jury's confusion with concrete accuracy, violated his right to jury instructions that do not omit an element of the charged crime, and violated his right to have the jury decide every factual issue posed by the evidence. Id. at 7-8. With respect to his right to present a defense, petitioner argues that, under the circumstances of this case, the jury might well have convicted him of a lesser crime than first degree murder, especially given the lack of evidence that petitioner knew Ly had a gun. Dckt. No. 2 at 8; Dckt. No. 10 at 44.

Petitioner notes that the jury received the following instruction:

Dckt. No. 2 at 6; RT at 3149. The jury was also instructed that "[p]rinciples include . . . those who aided and abetted the commission or attempted commission of the crime." RT at 3149. Petitioner argues that these instructions would have given the jury the impression that petitioner had to be convicted of the same charges as Ly.

Petitioner also argues that the trial court's refusal to instruct the jury on the Woods doctrine, and its responses to the jury's question, invited jurors to dispense with their obligation to make findings on every factual issue posed by the evidence. Dckt. No. 10 at 46. He argues that the instructions actually given to the jury "informed jurors that if Ly was guilty of first degree murder based on lying in wait, petitioner was no less guilty because (1) he had simply been "involved" in committing that crime and (2) Ly's lying in wait was necessarily imputed to petitioner." Id. Petitioner contends that this constituted an impermissible mandatory presumption because it "mandated a finding that if petitioner had in any way participated in the events leading to Seivert's killing, he necessarily was guilty of the most serious offense found as to any other principal." Id. at 47. He argues that "a rational juror could well have understood [the trial court's response to the jury's question] to impose a mandatory duty to find petitioner guilty of first-degree murder upon finding Ly guilty of first-degree murder through a lying-in-wait theory, thereby improperly removing from the jury's consideration the essential question of petitioner's degree of guilt in light of what offense was reasonably foreseeable to him." Id. at 48.

The issue before this court is not whether the trial court's failure to give petitioner's requested jury instruction violated California law, but whether the court's failure to give the jury instruction violated petitioner's federal constitutional rights. "[F]ederal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). In the context of this habeas petition, this court must determine whether the state court's decision rejecting this claim was contrary to or an unreasonable application of United States Supreme Court authority.

In general, a challenge to jury instructions does not state a federal constitutional claim. Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely `undesirable, erroneous, or even "universally condemned,"` but must violate some due process right guaranteed by the fourteenth amendment." Cupp, 414 U.S. at 146. To prevail on such a claim petitioner must demonstrate "that an erroneous instruction `so infected the entire trial that the resulting conviction violates due process.'" Prantil v. State of Cal., 843 F.2d 314, 317 (9th Cir. 1988) (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987)). In making its determination, this court must evaluate the challenged jury instructions "`in the context of the overall charge to the jury as a component of the entire trial process.'" Id. (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). Where, as here, the challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson, 431 U.S. at 155. See also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).

The California Court of Appeal concluded that the trial court's failure to give petitioner's requested jury instruction that he could be found guilty of a lesser offense than Ly was harmless because other jury instructions essentially told the jury the same thing. This conclusion is not unreasonable. Although petitioner's jury was not specifically told that "an aider and abettor may be found guilty of a lesser offense than the perpetrator," the jury was informed that "they must decide separately whether each of the defendants is guilty or not guilty," and that they could find a defendant "guilty of any lesser crime provided you are satisfied beyond a reasonable doubt that he or she is guilty of the lesser crime." Clerk's Transcript on Appeal (CT) at 1604, 1620. Although these instructions do not contain the identical language suggested by petitioner, they essentially gave the same message to the jury: that the culpability of each defendant must be decided separately, and that each defendant could be found guilty of a "lesser crime" if the evidence showed they were guilty of that lesser crime. The prosecutor reinforced this theme when she told the jury that "We have five defendants. You have to look at each individually and make a determination about each one individually." RT at 3458. The jury was also informed that "an act that is a fresh and independent product of the mind of one of the participants is not a natural and probable consequence." Id. at 3151. Under the circumstances presented here, the trial court's failure to give petitioner's requested instruction did not have a substantial and injurious effect or influence in determining the jury's verdict.

The trial court's response to the jury's question, described above, does not change this result. There is no evidence in the record that the jury was confused about whether it could find aiders and abettors guilty of a lesser crime than the perpetrator. The state trial and appellate courts found that the jury's question was "addressed to the degree of murder associated with lying in wait," and that the trial court's actions in referring the jury to CALJIC No. 8.25 cleared up the jurors' confusion on that score. This finding is not unreasonable.

"When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); see also Weeks v. Angelone, 528 U.S. 225, 234 (2000). However, where, as here, the trial judge "`respond[s] to the jury's question by directing its attention to the precise paragraph of the constitutionally adequate instruction that answers its inquiry,' and the jury asks no followup question," a reviewing court can presume "that the jury fully understood the judge's answer and appropriately applied the jury instructions." Waddington v. Sarausad, 555 U.S. 179, 196 (2009) (quoting Weeks, 528 U.S. at 234) ("A jury is presumed to understand a judge's answer to a question."). Under these established standards, it was not objectively unreasonable for the state court to conclude that petitioner's jury received the answers it needed to resolve its confusion over the degree of murder associated with lying in wait. The fact that the jurors asked no further questions and were able to reach a unanimous verdict indicates that they were satisfied with the court's answer and that it cleared up their confusion.

For the foregoing reasons, petitioner is not entitled to relief on this claim.

3. Improper Exclusion of Evidence

In his final ground for relief, petitioner claims that the trial court violated his constitutional rights to due process, a fair trial, compulsory process, and to present a complete defense when it excluded Ly's statements to police that he shot Seivert because he believed Seivert was about to run him over with his car. Dckt. No. 2 at 10. The California Court of Appeal denied this claim, reasoning as follows:

Dckt. No. 2-1 at 16-19.

Petitioner argues that he had "a constitutional right to introduce Ly's statements even if they were properly excludable under the state's evidentiary rules" because "criminal defendants have a federal constitutional right `to put before a jury evidence that might influence the determination of guilt.'" Dckt. No. 2 at 11. He argues that the trial court "mechanistically" enforced state hearsay rules in excluding this evidence. Id. Citing Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004), petitioner argues that this court must apply a five-part balancing test to determine whether the trial court's exclusion of Ly's statements violated his right to due process. Id. at 12. According to petitioner, after applying those five factors "it is clear that Ly's excluded statements were crucial to petitioner's defense and necessary to refute the prosecution's arguments that Ly had not acted in imperfect self-defense and that the homicide was a natural-and-probable consequence of the assault that petitioner had aided and abetted." Id.

Petitioner acknowledges that several trial witnesses testified that Ly told them he shot Seivert because Seivert tried to run him over with his car. However, petitioner argues that it was important to admit Ly's statements to police, notwithstanding this evidence, because Ly's statements were on videotape and were more detailed than the "perfunctory" trial testimony on the same subject. Dckt. No. 2 at 12; Dckt. No. 10 at 57. He also argues that Ly's statements were "most likely true." Dckt. No. 10 at 59.

The United States Supreme Court has acknowledged a "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts." Crane v. Kentucky, 476 U.S. 683, 689 (1986). Accordingly, a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Estelle, 502 U.S. at 68-70. The United States Supreme Court has not "squarely addressed" whether a state court's exercise of discretion to exclude testimony violates a criminal defendant's right to present relevant evidence. Moses, 555 F.3d at 758-59. Accordingly, the decision of the California Court of Appeal that the trial court's discretionary evidentiary ruling did not violate the federal constitution is not contrary to or an unreasonable application of clearly established United States Supreme Court precedent and may not be set aside. Id. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (relief is "unauthorized" under Section 2254(d)(1) when the Supreme Court's decisions "given no clear answer to the question presented, let alone one in [the petitioner's] favor," because the state court cannot be said to have unreasonably applied clearly established Federal law). See also Anguiano v. Morales, No. C 98-4751 SI(PR), 2000 WL 630870 at *9 (N.D. Cal. May 2, 2000) (trial court's exercise of discretion under Cal. Evid. Code § 1252 to exclude untrustworthy evidence did not violate defendant's right to present a defense).12

Even assuming arguendo that the trial court's exclusion of Ly's statements to police was constitutional error, the error could not have had a "substantial and injurious effect or influence in determining the jury's verdict" under the circumstances of this case. Brecht, 507 U.S. at 623. Several trial witnesses testified that Ly told them he shot Seivert because he thought Seivert was going to run him over with his car. One witness testified that Ly shot Seivert "as defense." See RT at 1907-08, 1989, 2151, 2285-86, 2309, 2311. Ly's statements to police were essentially cumulative of this trial testimony. See CT at 2861, 2874-78, 2880-81, 2906. Several of the defense counsel, including petitioner's counsel, emphasized this trial testimony in their closing, arguing that Ly shot Seivert because he was afraid he was going to get run over by Seivert's car. See, e.g., RT at 3247-49 (Ly's counsel), 3310, 3312 (petitioner's counsel). Accordingly, Ly's state of mind at the time of the shooting; i.e., that he shot Seivert only after Seivert attempted to run him over, was squarely before the jury. The absence of cumulative testimony to the same effect would not have effected the outcome of this trial.

The decision of the California Court of Appeal was not contrary to or an unreasonable application of clearly established Federal law on the constitutional rights to present a defense, to due process, or to confrontation of witnesses. Accordingly, petitioner is not entitled to relief on this claim.

IV. Conclusion

Petitioner is not entitled to relief on any ground raised in the petition.

Accordingly, IT IS ORDERED that petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254 is denied and the Clerk is directed to close the case.

IT IS FURTHER ORDERED that the court declines to issue a certificate of appealability.13 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.14