ORDER AND FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 judgment of conviction entered against him in the Sacramento County Superior Court on charges of assault with a firearm and shooting at an occupied vehicle, with sentence enhancements for being armed with and using a firearm and for committing the offenses for the benefit of a street gang. He seeks relief on the grounds that his conviction is supported by insufficient evidence, the prosecutor committed misconduct during closing argument, and evidentiary rulings by the trial court violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual and Procedural Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary.

ECF 12-1 at 2-13.

After the California Court of Appeal issued its decision on petitioner's direct appeal, petitioner filed a petition for review in the California Supreme Court. Resp't's Lodg. Doc. 14. On February 16, 2011, that petition was summarily denied. Resp't's Lodg. Doc. 16.

II. 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:

(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

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.10 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." Richter, 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." Richter, 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)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 133 S.Ct. 1088, 1091 (2013).

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." Richter, 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).

III. Petitioner's Claims

A. Sufficiency of the Evidence

In his first ground for relief, petitioner claims that "the People failed to present evidence defendants did not act in self defense." ECF 1 at 5. He presents four arguments in support of this claim: (1) the prosecution failed to prove beyond a reasonable doubt that "one party or another shot first," (2) the jury was instructed on alternative theories of guilt, and "may have relied on a invalid one;" (3) the prosecutor presented "4 theorys [sic], none of which was valid;" and (4) the theories presented by the prosecutor were "factually invalid." Id. On appeal in state court, petitioner argued that his convictions for assault with a firearm (Count 1) and shooting at an occupied vehicle (Count 2) should be reversed because they were "based on factually and legally inadequate theories of guilt." Resp't's Lodg. Doc. 8 at 18. Specifically, petitioner claimed that the four theories advanced by the prosecutor under which the jury could reject petitioner's claim of self defense and/or defense of others were all unsupported by the evidence and the law. Id. at 18-29.

In his second ground for relief before this court, petitioner claims that his "convictions and gang findings are based on insufficient evidence." ECF 1 at 7. In support of this claim, he presents the following three arguments: (1) "the evidence of Jones (co-defendant) is insufficient;" (2) "the evidence of Deloney is insufficient;" and (3) "the evidence of actions for or by DPHB is insufficient." Id. On direct appeal, petitioner argued that his convictions on Counts 1 and 2, and the true finding on the gang enhancement should be reversed because there was insufficient evidence that Jones committed the crimes charged and, therefore, there was no crime for which petitioner could be vicariously liable. Resp't's Lodg. Doc. 8 at 45-49. Petitioner also argued that there was insufficient evidence he knowingly and intentionally aided the crimes Jones committed. Id. at 49-52. Finally, petitioner claimed that, "at the very least," the gang findings and enhancements should be reversed because there was insufficient evidence he acted "for or with" the DPHB gang. Id. at 45, 52-54.

In the petition before this court, petitioner is essentially claiming that: (1) the evidence is insufficient to support the jury's apparent finding that Jones did not act in self-defense in committing assault with a firearm (Count 1) and shooting at an occupied vehicle (Count 2); (2) the evidence is insufficient to support the jury's finding that petitioner aided and abetted the crimes committed by Jones; and (3) the evidence is insufficient to support the jury's finding that petitioner and Jones committed the crimes alleged in Counts 1 and 2 for the benefit of or in association with a street gang.

1. State Court Opinion

The California Court of Appeal rejected all of petitioner's challenges to the sufficiency of the evidence supporting his convictions and the gang enhancement allegation. With regard to petitioner's claims that the evidence was insufficient to refute the defense theory that Jones acted in self-defense, or to support the jury's finding that petitioner aided and abetted the crimes committed by Jones, the court reasoned as follows:

ECF No. 12-1 at 13-19.

The California Court of Appeal also rejected petitioner's argument that the evidence was insufficient to support the gang enhancement allegation. The court reasoned as follows:

ECF No. 12-1 at 25-29.

2. Law Applicable to Claims of Insufficient Evidence

The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is `whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Put another way, "a reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, ___ U.S. ___, 132 S.Ct. 2, *4 (2011).

In conducting federal habeas review of a claim of insufficient evidence, "all evidence must be considered in the light most favorable to the prosecution." Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). "Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial," and it requires only that they draw "`reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, ___ U.S. ___, 132 S.Ct. 2060, 2064 (2012) ( per curiam ) (citation omitted). "`Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.1995) (citation omitted).

"A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant relief, the federal habeas court must find that the decision of the state court rejecting an insufficiency of the evidence claim reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. Ngo, 651 F.3d at 1115; Juan H., 408 F.3d at 1275 & n.13. Thus, when a federal habeas court assesses a sufficiency of the evidence challenge to a state court conviction under AEDPA, "there is a double dose of deference that can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). The federal habeas court determines sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein, 373 F.3d at 983.

3. Analysis

After reviewing the state court record in the light most favorable to the jury's verdict, this court concludes that there was sufficient evidence introduced at petitioner's trial to support his convictions for assault with a firearm and shooting at an occupied vehicle. There was also sufficient evidence to support the jury's finding that petitioner and Jones committed the crimes alleged in Counts 1 and 2 for the benefit of or in association with a criminal street gang. For the reasons expressed by the California Court of Appeal, there was evidence from which the jury could have found that: (1) Jones did not act in self-defense when he fired his gun but was "responding to a challenge by a rival gang in an attempt to retain his respect," and then escalated the situation in order to provoke a gunfight; (2) petitioner aided and abetted Jones in these actions by giving Jones a gun after a rival gang had issued a challenge; and (3) petitioner and Jones were acting in furtherance of their street gang when they engaged in the gunfight at the scene of the crime. This is true regardless of the fact that there might have been other trial evidence which supported petitioner's version of the events. The question in this federal habeas action is not whether there was evidence from which the jury could have found for the petitioner on these issues. Rather, in order to obtain federal habeas relief on this claim, petitioner must demonstrate that the state courts' denial of relief with respect to his insufficiency of the evidence arguments was an objectively unreasonable application of the decisions in Jackson and Winship to the facts of this case. Petitioner has failed to make this showing, or to overcome the deference due to the state court's findings of fact and its analysis of this claim. Accordingly, he is not entitled to federal habeas relief on his claims of insufficient evidence.

B. Prosecutorial Misconduct

The California Court of Appeal also rejected petitioner's argument that the evidence was insufficient to support his convictions because one of the prosecutor's theories in opposition to petitioner's claim of self-defense — that any actual belief by defendants that they were in imminent danger was unreasonable — was factually and legally inadequate. However, because that claim was based on comments made the prosecutor during closing argument, the Court of Appeal construed it as a claim of prosecutorial misconduct. This court also construes petitioner's argument as a claim of prosecutorial misconduct, and will address it accordingly.

1. State Court Opinion

The California Court of Appeal denied petitioner's claim of prosecutorial misconduct, reasoning as follows:

ECF No. 12-1 at 43-49.

2. Procedural Bar

As set forth above, the California Court of Appeal concluded that petitioner forfeited his claim of prosecutorial misconduct by failing to make a contemporaneous objection to the prosecutor's statements during his closing argument. Respondent argues that the state court's finding of waiver constitutes a state procedural bar precluding this court from addressing the merits of this claim. ECF 12 at 26-27.

Petitioner does not deny that his trial counsel did not raise a contemporaneous objection to the prosecutor's closing remarks. His prosecutorial misconduct claim therefore appears to be procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 747 (1991); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004) (petitioner's claim before federal court procedurally barred where state court denied the claim on the grounds of a lack of contemporaneous objection by trial counsel); Rich v. Calderon, 187 F.3d 1064, 1070 (9th Cir. 1999) ("We may not review his six other prosecutorial misconduct claims because [petitioner] procedurally defaulted by failing to make contemporaneous objections, and the California court consequently invoked a procedural bar to their consideration, the validity of which Rich has failed to overcome"). However, even if petitioner's claim of prosecutorial misconduct is not procedurally barred, it should be denied for the following reasons.

3. Law Applicable to Claims of Prosecutorial Misconduct

A criminal defendant's due process rights are violated when a prosecutor's misconduct renders a trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986). Claims of prosecutorial misconduct are reviewed "`on the merits, examining the entire proceedings to determine whether the prosecutor's [actions] so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation omitted). See also Greer v. Miller, 483 U.S. 756, 765 (1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Towery v. Schriro, 641 F.3d 300, 306 (9th Cir. 2010). Relief on such claims is limited to cases in which the petitioner can establish that prosecutorial misconduct resulted in actual prejudice. Darden, 477 U.S. at 181-83. See also Towery, 641 F.3d at 307 ("When 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"). Prosecutorial misconduct violates due process when it has a substantial and injurious effect or influence in determining the jury's verdict. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).

"Improper argument does not, per se, violate a defendant's constitutional rights." Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993). In considering claims of prosecutorial misconduct involving allegations of improper argument, the court must examine the likely effect of the statements in the context in which they were made and determine whether the comments so infected the trial with unfairness as to render the resulting conviction a denial of due process. Darden, 477 U.S. at 181-83; Donnelly, 416 U.S. at 643; Turner v. Calderon, 281 F.3d 851, 868 (9th Cir. 2002). In fashioning closing arguments, prosecutors are allowed "reasonably wide latitude," United States v. Birges, 723 F.2d 666, 671-72 (9th Cir. 1984), and are free to argue "reasonable inferences from the evidence." United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989). See also Ducket v. Godinez, 67 F.3d 734, 742 (9th Cir. 1995). "[Prosecutors] may strike `hard blows,' based upon the testimony and its inferences, although they may not, of course, employ argument which could be fairly characterized as foul or unfair." United States v. Gorostiza, 468 F.2d 915, 916 (9th Cir. 1972). "[I]t `is not enough that the prosecutors' remarks were undesirable or even universally condemned.'" Darden, 477 U.S. at 181 (citation omitted). The issue is whether the "remarks, in the context of the entire trial, were sufficiently prejudicial to violate [petitioner's] due process rights." Donnelly, 416 U.S. at 639; United States v. Robinson, 485 U.S. 25, 33 (1988) ("[P]rosecutorial comment must be examined in context. . . .").

4. Analysis

After a review of the record, the court concludes that the prosecutor in this case did not commit prejudicial misconduct in closing argument by virtue of the challenged statements. As explained by the California Court of Appeal, a review of the closing argument as a whole reflects that the prosecutor's remarks were largely invited by the correctly anticipated argument of defense counsel, and/or were fair commentary on the evidence introduced at trial. See United States v. Young, 470 U.S. 1, 12-13 (1985) ("if the prosecutor's remarks were `invited, and did no more than respond substantially in order to `right the scale,' such comments would not warrant reversing a conviction"); United States v. Maloney, 699 F.3d 1130, 1140 (9th Cir. 2012) (while prosecutors may not base closing arguments on evidence not in the record, they are "free to argue reasonable inferences from the evidence."). The prosecutor did not misstate any evidence, and any possible misunderstanding by the jury was cleared up by the prosecutor's later explanation of his intent when making these remarks. Further, as noted by the state appellate court, the trial court correctly instructed the jurors on the law of self-defense and advised them that they should disregard the arguments of counsel to the extent they conflicted with the instructions on the law. (Clerk's Transcript on Appeal (CT) at 501, 535-37.)

Under these circumstances of this case, and considering the record as a whole, there is no possibility the prosecutor's remarks in his closing argument could have had a substantial and injurious effect or influence on the verdict. Accordingly, petitioner is not entitled to relief on his claim of prosecutorial misconduct.

C. Evidentiary Rulings

In his third ground for relief, petitioner claims that the trial court violated his Sixth Amendment right to confront the witnesses against him, the rules regarding the admission of hearsay evidence, and California Evidence Code § 352, by "admitting heresay [sic] it should have excluded and excluded heresay [sic] it should have admitted." ECF 1 at 8. The court will address these claims in turn below.

1. Admission of Evidence from Unidentified Teenager

On direct appeal in state court, petitioner claimed that the trial court erred in admitting Officer Davis' testimony that he heard an unidentified teenage girl say that petitioner and Jones shot Andrelia. Resp't's Lodg. Doc. 8 at 31.

a. State Court Decision

The California Court of Appeal granted this claim in part and denied it in part, reasoning as follows:

ECF 12-1 at 29-36.

b. Applicable Law

The Sixth Amendment to the United States Constitution grants a criminal defendant the right "to be confronted with the witnesses against him." U.S. CONST. amend. VI. "The `main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Fenenbock v. Director of Corrections for California, 692 F.3d 910, 919 (9th Cir. 2012) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). The Confrontation Clause applies to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965).

In 2004, the United States Supreme Court held that the Confrontation Clause bars the state from introducing into evidence out-of-court statements which are "testimonial" in nature unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable. Crawford v. Washington, 541 U.S. 36 (2004).20 The Crawford rule applies only to hearsay statements that are "testimonial" and does not bar the admission of non-testimonial hearsay statements. Id. at 42, 51, 68. See also Whorton v. Bockting, 549 U.S. 406, 420 (2007) ("the Confrontation Clause has no application to" an "out-of-court nontestimonial statement.").

Although the Crawford court declined to provide a comprehensive definition of the term "testimonial," it stated that "[s]tatements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard." Crawford, 541 U.S. at 52. The court also provided the following "formulations" of a "core class" of testimonial statements: (1) "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;" (2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;" and (3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52. The court in Crawford also pointed out that the Sixth Amendment Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59, n.9. However, "state evidence rules do not trump a defendant's constitutional right to confrontation," and a reviewing court "ensures that an out-of-court statement was introduced for a `legitimate, nonhearsay purpose' before relying on the not-for-its-truth rationale to dismiss the Confrontation Clause's application." (citation omitted). Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 2226 (2012).

Confrontation Clause violations are subject to harmless error analysis. Whelchel v. Washington, 232 F.3d 1197, 1205-06 (9th Cir. 2000). "In the context of habeas petitions, the standard of review is whether a given error `had substantial and injurious effect or influence in determining the jury's verdict.'" Christian v. Rhode, 41 F.3d 461, 468 (9th Cir. 1994) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Factors to be considered when assessing the harmlessness of a Confrontation Clause violation include the importance of the testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony, the extent of cross-examination permitted, and the overall strength of the prosecution's case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986);21 United States v. Norwood, 603 F.3d 1063, 1068-69 (9th Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 225 (2010).

c. Analysis

This court agrees with the California Court of Appeal that the unidentified teenager's statement to another person, which was overheard by Officer Davis, was not "testimonial" and therefore is not prohibited by the Confrontation Clause. Her statement was not made under circumstances which would lead an objective witness to believe it would be available for later use at a trial. Nor was the statement made to a government officer, as was the case in Crawford. Although petitioner argued in state court that the statement was "testimonial" because it was given to a police officer, the testimony at trial clarified that the statement was simply overheard by Officer Davis and was not made directly to him. Finally, the statement does not fall within the "per se" examples of testimonial evidence offered by the Crawford court, all of which involve out-of-court statements elicited by a government officer with a view to prosecution. Rather, the teenager made her statement to another person, with no expectation that her remark would be used by a prosecutor at a later trial. Under these circumstances, the unidentified teenager's statements were not testimonial, as that term was defined in Crawford, and are not inadmissible under the Sixth Amendment Confrontation Clause. See Jensen v. Pliler, 439 F.3d 1086 (9th Cir. 2006) (statements made by declarant to his attorney were non-testimonial and therefore not barred by the Confrontation Clause); Doan v. Carter, 548 F.3d 449, 458 (6th Cir. 2008) (victim's statements to friends and neighbors not testimonial); United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004) (statements made by declarant to family members were not "testimonial" because they were "not the kind of memorialized, judicial-process-created evidence of which Crawford speaks"); Gonzales v. Clark, No. CV 08-02251-AG (VBK), 2009 WL 3233906, *8 (C.D. Cal. Sept. 30, 2009) (petitioner's private statements to his aunt not testimonial in nature).

Petitioner also argues that the admission into evidence of Officer Davis' testimony about the teenager's remarks violated his right to due process. A writ of habeas corpus will be granted for an erroneous admission of evidence "only where the `testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.'" Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 899 (1983)). Admission of evidence violates due process only if "there are no permissible inferences the jury may draw from the evidence." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). "Even then, the evidence must `be of such quality as necessarily prevents a fair trial.'" Id. (quoting Kealohapauole v. Shimoda, 800 F.2d 1463 (9th Cir. 1986)).

Moreover, as the Ninth Circuit has observed:

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Therefore, "under AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by `clearly established Federal law,' as laid out by the Supreme Court." Id. Applying these legal principles here, the state court's rejection of petitioner's due process claim in this case does not support petitioner's request for federal habeas relief under AEDPA because the admission of evidence regarding Officer Davis' testimony did not violate any clearly established federal law. Id.

In any event, the admission of the challenged evidence did not deny petitioner a fair trial. Officer Davis' testimony about the unidentified teenager was not particularly damaging, given petitioner and Jones' concession that Jones fired a gun that was given to him by petitioner. Further, the teenager's statement had no bearing on petitioner's defense that Jones shot in self-defense or in defense of others, and was not necessarily based on her personal observation of the events. In sum, the statement was a passing remark and, as such, would have had no significant impact on the verdict in this case.

Finally, petitioner argues that the trial court violated rules regarding the admissibility of hearsay statements and the California Evidence Code in admitting the testimony of Officer Davis about the statements he overheard. However, the decision of the California Court of Appeal on these state law claims is binding on this court and may not be challenged in this federal habeas proceeding. This Court is bound by the state court's interpretation of state law. Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 832 n.5 (2009) ("we have repeatedly held that `it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Rivera v. Illinois, 556 U.S. 148, 158 (2009) ("[A] mere error of state law . . . is not a denial of due process") (quoting Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982) and Estelle v. McGuire, 502 U.S. 62, 67, 72-73 (1991)); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("a state court's interpretation of state law . . . binds a federal court sitting in federal habeas"); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (federal habeas corpus relief does not lie for errors of state law).

For all of these reasons, petitioner is not entitled to relief on his challenge to the admission into evidence of Officer Davis' remarks about the unidentified teenager.

2. Exclusion of Evidence regarding Muhammad and Anthony Ivy

On direct appeal, petitioner claimed that the trial court erred in excluding exculpatory evidence that Muhammad and Anthony Ivy claimed responsibility for the shooting. Resp't's Lodg. Doc. 8 at 30-44. The California Court of Appeal denied this claim, reasoning as follows:

ECF No. 12-1 at 36-41.

The California Court of Appeal concluded that the statements made by Anthony and Muhammad Ivy were not admissible under Cal. Evid. Code § 1230, largely because they were unreliable and lacked credibility. That court's analysis of state law in reaching that conclusion is binding on this court. See Bradshaw, 564 U.S. at 76 ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus"); Hicks v. Feiock, 485 U.S. 624, 630 & n.3 (1988) (a federal habeas court may not disregard a California Court of Appeal's rulings on state law when the California Supreme Court has denied review); Jammal, 926 F.2d at 919. Because the proper application of Section 1230 is purely a question of California law, this Court must defer to the state appellate court's determination on this issue.

The remaining question it whether the state court's ruling was an unreasonable application of federal constitutional law. The Court of Appeal also concluded that the trial court's evidentiary ruling did not constitute an abuse of discretion or violate the federal constitution. 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 v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009). Nor has it clearly established a "controlling legal standard" for evaluating discretionary decisions to exclude the type of evidence at issue here. Id. at 758. 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 also Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) ("it is not `an unreasonable application of' `clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by [the United States Supreme Court]"); 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); Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) ("Between the issuance of Moses and the present, the Supreme Court has not decided any case either `squarely address[ing]' the discretionary exclusion of evidence and the right to present a complete defense or `establish[ing] a controlling legal standard' for evaluating such exclusions."), cert. denied, ___ U.S. ___, 2011 WL 4901379 (Nov. 14, 2011); Summerlin v. Busby, No. EDCV 11-0805-AG (JEM), 2011 WL 7143168 (C.D. Cal. Dec. 16, 2011) (state court decision rejecting petitioner's claim that the trial court violated his right to due process when it excluded impeachment evidence pursuant to Cal. Evid. Code § 352 not contrary to or an unreasonable determination of federal law).

Even assuming arguendo that the trial court's exclusion of Anthony and Muhammad Ivy's statements 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. For the reasons set forth by the California Court of Appeal, the statements were unreliable given the context in which they were made, were false in at least one respect, and were repudiated to some extent by Kaukiya. Given the evidence of petitioner's guilt, the trial court's ruling excluding the statements by Anthony and Muhammad Ivy did not result in prejudice.

For all of these reasons, petitioner is not entitled to federal habeas relief on this claim.

IV. Conclusion

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this action.

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a 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 fourteen 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections, if any, petitioner may address whether a certificate of appealability should issue in the event he files an appeal of 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).