FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Craig S. Meyers of the office of the California Attorney General.

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Stanislaus, following his conviction by jury trial on May 6, 2008, of second degree murder, participation in a criminal street gang, and other charges. (Clerk's Tr. at 506-08.) On June 30, 2008, Petitioner was sentenced to an indeterminate term of forty years to life in state prison. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District on February 24, 2009. (Lodged Doc. 10.) The appeal was denied on December 18, 2009. (Lodged Doc. 15.) On January 15, 2010, Petitioner filed a petition for review with the California Supreme Court. (Lodged Doc. 16.) The petition was summarily denied on March 24, 2010. (Lodged Doc. 17.)

On March 22, 2010, Petitioner filed a petition for writ of habeas corpus with the Stanislaus County Superior Court. (Lodged Doc. 18.) The petition was dismissed by way of a reasoned opinion on the same date. (Lodged Doc. 19.) Petitioner proceeded to file petitions for writ of habeas corpus with the California Court of Appeal and the California Supreme Court. Both petitions were summarily dismissed. (See Lodged Docs. 20-23.)

Petitioner filed his federal habeas petition on April 7, 2011. (Pet., ECF No. 1.) The petition raised seven different claims for relief, listed as follows:

(Pet. at 4-7, ECF No. 1.)

Respondent filed an answer to the petition on September 25, 2012, and Petitioner filed a traverse on November 28, 2012. (Answer & Traverse, ECF Nos. 21, 25.) The matter stands ready for adjudication.

II. STATEMENT OF THE FACTS1

A. Factual and Procedural Background

As of December 8, 2005, Kristian Sandoval had been residing at 1309 Alamo Street, Modesto, for approximately four months. The neighborhood was "gang infested," and included both residents claiming Norteno membership and those claiming Sureno membership.[FN4] Sandoval became acquainted with the mother of the Garcia family, which lived across the street at 1310 Alamo. Two of her sons, who were about 17 or 18 years old, were Surenos. They bragged about their gang involvement to Sandoval, and one-Jefte Garcia-showed him the San Diego tattoo on his back.[FN5]

Martinez lived two doors down from Sandoval. Sandoval first met him about two weeks after moving to 1309 Alamo, and they became good acquaintances. Sandoval saw Martinez "hanging out" with Lopez every day. Martinez and Lopez often wore red items of clothing, and they claimed Norteno.

Around 6:00 p.m. on December 8, Sandoval was inside his house with his friend, Lounny Manivong. They were in the kitchen when appellants knocked on Sandoval's door. Referring to the Garcia brothers, one said that the guys were over there, that something was going to happen, and that they had gone and gotten a gun or something like that. Sandoval did not hear any commotion, but Martinez asked him for "the gauge." Sandoval knew him to be referring to the pump-action, sawed-off shotgun appellants had left at Sandoval's house approximately two days earlier. Sandoval knew the gun was loaded; while appellants were showing it to him when they first brought it over, someone had put shells into it.

Sandoval retrieved the firearm, unwrapped it, and handed it to Lopez, who was standing right next to Martinez. Sandoval still did not hear any commotion outside, but warned that he did not want anything stupid happening in front of his house. Appellants then walked down the driveway. Lopez put the gun behind his back, under his sweatshirt.

As appellants walked down the driveway with Sandoval and Manivong following, they started exchanging words with the Garcia brothers, who were across the street on the sidewalk in front of their house. One of the Garcias-Sandoval believed it was Jefte-was accusing appellants of having tagged "YGL" on their sidewalk.[FN6] His tone of voice was angry. Martinez responded with an obscenity and forcefully denied that he or Lopez had done it.

Appellants stopped about halfway down the driveway, next to Manivong's car. The exchange between appellants and the Garcia brothers lasted approximately two to three minutes, during which time Lopez was just holding the shotgun behind his back.

Sandoval told the Garcia brothers to get back in their house and not be little kids, and he told appellants to take "their shit" somewhere else, but things escalated. Jefte was extremely angry. He walked into the middle of the street, took off his shirt, and started saying he was a grown man and all tatted up. He turned the "SD" tattoo on his back toward appellants, Sandoval and Manivong, and said "`this is San Diego'" or something, and something Surenos. He pointed at his back and also held up a blue San Diego hat. Sandoval considered this a gang challenge or gang call-out. He saw no weapons on or about the person of either Jefte or Jair. It appeared to him that Jefte wanted to have a fist fight.

Martinez yelled back his gang set, saying, "`This is YGL.'" Jair, who was standing behind Jefte, said, "`I'll peel your guys' cap back,'" meaning he was going to shoot the other group's way or shoot somebody. Sandoval interpreted the statement as a death threat against everyone in the group by Sandoval's house. Jair, who had on a shirt, reached one hand behind his back. Lopez pulled out the shotgun from under his sweatshirt and pointed it forward. Martinez told Lopez, "`Just do it.'" Seconds later, which was a matter of seconds after Jair had made the verbal threat, Sandoval heard a single gunshot from Lopez's direction. By this time, Lopez was outside Sandoval's fence, adjacent to the mailbox in front of the sidewalk. Everyone ran; Sandoval told Manivong to get out of there, then Sandoval ran back inside his house. He did not know anybody had been shot at this point, but when he looked out, he saw a person he believed to be Jair, squatting down inside the fence in the middle of the Garcia yard and talking on his phone. Sandoval could not see Jefte's body, because it was dark.

Sandoval went up into his attic. He did not call 911. The SWAT team extracted him about an hour later.

Portions of Manivong's account of events differed from Sandoval's version. Manivong had been present at Sandoval's house on several occasions when one or both appellants were there. Sometimes, Lopez would talk about how some of the neighbors were "scraps." Manivong understood this to be a derogatory term for Surenos. A couple of weeks before the shooting, Manivong was at Sandoval's house when Sandoval produced what appeared to be the weapon subsequently fired by Lopez. Sandoval said he was using it for protection. Manivong arrived at Sandoval's house between 5:00 and 6:00 p.m. on December 8, and he and Sandoval smoked some marijuana. Manivong smoked half a blunt, which is a cigar filled with marijuana. He described himself as being only a little high.

After appellants came to the door, Manivong walked out of the house before Sandoval. When Sandoval came outside, he was carrying some sort of bag over his shoulder. Manivong could not tell what it was and did not see what Sandoval did with it.

The only words Manivong heard spoken by Jair were at the outset.[FN7] When Manivong walked out of the house, Jair was the first one to talk about the graffiti and disrespect. Manivong saw no weapons about his person, nor did he ever hear any threats to shoot, or any references to firearms, from either brother. At no time did Manivong believe the brothers were going to shoot at him. However, once Jefte pulled off his shirt, Manivong's attention was focused exclusively on him, and he did not know where Jair was or what he was doing.

After taking off his shirt, saying he was from San Diego, and flipping his hat back, Jefte said, "`Let's fight. Let's go. Let's down.'" Manivong saw no weapon in Jefte's hands or on his person. He did not hear Martinez say anything after Jefte started walking toward the middle of the street. However, Lopez suggested a couple of times that they go to the corner. Lopez had his hands behind his back when he said this. Jefte responded, "`No, let's fight right here.'" When Lopez produced the sawed-off shotgun from behind his back and held it against his hip, Jefte turned and ran. Manivong did not hear either brother, or either appellant, say anything. No more than two to three minutes elapsed from the time Jefte walked to the middle of the street and took off his shirt to when Lopez pulled out the shotgun. During those minutes, Jefte was verbally challenging them to fight. Lopez pulled out the shotgun very shortly after the final time he suggested going to the corner. He pumped the shotgun and fired it almost immediately after pulling it out. He fired just one shot, at Jefte. Sandoval and appellants then ran toward the house; Manivong got in his car and drove off.

Stanislaus County Sheriff's Deputy Alves was dispatched to the 1300 block of Alamo at about 7:00 p.m., in response to a call that someone had been shot. He found a body near the front entrance of the residence at 1310 Alamo. The person appeared to have one gunshot wound to the arm and one to the eye. Alves saw no weapons on or around the person, and no shell casings in the yard or evidence of an exchange of gunfire. Detective Hatfield saw a spray-painted message on the sidewalk in front of 1310 Alamo. A line had been drawn through the letters with black spray paint, and a black spray paint can was found on the trunk of a car parked on the front lawn of the residence. What appeared to be fresh bullet holes were found running through the front wall of the house, as well as in items on the front lawn. Expended projectiles and a fragment were recovered from inside 1310 Alamo. The shot pattern and recovered pellets were consistent with a double-aught buck shotgun blast.[FN8] Although no firearms or ammunition were found inside the house, Hatfield did find a magazine for an air soft gun, a toy that shoots small rubber bullets, in the front room. Some types of that toy gun look very realistic.

After the shooting, Martinez arrived on a bicycle at a residence on Hatch Road, a short distance from Alamo, at which Librado Lopez was staying. [FN9] Martinez stated, "`I shot this fool, man. I smoked his ass'" and "`I just shot this fool, shot this scrap.'" He was excited and bragging. When some of the people at the house told him that the boy might not make it and it was serious, Martinez responded that he did not care and that he hoped he died.

Jefte suffered a bullet wound to the right eye that penetrated the brain, and another to the right inner forearm. Bullet fragments consistent with double-aught buckshot were recovered from the brain. The cause of death was gunshot wound to the brain. Once the gunshot entered Jefte's eye, he would have been rendered immediately unconscious and died shortly after. He might have had some reflexive action and taken a few steps, but he would not have done any purposeful activity after the shot. He was facing the weapon when shot.

On December 10, Martinez was arrested at the residence on Hatch, where he had stayed since arriving after the shooting. Later that day, Detective Navarro informed him of his rights and then took a statement from him. In part, Martinez said that the subjects across the street had started the argument that led to the shooting. He said the gun, which came from Sandoval's residence where he thought it had been for a couple of weeks, was only fired once. He also said the shotgun was loaded before it was fired, but he denied having loaded it. Navarro asked whether, during the confrontation prior to the shooting, Martinez felt threatened by the individual who took off his shirt. Martinez said he guessed yeah, but at the same time no. Later, he said he guessed not. He also said he did not see any gun. He said, however, that the other subjects could have a weapon in their pocket or something. Martinez denied being a gang member, but admitted associating with the Northerners. When asked if he associated with YGL Northerners, Martinez said no. He said he saw the guys across the street crossing out the tagging in their front sidewalk area. When Navarro asked whether crossing out a rival gang's sign was disrespecting that gang, Martinez answered affirmatively. Navarro gave a hypothetical in which a Sureno and Norteno argued, and the Sureno took off his shirt and showed a Sureno tattoo to the Norteno, and asked whether that was disrespect. Martinez again answered affirmatively. When Navarro asked what would happen if a gang noticed a rival gang was covering up the first gang's graffiti, Martinez said he did not know and was not "`into gangs like that.'"

Shortly after 1:00 a.m. on February 2, 2006, Lopez was located and arrested at a house on Florence Avenue in Modesto. Later that morning, Navarro interviewed Lopez after advising him of his rights. Lopez said that he had seen one of the individuals from across the street with a spray paint can. When asked what the individuals were saying or doing when they came out on the street, Lopez said they were issuing a challenge to fight. He also remembered one saying he was from San Diego and "`getting all crazy.'" Lopez said the individual also said, "We don't play. We'll fuckin' smoke your ass, you know what I'm saying?'" Lopez said the two were known to have weapons and, while they did not make any threats to him, one said they were going to blast "them." Lopez said Sandoval gave him the gun. Lopez said he had a feeling that one of the subjects had something, and that he thought he had seen the one without a shirt grabbing something from his pants. Lopez said he saw a gun and had to protect himself. He felt like it was going to be them or him. Lopez admitted that when he saw what appeared to be a gun, he pointed the shotgun. When he did that, the other individual pulled his weapon. Lopez said that he did not "wake up in the morning and decide to go kill somebody," and that he feared for his life and thought the other individual was going to kill him. When Navarro observed that there was no gun and asked how the other man was going to kill Lopez, Lopez said "that's just the way they were talking." He insisted he had seen something, and started describing a black revolver. Lopez remembered the other individuals running, and somebody saying, "`Shoot.'" Lopez said he was still scared for his life. Later, Navarro asked if Lopez was sure the other individual pulled something out, or if it was just because of what he was saying with his mouth. Lopez replied, "`It was probably that.'" When Navarro suggested Lopez never saw a gun, Lopez responded that he did not see a gun, but he saw something.

When Navarro asked whether Lopez knew if the man he had shot was a Sureno, Lopez said he was not sure, but was pretty sure they were toward the end. Later, Lopez said that if the subject from the street would not have said anything to him, he would not have said anything. Lopez said he already knew the person was a Sureno. When Navarro asked the name of Lopez's gang, Lopez said he was just a Northerner. Navarro asked whether he was part of YGL; Lopez again responded that he was just a Northerner. Lopez said he had been claiming Norte (Northerner) since he was 14, but that this was not a gang-related killing.

Maria Estrada was the mother of Jefte and Jair. She never saw either of her sons with a firearm, nor had she ever seen a gun in the house. A few months before the shooting, she witnessed an exchange of gestures and words between Jair, Martinez, and a young man with Martinez. On another occasion, she observed Martinez and two others, all of whom were wearing red T-shirts, verbally attack Jefte and Jair. Ms. Estrada had no knowledge of any criminal street gangs on Alamo Street, and did not suspect her sons were involved with gangs. They wore blue, as the whole family liked the color. Jefte had a blue bandanna. Although born in Modesto, both boys grew up in Southern California.

The residence at 1310 Alamo was searched shortly after the shooting. A blue bandanna was found in the kitchen. Various items indicative of gang involvement were found in the search of 1309 Alamo and 1245 Alamo, which was Martinez's residence. Found on the floor of the living room of that residence were two unfired Federal brand double-aught buck, three-inch magnum shotgun rounds. The residence on Hatch, where Martinez was arrested, was searched shortly after his arrest. Gang related items were found. According to Librado Lopez, it was common for a number of people to be at the house. Some were Nortenos; none were Surenos. A Sureno would "get shot or something." The residence on Florence, where Lopez was arrested, was searched shortly after his arrest. Indicia of residency for Anthony Gonzales were found, as were gang-related items.

Stanislaus County Sheriff's Detective Soria, an expert on criminal street gangs, testified that appellants were YGL members, and that YGL was part of the Norteno gang. The primary criminal activities of the Norteno criminal street gang include homicides, drive-by shootings, assaults with deadly weapons, auto thefts, burglaries, robberies, and home invasions-in other words, crimes of violence. These are generally perpetrated against members of the Nortenos' rival gang, the Surenos. The Sureno criminal street gang has similar primary criminal activities. Norteno gang members thrive on respect, and demand it from fellow Nortenos and from rival gang members. They generally respond with violence to acts of disrespect by rival gang members. They also thrive on fear. Fear, intimidation, and respect benefit Nortenos in conducting their criminal activities because they know people will not report their activities to law enforcement.

According to Soria, the area in which the shooting took place was high in Norteno and Sureno gang activity. Gangs are territorial, and graffiti tells the community and rivals who controls the neighborhood. Tagging a sidewalk in a position in which the occupants of a residence walk out of their house and see "YGL X4" is consistent with targeting that particular residence. The perpetrators want the residents immediately to observe the rival gang's tagging on their property, which is a form of disrespect. Defacing a rival gang's graffiti by crossing it out is a form of ultimate disrespect and a cause of violence.

Based on the evidence in this case and other information available to him, such as records of prior law enforcement contacts, Soria opined that on December 8, 2005, Sandoval was actively participating in the Nortenos criminal street gang; appellants were actively participating in the Nortenos criminal street gang, specifically the Young Gangster Locos; and Jefte and Jair were both actively participating in the Surenos criminal street gang, specifically South Side Trece (SST). YGL and SST were enemies. [FN10]

Soria further opined that the shooting of Jefte Garcia was committed for the benefit of, and in association with, a criminal street gang. The shooting benefited the gang because the crime bolstered the reputation not only of the individuals involved, but also of their gang. Both fellow and rival gang members would know that these people will take violent action against their rivals; members of the community would think twice about cooperating with law enforcement concerning criminal activities in their neighborhood.

(Pet, Ex. A.; People v. Martinez, 2009 WL 4881793, *1-6 (Cal. App. 2009)).

II. DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the conviction challenged arises out of the Stanislaus County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court has jurisdiction over the action.

B. Legal Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's adjudication of the claim:

28 U.S.C. § 2254(d).

1. Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06. "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. ... The statue recognizes ... that even a general standard may be applied in an unreasonable manner" Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a `principle' or `general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S.Ct. 770, 785 (2011), (citing Williams, 529 U.S. at 410) (emphasis in original). "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." Id. at 786 (citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.Ct. 1855, 1864 (2010). "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 this Court." Knowles v. Mirzayance, 129 S.Ct. 1411, 1419 (2009), quoted by Richter, 131 S. Ct. at 786.

2. Review of State Decisions

"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the "look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'").

Richter instructs that whether the state court decision is reasoned and explained, or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786. Thus, "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents." Id. To put it yet another way:

Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts are the principal forum for asserting constitutional challenges to state convictions." Id. at 787. It follows from this consideration that § 2254(d) "complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for later federal habeas proceedings." Id. (citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

3. Prejudicial Impact of Constitutional Error

The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002). Musalin v. Lamarque, 555 F.3d at 834.

III. REVIEW OF PETITION

A. Claim One: Introduction Of Gang Evidence

Petitioner contends that the state court's admission of gang evidence was excessive and prejudicial, violating his right to a fair trial.

1. State Court Decision

Petitioner presented this claim by way of direct appeal to the California Court of Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the appellate court and summarily denied in subsequent petition for review by the California Supreme Court. (See Lodged Docs. 15, 17.) Because the California Supreme Court's opinion is summary in nature, this Court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n.3 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under 28 U.S.C. § 2254(d)(1)).

In denying Petitioner's claim, the California Court of Appeal explained:

People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039, 68-85 (Cal. App. Dec. 18, 2009).

2. Analysis

The United States Supreme Court has expressly left open the question of whether the admission of propensity evidence violates due process. See Estelle v. McGuire, 502 U.S. at 75, n.5; Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001). In Estelle, it expressly refused to determine whether the introduction of prior crimes evidence to show propensity to commit a crime would violate the Due Process Clause. Id. ("Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime."); see also Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) ("Estelle expressly left this issue an `open question'"). Because the Supreme Court has specifically declined to address whether the introduction of propensity evidence violates due process, Petitioner lacks the clearly established federal law necessary to support his claims. Id.; see also Mejia v. Garcia, 534 F.3d 1036, 1046-47 (9th Cir. 2008) (relying on Estelle and Alberni and concluding that the introduction of propensity evidence under California Evidence Code § 1108 does not provide a basis for federal habeas relief, even where the propensity evidence relates to an uncharged crime); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (The Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.").

Accordingly, the state courts' rejection of Petitioner's claim could not have been "contrary to, or an unreasonable application of, clearly established" United States Supreme Court authority, since no such "clearly established" Supreme Court authority exists. 28 U.S.C. § 2254(d)(1).

Nevertheless, there can be habeas relief for the admission of prejudicial evidence if the admission was fundamentally unfair and resulted in a denial of due process. Estelle, 502 U.S. at 72; Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993); Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990). Constitutional due process is violated if there are no permissible inferences that may be drawn from the challenged evidence. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). "Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not." Id. at 920. "A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).

The California Court of Appeal applied a standard identical to the federal standard. On appeal, the California court found that "Evidence of gang affiliation and activity, though potentially prejudicial, is relevant and admissible when the reason for the underlying crime is gang related. Because a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." (citing People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 and People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.). Evidence of gang affiliation is admissible when it is relevant to a material issue in the case. United States v. Easter, 66 F.3d 1018, 1021 (9th Cir. 1995) (citing United States v. Abel, 469 U.S. 45, 49 (1984) (finding gang evidence admissible to show bias)). The Court of Appeal concluded that the "challenged evidence had direct relevance to and was directly probative of the gang enhancements to establish the predicate offenses and appellants' continuing participation in the gang. People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039 at 78-79. The gang evidence was introduced to establish permissible inferences that were essential to the prosecution's theory. See Jammal, 926 F.2d at 919. These inferences include that Petitioner was part of a criminal street gang, Petitioner's motive, and Petitioner's identity. See Abel, 469 U.S. at 49. The California Court of Appeal decision denying this claim was not contrary to clearly established Supreme Court precedent. Accordingly, Petitioner is not entitled to habeas relief with regard to this claim.

B. Claim Two: Instructional Error: Failure to Provide Jury Instruction

Petitioner claims that the jury was not adequately instructed regarding the charge of active participation in a criminal street gang when instructed with CALCRIM No. 1400. (Pet. at 13.)

1. State Decision

In the last reasoned decision denying Petitioner's claim, the appellate court explained:

INSTRUCTIONAL ERROR

A. Section 186.22, Subdivision (A)

People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039 at 85-90.

2. General Principles Regarding Trial Error In Instructing Jurors

This Court's review of Petitioner's claim of state instructional error is "limited to deciding whether [his] conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991); 28 U.S.C. § 2241. In order to grant federal habeas relief on the basis of faulty jury instructions, the Court must first conclude that the alleged error was of constitutional magnitude. See California v. Roy, 519 U.S. 2 (1996).

In order to grant federal habeas relief on the basis of faulty jury instructions, the Court must conclude that the alleged error "had substantial and injurious effect or influence in determining the jury's verdict." Roy, 519 U.S. at 5; Brecht, 507 U.S. at 637. Federal habeas relief is warranted only if the Court, after reviewing the record, has "grave doubt" as to the error's effect. Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998). "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The trial court's error in omitting a jury instruction is less likely to be prejudicial than the trial court's misstatement of the law. Henderson, 431 U.S. at 155; see also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (habeas petitioner whose claim involves a failure to give a particular instruction bears an especially heavy burden).

To evaluate the effect of jury instructions, the Court must look at the context of the entire trial and overall charge to the jury. Estelle, 502 U.S. at 72; Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988). They may not be judged in artificial isolation. Estelle, 502 U.S. at 72. In addition, a reviewing court's principal constitutional inquiry is whether there is a reasonable likelihood that the jury applied the challenged instructions in a way that violates the Constitution. See id.

While a state is generally free to define the elements of an offense, once the state has defined the elements, due process requires that the jury be instructed on each element and instructed that they must find each element beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 313 (1985); In re Winship, 397 U.S. 358, 364 (1970); United States v. Perez, 116 F.3d 840, 847 (9th Cir. 1997); Stanton, 146 F.3d at 728. Due process requires that the jury be instructed on each element of the offense. Keating v. Hood, 191 F.3d 1053, 1061 (9th Cir. 1991); Stanton, 146 F.3d at 728 (9th Cir. 1998).

It necessarily follows, therefore, that constitutional trial error occurs when a jury makes a guilty determination on a charged offense without a finding as to each element of the offense. According to the Supreme Court, a jury instruction that omits an element of the offense constitutes such an error. Neder v. United States, 527 U.S. 1, 8 (1999). However, such an error "does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Id. at 9. Provided that such an error occurred, Petitioner's conviction can only be set aside if the error was not harmless under Chapman v. California, 386 U.S. 18 (1967); Neder, 527 U.S. at 15. Under the Chapman harmless error test, it must be determined "beyond a reasonable doubt" whether "the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24.

3. Analysis

Here, Petitioner contends the trial court erred in failing to instruct the jury on the elements of the charge of active participation in a street gang. The California Supreme Court has explained that the gravamen of a violation of Penal Code section 186.22(a) "is active participation in a street gang." People v. Albillar, 51 Cal.4th 47, 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010). The elements of the offense are: (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. People v. Lamas, 42 Cal.4th 516, 523, 67 Cal.Rptr.3d 179, 169 P.3d 102 (2007). "All three elements can be satisfied without proof" that the promoted crime was gang-related. Albillar, 51 Cal. 4th at 56. The state supreme court's "authoritative interpretation of section 186.22" must be applied by this Court. Emery v. Clark, 643 F.3d 1210, 1215-16 (9th Cir. 2011) ("Emery II").

Until recently, the interpretation of this statute on habeas review in the Ninth Circuit was in flux. In Emery v. Clark, 604 F.3d 1102 (9th Cir. 2010) ("Emery I"), the Ninth Circuit certified a series of questions to the state supreme court regarding the specific intent requirement under another provision of section 186.22. The California Supreme Court decision in Albillar addressed the elements of the substantive gang participation offense (section 186.22(a)) and a gang activity enhancement (section 186.22(b)(1)). The Albillar Court expressly noted that its decision conflicted with various Ninth Circuit panels.

The Albillar decision did not answer the specific questions listed in Emery I. Nevertheless, the Emery II Court acknowledged that the state court definitively resolved the elements and mental intent necessary to commit the substantive offense of active street gang participation.

Here, the jury was correctly instructed on the elements of the charge. Furthermore, the state court in denying Petitioner's claim, specifically found that the instruction was correct. Consequently, the Court finds that the jury instructions provided by the state court did not render Petitioner's trial fundamentally unfair or violate his due process rights. Accordingly, the Court cannot find the Court of Appeal's rejection of Petitioner's claim to be unreasonable. See 28 U.S.C. § 2254(d). Petitioner is thus not entitled to federal habeas relief on his instructional error claim.

C. Claim Three: Involuntary Waiver of Miranda Rights

In his third claim, Petitioner contends that his Miranda rights were violated based on continued questioning after he invoked his right to an attorney. (Pet. at 5.)

1. State Decision

In the last reasoned decision denying Petitioner's claim, the appellate court explained:

People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039, 19-35 (Cal. App. 5th Dist. Dec. 18, 2009).

2. Legal Standard

In Miranda, the United States Supreme Court held that "[t]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444. To this end, custodial interrogation must be preceded by advice to the potential defendant that he or she has the right to consult with a lawyer, the right to remain silent and that anything stated can be used in evidence against him or her. Id. at 473-74. Once Miranda warnings have been given, if a suspect makes a clear and unambiguous statement invoking his constitutional rights, "all questioning must cease." Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L. Ed. 2d 488 (1984).

Edwards v. Arizona added a second layer of protection to the Miranda rules, holding that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Edwards v. Arizona, 451 U.S. 477, 484 (1981) ("[A]n accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."); Michigan v. Harvey, 494 U.S. 344, 350 (1990).

In Arizona v. Roberson, the Supreme Court elaborated regarding the protections under Edwards:

Arizona v. Roberson, 486 U.S. 675, 680-681 (1988).

The Ninth circuit has similarly held:

Anderson v. Terhune, 516 F.3d 781, 790 (9th Cir. 2008) (en banc).

3. Analysis

Here, the state court found that once Petitioner requested an attorney, interrogation ceased. It further found that the questions asked after invoking his right to an attorney, specifically regarding the attorney and Petitioner's father did not constitute interrogation. It also found the statements regarding how the officer was to then book Petitioner were not deceptive or coercive. The state court held that Petitioner reinitiated the conversation by asking what he was being booked for and eventually waiving his right for counsel.

Accordingly, the issue is whether Petitioner initiated the exchange that ultimately led to his waving his right to counsel that he had invoked just moments before. With regard to this inquiry, the Court notes that the conversation could be interpreted in multiple ways. For example, the transcript indicates that the conversation continued after the invocation of his right to counsel, and a fair-minded jurist could find that the officer continued to interrogate Petitioner with the hope that Petitioner would waive his rights if further questioned. In that respect, the officer's statements that he was going to book Petitioner because he did not tell his side of the story, in conjunction with Petitioner's responses that he was willing to talk if it would help him walk away, indicate that the officer may have used the coercive pressure of booking Petitioner in jail to obtain a waiver of his right to counsel.

Alternatively, the state court's determination is equally plausible. As noted, the officer's questions regarding the identity of Petitioner's attorney and information regarding Petitioner's father, are questions rationally related to the general investigation and are not likely to elicit an incriminating response by Petitioner. Further, telling Petitioner that if the interrogation were over, he would be booked is informative in nature, and likewise may not be considered as interrogation.1

Under the deferential review created under AEDPA, Petitioner is not entitled to relief. Fairminded jurists could disagree whether the state court's finding that Petitioner waived his right to counsel is inconsistent with the Supreme Court's holdings in Miranda, Edwards, and their progeny. The state court's ruling was not so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Richter at 786-87.

While the Court recommends the claim be denied, "jurists of reason could disagree with the district court's resolution of his constitutional claims, they could "conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 123 S.Ct. 1029, 1034 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, the Court further recommends that a certificate of appealability be issued with respect to this claim. Petitioner is forewarned that the issuance of a certificate of appealability does not relieve Petitioner of his duty to file and perfect his appeal, should he choose to do so.

D. Claim Four: Admission of Autopsy Report

Petitioner contends that his rights under the confrontation clause were violated by the court allowing a pathologist who did not perform the autopsy to present evidence from the autopsy report of the pathologist who did do the autopsy. (Pet. at 5, 14.)

1. State Decision

In the last reasoned decision denying Petitioner's claim, the appellate court explained:

C. Admission of Autopsy Report and Related Testimony

People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039, 60-68 (Cal. App. 5th Dist. Dec. 18, 2009).

2. Analysis

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him." The Confrontation Clause prohibits the admission of testimonial out-of-court statements by non-testifying individuals. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed. 2d 177 (2004). When the prosecution introduces a forensic report that constitutes a testimonial statement, the analyst who produced the report must personally testify. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L. Ed. 2d 314 (2009); Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710, 180 L. Ed. 2d 610 (2011). Confrontation Clause violations are subject to harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed. 2d 705 (1967). Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L. Ed. 2d 674 (1986); United States v. Norwood, 603 F.3d 1063, 1067 (9th Cir. 2010).

Here, the state court determined that it did not need to reach the question whether there had been Crawford error, because any such error would be harmless even under the standard applicable to constitutional violations. The question before this court is whether that analysis was objectively unreasonable. Fry v. Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321, 168 L. Ed. 2d 16 (2007) ("In Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 157 L. Ed. 2d 263 (2003) (per curiam), we held that, when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.") (emphasis in original).

The state court's decision to conduct harmless error analysis was entirely consistent with federal law. See Van Arsdall, 475 U.S. at 684 (Confrontation Clause violations are subject to harmless error analysis). Accordingly, regardless of the egregiousness of the confrontation violation viewed in isolation, habeas relief is available only if the state court's harmless error analysis was contrary to or an unreasonable application of clearly established federal law.

The state court applied the correct standard: harmlessness beyond a reasonable doubt pursuant to Chapman. See Van Arsdall, 475 U.S. at 684 (Chapman standard applies). Accordingly, the state court adjudication was not contrary to federal law.

Neither was the harmless error analysis objectively unreasonable. The state court was correct that the case against Petitioner was based on witness testimony from Manivong that Petitioner's accomplice shot the victim, and that police detectives testified based on personal knowledge regarding finding the body at the scene and observing the autopsy. Pictures were also taken during the autopsy that supported the indication that the bullets entered the victim front to back. Petitioner did not dispute that Lopez shot and killed the victim. Further, Petitioner relied on the evidence from the autopsy to attempt to argue self-defense as the victim was shot as he was facing shooter, rather than showing that the victim was shot attempting to flee. Although Petitioner was not provided the opportunity to cross-examine the pathologist who performed the autopsy, the state court was reasonable in determining that even if Petitioner had had the opportunity to question the pathologist, the result of the trial would not have been different.

Accordingly, the state court's application of the Chapman standard was not objectively unreasonable and § 2254(d) precludes relief on this claim.

E. Claim Five: Exclusion of Sandoval's Sentence

Petitioner contends that his rights under the confrontation clause were violated by the court's exclusion of evidence of the sentence Sandoval faced if he failed to testify. (Pet. at 6, 15.)

1. State Decision

In the last reasoned decision denying Petitioner's claim, the appellate court explained:

A. Exclusion of Kristian Sandoval's Potential Sentence

People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039, 44-52 (Cal. App. 5th Dist. Dec. 18, 2009).

2. Standard

The "Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L. Ed. 2d 15 (1985) (per curiam). Accordingly, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examinations based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L. Ed. 2d 674 (1986).

A court violates the "Confrontation Clause only when it prevents a defendant from examining a particular and relevant topic." Fenenbock v. Director of Corrections, 692 F.3d 910, 919 (9th Cir. 2012). Indeed, a limitation on cross-examination that excludes testimony on a particular topic might violate the rule that "[r]estrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence `may not be arbitrary or disproportionate to the purposes they are designed to serve.'" Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L. Ed. 2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L. Ed. 2d 37 (1987)).

A defendant meets his burden of showing a Confrontation Clause violation by showing that "[a] reasonable jury might have received a significantly different impression of [a witness'] credibility ... had respondent's counsel been permitted to pursue his proposed line of cross-examination." Van Arsdall, 475 U.S. at 680; Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009). The focus of this inquiry "must be on the particular witness, not on the outcome of the entire trial," Van Arsdall, 475 U.S. at 680, such that defense counsel's ability to impeach other witnesses "is irrelevant" to whether the trial court violated the Confrontation Clause, Slovik, 556 F.3d at 754. A limitation on cross-examination does not violate the Confrontation Clause unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the biases and motivations of the witness. United States v. Urena, 659 F.3d 903, 907-08 (9th Cir. 2011).

3. Analysis

In this case, the jury was made aware of Sandoval's agreement with the prosecution, and Petitioner was allowed to cross-examine him. The jurors were made aware that first degree murder charges were still pending against Sandoval, and that those charges would be dropped if he met the conditions of the agreement. While the jurors were not provided the potential duration of Sandoval's sentence should he have been found guilty of murder, the state court determined that the jurors would reasonably understand that Sandoval had a "massive incentive to testify in a manner that benefitted the prosecution." People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039 at 44-52. Accordingly, the state court found that the excluded testimony would not have produced a significantly different impression of Sandoval's testimony.

The jury was presented the significant details regarding Sandoval and his agreement with the prosecution. They knew that he was charged with first degree murder with enhancements, but that if he cooperated would be released after two years of time served. Although the jury was not provided the potential length of the murder sentence, the state court was reasonable in determining that the prohibited cross-examination would not significantly change the jury's determination of Sandoval's credibility. The Court concludes that the state court opinion was not an unreasonable application of Supreme Court authority. Accordingly, Petitioner is not entitled to habeas relief on this claim.

F. Claim Six: Prosecutorial Misconduct

Petitioner contends that the prosecution committed misconduct in arguing that Petitioner was responsible for the sidewalk graffiti that instigated the confrontation. (Pet. at 6, 15.)

1. State Decision

In the last reasoned decision denying Petitioner's claim, the appellate court explained:

People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039, 93-99 (Cal. App. 5th Dist. Dec. 18, 2009).

2. Applicable Legal Principles

A criminal defendant's due process rights are violated when a prosecutor's misconduct renders a trial fundamentally unfair. Parker v. Matthews, U.S., 132 S.Ct. 2148, 2153, 183 L. Ed. 2d 32 (2012) (per curiam); Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L. Ed. 2d 144 (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, 107 S.Ct. 3102, 97 L. Ed. 2d 618 (1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L. Ed. 2d 431 (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).

3. Analysis

The California Court of Appeal held that the inferences made during the prosecution's closing were permissible and did not mischaracterize the evidence. The state court's determination was reasonable. As the state court explained, it was reasonably likely that jurors, in hearing the prosecution's closing argument would understand that the prosecution was implicating members of Petitioner's gang who were responsible for the tagging, and not necessarily Petitioner himself. This court agrees. No evidence was presented at trial that Petitioner was responsible for the tagging outside the victim's house. Petitioner and his co-defendants denied being the taggers. However, due to the small number of gang members, it was reasonable for the prosecution to argue that the tagging was gang-related, that Petitioner was aware of the tagging, and that the course of conduct of Petitioner and his fellow gang members served to instigate the victim, a rival gang member, into the confrontation. The instance of misconduct about which Petitioner complains was not so unfair as to constitute a due process violation. Towery v. Schriro, 641 F.3d 300, 306 (9th Cir. 2010).

Certainly the decision of the state appellate court rejecting these claims of prosecutorial misconduct is not "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. Accordingly, Petitioner is not entitled to federal habeas relief on this claim.

G. Claim Seven: Challenges to Jury Instruction

In his seventh and last claim, Petitioner contends his due process was violated by the failure of the trial court to adequately instruct the jury on the elements of the murder charge. (Pet. at 7, 18-20.) Specifically, Petitioner claims that the court improperly instructed the jury regarding the requisite intent required for second degree murder. (Id.)

1. State Decision

In the last reasoned decision denying Petitioner's claim, the appellate court explained:

B. Second Degree Murder

People v. Martinez, 2009 Cal. App. Unpub. LEXIS 10039 at 90-93.

2. Legal Standard

Jury instructions are generally matters of state law for which federal habeas relief is not available, except insofar as an instructional error implicates the fundamental fairness of a trial in violation of due process or infringes upon an enumerated federal constitutional right. See Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 172 L. Ed. 2d 532 (2009); Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L. Ed. 2d 385 (1991). For example, jury instructions may be challenged as constitutionally infirm if they had the effect of relieving the State of its burden of persuasion, beyond a reasonable doubt, on every essential element of a crime. Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 85 L. Ed. 2d 344 (1985) (citing Sandstrom v. Montana, 442 U.S. 510, 520-524, 99 S.Ct. 2450, 61 L. Ed. 2d 39 (1979)). Even if an error occurred in instructing the jury, however, habeas relief will be granted only if the petitioner can establish that the error had a substantial and injurious effect or influence in determining the jury's verdict. Hedgpeth v. Pulido, 555 U.S. 57, 129 S.Ct. 530, 532, 172 L. Ed. 2d 388 (2008) (holding that instructional errors that do not "categorically `vitiat[e] all the jury's findings" are subject to harmless error analysis (alteration in original)); Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L. Ed. 2d 353 (1993).

3. Analysis

As the state court correctly noted, the jury returned a verdict of second degree murder for Petitioner, demonstrating that the consideration of the lesser offense was not impaired. Accordingly, Petitioner benefitted from the instructions for the lesser offense, unlike his co-defendant who was convicted of first degree murder, and raised this claim on appeal. Regardless whether the state court was reasonable in determining that the instruction properly described the level of intent required for second degree murder, Petitioner was not prejudiced by, but rather benefited from, the instruction.

Petitioner has not demonstrated the instruction rendered his trial fundamentally unfair. Estelle, 502 U.S. at 72. Petitioner benefited from the instruction and the conclusion of the state court was not contrary to federal law. The state court was reasonable in rejecting Petitioner's claim. See Brecht, 507 U.S. at 637. The Court recommends that Petitioner's claim be denied.

IV. RECOMMENDATION

Accordingly, it is hereby recommended that the petition for a writ of habeas corpus be DENIED with prejudice.

This Findings and Recommendation is submitted to the assigned District Judge, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with the Findings and Recommendation, 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 Recommendation." Any reply to the objections shall be served and filed within fourteen (14) 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).

IT IS SO ORDERED.