Arreola v. Woodford

Full title: JESUS ARREOLA, Petitioner, v. JEANNE WOODFORD, Director, Respondent

Court: United States District Court, S.D. California

Date published: Jan 6, 2006

Civil No. 05cv1042-JM (RBB) (S.D. Cal. Jan. 6, 2006)

Opinion

Civil No. 05cv1042-JM (RBB).

January 6, 2006

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

RUBEN BROOKS, Magistrate Judge

I. FEDERAL PROCEEDINGS

On February 20, 2003, Jesus Arreola (hereinafter "Petitioner" or "Arreola"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 in the United States District Court for the Central District of California. (Doc. No. 1, at 355-72.) On June 25, 2003, Respondent Silvia Garcia, the Warden of the prison where Arreola was confined at the time, filed a Motion to Dismiss the Petition on the grounds it contained both exhausted and unexhausted claims (id. at 172-83), and lodged portions of the state court record (id. at 183-326). The Court found claim one was exhausted, but claims two through four were unexhausted; it notified Arreola of his options to avoid dismissal. (Id. at 150-53.)

On September 26, 2003, the Court granted Arreola's request to strike claims two through four from the Petition, issued a stay, and ordered the fully-exhausted Petition held in abeyance while Arreola exhausted state court remedies. (Id. at 147-48.) On November 10, 2004, the stay was vacated and Arreola filed a First Amended Petition which included newly-exhausted claims two through seven; claims five through seven were not included in the original Petition. (Id. at 84-120.) Respondent filed an Answer to the First Amended Petition on March 25, 2005 (id. at 67-71), along with a Memorandum of Points and Authorities in Support thereof (id. at 29-66), and filed a second notice of lodgment of state court records (id. at 26-28). Arreola filed a Traverse on April 27, 2005. (Id. at 8-25.)

This action was transferred from the Central District of California to this Court on May 9, 2005. (Doc. No. 1, at 1-3.) Respondent filed a Notice of Re-Lodgment on June 17, 2005, in which those items of the state court record which had been lodged but not transferred to this Court were re-lodged. (Doc. No. 4.) Because Arreola was transferred to another state prison while the matter was pending, the Court sua sponte substituted Jeanne Woodford, the Director of the California Department of Corrections, as Respondent in place of Warden Silvia Garcia. (Doc. No. 6.)

On September 8, 2005, Respondent Woodford (hereinafter "Respondent") filed a supplemental brief addressing an argument presented in the Traverse, and filed a supplemental notice of lodgment in support thereof. (Doc. Nos. 14-15.) Petitioner filed a response to the supplemental brief on October 3, 2005. (Doc. No. 17.)

II. STATE PROCEEDINGS

In an eleven-count amended information filed in the San Diego County Superior Court on December 29, 1998, Petitioner was charged with two counts of attempted murder in violation of Cal. Penal Code sections 187(a) and 664 (counts one and five), aggravated mayhem in violation of Cal. Penal Code section 205 (count two), mayhem in violation of Cal. Penal Code section 203 (count three), three counts of assault with a semi-automatic firearm in violation of Cal. Penal Code section 245(b) (counts four, six and seven), discharge of a firearm from a motor vehicle in violation of Cal. Penal Code section 12034(c) (count eight), dissuading a witness by force or threat in violation of Cal. Penal Code section 136.1(c)(1) (count nine), false personation in violation of Cal. Penal Code section 529.3 (count ten), and possession of a forged driver's license in violation of Cal. Penal Code section 470b (count eleven). (Lodgment No. 1, Clerk's Tr. at 10-14.) The amended information also alleged Arreola inflicted great bodily injury on the victim with respect to counts one and four and personally used a handgun during the commission of counts one through eight. (Id.)

Count eleven was dismissed, and a jury trial on the remaining counts began on May 24, 1999. (Id. at 10, 302-03.) On June 4, 1999, Arreola was found not guilty of attempted murder (counts one and five), guilty of the lesser included offense of attempted voluntary manslaughter (counts one and five), and not guilty of aggravated mayhem (count two). (Id. at 215-19, 324-26.) Arreola was found guilty on all remaining counts, and the jury found that he had personally used a handgun during the commission of counts one and three through eight and had inflicted great bodily injury on the victim in counts one and four. (Id. at 220-29, 325-27.) He was sentenced to thirty-five years and four months-to-life in state prison. (Id. at 334-35.)

Petitioner appealed his conviction to the California Court of Appeal, raising claims one, two, three, five and six presented in the First Amended Petition filed here. (Doc. No. 1, at 191-230, Brief for Appellant, People v. Arreola, No. D035044 (Cal.Ct.App. Dec. 14, 2001); Doc. No. 1, at 231-44, Supplemental Brief for Appellant, People v. Arreola, No. D035044.) In an unpublished opinion, the appellate court affirmed the conviction. (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. (Cal.Ct.App. Dec. 14, 2001).) Arreola thereafter filed a petition for review in the state supreme court in which he raised only claim one presented in the First Amended Petition. (Doc. No. 1, at 305-25, Petition for Review at 14-16, People v. Arreola, No. SD2000DA0637 (Cal. Feb. 20, 2002).) That petition was denied with an order which stated: "Petition for review DENIED." (Doc. No. 1, at 326, People v. Arreola, No. S103675, slip op. (Cal. Feb. 20, 2002).)

After filing his original federal Petition in the Central District of California, Arreola filed a habeas petition in the California Supreme Court raising, inter alia, claim four of the First Amended Petition. (Lodgment No. 3, Petition at 3-4, Arreola v. Garcia, No. S114729 (Cal. filed Mar. 27, 2003).) That petition was denied by an order which stated: "Petition for writ of habeas corpus is DENIED. (See In re Waltreus (1965) 62 Cal.2d 218; In re Lindley (1947) 29 Cal.2d 709; In re Dixon (1953) 41 Cal.2d 756.)" (Lodgment No. 4, In re Arreola, No. S114729, slip op. (Cal. Nov. 19, 2003).)

While this action was stayed in the central district, Arreola filed a second habeas petition in the California Supreme Court in which he raised claims two through seven presented in the First Amended Petition. (Lodgment No. 5, Petition at 3-23, Arreola v. Garcia, No. S121651 (Cal. filed Jan. 5, 2004).) That petition was denied with an order which stated: "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750; In re Waltreus (1965) 62 Cal.2d 218; In re Dixon (1953) 41 Cal.2d 756; In re Swain (1949) 34 Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th 464, 474.) [¶] Werdegar, J., was absent and did not participate." (Lodgment No. 6, In re Arreola, No. S121651, slip op. (Cal. Oct. 20, 2004).)

III. UNDERLYING FACTS

a) Prosecution's Case

Rodolfo Betancourt testified that on November 13, 1998, he was working as the manager of Marisol's nightclub, located on the corner of Main Street and Broadway in Chula Vista, California. (Lodgment No. 2, Rep.'s Tr. vol. 1, at 84-85, May 24 and 25, 1999.) Security guards were stationed at the door of the nightclub to check identification and check for weapons. (Id. at 86.) Betancourt testified that Daniel Lopez was working at the nightclub that evening as a security guard and at around 11:00 p.m. was shot in the forehead. (Id. at 86-87.) Betancourt saw who shot Lopez and identified Arreola in court as that person. (Id. at 87.)

Betancourt testified that he had seen Arreola walking in and out of the nightclub around 9:30 p.m. that evening talking to other patrons, and at about 10:30 p.m., a customer complained to Betancourt that Petitioner was bothering him. (Id. at 88, 92.) As the customer pointed Arreola out to Betancourt, Arreola approached and said in Spanish to Betancourt: "You want me to beat him?" referring to the customer. (Id. at 89-91.) Betancourt replied that he didn't want any problems, and the customer said he would leave after using the restroom. (Id. at 91-92.) Betancourt then asked Arreola to wait outside, and Arreola walked out the front door without objection. (Id. at 92, 114.)

Arreola almost immediately asked to reenter the nightclub, but, in an attempt to diffuse the situation, Betancourt told him to wait outside. (Id. at 92-93.) Betancourt testified that Arreola had obviously been drinking but was coherent, and Betancourt saw no signs of severe intoxication. (Id. at 93-94, 112.) Arreola was talking and joking with Lopez while waiting outside, and asked three times to be allowed back inside. (Id. at 94.) After about twenty or twenty-five minutes, Arreola walked into the parking lot. (Id. at 96.)

The next thing Betancourt remembered was Lopez walking backwards into the club trying to get Betancourt's attention. (Id. at 96-97.) Betancourt looked up and saw Arreola at the door with a gun in his hand pointed toward the floor. (Id. at 97.) Arreola immediately raised the gun, pointed it at Betancourt's forehead from about six inches away, and said in Spanish: "So what? Can I come in?" (Id. at 98-99.) Betancourt replied: "Yes, sonny, but put it away." (Id. at 100.) Arreola lowered the gun but immediately raised it again and pointed it at Lopez and said the same thing he had said to Betancourt. (Id. at 100-01.) Betancourt, who was standing about one and one-half feet from Lopez, gave the same reply on his behalf. (Id. at 100-02.) Arreola lowered the gun but immediately raised it again, pointed it at Lopez, said in Spanish, "I told you so," and fired point blank into Lopez's forehead. (Id. at 102-03.) Less than a minute had elapsed from the time Arreola re-entered the nightclub with the gun until Lopez was shot, and during that time, neither Lopez nor Betancourt had moved. (Id. at 104, 131-32.) Lopez had said nothing to Arreola during that time, and neither Lopez nor Betancourt had made any aggressive gestures. (Id. at 104-05.) Petitioner walked slowly out the door immediately after the shooting, and Betancourt ran to the office to make sure someone had called 911. (Id.)

Uriel Escobar testified that he was performing in a band at Marisol's nightclub on November 13, 1998, and he had walked through the front door a few minutes before 11:00 p.m. to gather the band members for the 11:00 p.m. performance. (Id. at 144-45.) Escobar saw a man, whom he identified in court as Arreola, arguing with Betancourt and Lopez, and Escobar saw Arreola shoot Lopez. (Id. at 144-46.) Escobar was an arm's length away from Arreola and saw the gun Arreola used; he identified it in court as the same semi-automatic pistol later recovered from Arreola's vehicle. (Id. at 147-48, 226.) Escobar watched Arreola walk into the parking lot after the shooting looking at the gun as if it had jammed. (Id. at 147.) Someone yelled: "Get him[!]" as Arreola walked away, and Arreola turned and fired one shot toward the nightclub. (Id. at 151.)

Bruce Theisen, a Chula Vista Police Officer, testified that he responded to a call at Marisol's nightclub that evening. (Id. at 156-57.) On the way to the nightclub, another officer broadcast he was in pursuit of a possible suspect vehicle, and Theisen proceeded down Main Street to provide backup to the other officer. (Id. at 157-58.) Theisen arrived and observed Officer McKaig giving commands to the driver of a blue pickup truck, whom Theisen identified in court as Arreola. (Id. at 158, 166-67.) Before assisting McKaig, Theisen dealt with a person standing nearby who appeared to be interfering with McKaig, and who Theisen later learned was Rodolfo Martinez. (Id. at 159.) After the driver was cleared from the vehicle, Theisen searched it for other persons and observed that the rear window had been shattered; there were glass shards in the bed of the pickup truck; a smell of fresh gunpowder was in the cab; a spent .45-caliber shell casing was on the driver-side floorboard; an unexpended .45-caliber round was on the seat; and a .45-caliber semiautomatic firearm was partially concealed on the driver's seat. (Id. at 159-61.) Theisen also noticed a beer bottle in the bed of the pickup truck. (Id. at 161-62.) Arreola cooperated with the officers when arrested and did not respond aggressively, but staggered and appeared off balance. (Id. at 167, 177-78.)

Doctor Walter William Strauser, a physician with a specialty in the care of individuals with neurological impairment and disability, testified that he first treated Danny Lopez after Lopez had been transferred to Sharp Hospital from the Trauma and Neurosurgical section of UCSD Medical Center, where he had been treated for one month as a result of a gunshot wound to the left side of his brain. (Id. vol. 2, at 185-86, May 26 and 27, 1999.) When Lopez arrived at UCSD on the night of the shooting, he was immediately taken into surgery where dead brain tissue was flushed out of his skull and the wound closed; Lopez could not breathe on his own, so a tracheostomy was performed, and he was placed on a ventilator. (Id. at 188.) A feeding tube was inserted through an incision in his lower abdomen, a hole was drilled in his skull to monitor pressure in the brain, and he was given antibiotics for seven weeks for a severe infection in his lungs. (Id.) Doctor Strauser testified that Lopez was comatose for two or three weeks, almost died as a result of the gunshot injury, has permanent brain damage, and is permanently disabled. (Id. at 189, 194.)

Mitchell McKaig, a Chula Vista Police Officer, testified that he apprehended Arreola around 11:00 p.m. on November 13, 1998, while Arreola was driving a blue pickup truck. (Id. at 218-19, 227.) After stopping the vehicle, McKaig yelled at Arreola to exit the vehicle approximately eight times over three to five minutes before Arreola came out with his hands raised. (Id. at 220.) Arreola was moving around inside the vehicle during that time and appeared to be shuffling things around. (Id.) Officers Adkins and Thiesen arrived about three minutes after McKaig stopped Arreola's vehicle. (Id. at 221.) A search of the vehicle revealed an empty .45-caliber casing on the floorboard and a .45-caliber automatic weapon. (Id. at 223.) Arreola was coherent but appeared to be intoxicated. (Id. at 233-34.)

Roger Harris testified that he was at Marisol's nightclub on the evening of November 13, 1998, and about 11:00 p.m. he started toward the front door to go outside to smoke a cigarette. (Id. at 235-36.) A wave of people came toward Harris running away from an area near the front door where Harris could see three men. (Id. at 237.) One of the men, whom Harris identified in court as Arreola, was saying something and pointing a handgun at the shorter of the other two men; Arreola lowered the gun and then raised it and pointed it at the security guard. (Id. at 237-41, 242-43.) Harris was about five or six feet away when he was momentarily knocked off balance by the people coming toward him, at which time he heard a gunshot, looked up and saw that the security guard had been shot. (Id. at 240-42.)

After checking to see if the security guard was still breathing, Harris heard someone say to follow the gunman and get his license plate number. (Id. at 243.) Harris looked out the door and saw Arreola walking in the parking lot and decided to follow him. (Id. at 244.) Arreola walked straight to a pickup truck and began fiddling with his keys while standing by the driver side door when Harris said: "Hey, you maybe should wait around a while." (Id. at 246-48.) Arreola replied, "Do you want the same thing to happen to you?" while pointing the gun at Harris. (Id.) As Arreola started his vehicle, Harris threw a beer bottle he was holding at the pickup truck, breaking the middle sliding rear window. (Id. at 249-50.) Harris then heard three gunshots. The first shot shattered the rear window of Arreola's pickup truck and passed about eighteen inches from Harris before hitting and shattering the side-view mirror of a vehicle five feet away; Harris ducked as the second shot hit something he did not see, and he heard no impact for the third shot. (Id. at 251-52, 279-89.) Arreola then backed the pickup truck out of the parking space and began to drive off, but he slowed down and paused while passing the aisle where Harris was hiding. (Id.) Harris said Arreola walked with a shaky gate, but it was clear Arreola understood what Harris was saying. (Id. at 255-56.)

Christopher Kelly, a Chula Vista Police Officer, testified that he responded to a shooting call on November 13, 1998 on Broadway and Main Street in Chula Vista. (Id. at 296-97.) Kelly secured the parking lot and accompanied the victim in the ambulance to a location where a helicopter picked the victim up for transport to the hospital. (Id. at 298.)

Rodolfo Martinez-Mercado testified that he arrived at Marisol's nightclub at about 10:30 p.m. on November 13, 1998, and stood outside at the front entrance for about ten minutes. (Id. at 301-02.) Martinez-Mercado said that a man was talking to the manager and a security guard and was asking to be allowed back inside. (Id. at 303.) The man went to the parking lot and came back two minutes later with a gun in his hand, pointed the gun at the manager and security guard and said: "Are you going to let me in or no?" (Id. at 303-05.) Either the manager or the security guard said: "Okay, go in and put the gun away," and Martinez-Mercado heard a shot but did not see who had been shot. (Id. at 306-07.) The man who fired the shot turned around and calmly walked toward the parking lot, but at one point, he turned around and pointed the gun at Martinez-Mercado and another man who had called after the gunman. (Id. at 307.) The gunman proceeded to a pickup truck followed by someone who had come out of the nightclub with a bottle in his hand. (Id. at 308-10.) The man with the bottle approached the pickup truck, said something to the gunman, and then broke the rear window of the truck with the bottle. (Id. at 310.) The gunman fired three more shots, shattering the rear window of the pickup truck, and then drove away. (Id. at 308-10.) Martinez-Mercado followed the pickup truck in his own vehicle and eventually identified the shooter at the scene of the arrest. (Id. at 310-11.) Martinez-Mercado was unable to identify anyone in court as the shooter, but he was sure the police arrested the right man that night. (Id. at 311.)

Vicky Lopez testified that she arrived at Marisol's nightclub at about 10:00 p.m. on the evening of November 13, 1998, to drop off artwork she had done for band members. (Id. at 320.) About forty-five minutes after she arrived she was waiting at the front entrance for a car blocking her car to be moved when a man whom she had seen earlier being refused admission because he was drunk approached the cashier and pointed a gun at the manager. (Id. at 321.) Lopez immediately ran into the office, called 911, and heard a shot while she was placing the call. (Id. at 323-25.) She did not see the gunman in the courtroom but identified Arreola at the police station that night. (Id. at 322-23, 452-53.)

Daniel Hardman, a Detective with the Chula Vista Police Department, testified that he collected evidence at the crime scene. (Id. at 329.) Detective Hardman collected broken glass from the parking lot and from the bed of the pickup truck Arreola was driving when arrested. (Id. at 330, 340-41.) He recovered a bullet slug from the wall of the nightclub, a bullet slug from inside a toolbox in the bed of the pickup truck during his initial search, another bullet slug from inside the toolbox at a later date, and had been informed that a partial bullet slug was recovered from the victim's brain. (Id. at 333-37, 344-45.) Detective Hardman collected a bullet casing from the floor of the nightclub just inside the entrance and several casings from the cab of the pickup truck. (Id. at 335-37.) He also collected live .45-caliber rounds and a .45-caliber semiautomatic pistol from inside the cab of the pickup truck. (Id. at 339-40.)

Pilar Konstantis testified that she was working as the cashier at Marisol's nightclub at 10:00 p.m. on the evening of November 13, 1998. (Id. at 376-77) She saw a man, whom she identified in court as Arreola, pointing a gun at the manager from about six to eight inches away and heard him say in Spanish: "Are you going to let me in or what?" (Id. at 377-79, 386.) The manager responded in Spanish: "Calm down. Put the gun down and we're going to talk." (Id. at 379.) Konstantis ran to the office where someone was in the process of calling 911. (Id. at 379-80.) While in the office she heard a single shot, and a few seconds later heard two or three more shots. (Id. at 381.)

Guadalupe Perez testified that she arrived at Marisol's nightclub with her niece between 10:15 and 10:30 p.m. on November 13, 1998, but they were not able to enter because a man, whom she identified in court as Arreola, was arguing with security. (Id. at 387, 391-92.) Later in the evening, Perez was exiting through the front door to make a telephone call when she saw Arreola just inside the door arguing with a security guard and pointing a gun. (Id. at 388-89.) Perez ran outside and heard a gunshot. (Id. at 390.) She saw Arreola run out of the nightclub chased by two other men, one of whom had a bottle in his hand, and she ran inside. (Id. at 390-91.)

Carlos Valdivia, a Chula Vista Police Officer, testified that he was the backup detective in the investigation of the shooting at Marisol's nightclub, and he interviewed Arreola the evening of the shooting. (Id. at 397.) Arreola told Valdivia that his name was Ismael Cueto and that he had identification in his wallet; Valdivia retrieved the wallet and found a California Driver's license bearing the name Jesus Arreola. (Id. at 397-98.) A computer check of the license identification number revealed that the license had not been issued by the California Department of Motor Vehicles and was a forgery. (Id. at 398-99.) Arreola was booked under the name Ismael Cueto, and the blood drawn from Arreola that night was sent to the laboratory. (Id. at 399-400.) Arreola appeared intoxicated at that time. (Id. at 401.)

Danny Lopez testified that he was working as a security guard at Marisol's nightclub on the evening of November 13, 1998, and could remember waking up in the hospital but could not remember being shot. (Id. vol. 3, at 440, May 28 and June 1-4, 1999.) Lopez said his right arm and leg were weakened; he had been through extensive rehabilitation and was about forty percent recovered; a piece of the bullet remained in his brain; and his short-term memory was severely impaired. (Id. at 441-44.)

The parties stipulated that Arreola had been observed at least four times between December 1995 and November 1998 performing activities while having blood alcohol levels between .11 and .18, and on the night of the shooting, his blood alcohol level was .20 at the time it was drawn. (Id. at 415.) The parties also stipulated that the projectiles recovered from Lopez's head and from the wall at Marisol's nightclub were determined to have been fired from the gun recovered from Arreola's vehicle. (Id. at 446.) The People rested. (Id. at 447.)

b) Defense Case

J. Raymond Wells testified that he runs a private forensic consulting business and has been qualified over one thousand times in state and federal courts as an expert in the area of how alcohol relates to the impairment of a human being. (Id. at 416-18.) Based on the fact that blood was drawn from Arreola between midnight and 1:00 a.m., Wells opined that Arreola's blood alcohol content at the time of the shooting was probably .21 or .22. (Id. at 419, 430.) Wells testified that a person who has built up a tolerance for alcohol might not show outward signs of intoxication to the same degree as another person, and the physical signs of intoxication for a person who has built up a tolerance for alcohol might not be obvious even though the person's decision-making process is affected. (Id. at 423-27.)

John McAvenia, a Detective with the Chula Vista Police Department, testified that he videotaped an interview with Betancourt. (Id. at 447.) The videotaped interview was played for the jury. (Id. at 458.) It was described by counsel outside the presence of the jury as conflicting with Betancourt's trial testimony that Arreola aimed the gun directly at Lopez before shooting. On the videotape Betancourt described it as "more of a quick motion, the gun being pulled from the waist, coming across the front of the body with the right hand coming across the lower face or jawline of the shooter . . . and at some point in time in this gesture, a shot taking place the victim being hit." (Id. at 16.) McAvenia testified on cross-examination that Vicky Lopez had identified Arreola while he was in custody; but Arreola's appearance had changed; and he did not look the same in the courtroom as he had on the night of the shooting. (Id. at 452-53.)

Roberto Arreola, Petitioner's uncle, testified that Petitioner has no reputation in his community for violence and has never been a violent person or acted aggressively when drinking, which he did regularly. (Id. at 458-60.) Alicia Arreola, Petitioner's wife, testified that the toolbox in the bed of Petitioner's pickup truck had three bullet holes, two were visible from the outside of the truck and one was on the inside of the cab leading into the toolbox. (Id. at 462.) She found a bullet inside the toolbox and notified Petitioner and defense counsel. (Id. at 463.) She testified that Petitioner does not have a reputation for violence in their neighborhood and has a non-violent character even when intoxicated. (Id. at 465-66.) She said that Petitioner appeared very intoxicated at 6:00 p.m. on the evening of the shooting when he left the house to play pool. (Id. at 466.) The defense rested, and no rebuttal testimony was offered. (Id. at 472.)

c) The Result

The jury found Arreola not guilty of attempted murder of Daniel Lopez (count one), but guilty of the lesser included offense of attempted voluntary manslaughter, and found that Arreola had personally used a handgun and inflicted great bodily injury during the commission of that offense. (Id. at 656-58.) The jury found Arreola not guilty of attempted murder of Roger Harris (count five), but guilty of the lesser included offense of attempted voluntary manslaughter, and found that Arreola had personally used a handgun during the commission of that offense. (Id. at 659-60.) Arreola was found not guilty of aggravated mayhem (count two) but guilty on the remaining counts of mayhem (count three), assault with a semiautomatic firearm with respect to Lopez (count four), Harris (count six) and Betancourt (count seven), discharging a firearm from a vehicle (count eight), dissuading a witness (Harris) by force or theat (count nine), and false personation (count ten). (Id. at 658-62.) The jury also found that Arreola had personally used a handgun during the commission of counts one and three through eight. (Id.)

The verdicts were taken on June 4, 1999, and a new trial motion was heard on January 20, 2000, at which Arreola was represented by new counsel. (Id. vol. 4, at 665, Jan. 20, 2000.) Arreola argued that the court had erred in refusing his request to instruct the jury on the lesser included offense of grossly negligent discharge of a firearm with respect to count three (mayhem), that the verdicts on attempted voluntary manslaughter (counts one and five) were contrary to the evidence, that insufficient evidence existed to support the verdicts on count eight (discharging a firearm from a vehicle) and count nine (dissuading a witness), and that Arreola's trial counsel had rendered ineffective assistance by advising Arreola not to testify, which prevented evidence coming before the jury that the shooting was accidental. (Id. at 665-66.) The new trial motion was denied (id. at 682-86), and Arreola was sentenced to a state prison term of thirty-five years and four months-to-life. (Id. at 696-700.)

IV. PETITIONER'S CLAIMS

(1) Arreola was denied his right to due process as guaranteed by the Fourteenth Amendment because there was insufficient evidence to establish he had the intent to dissuade or prevent Roger Harris from making a police report or testifying at trial. (Doc. No. 1, at 84-120, Am. Pet. 6, 10-16.) Insufficient evidence existed to support the conviction for count nine, dissuading a witness by force or fear. (Id.)

(2) Because there was insufficient evidence to establish that Petitioner intended to shoot Roger Harris when he fired several shots in his general direction, the conviction for count five, attempted voluntary manslaughter of Roger Harris, denied Arreola his right to due process as guaranteed by the Fourteenth Amendment (Id. at 6, 17-18.)

(3) Arreola was denied due process as guaranteed by the Fourteenth Amendment because the trial court refused to instruct the jury on the lesser included offense of grossly negligent discharge of a firearm as to counts six and eight. (Id. at 7, 18-23.)

(4) Because the trial court denied his request to instruct the jury on the lesser included offense of grossly negligent discharge of a firearm as to count three, Petitioner was denied his right to due process as guaranteed by the Fourteenth Amendment.¹ (Id. at 7, 23-25.)

1 Claim four is brought as a separate claim although it is also included within claim three.

(5) Arreola was denied his right to due process as guaranteed by the Fourteenth Amendment because the trial court denied his motion for a new trial brought on the basis that trial counsel did not allow Arreola to testify on his own behalf, which prevented the jury from hearing evidence that the shooting was accidental. (Id. at 9, 25-27.)

(6) Petitioner was denied his right to the effective assistance of counsel guaranteed by the Sixth Amendment because trial counsel failed to allow him to testify on his own behalf. (Id. at 9, 28-30.)

(7) Arreola was denied his right to due process as guaranteed by the Fourteenth Amendment because he received separate punishments for voluntary manslaughter and the firearm use sentence enhancement allegation. (Id. at 9, 30-33.) Both arose from the same acts, violated principles of double jeopardy and collateral estoppel, amounted to double punishment, and violated the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). (Id.)

V. DISCUSSION

Respondent contends the state court's adjudication of claim one, the only claim presented to the state supreme court on direct review, is neither contrary to, nor involved an unreasonable application of, clearly established United States Supreme Court precedent, and did not involve an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. (Answer Mem. 1-2.) Respondent contends all remaining claims are procedurally defaulted because the California Supreme Court denied those claims on the basis of state procedural rules which are independent of federal law and adequate to support the judgment, and Petitioner has failed to show adequate grounds to excuse the default. (Id.) Finally, Respondent contends that assuming the Court can reach the merits of any or all of the procedurally defaulted claims, the adjudication by the state appellate court of the claims which were presented to that court on direct appeal (claims two, three, five, six and eight), is objectively reasonable within the meaning of 28 U.S.C. § 2254(d), and the claims which were not presented to the appellate court (claims four and seven), for which there is no reasoned state court opinion, are without merit. (Id. at 20-21.)

A. Standard of Review

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C.A. § 2254(a) (West 1994) (emphasis added).

The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C.A. § 2254(d) (West Supp. 2005).

A state court's decision may be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. An unreasonable application may also be found, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.

"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412.

Habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C.A. § 2254(d)(2) (West Supp. 2005). In order to satisfy this provision, Arreola must demonstrate that the factual findings upon which the state court's adjudication of his claims rest, assuming they rest on a factual determination, are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Petitioner may overcome the presumption the state court's factual findings are correct, but only by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1) (West Supp. 2005).

B. Petitioner is Not Entitled to Habeas Relief on the Basis of claim One — Insufficient Evidence.

In claim one, Arreola contends he was denied his right to due process as guaranteed by the Fourteenth Amendment because insufficient evidence exists to support his conviction on count nine, dissuading a witness by force or fear. (Am. Pet. 6, 10-16.) He argues there was no evidence to establish he had the intent to dissuade or prevent Roger Harris from making a police report or from testifying at trial when Arreola fired several shots in Harris's general direction while effectuating his escape. (Id.)

Claim one was presented to the state supreme court in the petition for review. (Doc. No. 1, at 305-25, Petition for Review at 14-16, People v. Arreola, No. SD2000DA0637.) The petition was denied without comment or citation of authority. (Doc. No. 1, at 326, People v. Arreola, No. S103675, slip op.) Because the California Supreme Court did not articulate its rationale for denying the claim, this Court applies the following rebuttable presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 806 (1991).

Claim one was presented to the appellate court on direct appeal. (Doc. No. 1, at 191-230, Brief for Appellant at 13-19,People v. Arreola, No. D035044.) It denied the claim in an unpublished opinion in which it reviewed the trial record to determine "whether, 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." (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 4 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).) The appellate court considered whether the evidence was "reasonable, credible and of solid value" so that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (Id.) The state appellate court concluded:

While Harris is clearly a victim and witness under the circumstances, the closer question is whether appellant had the specific intent to prevent or dissuade Harris from arresting, or causing or seeking his arrest. Shortly after the shooting, in the parking lot after appellant entered his pickup, Harris confronted appellant. The verbal exchange between appellant and Harris suggests an intent by appellant to prevent arrest. Harris told appellant he should wait at that location. Appellant responded with a question: "Do you want the same thing to happen to you?" Appellant's words conveyed a clear threat to Harris who understood them to mean that he should not get involved. The words unequivocally showed appellant was threatening Harris with some kind of reprisal had Harris persisted. ( People v. Jones (1998) 67 Cal.App.4th 724, 727.)

Furthermore, in determining appellant's intent, his words are considered in context. That is, under all the circumstances, did appellant intend to threaten or intimidate Harris in order to prevent or dissuade him from causing or seeking appellant's arrest? The facts suggest a reasonable trier of fact could find appellant did intend to do precisely that. Appellant pointed his pistol at Harris's head as he queried whether he wished to meet the same fate as Lopez. As appellant began to drive away, Harris threw the beer bottle that broke the rear window of appellant's truck. Seconds later, appellant fired three shots, one of which apparently missed Harris by only 18 inches. The brandishing of the weapon, shattered glass and shot fired provide concrete contextual meaning for the arguably vague verbal exchange. A reasonable conclusion could be that appellant was seeking to intimidate and dissuade Harris from causing his arrest.

We find under these circumstances a jury, therefore, could reasonably conclude appellant harbored the specific intent to intimidate or dissuade Harris from causing or seeking his arrest.

(Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 6-7.)

Petitioner contends the evidence adduced at trial with respect to the intent to dissuade Harris from filing a police report or testifying at trial does not satisfy the standard set forth inJackson v. Virginia, 443 U.S. 307 (1979). (Am. Pet. 11.) Respondent agrees that Jackson sets forth the applicable standard, but she contends Jackson must be applied in light of AEDPA, which requires a determination by this Court whether the state court's adjudication of the claim was either contrary to, or involved an unreasonable application of, Jackson. (Answer Mem. 8-9.)

Clearly established federal law provides that the Fourteenth Amendment's Due Process Clause is violated, and an applicant is entitled to habeas corpus relief, "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt."Jackson, 443 U.S. at 324; In re Winship, 397 U.S. 358, 364 (1970) (holding that Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime). Federal habeas courts must respect the province of the jury to determine the credibility of witnesses and resolve conflicts in the evidence; the Court assumes all conflicts were resolved in a manner which supports the verdict. Jackson, 443 U.S. at 319. When reviewing a claim of insufficient evidence, federal habeas courts must consider the evidence "in the light most favorable to the prosecution." Id. Courts must analyzeJackson claims "with explicit reference to the substantive elements of the criminal offense as defined by state law."Id. at 324 n. 16 (emphasis added).

The Ninth Circuit has recently stated that: "After AEDPA, we apply the standards of Jackson with an additional layer of deference." Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005). In Allen, the Ninth Circuit described the standard of review applied by the state appellate court to the sufficiency of the evidence claim and found that although the state court did not cite to the relevant federal case law, "such a citation is not required `so long as neither the reasoning nor the result of the state-court decision contradicts' Supreme Court precedent." See id. at 1274 n. 12 (quoting Early v. Packer, 537 U.S. 3, 8 (2003)). The state appellate court here specifically appliedJackson. (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 4.) This Court must similarly determine whether the state appellate court opinion here "reflected an unreasonable application of Jackson and Winship to the facts of this case." Allen, 408 F.3d at 1275.

Petitioner contends there was no evidence he had the intent to dissuade Harris from reporting the incident to the police or to prevent him from testifying at trial. Rather, Arreola argues the evidence merely showed he "was only doing that necessary to effectuate his escape." (Am. Pet. 15.) He contends there is nothing in the record to support a finding that by firing the shots at Harris, he had any intention other than fleeing the scene, and there is no evidence that he intended to dissuade Harris from contacting law enforcement or emergency personnel. (Traverse 6.) Petitioner asserts this Court is bound by the factual determination made by the state court at the preliminary hearing where this count was dismissed from the original information for lack of sufficient evidence. (Id. at 4-6.)

The state appellate court determined there was sufficient evidence to support a reasonable conclusion that Arreola "was seeking to intimidate and dissuade Harris from causing his arrest." (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 7.) Under California law, the crime of dissuading a witness requires a showing that Arreola attempted to prevent or dissuade a witness to a crime from "(a)rresting or causing or seeking the arrest of any person in connection" with the crime. (Id. at 5.) The state court found this element had been satisfied because Arreola's statement, "Do you want the same thing to happen to you?," in response to Harris's invitation to stay around "unequivocally showed [Arreola] was threatening Harris with some kind of reprisal had Harris persisted." (Id. at 7.) The appellate court also found that Arreola's firing at Harris after he broke the rear window of Arreola's truck provided "concrete contextual meaning" to the verbal exchange. (Id.)

Viewing the evidence in the light most favorable to the prosecution, and assuming the jury resolved credibility issues and evidentiary conflicts in a manner which supports the verdict,Jackson, 433 U.S at 319, there is sufficient evidence to establish that Arreola acted with the intent to dissuade Harris from "causing or seeking" Arreola's arrest. This evidence includes Harris's testimony that when he suggested Petitioner "wait around" rather than drive away from the scene of the shooting, Arreola responded by pointing the gun at him and saying: "Do you want the same thing to happen to you?" (Lodgment No. 2, Rep.'s Tr. vol. 2, at 246-48.) Harris testified he took that to mean, "Get back, don't get involved." (Id. at 248.) In addition, one of the shots Arreola fired at Harris passed about eighteen inches from him, and before exiting the parking lot, Arreola slowed down and paused when driving past the aisle where Harris was hiding. (Id. at 252.)

Petitioner's trial counsel argued to the jury that Harris's testimony was contradicted by Martinez-Mercado who testified that Petitioner never said a word to Harris, and Harris's testimony was not credible due to his felony record and the lack of corroborative evidence. (Id. vol. 3, at 617-23.) However, this Court is required to respect the province of the jury to determine Harris's credibility and resolve conflicts in the evidence, and the Court must assume all conflicts were resolved in a manner which supports the verdict. Jackson, 443 U.S. at 319. Petitioner also contends that the evidence did not support a finding that he intended to hit Harris with any of the three shots because all three bullets hit the toolbox in the bed of the pickup truck. Arreola concedes he fired each of the shots in Harris's general direction. The evidence supports a finding that this was done in response to Harris's attempt to prevent Petitioner from leaving the scene. The intent element of dissuading a witness by force or fear was satisfied.

Although the jury could have reasonably inferred that Arreola was attempting only to effectuate his escape, it is equally reasonable for the jury to have concluded Arreola was also attempting to prevent or dissuade Harris from holding him at the scene of the crime to be arrested. See Early v. Packer, 537 U.S. 3, 10 (2002) (stating that despite the existence of other reasonable conclusions, where, "it is at least reasonable to conclude that [the state court's conclusion was reasonable] . . . the state court's determination to that effect must stand.") In any case, it cannot be said that the state court's finding is objectively unreasonable. Andrade, 538 U.S. at 75-76 ("[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable.").

Under the standard announced in Jackson v. Virginia, Petitioner's federal due process rights were not violated because there was sufficient evidence adduced at trial to support his conviction for dissuading a witness by force or threat. The state court's adjudication of Petitioner's sufficiency of the evidence claim, therefore, was neither contrary, to nor involved an unreasonable application of, Jackson. Neither did it involve an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

Finally, Arreola contends in the Traverse that this Court is bound by the factual determination made by the state court at the preliminary hearing wherein this count was dismissed from the original information for lack of sufficient evidence. (Traverse 4-6.) At the end of the preliminary hearing on December 17, 1998, the presiding superior court judge held Arreola to answer all charges in the amended felony complaint except count seven, dissuading a witness by force or threat, stating:

I'm not satisfied about number seven, particularly in light of what the witness said. I don't think it was a dissuading situation. He was just telling him, "don't get involved in this with me." And I don't see that as falling under that particular charge.

(Second Supplemental Lodgment No. 1, Rep.'s Tr. at 74, Dec. 17, 1998.)

An amended information was filed on December 29, 1998, which included the charge of dissuading a witness by force or threat as count nine. (Lodgment No. 1, Clerk's Tr. at 14.) Petitioner was arraigned on the amended information on February 5, 1999, and pled not guilty to all charges. (Id. at 298.)

Respondent contends the finding of the superior court judge at the conclusion of the preliminary hearing is not entitled to deference or a presumption of correctness in this Court because it was a legal determination and not a factual finding. (Resp't Supplemental Br. 3-4.) Woodford also contends that to the extent Arreola is attempting to present a claim based on refiling the charge: (1) The claim is improperly raised for the first time in the Traverse; (2) it is procedurally defaulted by Petitioner's failure to object at trial or move to dismiss the refiled charge from the amended information; (3) AEDPA requires federal courts to look to the state appellate court's adjudication of the underlying claim to identify which factual findings are to be given deference; and (4) there is no clearly established federal law providing a right to a judicial determination of probable cause as a prerequisite to prosecution. (Id. at 4-9.)

Petitioner replies that the finding at the preliminary hearing was factual in nature, not legal, because it was based on Harris's testimony. (Pet's Supplemental Br. 2-3.) The trial judge found that Harris's testimony established that Harris understood Arreola to mean "don't get involved" with Arreola, and to "leave him alone," rather than an attempt to dissuade Harris from stopping Arreola from leaving. (Id. at 2-4.)

Under California law, the determination that Harris's testimony at the preliminary hearing did not support a finding of probable cause to hold Arreola to answer to the charge of dissuading a witness by force or threat is a legal determination and not a factual finding. People v. Slaughter, 35 Cal. 3d 629, 639, 677 P.2d 854, 859, 200 Cal. Rptr. 448, 453 (1984) (citing Pizano v. Superior Court, 21 Cal. 3d 128, 133-34, 145 Cal. Rptr. 524, 527, 577 P.2d 659, 662 (1978) (holding that when "the magistrate either expressly or impliedly accepts the evidence and simply reaches the ultimate legal conclusion that it does not provide probable cause . . ., such conclusion is open to challenge by [recharging the offense]."). Because no factual findings regarding dissuading a witness by force or threat were made at the preliminary hearing, the trial court was under no obligation to adopt any finding; it denied the motion for a new trial and concluded that sufficient evidence existed to support this count. (Lodgment No. 2, Rep.'s Tr. vol 4, at 684.) Likewise, the appellate court found that sufficient evidence was presented at trial to support the jury's finding that Arreola committed the offense beyond a reasonable doubt. Petitioner has presented no basis for deviating from Jackson v. Virginia or deferring to the legal determination made at the preliminary hearing.

The state appellate court's adjudication of claim one was neither contrary to, nor involved an unreasonable application of, clearly established federal law, and it was not based on an unreasonable determination of the facts in light of the evidence presented in the state proceedings. Accordingly, the Court finds that habeas relief should be denied as to claim one.

C. Petitioner is Not Entitled to Habeas Relief on the Basis of Claim Two — More Insufficient Evidence.

In his second claim, Arreola contends he was denied his right to due process as guaranteed by the Fourteenth Amendment because there was insufficient evidence to support his conviction on count five, attempted voluntary manslaughter of Harris. (Am. Pet. 6, 17-18.) Specifically, Petitioner asserts that he merely fired several shots in Harris's general direction in an attempt to escape, but there was no evidence he intended to hit Harris. (Id.) He also contends California law requires a finding that his actions arose from a sudden quarrel or heat of passion to sustain a conviction for attempted voluntary manslaughter, and there was no such evidence in the record. (Traverse 8.)

Claim two was presented to the state appellate court on direct appeal (Doc. No. 1, at 191-230, Brief for Appellant at 20-23,People v. Arreola, No. D035044), but it was not included in the subsequent petition for review filed in the state supreme court on direct appeal. (Doc. No. 1, at 305-25, Petition for Review,People v. Arreola, No. SD2000DA0637.) Rather, claim two was presented to the state supreme court in the second habeas petition filed in that court, which was filed nearly two years after the conclusion of direct review. (Lodgment No. 5, Petition at 3, 7-8, Arreola v. Garcia, No. S121651.) That petition was denied with an order which stated: "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750; In re Waltreus (1965) 62 Cal.2d 218; In re Dixon (1953) 41 Cal.2d 756; In re Swain (1949) 34 Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th 464, 474.) [¶] Werdegar, J., was absent and did not participate." (Lodgment No. 6, In re Arreola, No. S121651, slip op.)

Respondent contends claim two is procedurally defaulted, and this Court is unable to reach the merits of the claim because Arreola has failed to demonstrate cause and prejudice to excuse the default or that a fundamental miscarriage of justice would result from the failure to reach the merits of the claim. (Answer Mem. 14-20.) Respondent argues that even assuming the claim is not procedurally defaulted, the state appellate court reasonably rejected the claim, and it is without merit. (Id. at 20-22.) Arreola replies that his claims are not procedurally defaulted because they were all presented to the state supreme court in a timely manner and were not presented in successive petitions. (Traverse 6-8.)

1. Procedural Default

When a state court rejects a federal claim based upon a violation of a state procedural rule which is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is "independent" if it is not interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established" at the time of the default. Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996).

However, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotation marks omitted). Generally, when a state court order invokes multiple procedural bars without specifying which bars are applied to which claims, the order is ambiguous and will not support a procedural default. Koerner v. Grigas, 328 F.3d 1039, 1052 (9th Cir. 2003). But see Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000) (holding that when two state procedural rules are invoked in a single order disposing of multiple claims, the ambiguity does not preclude procedural default so long as both bars are adequate and independent); Hill v. Roe, 321 F.3d 787, 790 (9th Cir. 2003) (holding that a citation to Waltreus and one other state case in a single order denying multiple claims requires a determination only as to whether the second case stands for a procedural rule which is adequate and independent). Additionally, the Court may still reach the merits of a procedurally defaulted claim if the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the default, or if the failure of the Court to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

Respondent has the initial burden of pleading as an affirmative defense that Arreola's failure to satisfy a state procedural bar forecloses federal habeas review. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). The burden then shifts to Petitioner to challenge the independence or adequacy of the procedural bar.Id. For example, Arreola can show that the procedural bar has been inconsistently applied. Id. If Petitioner makes a sufficient showing, then the ultimate burden of proof falls on Respondent. Id.

The state supreme court order did not specify which of the six cases cited were intended to apply to which of the six claims raised in the habeas petition. Respondent contends the citations to Robbins, Clark, Waltreus, Dixon, Swain and Duvall all represent procedural bars which are independent of federal law and adequate to support the judgment. (Answer Mem. 14-15.) Respondent contends, therefore, that the failure of the state supreme court to identify which bar applies to which claim is irrelevant. (Id. at 15.) In particular, Respondent contends the state supreme court citation to Waltreus is a reference to the state procedural rule providing that claims which have been raised in the appellate court on direct appeal cannot be raised for the first time in the state supreme court on habeas. (Id. at 16.) The Waltreus bar was applied to claim two, according to Respondent, because claim two was presented to the appellate court on direct appeal but was not included in the petition for review of the appellate court's opinion. (Id.) Woodford speculates that the Robbins and Clark procedural bars were also applied to claim two. (Answer Mem. 15.)

In Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991), the Court adopted a presumption which gives no effect to unexplained state court orders but "looks through" them to the last reasoned state court decision. The Court observed, with respect to California'sWaltreus rule: "Since a later state decision based upon ineligibility for further state review neither rests upon procedural default nor lifts a pre-existing procedural default, its effect upon the availability of federal habeas is nil — which is precisely the effect accorded by the `look-through' presumption." Id. at 804 n. 3. The Ninth Circuit has found that "[a]n In re Waltreus citation is neither a ruling on the merits nor a denial on procedural grounds and, therefore, has no bearing on a California prisoner's ability to raise a federal constitutional claim in federal court." Hill, 321 F.3d at 789.Ylst requires this Court to look through the state supreme court order to the state appellate court opinion to determine whether claim two was denied on the basis of a procedural rule.See Ylst, id.; Hill, 321 F.3d at 789 (recognizing that the Supreme Court decision in Ylst forecloses any argument thatWaltreus rule can be considered an independent and adequate state procedural ground).

Two Ninth Circuit cases are instructive in resolving this claim: Forrest v. Vasquez, 75 F.3d 562 (9th Cir. 1996), andMaxwell v. Sumner, 673 F.2d 1031 (9th Cir. 1982). Arreola's case seems to fall between the two.

In Forrest, the petitioner's conviction was affirmed by the state court of appeal. Forrest, 75 F.3d at 563. He failed to comply with Rule 28(b) of the California Rules of Court and file a timely petition for review with the California Supreme Court; he subsequently filed an application for relief from default, which was denied. Id. Forrest then filed a habeas petition with the California Supreme Court; the petition was denied with a citation to In re Waltreus, 62 Cal.2d 218, 42 Cal.Rptr. 9, 397 P.2d 1001 (1965). The Ninth Circuit did not look past the supreme court's unexplained order denying Forrest's application for relief from default. Forrest, 75 F.3d at 564. In effect, the Ylst presumption, which gives no effect to the unexplained order denying the state habeas petition, was rebutted by the California's Supreme Court's earlier order denying relief from default. Id. Forrest's habeas claims were procedurally defaulted. Id.

The Forrest court distinguished its case from Maxwell v. Sumner, 673 F.2d 1031. In Maxwell, decided before Ylst, the petitioner's conviction was affirmed by the court of appeal, and Maxwell unsuccessfully petitioned for review by the California Supreme Court. Id. at 1033. He then filed a habeas petition with the state supreme court, which was denied with a citation toIn re Waltreus. Id. The warden contended that Maxwell's constitutional claim was procedurally barred because he did not expressly raise the claim in his petition for hearing. Id. The Ninth Circuit rejected the argument and stated:

Waltreus thus holds that arguments rejected on appeal will not be reviewed again in habeas; by citing Waltreus in its denial of Maxwell's habeas petition, the California Supreme Court stated by clear implication that Maxwell's self-representation claim had been considered and rejected on the merits on direct appeal.

Id. at 1034 (emphasis added). The Maxwell court concluded that the state court's citation to Waltreus did not create a procedural bar to federal habeas review. Ylst teaches that, contrary to Maxwell, a citation to Waltreus is no indication of whether the state court considered the merits of a claim.Ylst, 501 U.S. at 805. Maxwell reached the right result, albeit for the wrong reason.

The Court will first "look through" the state supreme court's denial of Arreola's habeas petition to the appellate court opinion to determine whether the appellate court imposed a procedural bar. Because the Waltreus citation is not an adequate and independent procedural bar, there is no need to examine whether all the other procedural bars identified by the state court are adequate and independent. See Washington v. Cambra, 208 F.3d at 834 (holding that if any procedural bar cited is not adequate and independent, procedural default does not apply). The appellate court denied Arreola's claim stating:

We first sort out appellant's argument. Here the jury was instructed that attempted murder requires malice aforethought. Malice aforethought was defined as the intent to kill. The jury was told that attempted voluntary manslaughter is committed when, while the defendant intended to kill, the killing occurred upon a sudden quarrel or heat of passion or when there is an actual but unreasonable belief in the necessity to defend oneself against imminent peril.

Contrary to appellant's position, in light of these instructions, the jury necessarily found that he intended to kill Harris. There is certainly sufficient evidence to support that finding. Appellant's [sic] contends, however, there was insufficient evidence of a quarrel or sudden heat of passion or, though unmentioned by appellant, insufficient evidence of imperfect self-defense. Thus, appellant essentially contends while the jury necessarily found he intended to kill Harris, i.e., there was malice aforethought, it erred in finding any basis for reducing the required finding of murder to voluntary manslaughter and thus, appellant should have been found not guilty of any attempted criminal homicide as to Harris.

The argument lacks merit. In People v. Rios (2000) 23 Cal.4th 450, the court dealt with the relationship of murder and voluntary manslaughter. There as here the defendant was convicted of voluntary manslaughter. He complained on appeal that the instructions on voluntary manslaughter was prejudicially incomplete in that it lacked mention of the "elements" of provocation or imperfect self-defense. The court characterized this as an argument that "if the jury believed he committed an intentional, unlawful killing, without provocation or belief in the need to defend himself, it must acquit him of voluntary manslaughter." ( Id. at p. 454.)

In response, the court stated: "(A) conviction of voluntary manslaughter is supported by proof and findings . . . that the homicide was unlawful and intentional. There is no additional need for the prosecution to establish that malice was lacking by reason of provocation or a belief in the need for self-defense." ( People v. Rios, supra, 23 Cal.4th at p. 454.)

The court explained: "If the issue of provocation or imperfect self-defense is . . . `properly presented' in a murder case (citation.), the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. (Citations.) California's standard jury instructions have long so provided. (Citation.) In such cases, if the fact finder determines the killing was intentional and unlawful, but is not persuaded beyond reasonable doubt that provocation (or imperfect self-defense) was absent, it should acquit the defendant of murder and convict him of voluntary manslaughter. (Citations.)

. . . .

The evidence was sufficient to establish appellant attempted to intentionally and unlawfully kill Harris. He was properly convicted, therefore, of attempted voluntary manslaughter.

(Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 8-10.) Because the state appellate court did not apply a procedural bar to this claim, the Court is precluded from finding it procedurally defaulted. Ylst, 501 U.S. at 804 n. 3; Hill, 321 F.3d at 789.

2. The Merits

Respondent maintains that the state appellate court reasonably rejected claim two, and the claim is in any case without merit. (Answer Mem. 20-22.) As set forth above, this Court must determine whether the state court's adjudication of the claim "reflected an unreasonable application of Jackson and Winship to the facts of this case." Allen, 408 F.3d at 1275. Arreola contends California law requires a finding that his actions arose from a sudden quarrel or heat of passion in order to sustain a conviction for attempted voluntary manslaughter. (Traverse 8 (citing People v. Breverman, 19 Cal. 4th 142, 153-54, 960 P.2d 1094, 1099-1100, 77 Cal. Rptr. 2d 870, 875-76 (1998)).)

The state court found sufficient evidence existed to convict Arreola of attempted voluntary manslaughter of Harris. It rejected Arreola's contention that the lack of evidence to support a finding that he acted under heat of passion in shooting at Harris precluded a conviction for attempted involuntary manslaughter. Specifically, the court found that it was bound byPeople v. Rios, 23 Cal. 4th 450, 2 P.3d 1066, 97 Cal. Rptr. 2d 512 (2000), which rejected an identical argument. (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 9-10.) As the appellate court correctly noted, California law provides that a conviction for attempted voluntary manslaughter requires a finding of an intent to kill, but it does not require a finding that the attempt was made in the heat of passion or arose from a sudden quarrel. Rios, 23 Cal. 4th at 462, 2 P.3d at 1074-75, 97 Cal. Rptr. 2d at 521-22. Petitioner's reliance on Breverman is misplaced; Breverman merely stands for the proposition that a trial court must instruct on all lesser included offenses "which find substantial support in the evidence." Breverman, 19 Cal. 4th at 162, 960 P.2d at 1106, 77 Cal. Rptr. 2d at 882. The court in Rios, however, specifically held that: "Provocation and imperfect self-defense . . . cannot be elements of voluntary manslaughter when murder and voluntary manslaughter are under joint consideration." Rios, 23 Cal. 4th at 462, 2 P.3d at 1074-75, 97 Cal. Rptr. 2d at 521-22. Because this Court must analyze Jackson claims "with explicit reference to the substantive elements of the criminal offense as defined bystate law[,]" Jackson, 443 U.S. at 324 n. 16 (emphasis added), Arreola's claim that the jury could not have convicted him of attempted voluntary manslaughter without finding he acted under heat of passion does not provide a basis for federal habeas relief.

The appellate court's conclusion that sufficient evidence existed to support the jury's finding of guilt as to count five is supported by the record. Roger Harris testified that as Arreola was fiddling with his keys and standing by the driver side door of his pickup truck, Harris said, "Hey, you maybe should wait around a while." (Lodgment No. 2, Rep.'s Tr. vol. 2, at 246-48.) Pointing the gun at Harris, Arreola replied: "Do you want the same thing to happen to you?" Id. As Arreola started his vehicle, Harris threw a beer bottle and broke the middle sliding rear window of the pickup truck. (Id. at 249-50.) Harris then heard three gunshots. The first shot shattered the rear window of Arreola's pickup truck, passed about eighteen inches from Harris, and hit and shattered the side-view mirror of a vehicle five feet away. (Id. at 251-52.) The second shot impacted something Harris did not see, and he heard no impact for the third shot. (Id. at 252, 279-89, 287-89.) Arreola then backed the pickup truck out of the parking space and began to drive off; he slowed down and paused while passing the aisle where Harris was hiding. (Id. at 252.) The physical evidence showed that two of the three bullets hit and stayed inside the toolbox in the bed of the pickup truck, and one ricocheted off the toolbox and ended up in the wall of the building. (Id. at 354.)

Arreola asserts the evidence establishes that he did not intend to kill but was merely recklessly shooting in Harris's general direction in an attempt to effectuate his escape. (Am. Pet. 17-18.) Nevertheless, it is reasonable to conclude that there was sufficient evidence to support a finding that Arreola formed the intent to attempt kill Harris. Early, 537 U.S. at 10 (stating that where "it is at least reasonable to conclude that [the state court's conclusion was reasonable] . . . the state court's determination to that effect must stand" despite the existence of other reasonable conclusions). Although the physical evidence supports Arreola's contention that he "aimed low," suggesting there was no intent to kill, other evidence supports the jury's finding that Arreola was aiming at Harris. This includes Arreola's threat to shoot Harris if he did not back off and actually firing three shots in Harris's general direction when he did not back off. The jury reasonably concluded that Petitioner was aiming at Harris. Therefore, the state court's finding that sufficient evidence existed to support the conviction for attempted voluntary manslaughter of Harris was neither an unreasonable application of, nor contrary to, Jackson, and did not involve an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Arreola is not entitled to habeas relief on the basis of claim two.

D. Petitioner is Not Entitled to Habeas Relief on the Basis of Claims Three and Four — Failure to Instruct on Lesser Included Offenses.

Arreola contends in claim three that he was denied his right to due process as guaranteed by the Fourteenth Amendment because the trial court denied his request to instruct the jury on the lesser included offense of grossly negligent discharge of a firearm as to counts six and eight, which relate to victim Harris. (Am. Pet. 7, 18-23.) He argues the instruction should have been given because: (1) The elements of the offense of grossly negligent discharge of a firearm are necessarily included within the other offenses; (2) the facts alleged in the amended information with respect to counts six and eight include all the elements of grossly negligent discharge of a firearm (id. at 19-20); (3) the evidence at trial established the elements of grossly negligent discharge of a firearm; and (4) there was no possibility of being acquitted on the more serious charges without the jury having been given the chance to convict Petitioner on the less serious offense. (Id. at 19-23.)

In claim four, Arreola contends that grossly negligent discharge of a firearm is a lesser included offense of simple mayhem, relating to victim Lopez, (count three) because the allegations in the amended information with respect to simple mayhem, include the elements of both offenses. (Id. at 7, 23-25.) Because the arguments supporting claim four are included within claim three, the Court will discuss the claims together.

Respondent argues that claims three and four are procedurally defaulted, and Arreola has not shown cause or prejudice to excuse the default or that a fundamental miscarriage of justice would result from the failure to reach the merits of the claim. (Answer Mem. at 14-20.) Woodford contends that even assuming the claims are not procedurally defaulted, the state appellate court reasonably rejected them, and in any case, they are without merit. (Id. at 21-25.)

Petitioner argued to the state appellate court on direct appeal that the jury should have received an instruction on the lesser included offense of grossly negligent discharge of a firearm with respect to all counts, including victim Harris, but "particularly as to those charges alleging assault with a semi-automatic firearm or discharge of a firearm from a motor vehicle." (Doc. No. 1, at 191-230, Brief for Appellant at 24, People v. Arreola, No. D035044.) The appellate court denied the claim. It was unclear as to which counts Petitioner was contending the instruction should have been given, so the court addressed the claim alleging the instruction should have been given with respect to attempted murder (count five), assault with a semi-automatic firearm (count six), and discharge of a firearm from a motor vehicle (count eight). (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 10-13.) This claim was not included in the subsequent petition for review filed in the state supreme court. (Doc. No. 1, at 305-25, Petition for Review, People v. Arreola, No. SD2000DA0637.)

Arreola presented claim four in the first habeas petition he filed in the state supreme court. (Lodgment No. 3, Petition at 3-4, Arreola v. Garcia, No. S114729.) That petition was denied by an order which stated: "Petition for writ of habeas corpus is DENIED. (See In re Waltreus (1965) 62 Cal.2d 218; In re Lindley (1947) 29 Cal.2d 709; In re Dixon (1953) 41 Cal.2d 756.)" (Lodgment No. 4, In re Arreola, No. S114729, slip op.) Claims three and four were both presented to the state supreme court in the second habeas petition filed in that court, which was filed after this federal habeas proceeding was initiated and nearly two years after the conclusion of direct review. (Lodgment No. 5, Petition at 4, 8-15, Arreola v. Garcia, No. S121651.) That petition was denied with an order which stated: "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750; In re Waltreus (1965) 62 Cal.2d 218; In re Dixon (1953) 41 Cal.2d 756; In re Swain (1949) 34 Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th 464, 474.) [¶] Werdegar, J., was absent and did not participate." (Lodgment No. 6, In re Arreola, No. S121651, slip op.)

1. Procedural Default

For the same reasons discussed with respect to claim two, the state supreme court's citation to Waltreus in its order denying these claims requires the Court to look through to the lower court opinion to determine whether the appellate court denied the claims on the basis of a procedural bar. Ylst, 501 U.S. at 804 n. 3; Hill, 321 F.3d at 789. The appellate court found that because it is possible to commit the offenses of attempted murder (count five), assault with a semi-automatic firearm (count six) and discharge of a firearm from a motor vehicle (count eight) without necessarily committing the offense of grossly negligent discharge of a firearm, the latter offense was simply not a lesser included offense of the former offenses. (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 10-13.) The court explained:

In any event any error in failing to give an instruction of section 246.3 was harmless. Assuming the trial court did fail to instruct as to this lesser included offense, there is no basis to establish a reasonable probability the alleged mistake affected the outcome. Such an error is not subject to reversal unless an examination of the entire record establishes a reasonable probability the error affected the outcome. ( People v. Breverman, supra, 19 Cal.4th at p. 165.) Here, the jury convicted appellant of attempted voluntary manslaughter of Harris. That conviction was based on appellant shooting at Harris and further required the jury to conclude appellant harbored the intent to kill Harris. It is unlikely the same jury would have concluded appellant simultaneously attempted voluntary manslaughter but did so only with gross negligence as required under section 246.3. We therefore find no reasonable probability the outcome would have been different had the section 246.3 instruction been given.

(Id. at 13.) The state appellate court did not apply a procedural bar to claim three. For this reason, the Court is precluded under Ylst from finding the claim is procedurally defaulted. Ylst, 501 U.S. at 804 n. 3; Washington v. Cambra, 208 F.3d at 834. But see Hill, 321 F.3d at 790.

Claim four was never presented to or ruled on by the state appellate court. The Court will therefore look through to the trial court record to determine whether the claim was addressed on the merits or on procedural grounds by the trial judge. See Edwards v. Lamarque, ___ F.3d ___, 2005 WL 3358845 at *10 (9th Cir. Dec. 12, 2005) (looking through silent denial by the state supreme court, and through appellate court opinion which did not address issue, to the reasoned decision of the trial judge).

Arreola contended in the motion for new trial, as he does in claim four, that grossly negligent discharge of a firearm is a lesser included offense of simple mayhem (count three) because the allegations in the amended information with respect to simple mayhem include the elements of both offenses. (Am. Pet. 7, 23-25.) In denying Petitioner's motion for a new trial, the trial judge rejected Arreola's contention that grossly negligent discharge of a firearm is a lesser included offense of mayhem. (Lodgment No. 2, Rep.'s Tr. vol. 4, at 683-84.) Specifically, the trial judge found that the crime of mayhem requires an intent to do a wrongful act, whereas grossly negligent discharge of a firearm requires mere negligence. (Id.)

In denying the motion for a new trial, the trial judge did not apply a procedural bar to claim four. As a result, this Court is precluded under Ylst from finding the claim procedurally defaulted. Ylst, 501 U.S. at 804 n. 3; Washington v. Cambra, 208 F.3d at 834. But see Hill, 321 F.3d at 790.

2. The Merits

Respondent contends that the state appellate court reasonably rejected claims three and four and that they are without merit. (Answer Mem. 22-25.) Specifically, she argues there is no clearly established federal law which provides a state criminal defendant the right to a jury instruction on a lesser included offense in noncapital cases, and the application of such a rule would violate the proscription against the retroactive recognition of new rules of criminal procedure set forth in Teague v. Lane, 489 U.S. 288 (1989). (Id. at 22.) Respondent contends jury instructional errors typically do not present federal questions, but in any event, the state court's adjudication of the claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law set forth in Penry v. Johnson, 532 U.S. 782 (2001). (Id. at 22-23.)

Clearly established federal law requires giving a lesser included offense instruction in state capital cases "when the evidence would have supported such a verdict." Hopper v. Evans, 456 U.S. 605, 610 (1982). Otherwise, "a jury might convict a defendant of a capital offense because it found that the defendant was guilty of a serious crime. Or a jury might acquit because it does not think the crime warrants death, even if it concludes that the defendant is guilty of a lesser offense. While in some cases a defendant might profit from the preclusion clause, we concluded that `in every case [it] introduce[s] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.'" Id.;Beck v. Alabama, 447 U.S. 625, 638 (1980) ("[I]f the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.").

Respondent relies on Windham v. Merkle, 163 F.3d 1092, 1105-06 (9th Cir. 1998), which states that: "Under the law of this circuit, the failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question. See Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995)." However, the Ninth Circuit receded from that position in Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000), where the court found that "we adhere to the law as stated inBashor [v. Risley, 730 F.2d 1228 (9th Cir. 1984),]" and recognized that "the refusal by a court to instruct a jury on lesser included offenses, when those offenses are consistent with defendant's theory of the case, may constitute a cognizable habeas claim. . . ." Solis, 219 F.3d at 929 (emphasis added). In Bashor v. Risley, the Ninth Circuit stated that generally the "[f]ailure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding." Bashor, 730 F.2d at 1240 (quoting James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976)). The court also recognized that "[t]his general statement may not apply to every habeas corpus review, because the criminal defendant is also entitled to adequate instruction on his or her theory of defense." Id.

The Ninth Circuit has held that a noncapital defendant's due process rights were violated by the refusal to instruct on hisonly defense theory (entrapment) where that refusal was prejudicial. Bradley v. Duncan, 315 F.3d 1091, 1098-1101 (9th Cir. 2002). The Bradley case is distinguishable from the present situation because the requested instructions were not on the only theory of defense. Arreola proceeded on an intoxication defense in an effort to negate the specific intent element of attempted murder, and the jury was instructed on that defense. The finding in Bradley that clearly established Supreme Court precedent supported the defendant's right to the instruction neither translates to the present situation nor definitively establishes such a right. See id. at 1102 (Graber, J. dissenting) (observing that the majority conceded there is no clearly established Supreme Court precedent holding that defendants who satisfy a certain evidentiary threshold in a state criminal case are constitutionally entitled to an instruction on that defense); see also Solis, 219 F.3d at 928 (citing cases from the Third and Sixth Circuits which extended the rule generally to noncapital cases, and others from the Fifth, Tenth and Eleventh Circuits which found no corresponding right in noncapital cases). Thus, Arreola's contention that the jury had no choice but to convict him of the more serious charges because they were not instructed on the lesser charge does not provide a basis for federal habeas relief under AEDPA.

In addition, to establish a violation of his federal due process rights by the failure to give a requested jury instruction, Petitioner must demonstrate that the instruction should have been given, and its omission "so infected the entire trial that the resulting conviction violates due process."Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Where failure to give an instruction is in issue, the burden on the petitioner is "especially heavy." Id. Moreover, even if the trial court's failure to give the instruction violated due process, habeas relief would still not be available unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see California v. Roy, 519 U.S. 2, 5 (1996).

Petitioner has not shown the instruction should have been given. In addition, he has not carried his "heavy burden" of demonstrating that the omission of the instruction infected the entire trial with unfairness. As the state court noted, the jury found that Arreola intended to kill Harris. (Doc. No. 1, at 288-304, People v. Arreola, slip op at 8.) It was unlikely the jury would have reduced the attempted murder charge to negligent discharge of a firearm. Furthermore, "murder may be committed without necessarily also committing the negligent discharge of a firearm." (Id. at 12.)

The appellate court's finding is amply supported by the record. All three shots were fired in Harris's direction, even if they were fired at a downward trajectory, and one passed within eighteen inches of Harris. The shots were not fired towards Harris through negligence. Rather, they were fired in a deliberate response to Harris having thrown a bottle breaking the widow in Arreola's truck after being warned to back off. Thus, the evidence of intent to hit Harris was strong, and it was inconsistent with evidence that Petitioner acted negligently.²

2 The appellate court noted, in denying this claim, that "[t]he elements of the crime of discharging a firearm in a grossly negligent manner that could result in injury are (1) willful discharge of a firearm, (2) in a grossly negligent manner and (3) which could result in the injury or death of a person." (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 13.)

Petitioner asserts the jurors would not have acquitted him of the attempted murder of Harris unless they were given the opportunity to convict him of something. This argument is without merit. If the jurors found no intent to hit Harris, they were free to acquit Arreola of attempted homicide. The jury, in fact, convicted Arreola of something less than attempted murder. He was also convicted of assault with a semi-automatic firearm against Harris and discharge of a firearm from a vehicle. An instruction on the discharge of a firearm in a grossly negligent manner would have presented the jury with little or no additional incentive to acquit Petitioner of attempted homicide.

With respect to claim four, the trial judge correctly recognized that under California law mayhem requires an intent to do a wrongful act. People v. McKelvy, 194 Cal. App. 3d 694, 703, 239 Cal. Rptr. 782, 786 (1987). Because the grossly negligent discharge of a firearm does not require such an intent,People v. Lee, 131 Cal. App. 4th 1413, 1422-23, 32 Cal. Rptr. 3d 745, 751-52 (2005), Arreola's contention that the two crimes have identical elements is without merit.

Petitioner has failed to carry his "heavy burden" of showing that the failure to give the requested instruction "so infected the entire trial that the resulting conviction violates due process." Kibbe, 431 U.S. at 154. In any case, habeas relief is not available because, for the reasons set forth above, the alleged error could not have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637; Roy, 519 U.S. at 5. The Court finds that the state court's adjudication of claims three and four was neither contrary to, nor involved an unreasonable application of, clearly established federal law, and Petitioner has failed to demonstrate that it was based on an unreasonable determination of the facts. Claims three and four do not merit habeas relief.

E. Petitioner is Not Entitled to Habeas Relief on the Basis of Claims Five and Six — Failure to Grant New Trial Motion and Ineffective Assistance of Counsel.

Arreola contends in claim five that he was denied his right to due process as guaranteed by the Fourteenth Amendment because the trial court denied his motion for a new trial. (Am. Pet. 9, 25-27.) He argues his motion should have been granted because his trial counsel failed to allow Arreola to testify on his own behalf, thereby preventing the jury from hearing evidence that the shooting was accidental. (Id.) In claim six, Arreola contends that he received ineffective assistance of counsel as guaranteed by the Sixth Amendment because trial counsel refused to permit him to testify on his own behalf. (Id. at 9, 28-30.)

According to Respondent, these claims are procedurally defaulted. (Answer Mem. 16.) The state supreme court, in denying the habeas petition in which the claims were raised, imposed, among other procedural bars, the Waltreus bar, which Respondent contends precludes the use of habeas as a second appeal. (Id.) Alternately, Respondent contends the appellate court reasonably denied the claims, and they are without merit. (Id. at 25-27.)

Claim five was presented to the state appellate court on direct appeal. (Doc. No. 1, at 231-44, Supplemental Brief for Appellant at 1-7, People v. Arreola, No. D035044.) The appellate court denied claim five in the unpublished opinion which affirmed the conviction. (Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 14-17.) The court construed Arreola's argument as also raising an ineffective assistance of counsel claim, and the appellate court rejected this contention as well. (Id.) The claims were not included in the subsequent petition for review filed in the state supreme court. (Doc. No. 1, at 305-25, Petition for Review, People v. Arreola, No. SD2000DA0637.) Rather, claims five and six were presented to the state supreme court in the second habeas petition filed in that court. (Lodgment No. 5, Petition at 4, 15-20, Arreola v. Garcia, No. S121651.) That petition was denied with an order which stated: "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750; In re Waltreus (1965) 62 Cal.2d 218; In re Dixon (1953) 41 Cal.2d 756; In re Swain (1949) 34 Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th 464, 474.) [¶] Werdegar, J., was absent and did not participate." (Lodgment No. 6, In re Arreola, No. S121651, slip op.)

1. Procedural Default

As discussed above in connection with claim two, the California Supreme Court's citation to Waltreus requires that this Court look through the state supreme court's order to the lower court opinion to determine whether claims five and six were denied on the basis of a procedural bar. Ylst, 501 U.S. at 804 n. 3;Hill, 321 F.3d at 789. The appellate court stated:

Appellant's argument below relied totally on his claim that he repeatedly requested to testify and counsel refused to call him. Appellant's self-serving declaration was an insufficient evidentiary device for raising that claim and his motion for new trial could properly be denied on that basis. ( Underwood v. Clark (7th Cir. 1991) 939 F.2d 473, 476, see also In re Alvernaz (1992) 2 Cal.4th 924, 937.)

Appellant's claim that counsel was ineffective for failing to offer a defense of accident also fails. There are myriad tactical considerations that effect the decision to present or not present a particular defense. There are numerous reasons why counsel might decide not to present a defense of accident especially when it would require the defendant to testify. Appeal is simply not, in most cases, a useful device for exploring such questions. Appellant has failed his burden of demonstrating ineffective assistance.

(Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 16-17.)

The appellate court rejected Arreola's new trial motion claim on the basis that his self-serving declaration was insufficient. (Id.) The declaration states that Arreola told his counsel before trial began that he wanted to testify that the shooting was an accident, but counsel ignored the request and insisted on proceeding with a defense of intoxication. (Lodgment No. 2, Clerk's Tr. at 268-69.)

Respondent does not contend that the denial of claim five on this basis amounts to a procedural bar which is adequate and independent. Neither does Respondent contend that the denial of claim six on the ground that appeal is generally not a "useful device" for raising an ineffective assistance of counsel claim, is an adequate or independent procedural bar. See Bennett, 322 F.3d at 586 (holding that respondent has initial burden of pleading as an affirmative defense that Petitioner's failure to satisfy a state procedural bar forecloses federal habeas review). These claims are not procedurally barred, so the Court will address the merits of claims five and six.

2. The Merits

Respondent alternately asserts the state appellate court reasonably rejected claims five and six, and they are without merit. (Answer Mem. 25-27.) Specifically, Respondent contends that the decision by Arreola's trial counsel was a tactical one which fell within the wide range of permissible professional performance. (Id. at 26-27.) Respondent also contends Arreola has not shown prejudice arising from that decision. (Id. at 27.)

Clearly established federal law provides that "[a] state court's procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process." Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) (citing Pulley v. Harris, 465 U.S. 37, 41 (1984)). Thus, Arreola cannot demonstrate a due process violation in connection with the denial of his new trial motion unless he can first establish he received ineffective assistance of counsel within the meaning of the Sixth Amendment. The Court will therefore first consider Arreola's claim of ineffective assistance of counsel.

The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996) (stating thatStrickland "has long been clearly established federal law"). For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner must demonstrate two things. First, he must show that counsel's performance was deficient. Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, he must show counsel's deficient performance prejudiced the defense. Id. This requires showing that counsel's errors were so serious they deprived Petitioner "of a fair trial, a trial whose result is reliable." Id.

In his new trial motion, Arreola argued that in meetings in preparation for trial, he repeatedly informed counsel that he wished to testify on his own behalf that the shooting was accidental. (Lodgment No. 1, Clerk's Tr. at 265.) Arreola concedes his counsel told him that the better strategy at trial would be a defense of intoxication, but about one month before trial, counsel agreed to allow Arreola to testify. (Id.) However, just as trial commenced, counsel told Arreola that he was the professional and had decided to proceed with a defense of intoxication. (Id.)

Arreola allegedly informed counsel that he could testify that the shot which wounded security guard Lopez was precipitated by the conduct of second security guard Omar, who had patted Arreola down, discovered the handgun, and was grappling with Arreola when the gun discharged. (Id.) Finally, Arreola argued in the new trial motion that although Betancourt testified that Omar was at the rear door at the time of the shooting, two other witnesses testified at trial that Omar was at the front door when the gun discharged. (Id.) In addition, in a declaration attached to the motion, a newly discovered witness, Anna Lopez, stated that she saw both security guards at the front door chatting amiably with Arreola several minutes before the shooting. (Id. at 266.)

The People opposed the new trial motion, arguing that Arreola had failed to inform the court during trial of his desire to testify, which undercut his contention that he adamantly wished to testify. (Id. at 289.) The People also argued that even if Arreola's allegations were true, trial counsel gave Arreola sound advice to take advantage of his Fifth Amendment right not to testify, and that decision was reasonable trial strategy. (Id.)

Arreola contends here, as he did in the appellate court, that he was the only person who could testify to the accidental nature of the shooting; the defenses of intoxication and mistake were not mutually exclusive; the defense of intoxication could only have reduced attempted murder to manslaughter but, unlike the defense of mistake, could not have resulted in an acquittal on the homicide charge with respect to Lopez. (Am. Pet. 25-28; Doc. No. 1, at 231-244, Supplemental Brief for Appellant, People v. Arreola, No. D035044.) Petitioner maintains that his only realistic chance of being acquitted of the homicide charge was for him to testify that the gun discharged by accident. (Id.) On appeal, Arreola argued there was no tactical reason not to testify; in the new trial motion, he argued prejudice arising from the failure to present a defense of accident. (See Doc. No. 1, at 288-304, People v. Arreola, No. D035044, slip op. at 16.) The appellate court nevertheless denied the claim on the basis that Arreola's self-serving declaration was an insufficient evidentiary device to support a new trial motion based on allegations that trial counsel refused to allow him to testify, and cited Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991). In Underwood, the court explained:

[T]his barebones assertion by a defendant, albeit under oath, is insufficient to require a hearing or other action on his claim that his right to testify in his own defense was denied him. It just is too facile a tactic to be allowed to succeed. Some greater particularity is necessary — and also we think some substantiation is necessary, such as an affidavit from the lawyer who allegedly forbade his client to testify — to give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim. . . . [¶] Some courts go further and insist in effect that the defendant have protested his lawyer's action to the judge during trial. . . . Silence is treated as a waiver. . . . We hesitate to go quite so far . . . [and hold that] [t]he defendant need not protest and the judge need not question him, but in a subsequent collateral attack on the conviction the defendant must produce something more than a bare, unsubstantiated thoroughly self-serving, and not too plausible statement that his lawyer (in violation of professional standards) forbade him to take the stand.

Underwood, 939 F.2d at 476 (citations omitted).

Arreola's contention that he was the only person who could have testified that the gun went off during the struggle with Omar the security guard is simply untrue. Omar and the actual witnesses to the shooting would have witnessed any struggle. However, the witnesses to the shooting who testified at trial, Betancourt, Lopez, Escobar, Harris and Martinez-Mercado, all testified, with the exception of Lopez who could not remember due to his brain injury, that Arreola fired the shot without provocation and without a struggle, and in the immediate presence of Betancourt and Lopez only.

Arreola may be correct that his only chance of being acquitted of both the attempted murder and attempted voluntary manslaughter charges of Lopez was to convince the jury that he was struggling with Omar when the gun discharged, and Lopez was hit by pure chance. But other than Arreola's self-serving declaration, there is simply no evidence that the shooting happened as he contends. Even the proffered declaration of Anna Lopez does not support Petitioner's theory. She said that two to three minutes passed from when she saw Omar at the front door to when she heard the shot fired. (Lodgment No. 1, Clerk's Tr. at 270-72.) Her declaration is consistent with Betancourt's testimony regarding Omar's location at the time of the shooting. Betancourt testified that Omar was initially helping Lopez at the front door, but at the time of the shooting, Omar was at the back door of the nightclub. (Lodgment No. 2, Rep.'s Tr. vol. 1, at 113-14.) All the witnesses who saw Arreola shoot Lopez testified that Arreola was not engaged in a struggle at the time the shot was fired, and his arm did not move as he fired. At the time of the shooting, Betancourt was a few inches away from Arreola (id. at 104); Escobar was an arm's length away from Arreola (id. at 146, 148, 154); Harris was five or six feet away from the group of Betancourt, Lopez and Arreola (id. at 240-41); and Martinez-Mercado was eight meters away (id. at 305-06).

It was reasonable for trial counsel to advise Arreola not to testify regarding a version of the events which was contradicted by all the eyewitness testimony and relied on the presumption that an intoxicated Arreola was the only person who could accurately recall the shooting. For this same reason, Petitioner's contention that the defense of intoxication was not mutually exclusive of a defense of accidental shooting is without merit. Counsel would have had to argue that Arreola was too intoxicated to form the intent to kill, yet not so intoxicated that he alone could accurately testify that the gun only went off as a result of a struggle with Omar. Trial counsel was faced with the decision of whether to call Arreola to testify to an implausible version of events or rely on a defense of intoxication to negate intent, which resulted in Arreola being acquitted of the attempted murder charges. Petitioner has not demonstrated his counsel "was not functioning as the `counsel' guaranteed [him] by the Sixth Amendment" when he advised Arreola not to testify. Strickland, 466 U.S. at 687.

Petitioner has also failed to show that counsel's alleged deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. This requires showing that counsel's errors were so serious they deprived Petitioner "of a fair trial, a trial whose result is reliable." Id. Even assuming Arreola would have testified regarding his struggle with Omar, it is unlikely the jury would have believed Arreola's unsupported story that the gun went off accidentally in his struggle, in light of the evidence of Arreola's deliberate shooting at Harris in the parking lot moments later. (See Lodgment No. 2, Rep.'s Tr. vol. 2, at 248, 251.) There is no support for Arreola's contention he did not receive a fair trial as a result of counsel's reasonable strategic decision not to call him to testify about an implausible version of the shooting which was contradicted by eyewitness testimony, inconsistent with Arreola's other actions that evening, and would have undermined the intoxication defense.

Because Petitioner did not receive ineffective assistance of trial counsel, the state court's adjudication of claims five and six was neither contrary to, nor involved an unreasonable application of, clearly established federal law. Furthermore, it was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Habeas relief should be denied as to these claims.

F. Petitioner is Not Entitled to Habeas Relief on the Basis of Claim Seven — Sentencing Claims.

In his seventh and final claim, Arreola alleges that he was denied his right to due process as guaranteed by the Fourteenth Amendment because he received separate punishments for attempted voluntary manslaughter and for the firearm use sentence enhancement allegations. (Am. Pet. 9, 30-33.) He argues this dual punishment amounted to double punishment and violated principles of double jeopardy, collateral estoppel, and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). (Id.)

Respondent contends this claim was raised for the first time in the second habeas petition filed in the state supreme court, and there is no reasoned state court decision as to this claim (Answer Mem. 28.) She argues the claim is procedurally barred because it was never raised in the trial court or on direct appeal, and the claim presents only a state law sentencing issue which fails to raise a federal question. (Id.)

Claim seven was among those presented to the state supreme court in the second habeas petition filed in that court. (Lodgment No. 5, Petition at 4, 15-20, Arreola v. Garcia, No. S121651.) That petition was denied with an order which stated: "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750; In re Waltreus (1965) 62 Cal.2d 218; In re Dixon (1953) 41 Cal.2d 756; In re Swain (1949) 34 Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th 464, 474.) [¶] Werdegar, J., was absent and did not participate." (Lodgment No. 6, In re Arreola, No. S121651, slip op.) There is no lower state court opinion addressing this claim.

1. Procedural Default

The Court is unable to determine which of the procedural bars cited by the California Supreme Court were applied to claim seven. As set forth above, the Waltreus citation cannot support a procedural default unless the underlying state court adjudication of the claim was based on a procedural bar. Because there is no lower court decision as to this claim, the Court is unable to find it to be procedurally defaulted. The Respondent's position on procedural default is unclear. First, she appears to argue that Waltreus was applied to claim seven because the Waltreus citation "means the claims are procedurally barred under state law because Arreola waited until state habeas corpus to raise his claims to the California Supreme Court instead of presenting them in a petition for review." (Answer Mem. 16.) However, it would appear that the Waltreus rule, which provides that a claim already raised on appeal cannot be relitigated on collateral review, was not applied to claim seven. Respondent has not adequately carried the burden of placing the procedural default defense with respect to claim seven in issue. See Bennett, 322 F.3d at 586 (stating that respondent has initial burden of pleading as an affirmative defense that Petitioner's failure to satisfy a state procedural bar forecloses federal habeas review.)

Next, the Respondent's procedural default argument is premised upon her review of Arreola's state appellate record and a comparison of the record to the five California Supreme Court cases cited in the order denying Arreola's state habeas petition. (Answer Mem. 14-16.) This approach has some support in the case law. See Washington v. Cambra, 208 F.3d at 834 (holding that if either of two procedural rules is not adequate and independent, dismissal is inappropriate). In Washington, theDixon bar was not an independent state law basis for denying relief, because it may have been applied to both of Washington's claims. Accordingly, it could not bar federal review of either. "This is so because the California Supreme Court invoked both rules [Swain and Dixon] without specifying which rule applied to which of [petitioner's] two claims." Id. Nevertheless, the Ninth Circuit reaffirmed that "[u]nder some circumstances, a federal court will be able to resolve an ambiguous order."Koerner v. Grigas, 328 F.3d at 1052. These circumstances are, however, rare.

In Calderon v. United States District Court (Bean), 96 F.3d 1126, 1131 (9th Cir. 1996), the petitioner's thirty-nine habeas claims to the California Supreme Court fell into two categories. One group of claims had been raised on appeal in state court; the second group unjustifiably were not raised on appeal or presented at trial. Id. The state court's order did not specify which claims had been rejected under Waltreus, which has no bearing on raising claims in federal court, and which were rejected under Harris/Clark, an arguably independent state basis for denying federal constitutional claims. Id. As a result, the state court order was ambiguous and could not preclude federal habeas relief.

The Ninth Circuit faced a similar situation in Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002) (en banc). In that case, the Nevada Supreme Court denied a habeas petition which contained eighteen claims with an order stating that some of the claims had been raised before and could not be relitigated, and the rest were barred because they could have been raised on direct appeal but were not. Id. at 772. Because the state court failed "to specify which claims were barred for which reasons, the Nevada Supreme Court `did not clearly and expressly rely on an independent and adequate state ground.'" Id. at 775 (quotingColeman, 501 U.S. at 735). Consequently, the claims were not procedurally defaulted. Id. Again, in Koerner v. Grigas, 328 F.3d at 1052, the Ninth Circuit held that claims were not procedurally defaulted where the state court order did not explain which state law ground applied to which claims. Id. This Court is precluded from rewriting the California Supreme Court's decision.

The procedural default doctrine is "grounded in concerns of comity and federalism." Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Comity requires that this Court show deference to the orders of the California Supreme Court. Speculating that its order applied particular procedural rules to particular claims is not deferential. Furthermore, it is far more presumptuous than applying a reasoned lower state court opinion rejecting a federal claim to a later unexplained order by the state supreme court rejecting the same claim. See Ylst v. Nunnemaker, 501 U.S. at 803. The California Supreme Court's order does not indicate which of the claims presented in the state habeas petition were subject to which procedural rule.

This Court could attempt to resolve the ambiguity by looking at the circumstances surrounding the state supreme court's order. That inquiry, however, appears to be foreclosed by Ninth Circuit precedent. See Koerner v. Grigas, 328 F.3d at 1056 (Beezer, J., dissenting) (observing that "[t]oday's opinion holds that a federal court may only look to the state court opinion at issue in determining whether a state court opinion relies on a procedural default[,]" despite the language in Ylst permitting the court to look to the surrounding circumstances to resolve an ambiguity).

The state supreme court's order did not clearly and expressly rely on a state procedural bar with respect to claim seven. Because the Court is unable to determine which procedural bar was applied to claim seven, it conducted a de novo review of this claim. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (holding that federal courts conduct de novo review of exhausted claims which have not been adjudicated on the merits by state courts).

2. The Merits

One of the protections afforded by the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, is the protection "against multiple punishments for the same offense."North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds Alabama v. Smith, 490 U.S. 794 (1989). Arreola must show the two offenses contain the same elements in order to demonstrate a double jeopardy violation. Blockburger v. United States, 284 U.S. 299, 304 (1932) (holding that "[w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.").

The Supreme Court has held that the prohibition against double jeopardy does not apply in the noncapital sentencing context.Monge v. California, 524 U.S. 721, 734 (1998). Even so, attempted voluntary manslaughter requires proof of different elements than the personal use of a firearm enhancement allegation. Because attempted voluntary manslaughter and the firearm use allegation have different elements, no double jeopardy violation occurred. Blockburger, 284 U.S. at 304. The jury was correctly instructed here. Attempted voluntary manslaughter does not require proof of the use of a firearm, whereas the firearm use allegation obviously does. (Lodgment No. 1, Clerk's Tr. at 88.) To the extent Petitioner argues thatApprendi v. New Jersey prohibits his punishment for the use of a firearm sentencing enhancement, the claim is without merit because the jury explicitly found beyond a reasonable doubt that Arreola had personally used a firearm. ( Id. at 217-18, 220-21, 223-25, 227.)

Based on a de novo review of claim seven, the Court finds it to be without merit. Accordingly, the Court recommends habeas relief be denied as to Petitioner's seventh claim.

VI. CONCLUSION AND RECOMMENDATION

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition. This Report and Recommendation is submitted to United States District Judge Jeffrey T. Miller pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

IT IS ORDERED that no later than February 10, 2006 any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than February 24, 2006. The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).