Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 12, 2014, accompanied by an attached Memorandum ("Pet. Mem."). The Petition asserts three claims for relief: two claims challenging the sufficiency of the evidence to support Petitioner's two attempted murder convictions and a claim challenging the joinder of the two attempted murder counts.
On October 31, 2014, the Court received from Petitioner a "Motion to Stay and Abeyance, " seeking an order staying the Petition pending exhaustion of two new claims for relief: (1) a claim alleging that Petitioner's trial counsel rendered ineffective assistance of counsel by failing to move to sever the two attempted murder counts; and (2) a claim alleging that Petitioner's appellate counsel rendered ineffective assistance by failing to raise on appeal trial counsel's alleged ineffectiveness in failing to move to sever. On November 3, 2014, the Court rejected this document for filing on the ground that the proof of service did not reflect service on Respondent.
Respondent filed an Answer on November 4, 2014, alleging inter alia that Ground Three of the Petition was unexhausted, but also contending that the Court should deny all of the claims in the Petition on the merits.
On November 24, 2014, Petitioner filed a "Notification to Notice of Discrepancies, etc." ("Notification") appearing to seek, inter alia, a stay of the Petition pending the disposition of Petitioner's then-pending California Supreme Court habeas corpus petition. On December 1, 2014, the Court issued a Minute Order ordering Respondent to file a response to the Notification and ordering Petitioner to file a copy of his pending California Supreme Court petition.
On December 19, 2014, Respondent filed an "Opposition to Petitioner's Motion for Stay and Abeyance, etc." and also lodged a copy of Petitioner's then-pending California Supreme Court habeas corpus petition in In re Parra, Case Number S222317. On December 26, 2014, Petitioner filed a copy of his California Supreme Court habeas corpus petition.
Petitioner filed a Traverse on January 16, 2015. On January 20, 2015, Petitioner filed a document titled "Permission to File Declaration of Enrique Parra in Support to Petitioner [sic] Habeas Corpus, " to which is attached a declaration of Petitioner supporting his claims of alleged ineffective assistance of counsel.
The Court has considered Petitioner's declaration filed January 20, 2015, in determining the merits of Petitioner's claims.
BACKGROUND
A jury found Petitioner guilty of two counts of wilful, deliberate and premeditated attempted murder of Patrick Hunt in violation of California Penal Code sections 187(a) and 664 (Reporter's Transcript ["R.T." 1210-12; Clerk's Transcript ["C.T."] 198-99, 205-06). The jury found true the allegations that, with respect to both counts: (1) Petitioner personally and intentionally discharged a firearm which caused great bodily injury to Hunt within the meaning of California Penal Code section 12022.53(d); and Petitioner personally used a firearm and knowingly and intentionally discharged a firearm within the meaning of California Penal Code sections 12022.53(b) and (c) (R.T. 1210-12; C.T. 198-99, 205-06). The court found true the allegations that Petitioner was on bail at the time of the offenses within the meaning of California Penal Code section 12022.1 and that Petitioner had suffered two prior convictions for which Petitioner served prison terms within the meaning of California Penal Code section 667.5(b) (R.T. 1505; C.T. 108-09, 259). Petitioner received a total sentence of sixty-six years to life (R.T. 1512-15; C.T. 259).
The California Court of Appeal affirmed the judgment (Respondent's Lodgment 4; see People v. Parra, 2013 WL 1808364 (Cal.App. Apr. 30, 2013)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 6). As indicated above, Petitioner filed a habeas corpus petition in the California Supreme Court, in In re Parra, Case Number S222317 (see Respondent's Lodgment 10; Petitioner's "Compliance, etc., " Ex. A). The California Supreme Court denied Petitioner's habeas corpus petition summarily on January 14, 2015.
The Court takes judicial notice of the California Supreme Court's docket in In re Enrique Parra, case number S222317 (attached), available on the California courts' website at www.courts.ca.gov. See Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th Cir. 2010) (taking judicial notice of state court dockets). The docket shows that the California Supreme Court denied Petitioner's habeas corpus petition on January 14, 2015.
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Parra, 2013 WL 1808364 (Cal.App. Apr. 30, 2013). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
May 25, 2010, Shooting
(Count 1)
In the afternoon of May 25, 2010, Parra, Albert Lopez, and Patrick Hunt socialized in the garage of Lopez's Pomona residence, "drinking a couple of beers, listening to music." Hunt, a childhood friend and neighbor of Lopez, considered Lopez and his mother, Vandie Parke, as his second family. Parra was Parke's longtime boyfriend. The three men were friendly and did not know each other to carry firearms.
That day the men made several trips to the liquor store to purchase beer. During the final trip, Lopez noticed a "little bit of tension." The journey was "quiet and awkward, " and Parra drove the vehicle quickly over "speed bumps."
After their return to the Lopez residence, the men resumed drinking beer and listening to music. Lopez sat in a chair facing the garage door and the street; Hunt stood or sat behind Lopez on the right side, and Parra was on Lopez's left side. Parra spoke with Lopez regarding the music and Hunt read a text message on his cellular telephone. As Parra turned to walk into the residence, he suddenly shot Hunt in the neck from a distance of approximately six to eight feet. Lopez heard the gunshot and turned to ask what happened. Hunt replied that Parra shot him.
When Parke heard the gunshot, she hurried to the garage and found the three men staring at each other. She asked, "What the fuck is going on in here?" Hunt responded that Parra shot him. Parra then "took off down the street." Parke summoned police officers and paramedics.
Hunt received emergency medical care at the hospital, including surgery on his neck and esophagus, and remained hospitalized for a week and one-half. The hospital surgeon was unable to remove the bullet from his neck, however. As a consequence of the shooting, Hunt is unable to eat food normally and will require lifelong medical monitoring of his injury.
February 10, 2011, Shooting
Count 2
Over the next eight months, Parra telephoned Parke several times but they did not meet. On February 10, 2011, he telephoned her and asked to meet before he surrendered to police officers. She reluctantly agreed and he drove to her residence that afternoon. Parke and Parra then drove Parke's vehicle to collect her children from school and later to a liquor store. At the liquor store, Parra saw Hunt and his friend Ricky near the store. Parra left the vehicle and he and Hunt looked at each other. Hunt stated, "[Y]ou shot me in my neck." Parra replied, "[W]hat you gonna do about it?" Parra then pulled a firearm and began to chase Hunt and Ricky. Parra fired the weapon five times, striking Hunt twice - in the right side of his back and in his right forearm. Another bullet passed by Hunt's head before it shattered the liquor store window. Parra then returned to Parke's vehicle and drove away.
During the incident, Parke left the vehicle and ran away. Upon hearing gunshots, she turned and saw Parra holding an object with his arm extended and Hunt running away from him.
Later that day, police officers saw Parke's truck and then found Parra hiding in a backyard. With the assistance of a police canine, officers arrested him.
Hunt was again hospitalized for treatment of two bullet wounds that left permanent scars on his chest and arm.
At trial, Parra's sister testified that Hunt had informed her that he was a member of a criminal street gang. Parra also presented an eyewitness who testified that she saw four young men arguing outside the liquor store and that two of them had guns.
(Respondent's Lodgment 4, pp. 2-3; see People v. Parra, 2013 WL 1808364, at *1-2 (Cal.App. Apr. 30, 2013)).
PARTIES' CONTENTIONS
Petitioner contends:
1. The evidence allegedly was insufficient to show intent to kill with respect to Count 1;
2. The evidence allegedly was insufficient to show Petitioner acted with premeditation and deliberation with respect to both Counts 1 and 2; and
3. Because the evidence of the attempted murder alleged in Count 1 assertedly was inadmissible to show Petitioner committed the attempted murder alleged in Count 2, the joinder of the two counts allegedly rendered Petitioner's trial unfair; and
4. Trial counsel and appellate counsel assertedly rendered ineffective assistance by failing to challenge the joinder of the counts.
Although the last claim is contained in Petitioner's Traverse, rather than in the Petition, the Court properly may address a claim raised only in a traverse or a reply. See Boardman v. Estelle, 957 F.2d 1523, 1525 (9th Cir.), cert. denied, 506 U.S. 904 (1992).
Respondent's Answer contends that Ground Three (the claim alleging improper joinder) is unexhausted. Petitioner seeks a stay to exhaust his claims of allegedly improper joinder and ineffective assistance of counsel. However, Petitioner already raised his unexhausted clams in his California Supreme Court habeas petition (see "Petitioner's "Compliance, etc., " Ex. A, pp. 10-18). Therefore, the California Supreme Court's recent denial of Petitioner's habeas petition exhausts Petitioner's previously unexhausted claims and moots Petitioner's request for a stay. See Zamudio v. McEwen, 2013 WL 1147813, at *2 (S.D. Cal. Mar. 18, 2013) (denying habeas petitioner's motion for a stay as moot because California Supreme Court denied habeas petition pending at time petitioner requested stay). For the reasons discussed below, the Court denies all of Petitioner's claims on the merits.
The Court construes Petitioner's California Supreme Court habeas petition to allege a claim of improper joinder as well as claims of ineffective assistance related to joinder.
The California Supreme Court's summary denial of Petitioner's habeas petition is presumed to have been on the merits. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85 (2011) (state court's summary denial presumed to be on the merits); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992), cert. denied, 510 U.S. 887 (1993) (same).
To the extent any of Petitioner's previously unexhausted claims remain unexhausted after the California Supreme Court's recent denial of Petitioner's habeas petition, this Court nevertheless may deny the unexhausted claims on the merits. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (the court may deny on the merits an unexhausted claim which is not "colorable"); see also 28 U.S.C. § 2254(b)(2)).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S.Ct. at 786. This is "the only question that matters under § 2254(d)(1)." Id., 131 S.Ct. at 786 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id., 131 S.Ct. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
I. Petitioner's Challenges to the Sufficiency of the Evidence Do Not Merit Habeas Relief.
A. Governing Legal Standards
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012). Because the Court must examine the sufficiency of the evidence "through the lens of AEDPA, " the Court must apply a "double dose of deference" to the Court of Appeal's determination that the evidence sufficed to support Petitioner's conviction. See Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013), cert. denied, 134 S.Ct. 2843 (2014).
Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id . (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id . (citations and internal quotations omitted); see also Coleman v. Johnson, 132 S.Ct. at 2064 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) ("it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.
At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id . (citations and internal quotations omitted; original emphasis).
In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 132 S.Ct. at 2064.
B. The Evidence Was Sufficient to Show Intent to Kill With Respect to Count 1.
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." People v. Smith, 37 Cal.4th 733, 751, 37 Cal.Rptr.3d 163, 124 P.3d 730 (2005) (citation omitted). Evidence of intent to kill may be inferred from the defendant's acts and the circumstances of the crime. See id. at 734, 736 (citations omitted). In California, "when manner-of-killing evidence strongly suggests premeditation and deliberation, that evidence is enough, by itself, to sustain a conviction for first-degree murder." Drayden v. White, 232 F.3d 704, 709 (9th Cir. 2000), cert. denied, 532 U.S. 984 (2001) (citation omitted).
Here, with respect to the May 25, 2010 incident (Count 1), the evidence showed: (1) there was "tension" between Petitioner and Hunt as they rode in the truck to the liquor store; (2) on the way back from the liquor store Petitioner was speeding over speed bumps; (3) Petitioner brought a loaded firearm into the garage; (4) Petitioner shot Hunt in a vital part of Hunt's body (the neck) from a distance of six to eight feet after Hunt had turned his back on Petitioner and was distracted by a cell phone; and (5) after Hunt said "you shot me, " Petitioner ran away (R.T. 613-14, 617-19, 637-38, 706-08, 725). A rational juror could have concluded from this evidence that Petitioner harbored the intent to kill. See People v. Perez, 50 Cal.4th 222, 230, 112 Cal.Rptr.3d 310, 234 P.3d 557 (2010) ("the act of firing toward a victim at a close, but not point blank, range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill....") (citations, internal brackets and quotations omitted); People v. Millbrook, 222 Cal.App.4th 1122, 166 Cal.Rptr.3d 217 (2014) ("The evidence that Millbrook intentionally shot at [the victim's] chest at close range was sufficient to permit the jury to conclude that Millbrook had the requisite express malice."). The mere fact that Petitioner failed to kill Hunt did not show Petitioner lacked the requisite intent to kill. See People v. Lashley, 1 Cal. App 4th 938, 2 Cal.Rptr.2d 629 (1991), cert. denied, 506 U.S. 842 (1992) (attempted murder victim's escape from death due to "poor marksmanship" did not show lack of intent to kill). Although other inferences might have been possible, this Court must presume that the jury resolved any possible conflicting inferences in favor of the prosecution. See United States v. Nevils, 598 F.3d at 1164.
Petitioner also appears to argue that evidence of motive was scant or lacking. However, motive "is different from a required mental state such as intent or malice." People v. Hillhouse, 27 Cal.4th 469, 504, 117 Cal.Rptr.2d 45, 40 P.3d 754 (2002), cert. denied, 527 U.S. 1114 (2003). "[M]otive is not an element of the crime of attempted murder." People v. Houston, 54 Cal.4th 1186, 1218, 144 Cal.Rptr.3d 716, 281 P.3d 799 (2012), cert. denied, 133 S.Ct. 1588 (2012) (citation omitted). "Although motive is often probative of an intent to kill, the absence of a clear motive does not demonstrate the lack of an intent to kill." Id.
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support his attempted murder conviction on Count 1 was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on this claim.
C. The Evidence Was Sufficient to Show Premeditation and Deliberation With Respect to Both Counts
"Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation." People v. Villegas, 92 Cal.App.4th 1217, 1223, 113 Cal.Rptr.2d 1 (2001) (footnote omitted); People v. Herrera, 70 Cal.App.4th 1456, 1462 n.8, 83 Cal.Rptr.2d 307 (1999), disapproved on other grounds, People v. Mesa, 54 Cal.4th 191, 142 Cal.Rptr.3d 2, 277 P.3d 743 (2012) ("We do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation [citations]."). The California Supreme Court has identified three types of evidence used to sustain a finding of premeditation and deliberation. See People v. Welch, 20 Cal.4th 701, 758, 85 Cal.Rptr.2d 203, 976 P.2d 754 (1999), cert. denied, 528 U.S. 1154 (2000), overruled on other grounds, People v. Blakeley, 23 Cal.4th 82, 96 Cal.Rptr.2d 451, 999 P.2d 675 (2000).
These are: "(1) facts about how and what [the] defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as "planning" activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed" [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2).'"
People v. Welch, 20 Cal.4th at 758 (citations omitted); see also People v. Anderson, 70 Cal.2d 15, 26-27, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). These guidelines "were formulated as a synthesis of prior case law, and are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case." People v. Welch, 20 Cal.4th at 758 (citation and internal quotations omitted). "The process of premeditation and deliberation does not require any extended period of time." People v. Koontz, 27 Cal.4th 1041, 1080, 119 Cal.Rptr.2d 859, 46 P.3d 335 (2002), cert. denied, 537 U.S. 1117 (2003) (citation and internal quotations omitted). "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....'" Id . (citation and internal quotations omitted).
Here, with respect to the May 25, 2010 incident (Count 1), the evidence described above showed that there was "tension" between Petitioner and Hunt before the shooting, Petitioner brought a loaded gun into the garage, and Petitioner shot Hunt in a vital part of the body (the neck) from a distance of six to eight feet after Hunt had turned his back on Petitioner and was distracted by a cell phone. With respect to the February 10, 2011 incident (Count 2), the evidence showed that: (1) Petitioner carried a loaded firearm in Parke's truck; (2) Petitioner drove the truck to the liquor store and saw Hunt; (3) Petitioner stopped the truck when he saw Hunt and said "you got a problem?"; (4) when Hunt said "you shot me, " Petitioner responded "what you gonna do about it?"; (5) Petitioner exited the truck while concealing the gun; (6) when Hunt turned and ran, Petitioner fired approximately five shots, hitting Hunt in the right side of the chest (again a vital part of the body) and the back of the forearm (R.T. 688-91, 711-16, 727-28).
From the evidence described above, a rational juror could have determined that Petitioner acted with premeditation and deliberation with respect to both shootings. See People v. Watkins, 55 Cal.4th 999, 1026, 150 Cal.Rptr.3d 299, 290 P.3d 364 (2012), cert. denied, 134 S.Ct. 471 (2013) (evidence that defendant carried loaded, concealed pistol to position behind hood of truck, then shot victim in elbow and abdomen as victim walked quickly away, showed premeditation and deliberation); People v. Gonzales, 52 Cal.4th 254, 294-95, 128 Cal.Rptr.3d 417, 256 P.3d 543 (2011), cert. denied, 132 S.Ct. 1794 (2012) and 132 S.Ct. 1796 (2012) (where defendants were on their way home from a party when they encountered the victims and decided to confront them, defendants targeted victims in retaliation for previous gang-related murder, defendants were arguing with victims just before the murders and victims were shot at close range without any provocation or evidence of a struggle, evidence showed premeditation and deliberation); People v. Lee, 51 Cal.4th 620, 636, 122 Cal.Rptr.3d 117, 248 P.3d 651, cert. denied, 132 S.Ct. 340 (2011) (fact that defendant brought loaded handgun with him to location of killing showed premeditation and deliberation); People v. Manriquez, 37 Cal.4th 547, 578, 36 Cal.Rptr.3d 340, 123 P.3d 614 (2005), cert. denied, 547 U.S. 1179 (2006) (evidence that defendant armed himself with loaded firearm, approached sleeping victim, grabbed victim and shot him in the back at close range showed premeditation and deliberation); People v. Marks, 31 Cal.4th 197, 232, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (2003), cert. denied, 541 U.S. 1033 (2004) (evidence that defendant brought a gun to place of business and shot workers at close range without provocation, and in a "calm, cool manner, " showed premeditation and deliberation); People v. Koontz, 27 Cal.4th at 1082 (evidence that defendant armed himself, followed victim and shot at a vital area of the victim's body at close range showed premeditation and deliberation); People v. Miranda, 44 Cal.3d 57, 87, 241 Cal.Rptr. 594, 744 P.2d 1127 (1987), overruled on other grounds, People v. Marshall, 50 Cal.3d 907, 269 Cal.Rptr.3d 172, 182 P.3d 513 (2008) ("the fact that defendant brought his loaded gun into the store and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance"); People v. Villegas, 92 Cal.App.4th at 1224-25 (evidence that defendant fired six shots at occupants of truck from close range "in a manner that could have inflicted a mortal wound had the bullet been on target" sufficient to show premeditation). Although Petitioner argues the evidence purportedly supported the inference that Petitioner allegedly acted spontaneously and without deliberation, this Court must presume that the jury resolved any possible conflicting inferences in favor of the prosecution. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).
It follows that the Court of Appeal's rejection of Petitioner's challenges to the sufficiency of the evidence to support his attempted murder convictions on Counts 1 and 2 was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on this claim.
II. The Joinder of Counts Did Not Violate Petitioner's Constitutional Rights.
Petitioner argues that the joinder of Counts 1 and 2 improperly permitted the jury to consider the May 25, 2010 attempted murder alleged in Count 1 in deciding the matter of Petitioner's motive with respect to the February 10, 2011 attempted murder alleged in Count 2 (Pet. Mem., pp. 10-11, 16-19). Because the California Supreme Court rejected this claim summarily, this Court "must determine what arguments or theories... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
"[I]mproper joinder does not, in itself, violate the Constitution." United States v. Lane, 474 U.S. 438, 446 n.8 (1986). When reviewing a trial court's denial of a motion to sever, "[t]he question presented in a state prisoner's petition for writ of habeas corpus is whether the state proceedings satisfied due process. To prevail, [petitioner] bears the burden of demonstrating that the state court's denial of his severance motion rendered his trial fundamentally unfair." Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997) (internal citations and quotation marks omitted); see also Davis v. Woodford, 384 F.3d 628, 638-39 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). Fundamental unfairness is shown if the "impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict." Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000), cert. denied, 534 U.S. 943 (2001). Factors that may be considered include the joinder of other crimes where the evidence otherwise would be inadmissible and the joinder of a weak evidentiary case with a strong one. Id.
Here, the evidence concerning the May 25, 2010 incident was admissible as relevant to Petitioner's motive, intent and premeditation in shooting Hunt during the February 10, 2011 incident. See Fields v. Woodford, 309 F.3d 1095, 1110 (9th Cir. 2002) (evidence in support of capital and non-capital crimes admissible to show common modus operandi and to show motive and intent), amended on other grounds, 315 F.3d 1062 (2002); see also People v. Stanley, 39 Cal.4th 913, 934-35, 47 Cal.Rptr.3d 420, 140 P.3d 736 (2006), cert. denied, 549 U.S. 1269 (2007). Indeed, in his California Supreme Court habeas petition Petitioner conceded the existence of cross-admissiblity "in part" (Petitioner's "Compliance, etc., " Ex. A, p. 11). The two incidents involved the same victim and the same means of attempted murder (a surprise shooting from behind with a previously concealed weapon and a subsequent flight). Petitioner shot Hunt the second time after Petitioner asked whether Hunt had a "problem" and Hunt referred to the earlier incident, saying "you shot me in the neck" (R.T. 711). The two incidents were obviously connected, and there was no particularly substantial disparity in the strength of the evidence as to each charge. In these circumstances, joinder of the two counts did not render Petitioner's trial fundamentally unfair.
The prosecutor argued in closing that in the February 10, 2011 incident Petitioner attempted to kill Hunt because Petitioner "didn't get him the first time" (R.T. 1013).
To the extent Petitioner contends the evidence concerning the May 25, 2010 incident inflamed the jury by suggesting Petitioner's propensity to commit the February 10, 2011 incident, or vice-versa, any such claim fails. The United States Supreme Court has never ruled that the admission of propensity evidence violates the Constitution. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of prior crimes' evidence to show propensity to commit a charged crime"). Therefore, Petitioner cannot obtain habeas relief on any such claim. See Jennings v. Runnels, 493 Fed.App'x 903, 906 (9th Cir. 2012), cert. denied, 135 S.Ct. 96 (2014) (the Supreme Court has not held that propensity evidence violates Due Process, and the "absence of Supreme Court precedent on point forecloses any argument that the state court's decision [denying challenge to admission of propensity evidence] was contrary to or an unreasonable application of clearly established federal law") (citation omitted); Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008), cert. denied, 555 U.S. 1117 (2009) (rejecting habeas petitioner's challenge to introduction of propensity evidence, where petitioner could point to no Supreme Court precedent establishing that admission of otherwise relevant propensity evidence violated the Constitution); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007) (same) (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire ); see generally Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an open question, '" habeas relief unavailable).
For the foregoing reasons, the California Supreme Court's rejection of the claim of improper joinder was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on this claim.
III. Petitioner's Claims of Ineffective Assistance of Counsel Do Not Merit Habeas Relief.
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; see Gentry v. Sinclair, 705 F.3d 884, 889 (9th Cir.), cert. denied, 134 S.Ct. 102 (2013) ("[f]ailure to meet either [Strickland] prong is fatal to a claim"); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight...." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S.Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
The standards set forth in Strickland govern claims of ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997); see also Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 132 S.Ct. 346 (2011) (appellate counsel is not required to raise a meritless issue on appeal). "A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court." Pollard v. White, 119 F.3d at 1435.
B. Discussion
California Penal Code section 954 permits the joinder of "two or more different offenses connected in their commission... or two or more different offenses of the same class of crimes or offenses...." "Because consolidation ordinarily promotes efficiency, the law prefers it." People v. Lucas, 60 Cal.4th 153, 214, 177 Cal.Rptr.3d 378, 333 P.3d 587 (2014) (citations and internal quotations omitted). "Application of this preference has special force in the context of a motion to sever properly joined charges on the ground that joint trial prejudicially would expose a jury to other crimes' evidence." People v. Soper, 45 Cal.4th 759, 772, 89 Cal.Rptr.3d 188, 200 P.3d 816 (2009). "[I]f the charged offenses are of the same class, such as the murders charged here, joinder is proper under section 954." People v. Lucas, 60 Cal.4th at 214 (citation omitted); see also People v. Thomas, 52 Cal.4th 336, 350, 128 Cal.Rptr.3d 489, 256 P.3d 603 (2011), cert. denied, 132 S.Ct. 1568 (2012) (two murder counts "obviously" are offenses of the same class of crimes); People v. Stanley, 39 Cal.4th at 934 (crimes of murder, attempted murder and robbery properly joined under section 954).
Where offenses are properly joined, the defendant bears the burden "to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." People v. Soper, 45 Cal.4th at 773 (citations omitted). "[I]n the context of properly joined offenses, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial." Id. at 774 (original emphasis; citations and internal quotations omitted).
In determining whether to grant a motion to sever, California courts consider: (1) whether evidence of the crimes would be cross-admissible in separate trials; (2) whether the charge or charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case would be joined with a strong case or another weak case such that the evidence on the joined charges would affect the outcome of some or all of the charged offenses; and (4) whether joinder could convert the case to a capital case. People v. Burnell, 132 Cal.App.4th 938, 947, 34 Cal.Rptr.3d 40 (2005).
Here, as discussed above, the evidence concerning the first attempted murder would have been admissible in any separate trial of the second attempted murder. See People v. Stanley, 39 Cal.4th at 934-35. "If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice...." People v. Soper, 45 Cal.4th at 774-75 (citation omitted). Additionally, as discussed above, neither attempted murder count was particularly "weaker" than the other; the evidence showed that in both incidents Petitioner shot at Hunt deliberately and without any apparent provocation.
In such circumstances, trial counsel's failure to move to sever was neither unreasonable nor prejudicial. See Styers v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008), cert. denied, 530 U.S. 932 (2009) (to show a Strickland violation, the Petitioner must show a reasonable probability that, had counsel made the motion, the motion would have been granted); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) ("the failure to take a futile action can never be deficient performance"); see also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989) ("[T]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel"; citation and internal quotations omitted).
It follows that Petitioner has not shown that appellate counsel's failure to raise Petitioner's joinder claim on appeal constituted ineffective assistance or prejudiced Petitioner within the meaning of Strickland. See Moormann v. Ryan, 628 F.3d at 1109 (where petitioner failed to show trial counsel's alleged ineffectiveness prejudiced petitioner, appellate counsel's failure to argue trial counsel's alleged ineffectiveness on appeal "was neither deficient representation nor prejudicial"); Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (appellate counsel's failure to raise an issue on direct appeal cannot constitute ineffective assistance when "the appeal would not have provided grounds for reversal.") (citation omitted); Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991) (where trial counsel's performance did not fall below the Strickland standard, "petitioner was not prejudiced by appellate counsel's decision not to raise issues that had no merit") (footnote omitted).
For the foregoing reasons, the California Supreme Court's rejection of Petitioner's claims of ineffective assistance of trial and appellate counsel was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on these claims.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's request for a stay as moot; and (3) denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.