Ratliff v. Hedgepeth (712 F. Supp. 2d 1038, 2010)

United States District Court for the Central District of California 2010-05-04

Judiciary and Judicial Procedure

Citations

Full opinion text

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

RONALD S.W. LEW, Senior District Judge.

Pursuant to 28 U.S.C. Section 636, the Coui't has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner’s objections, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition and dismissing the action with prejudice.

This Court finds an appeal would not be taken in good faith, and petitioner has not made a substantial showing that he has been denied a constitutional right, for the reasons set forth in the Report and Recommendation; thus, a certificate of appeal-ability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R.App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); Mayfield v. Calderon, 229 F.3d 895, 900 (9th Cir.2000).

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge’s Report and Recommendation and Judgment by the United States mail on petitioner.

JUDGMENT

Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman,

IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action is dismissed with prejudice.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, Senior United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

I

On February 1, 2002, in Riverside County Superior Court case no. RIF091977, a jury convicted petitioner De’Veron J. Ratliff, aka Deveron Jacques Ratliff, aka Christopher Hooper, aka Deveron Rattliff, of one count of assault with a deadly weapon other than a firearm (knife) in violation of California Penal Code (“P.C.”) § 245(a)(1) (count 2) and one count of being a felon in possession of a firearm in violation of P.C. § 12021(a)(1) (count 4); as to both counts, the jury found petitioner committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with specific intent to promote, further and assist in criminal conduct by gang members within the meaning of P.C. § 186.22(b)(1); and, as to count 2, the jury found petitioner personally used a firearm within the meaning of P.C. §§ 12022.5(a) and 1192.7(c)(8); however, the jury found petitioner not guilty of attempted willful and premeditated murder in violation of P.C. §§ 664/87 (count 1). Clerk’s Transcript (“CT”) 107-11, 154-55, 159-64. In a bifurcated proceeding, the trial court found petitioner had suffered two prior strikes under California’s Three Strikes law, within the meaning of P.C. §§ 667(c) and (e) and 1170.12(c). CT 301-02. The petitioner was sentenced under the Three Strikes law to the total term of 49 years to life in state prison. CT 380-81, 383.

The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 384-86, which in an unpublished opinion filed August 24, 2004, “modiffied] the judgment ... by striking the two [P.C.] section 667.5, subdivision (b) enhancements imposed on count 2 and by amending the [P.C.] section 186.22 enhancement from a 10-year prison term under subdivision (b)(1) to a minimum 15-year parole term under subdivision (b)(5) [,]” and affirmed the judgment as modified. Lodgment nos. 1-4. On October 6, 2004, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied review on November 10, 2004. Lodgment nos. 5-6.

On June 27, 2005, petitioner, proceeding pro se, filed a habeas corpus petition in the Riverside County Superior Court, which denied the petition on July 6, 2005. Lodgment nos. 7-8. On July 27, 2005, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on August 12, 2005. Lodgment nos. 9-10. Finally, on August 17, 2005, petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on June 28, 2006. Lodgment nos. 11-12.

On April 3, 2006, while his habeas corpus petition was pending in the California Supreme Court, petitioner filed a second habeas corpus petition in the Riverside County Superior Court, which denied the petition on May 1, 2006. Lodgment nos. 13-14. On May 17, 2006, petitioner filed a second habeas corpus petition in the California Court of Appeal, which denied the petition on May 26, 2006. Lodgment nos. 15-16. On July 14, 2006, petitioner filed a second habeas corpus petition in the California Supreme Court, which denied the petition on February 7, 2007, with citations to: In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993); In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953); In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793 (1949); People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995); and In re Lindley, 29 Cal.2d 709, 177 P.2d 918 (1947). Lodgment nos. 17-18.

II

The California Court of Appeal, in affirming petitioner’s convictions, made the following findings of facts underlying the offenses: The charges in this case stem from three fights that occurred on May 25, 2000. The first fight occurred at Mel’s Liquor store where petitioner pushed Vincent Thomas’s friend in the head after the two had exchanged words about the Raymond Street Crips, a gang in which petitioner was a member. Vincent Thomas then hit petitioner in the back of the head and a fight between petitioner’s friends and Thomas’s friends broke out in the liquor store parking lot. Co-defendant Vanpool and her friends were also at the liquor store and she participated in the parking lot fight. That fight ended and the two groups went their separate ways. Vincent Thomas and his friends went to Thomas’s house and petitioner and Van-pool went to a house on Victor Street.

The second fight took place at the house on Victor Street when Vincent Thomas and his friends arrived and confronted petitioner. A brawl broke out when Vincent Thomas’s brother and one of his friends punched petitioner and one of his companions. That fight ended when the woman who owned the Victor Street house threatened to call the police.

The third and final fight occurred in a park where the two groups met again. There, Vincent Thomas saw petitioner holding what appeared to be a gun. When Vincent ran, he was chased and knocked to the ground where he was beaten and stabbed by several people, one of whom Vincent identified as petitioner. Another witness saw Vanpool stab Vincent several times. After stabbing Vincent, Vanpool drove off in the truck that Vincent’s brother, along with Vincent and two others, had driven to the park. The truck belonged to Vincent Thomas’s father. Vincent Thomas had five stab wounds — one on the upper left bicep, two on the buttocks, one of which was deep and considered serious, and three on his legs and thighs. The wounds required sutures.

According to various witnesses, petitioner was a member of the Raymond Street Crips and while at the Victor Street house had been heard to say, “All you niggas out here in Moreno Valley claimin’ Raymond who never been in the hood are gonna get put on the hood or get smoked.” A witness also heard petitioner refer to Vincent Thomas and his friends as “busters,” a derogatory term that refers to a person who falsely claims to be in a gang. During the fight in the park, petitioner also was heard to say to Vincent, while the latter was on the ground being beaten and stabbed, not to “claim” petitioner’s hood anymore. Witnesses also testified that while Vanpool was stabbing Vincent Thomas, she was heard to say, “Raymond Crip, whew, whew” and “Don’t ever claim Raymond again.”

Ill

Effective April 17, 2007, petitioner, proceeding pro se, filed the pending habeas corpus petition under 28 U.S.C. § 2254, and on July 30, 2007, respondent filed a motion to dismiss the petition, arguing it is both untimely and a “mixed” petition. On November 13, 2007, the Court denied respondent’s motion to dismiss, and on March 4, 2008, respondent filed his answer. The petitioner filed his reply on June 11, 2008.

The petition raises the following numerous grounds for habeas corpus relief:

Ground One — Petitioner “was denied his right[ ] to a fair trial due to the court[’]s error in denying petitioner’s motion to strike the testimony of ... Eric Thomas as to the plea[ ] bargain he entered into with the prosecutorf,] which left the prosecutor as sole mediater [sic] in determining whether [Eric’s] testimony was truthful ... an[d] unduly pressured ... [Eric] to provide testimony which the prosecutor desired”;

Ground Two — “The prosecutor committed prejudicial misconduct by expressing his personal opinion as to who he believed ... during closing arguments”;

Ground Three — '“The trial court erred [in violation of the Sixth Amendment] in admitting testimony of threats received by virtually all of the prosecution’s witnesses”;

Ground Four — (a) “The evidence is not sufficient to establish any of the offenses were committed by petitioner for purposes of furthering a criminal street gang within the meaning of Penal Code § 186.22 nor that petitioner was even apart [sic] of [an] allege[d] gang[;]” and (b) “the trial court erred by admitting extensive evidence of [petitioner’s] allege[d] membership in a gang[,]” violating petitioner’s due process right to a fair trial;

Ground Five — “Petitioner’s conviction was obtained as a result of the prosecution’s misstatement of fact” when the prosecutor misled prosecution witness LaJoyce Mack into believing petitioner had a gun, whereas it was Eric Thomas;

Ground Six — Defense counsel was ineffective in that he: (a) failed “to properly investigate and put on an adequate defense [on] petitioner’s behalf,” (b) “failed to file a motion for severance on the grounds of conflict of interest,” (c) failed “to subpoena any of the eye witnesses, or character witnesses who favored petitioner,” (d) failed to interview and subpoena a gang expert, (e) “failed to present critical exculpatory evidence that was favorable to petitioner,” specifically (i) “letters and notes that ... Eric Thomas wrote petitioner stating he [Eric Thomas] knew petitioner was [not] guilty of [the] offense, but he needed to do what he had to do in order to get out of jail,” (ii) “L.A. Times news paper [sic] clipping of petitioner involved in Straight Talk Program speaking out against gangs to jr high and high school kids,” and (iii) “[a] surveillance video tape [sic] of footage depicting petitioner with a very low hair cut without a beard, whereas the prosecution witnesses described the individual with [the] allege[d] gun as having either corn rolls, puff ball or an afro in his hair with a beard,” (f) failed “to object to prosecution witness LaJoyce Mack[’s] testimony or file for a mistrial,” (g) failed “to object to prosecutor Ryan Markson parading ... Eric Thomas into the courtroom” while “witness LaJoyce Mack was being questioned under re-direct in order to further intimidate witness LaJoyce Mack into changing her testimony,” (h) failed “to object to incompetent prejudicial hearsay testimony from witness Eric Thomas where he placed petitioner as being apart [sic] of a killing squad called the 5Rs,” (i) failed “to properly cross examine prosecution witness Eric Thomas as to his incompetent hearsay gang testimony,” (j) failed “to subpeona [sic] critical witness Rashima Ward a.k.a. Tamara Hunt to have her at hearing for a new trial on newly discovered evidence,” and (k) “misled petitioner and [left] petitioner confused as to the purpose of a[ ] bifurcation hearing ... which ultimately led to petitioner admitting to priors instead of having a trial on the priors”;

Ground Seven — Appellate counsel was ineffective for: (a) “fail[ing] to raise numerous claims of ... ineffective assistance of trial counsel[,]” (b) failing to claim insufficiency of evidence, (c) failing to “claim that the court misled the jurors with instructions,” (d) failing to claim “a violation of the Rules of Court standard on expert witnesses[’] qualification to testify,” and (e) failing to claim that “the prosecutor withheld exculpatory evidence”;

Ground Eight — “The court caused a miscarriage of justice when it misled the jury in instructions doing [sic] deliberations”;

Ground Nine — The “[p]rosecutor blantantly [sic] failed to disclose favorable substantial material to petitioner”; and

Ground Ten — “Insufficient ... evidence to justify a guilty verdict beyond a reasonable doubt[.]”

DISCUSSION

IY

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “established a one-year period of limitations for federal habeas petitions filed by state prisoners,” Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir.2007), as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

The California Supreme Court denied petitioner’s request for review on November 10, 2004. After the California Supreme Court denied review, petitioner had the option of seeking a writ of certiorari from the United States Supreme Court. 28 U.S.C. § 1257. A writ of certiorari must be sought within ninety days after the California Supreme Court denies review. 28 U.S.C. § 2101(d); Rules of the Supreme Court of the United States, Rule 13. If the petitioner does not seek certiorari in the Supreme Court, the direct review process is over at the end of the ninety-day period. Whalem/Hunt v. Early, 233 F.3d 1146, 1147 (9th Cir.2000) (en banc); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Thus, for petitioner, AED-PA’s statute of limitations began to run on February 9, 2005, and expired on February 8, 2006, one year from when his state court decision became final. Ibid. Here, the instant action was not filed until April 17, 2007 — more than one year after the statute of limitations expired.

However, this Court must consider whether the statute of limitations was tolled while petitioner’s applications for collateral relief were pending before the California courts. Generally, “the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner’s final collateral challenge[,]” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999) (footnotes omitted), cert. denied, 529 U.S. 1104, 120 S.Ct. 1846, 146 L.Ed.2d 787 (2000), so long as the petitioner did not unreasonably delay in seeking collateral relief. Carey v. Saffold, 536 U.S. 214, 225, 122 S.Ct. 2134, 2141, 153 L.Ed.2d 260 (2002). Here, petitioner filed a habeas corpus petition in the Los Angeles County Superior Court on June 27, 2005. At that time, petitioner had “used” 138 days of his allotted 365 days, and had 227 days left on the limitations period. Nino, 183 F.3d at 1006. The statute of limitations was tolled from June 27, 2005, until June 28, 2006, when the California Supreme Court denied petitioner’s habeas corpus petition. Id.

The pending petition would not be timely except for the statutory tolling of the limitations period while petitioner’s second habeas corpus petition was pending before the California Supreme Court. However, respondent contends the second habeas petition to the California Supreme Court did not statutorily toll the limitations period because it was not “properly filed” within the meaning of Section 2244(d)(2), due to the California Supreme Court’s citation to In re Clark when it denied the petition. The respondent contends the citation to In re Clark means the California Supreme Court found the petition to be untimely. See, e.g., In re Clark, 5 Cal.4th 750, 775, 21 Cal.Rptr.2d 509, 525, 855 P.2d 729 (1993) (“A petitioner will be expected to demonstrate due diligence in pursuing potential claims. If a petitioner had reason to suspect that a basis for habeas relief was available, but did nothing to promptly confirm those suspicions, that failure must be justified.”). There is no merit to this contention.

Although a citation to Clark may mean the petition is untimely, that is not the only proposition for which Clark stands. Rather, Clark also stands for the proposition that “absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected ... [as well as] newly presented grounds for relief which were known to the petitioner at the time of a prior collateral attack on the judgment.” Id. at 767-68, 21 Cal.Rptr.2d at 520, 855 P.2d 729. Moreover, Clark also stands for “the general rule that issues resolved on appeal will not be reconsidered on habeas corpus[,]” id. at 765, 21 Cal.Rptr.2d at 518, 855 P.2d 729 (citing In re Waltreus, 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001 (1965), cert. denied, 382 U.S. 853, 86 S.Ct. 103, 15 L.Ed.2d 92 (1965)), and its companion rule that “in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.” Clark, 5 Cal.4th at 765, 21 Cal.Rptr.2d at 518, 855 P.2d 729 (citing In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953); internal quotation marks omitted).

Under AEDPA, respondent “bears the burden of proving that the AEDPA limitations period has expired.” Fleming v. Evans, 481 F.3d 1249, 1257 (10th Cir.2007); see also Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir.2004) (“Since the period of limitations is an affirmative defense, the state has the burden of showing that the petition is untimely.”), cert. denied, 543 U.S. 1168, 125 S.Ct. 1348, 161 L.Ed.2d 144 (2005); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir.2002) (“[T]he party asserting statute of limitations as an affirmative defense has the burden of demonstrating that the statute has run.”). Given the variety of procedural rules set forth in Clark, and since the California Supreme Court’s citation to Clark was without reference to any specific page within the Clark opinion, respondent has not met his burden of demonstrating the California Supreme Court denied petitioner’s second habeas corpus petition on the ground it was untimely. See Gipson v. Schwartz, 2007 WL 1411607, *2 (N.D.Cal.) (“The problem with respondent’s argument is that the citation to Clark is ambiguous because the California Supreme Court did not cite to any particular page in the Clark opinion when it denied [petitioner’s] second habeas petition [and] Clark discusses more than just the untimeliness procedural bar.... ”). Thus, petitioner is entitled to statutory tolling for the time his second habeas petition was pending before the California Supreme Court, and affording petitioner such statutory tolling, petitioner’s current federal habeas corpus petition is timely.

V

Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991); Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002); King v. LaMarque, 464 F.3d 963, 965 (9th Cir.2006). “The procedural default doctrine, which is a specific application of the general adequate and independent state grounds doctrine[,]” Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir.1994); Fields v. Calderon, 125 F.3d 757, 761-62 (9th Cir.1997), cert. denied, 523 U.S. 1132, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998), “bar[s] federal habeas [review] when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30, 111 S.Ct. at 2554; Hanson v. Mahoney, 433 F.3d 1107, 1113 (9th Cir.), cert. denied, 547 U.S. 1180, 126 S.Ct. 2354, 165 L.Ed.2d 282 (2006). “To constitute a procedural bar, the state’s rule had to be independent and adequate at the time [petitioner] purportedly failed to comply with it.” Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir.) (citing Fields, 125 F.3d at 760), cert. denied, — U.S. —, 130 S.Ct. 193, 175 L.Ed.2d 121 (2009). A state procedural rule is considered an independent bar if it is not interwoven with federal law or dependent upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985); Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001). “To be adequate, a state procedural rule must be ‘well-established and consistently applied.’ ” Townsend, 562 F.3d at 1207 (citing Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir.), cert. denied, 540 U.S. 938, 124 S.Ct. 105, 157 L.Ed.2d 251 (2003)); Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991); King, 464 F.3d at 965. “A procedural rule can be neither well-established nor consistently applied if it is not ‘clear and certain.’ ” Townsend, 562 F.3d at 1207 (quoting King, 464 F.3d at 965).

Procedural default is an affirmative defense, Gray v. Netherland, 518 U.S. 152, 165-66, 116 S.Ct. 2074, 2082, 135 L.Ed.2d 457 (1996); Franklin v. Johnson, 290 F.3d 1223, 1229-33 (9th Cir.2002), “and the state has the burden of showing that the default constitutes an adequate and independent ground.” Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir.2005); Bennett, 322 F.3d at 585. Here, respondent raises the affirmative defense that Grounds Two, Three, Four, Five, and Eight are procedurally defaulted, and federal habeas review of those claims is barred, because the California Supreme Court denied petitioner’s second habeas corpus petition raising these claims with citations to In re Clark, In re Dixon, In re Swain, People v. Duvall and In re Lindley. Answer at 5:24-6:16, 16:7-18:6, 21:7-14, 25:20-26:13, 30:4-10, 34:5-7. However, since the California Supreme Court’s order is based, at least in part, on Swain and Duvall, which generally bar federal habeas corpus review, see, e.g., Gaston v. Palmer, 417 F.3d 1030, 1038-39 (9th Cir.2005) (emphasis added), amended on other grounds by, 447 F.3d 1165 (9th Cir.2006), cert. denied, 549 U.S. 1134, 127 S.Ct. 979, 166 L.Ed.2d 742 (2007); Howard v. Campbell, 305 Fed.Appx. 442, 445 (9th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2064, 173 L.Ed.2d 1142 (2009), and because the California Supreme Court’s order does not identify the claims to which each citation is intended to apply, the California Supreme Court did not clearly and expressly rely on an adequate and independent state law ground to deny Grounds Three, Four, Five, and Eight, and those claims are not procedurally defaulted. Valerio v. Crawford, 306 F.3d 742, 774-75 (9th Cir.2002) (en banc), cert. denied, 538 U.S. 994, 123 S.Ct. 1788, 155 L.Ed.2d 695 (2003); see also Calderon v. United States District Court (Bean), 96 F.3d 1126, 1131 (9th Cir.1996) (“ ‘[A] procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review.’ ” (citations omitted)), cert. denied, 520 U.S. 1204, 117 S.Ct. 1569, 137 L.Ed.2d 714 (1997).

Respondent also asserts that Ground Two is procedurally barred because the California Court of Appeal, in its reasoned opinion affirming petitioner’s judgment as modified, “note[d] that neither [petitioner nor Vanpool] objected to the prosecutor’s argument[,]” and then ruled that petitioner’s “failure to object precludes [him] from raising the prosecutorial misconduct claim [Ground Two] on appeal.” Lodgment no. 4 at 11 (citation omitted); see also People v. Valencia, 43 Cal.4th 268, 281, 74 Cal.Rptr.3d 605, 623, 180 P.3d 351 (2008) (Under California law, “ ‘[a]s a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (citation omitted)), cert. denied, — U.S. —, 129 S.Ct. 198, 172 L.Ed.2d 158 (2008); People v. Huggins, 38 Cal.4th 175, 205, 41 Cal.Rptr.3d 593, 620, 131 P.3d 995 (2006) (same), cert. denied, 549 U.S. 998, 127 S.Ct. 501, 166 L.Ed.2d 374 (2006). This California rule is not interwoven with or dependent on federal law and was “firmly established and regularly followed state practice” prior to petitioner’s trial. Rich v. Calderon, 187 F.3d 1064, 1070 (9th Cir.1999), cert. denied, 528 U.S. 1092, 120 S.Ct. 827, 145 L.Ed.2d 696 (2000); see also Howard, 305 Fed.Appx. at 444 (“We have held that failure to comply with California’s contemporaneous objection rule results in a procedural default of a prosecutorial misconduct claim.”); Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir.1981) (“California courts adhere to the contemporaneous objection rule barring appellate review of alleged errors that are not raised at trial by timely objection.”).

Sinee respondent has raised the affirmative defense of procedural bar to Ground Two, the burden now shifts to petitioner to place the affirmative defense in issue. King, 464 F.3d at 966-67; Bennett, 322 F.3d at 586. “In most circumstances, the best method for petitioners to place the defense in issue is to assert ‘specific factual allegations that demonstrate the inadequacy of the state procedure’ by citing relevant cases.” King, 464 F.3d at 967 (quoting Bennett, 322 F.3d at 586). However, petitioner has not done this; rather, petitioner’s reply fails to address whether Ground Two is procedurally barred under California’s contemporaneous objection rule. See Reply at 2, 16-19. Thus, petitioner has not met his burden, Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir.1998), cert. denied, 526 U.S. 1123, 119 S.Ct. 1777, 143 L.Ed.2d 806 (1999), and he has procedurally defaulted Ground Two. Rich, 187 F.3d at 1070.

When a habeas petitioner “has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental misearriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; Medley v. Runnels, 506 F.3d 857, 869 (9th Cir.2007) (en banc), cert. denied, 552 U.S. 1316, 128 S.Ct. 1878, 170 L.Ed.2d 754 (2008). The “cause” prong requires petitioner to demonstrate some “objective factor” that precluded him from raising his claims in state court. McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991); High v. Ignacio, 408 F.3d 585, 589 (9th Cir.2005). Ignorance or inadvertence does not constitute cause for a state procedural default. Murray v. Carrier, 477 U.S. 478, 486-87, 106 S.Ct. 2639, 2644-45, 91 L.Ed.2d 397 (1986); Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir.2005), cert. denied, 548 U.S. 927, 126 S.Ct. 2984, 165 L.Ed.2d 990 (2006). To show prejudice, petitioner must demonstrate “not merely that the errors ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982); Carrier, 477 U.S. at 494, 106 S.Ct. at 2648. The petitioner has the burden of proving both cause and prejudice. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Coleman, 501 U.S. at 750, 111 S.Ct. at 2565.

Here, petitioner claims he “has shown cause and prejudice” because his “appellate counsel is required to raise any issue of merit” and any procedural “bar must be overcome for counsels [sic] failure to recognize the issue and raise it in the direct appeal.” Reply at 19. However, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Carrier, 477 U.S. at 486, 106 S.Ct. at 2644; Cockett v. Ray, 333 F.3d 938, 943 (9th Cir.2003). Rather, attorney ignorance or inadvertence does not constitute “cause” unless it rises to the level of constitutionally ineffective assistance of counsel. Coleman, 501 U.S. at 753-54, 111 S.Ct. at 2567; Carrier, 477 U.S. at 488, 106 S.Ct. at 2645; Cockett, 333 F.3d at 944. Here, since petitioner “failed to raise an ineffective assistance of appellate counsel claim on this issue, ... he cannot show cause to excuse his defaults.” Cook v. Schriro, 538 F.3d 1000, 1029 (9th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1033, 173 L.Ed.2d 301 (2009); Carrier, 477 U.S. at 489, 106 S.Ct. at 2646; see also Cockett, 333 F.3d at 943 (“To constitute cause for procedural default of a federal habeas claim, the constitutional claim of ineffective assistance of counsel must first have been presented to the state courts as an independent claim.”).

Moreover, although petitioner conclusorily asserts “it would be a miscarriage of justice” not to consider Ground Two on the merits, Reply at 19, the miscarriage of justice exception only applies if petitioner can show that a “a constitutional violation has probably resulted in the conviction of one who is actually innocentf,]” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995); Carrier, 477 U.S. at 496, 106 S.Ct. at 2649, and petitioner’s conclusory assertion is clearly insufficient to meet this standard. See Casey v. Moore, 386 F.3d 896, 921 n. 27 (9th Cir.2004) (“[T]he fundamental miscarriage of justice exception applies only when a constitutional violation probably has resulted in the conviction of one actually innocent of a crime and petitioner supplements his constitutional claim with a colorable showing of factual innocence, which [petitioner] has not done.”), cert. denied, 545 U.S. 1146, 125 S.Ct. 2975, 162 L.Ed.2d 899 (2005). Therefore, Ground Two is procedurally barred, and the Court will not consider it.

VI

The AEDPA “circumscribes a federal habeas court’s review of a state court decision.” Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:

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. § 2254(d). Further, under AEDPA, a federal court shall presume a state court’s determination of factual issues is correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The California Supreme Court reached the merits of Grounds One, Seven, Nine and Ten and portions of Ground Six when it denied petitioner’s request for review and his first habeas corpus petition without comment or citation to authority. Luna v. Cambra, 306 F.3d 954, 960 (9th Cir.2002), amended by, 311 F.3d 928 (9th Cir.2002); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). “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, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991); Medley, 506 F.3d at 862. Here, the California Court of Appeal issued a reasoned decision addressing Ground One, and this Court will consider that opinion. However, as to Grounds Seven, Nine and Ten and portions of Ground Six, since no state court has provided a reasoned decision addressing the merits of petitioner’s claims, this Court must conduct “an independent review of the record” to determine whether the California Supreme Court’s ultimate decision denying those claims was contrary to, oían unreasonable application of, clearly established federal law. Libberton v. Ryan, 583 F.3d 1147, 1161 (9th Cir.2009); Matylinsky v. Budge, 577 F.3d 1083, 1090 (9th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 1154, —L.Ed.2d —(2009). Furthermore, as to Grounds Three, Four, Five and Eight, and portions of Ground Six, “[b]ecause the [California] courts did not reach the merits of [these] claim[s], federal habeas review is not subject to the deferential standard that applies under AEDPA to ‘any claim that was adjudicated on the merits in State court proceedings.’ Instead, the claim is reviewed de novo.” Cone v. Bell, — U.S. —, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009) (citations omitted); Tanner v. McDaniel, 493 F.3d 1135, 1139 (9th Cir.), cert. denied, 552 U.S. 1068, 128 S.Ct. 722, 169 L.Ed.2d 565 (2007).

VII

In Ground One, petitioner claims he was denied his Sixth and Fourteenth Amendment rights to a fair trial when the trial court refused to strike the testimony of Eric Thomas, who entered into a plea bargain with the prosecution that required him to testify consistently with an interview he gave the prosecutor and granted the prosecutor authority to determine whether the testimony was truthful. The California Court of Appeal set forth the following facts underlying this claim:

... Eric Thomas (no relation to the victim Vincent Thomas) testified at trial after having entered into a plea agreement with the prosecutor that provided that Eric[] would plead guilty to one count of assault and admit a gang allegation. The agreement, as recounted by the prosecutor, was that Eric would be released from custody before sentencing and, in exchange, would provide “truthful testimony in the trial against [petitioner and his codefendant]. He has represented that a statement that he gave at the bureau of investigation on a videotape was a truthful statement, and he will testify truthfully.” If Eric testifies truthfully, the prosecutor stated that he would get “three years of formal probation and he will be sentenced to credit for time served.” When the trial court asked who would decide whether Eric’s testimony was truthful, the prosecutor answered, “Well, that will have to be the district attorney’s office. That will have to be me.” Eric’s attorney added his understanding that “when we are talking about truthful testimony, I would believe that to mean testimony Mr. Thomas has already given in [sic] videotape, so if it’s consistent with those statements.”

After Eric Thomas testified at trial, counsel for both [petitioner and Vanpool] moved to strike his testimony, asserting that the plea bargain was improper because it required him to testify in accordance with a prior statement and also because the prosecutor was the sole arbiter of whether his testimony was truthful.... The trial court denied [petitioner’s and Vanpool’s] motion to strike Eric Thomas’s testimony.

Lodgment no. 4 at 6-7. The Court of Appeal then proceeded to deny petitioner’s claim, holding:

In People v. Allen (1986) 42 Cal.3d 1222, 232 Cal.Rptr. 849, 729 P.2d 115, the Supreme Court explained that, “ ‘[A] defendant is denied a fair trial if the prosecution’s case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.’ Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police, or that his testimony result in the defendant’s conviction, the accomplice’s testimony is ‘tainted beyond redemption’ and its admission denies the defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid.” [¶] The plea bargain with Eric Thomas required him to testify truthfully and therefore comports with People v. Allen. The reference to Eric’s earlier statement to the police does not render the plea agreement coercive. A plea agreement that requires a witness to testify completely and truthfully, “even if it is clear the prosecutor believes the witness’s prior statement to the police is the truth, and deviation from that statement in testimony may result in the withdrawal of the plea offer, does not place such compulsion upon the witness as to violate the defendant’s right to a fair trial.” As set out above, both the prosecutor and Eric Thomas’s attorney stated that Eric had represented that his earlier, videotaped statement was the truth. That statement became the standard or benchmark for determining whether Eric’s trial testimony was truthful but reference to that statement in the plea agreement did not violate [petitioner’s] right to a fair trial. [¶] The fact that the prosecutor would determine whether Eric testified truthfully does not render the plea agreement coercive. In claiming otherwise, [petitioner] reifies] on People v. Bittaker, a case that involved a plea agreement that specified the prosecutor “ ‘shall have authority and discretion to determine whether or not [the witness] testified truthfully and completely’ ” and, if requested by the witness, a superior court judge “ ‘shall determine whether or not there has been an abuse of such authority and discretion.’ ” In reviewing the quoted provision to determine whether the plea agreement compelled the witness to testify in a particular manner and thus violated the defendant’s right to a fair trial, the Supreme Court found the language regarding judicial review “troubling.” In particular, the court noted that the controlling legal principles “are clear: if [the witness] testified fully and truthfully, he is entitled to the benefit of his bargain; if not, the district attorney has discretion to revoke the bargain. We do not believe they can be altered by contract so as to limit the court to reviewing the district attorney’s discretionary finding as to whether [the witness] told the truth.” Although the court counseled against including “language in a plea bargain which purports to give the district attorney, and not the court, discretion to determine whether the witness testified truthfully” it nevertheless found that the language did not result in reversible error because the language did not “present! ] any significant risk of inducing [the witness] to give false or incomplete testimony.” [¶] The same result pertains here. To the extent the district attorney rather than the court was empowered in this case to determine whether Eric’s testimony was truthful, nothing in the record suggests that provision posed any significant risk of inducing him to testify falsely or incompletely. The prosecution and defense questioned Eric thoroughly about the events at issue in this case and about the plea agreement. In doing so, they exposed Eric’s impetus to testify and also revealed any inconsistencies in his testimony and the earlier statement. Consequently, we must conclude here, as the Supreme Court did in People v. Bittaker, that although “troubling” the provision of the agreement that empowered the district attorney to determine whether Eric was telling the truth, if error, did not violate [petitioner’s] right to a fair trial.

Lodgment no. 4 at 7-9 (some citations omitted).

There is no merit to petitioner’s claim since “there is no Supreme Court case law establishing that consistency clauses [in plea agreements] violate due process or any other constitutional provision.” Cook, 538 F.3d at 1017. Thus, the California Supreme Court’s denial of Ground One is neither contrary to, nor an unreasonable application of, clearly established federal law. Id.; Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006); see also Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir.2004) (“If there is no Supreme Court precedent that controls a legal issue raised by a petitioner in state court, the state court’s decision cannot be contrary to, or an unreasonable application of, clearly-established federal law.”), cert. denied, 543 U.S. 1191, 125 S.Ct. 1408, 161 L.Ed.2d 197 (2005).

VIII

A federal court, in conducting habeas review, is limited to deciding whether a conviction violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982). Federal habeas corpus relief “does not lie for errors of state law[,]” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); McGuire, 502 U.S. at 67, 112 S.Ct. at 480; see also Dugger v. Adams, 489 U.S. 401, 409, 109 S.Ct. 1211, 1216-17, 103 L.Ed.2d 435 (1989) (“[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.”), and the petitioner “may not transform a state-law issue into a federal one merely by asserting a [constitutional] violation.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.), cert. denied, 522 U.S. 881, 118 S.Ct. 208, 139 L.Ed.2d 144 (1997).

Here, Ground Three, in which petitioner claims the trial court erroneously admitted testimony of threats witnesses received in violation of his constitutional right to a fan* trial, is not a cognizable claim. Although petitioner cursorily refers to the Sixth Amendment or right to a fair trial, the gravamen of his claim is that the trial court abused its discretion and improperly applied California Evidence Code § 352, and petitioner cites only state law cases to support his claim. Petition at 6 — 6b; Reply at 20-21. Thus, Ground Three is not cognizable since federal habeas relief is available “only for constitutional violation, not for abuse of discretion.” Williams v. Borg, 139 F.3d 737, 740 (9th Cir.), cert. denied, 525 U.S. 937, 119 S.Ct. 353, 142 L.Ed.2d 292 (1998).

IX

To review the sufficiency of evidence in a habeas corpus proceeding, the Court must determine whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Jeffers, 497 U.S. at 781, 110 S.Ct. at 3102-03 (citation omitted); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). All evidence must be considered in the light most favorable to the prosecution, Lewis, 497 U.S. at 782, 110 S.Ct. at 3103; Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, and if the facts support conflicting inferences, reviewing courts “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.” Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir.2004) (per curiam); Turner v. Calderon, 281 F.3d 851, 881-82 (9th Cir.2002). Furthermore, under AEDPA, federal courts must “apply the standards of Jackson with an additional layer of deference.” Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.2005), cert. denied, 546 U.S. 1137, 126 S.Ct. 1142, 1145, 163 L.Ed.2d 1000 (2006); Briceno v. Scribner, 555 F.3d 1069, 1078 (9th Cir.2009). These standards are applied to the substantive elements of the criminal offenses under state law. Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir.) (en banc), cert. denied, 543 U.S. 956, 125 S.Ct. 415, 160 L.Ed.2d 318 (2004).

A. Ground Four (a) — Gang- Enhancement (P.C. § 186.22(b)(1)):

The California Street Terrorism Enforcement and Prevention Act (“STEP Act”), P.C. §§ 186.20 et seq., is a statutory scheme enacted to further the “eradication of criminal activity by street gangs.” P.C. § 186.21 (2000). “To warrant a gang enhancement, California law requires the prosecutor to prove two things. First, the prosecutor must demonstrate that the defendant committed a felony ‘for the benefit of, at the direction of, or in association with [a] criminal street gang.’ [] Cal.Penal Code § 186.22(b)(1). Second, the prosecutor must show that the defendant committed the crime ‘with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ ” Briceno, 555 F.3d at 1078 (footnote added); P.C. § 186.22(b)(1) (2000). “[T]he second step is not satisfied by evidence of mere membership in a criminal street gang alone.” Id.; see also People v. Morales, 112 Cal.App.4th 1176, 1198, 5 Cal.Rptr.3d 615 (2003) (“[S]pecific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members ....’” (emphasis in original)). “[T]o prove the elements of the criminal street gang enhancement, the prosecution may ... present expert testimony on criminal street gangs.” Hernandez, 33 Cal.4th at 1047-48, 16 Cal.Rptr.3d at 885-86, 94 P.3d 1080; Gardeley, 14 Cal.4th at 617-20, 59 Cal.Rptr.2d at 363-66, 927 P.2d 713.

First, petitioner claims there was no evidence he was a member of the Raymond Street Crips. However, as discussed herein, this is not true and, in any event, “gang membership is not an element [of the gang enhancement]; nor does one need to be a gang member or associate to commit an act for the benefit of, in association with, or at the direction of a street gang.” People v. Valdez, 58 Cal.App.4th 494, 505, 68 Cal.Rptr.2d 135 (1997).

Second, petitioner claims there was no evidence his actions were in furtherance of gang activity. The Court disagrees. Eric Thomas, a long-standing member of the Raymond Street Crips gang testified as a quasi-expert witness, as well as a percipient witness. See, e.g., RT 576:13-14 (“Within the gang culture, [Eric’s] more than capable of rendering an opinion.”); RT 1448:20-22 (“You heard from Eric Thomas. He was basically a gang expert. ...”). Eric testified he had been a gang member for eight or nine years, RT 506:9-507:11, as was petitioner, who was known as “Crazy D.” RT 494:7-19, 507:12-510:3. The gang, which is known universally as “Raymond Street Crips” or simply as “Raymond,” RT 504:17-28, 506:1-8, is well known in Los Angeles, RT 537:16-17, its turf is located on several blocks around 120th Street in Inglewood, California, RT 537:4-538:4, and, as a Crips gang, its identifying color is blue. RT 538:26-27. Eric described the gang’s activities as including robbery, shootings, selling drugs and assaults aimed at bolstering the gang reputation or in retaliation for some wrong. RT 515:22-517:19, 529:1-533:25. Eric further testified that the gang has as many as 100 or more members, RT 536:12-23, including himself, Vanpool and petitioner, who was an O.G. or “original gangster.” RT 494:7-19, 506:9-507:11, 507:12-510:3, 533:4-8, 533:26-534:6, 543:26-546:7. Eric stated the assault on Vincent was a Raymond Street Crips gang activity, with gang members, including petitioner, Vanpool and others intentionally confronting and fighting Vincent, in retaliation or because petitioner or “Crazy D got his butt kicked over at Mel’s and possibly over at Victor Street.” RT 574:6-577:10. This evidence is more than sufficient to demonstrate petitioner “committed the crime ‘with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ ” Briceno, 555 F.3d at 1078; People v. Romero, 140 Cal.App.4th 15, 20, 43 Cal.Rptr.3d 862 (2006).

Third, to the extent petitioner claims there is insufficient evidence that the Raymond Street Crips is a “criminal street gang,” as defined in P.C. § 186.22, his claim is without merit. As set forth above, California law defines a “criminal street gang” as an ongoing association of at least three people with a common name or identifying sign or symbol, which “has as one of its primary activities the commission of one or more of the criminal acts” enumerated in P.C. § 186.22(e), and whose members, individually or collectively, “have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting” at least two predicate offenses within the statutory period. Hernandez, 33 Cal.4th at 1047, 16 Cal.Rptr.3d at 885, 94 P.3d 1080 (citation and some internal quotation marks omitted); Gardeley, 14 Cal.4th at 616-17, 59 Cal.Rptr.2d at 363, 927 P.2d 713. Thus, under P.C. § 186.22(e), “[t]he term ‘pattern of criminal gang activity’ only requires: the attempted or completed commission or a conspiracy to commit two or more of the offenses [enumerated in P.C. § 186.22(e) ]; one of the offenses must have occurred after September 26, 1988, the effective date of [the statute]; the last of the two requisite offenses must have occurred within three years after the first crime; [and] the predicate crimes must have either been committed on separate occasions or by at least two different persons.” People v. Augborne, 104 Cal.App.4th 362, 374-75, 128 Cal.Rptr.2d 258 (2002); People v. Loeun, 17 Cal.4th 1, 8-10, 69 Cal.Rptr.2d 776, 780-81, 947 P.2d 1313 (1998), cert. denied, 523 U.S. 1129, 118 S.Ct. 1820, 140 L.Ed.2d 957 (1998). For the purpose of establishing a “pattern of criminal gang activity,” the predicate offenses need not be “gang related,” and the charged offense may serve as a predicate offense. Gardeley, 14 Cal.4th at 621-25, 59 Cal.Rptr.2d at 366-69, 927 P.2d 713; see also Loeun, 17 Cal.4th at 11, 69 Cal.Rptr.2d at 781, 947 P.2d 1313 (“[T]he prosecution can establish the requisite ‘pattern’ exclusively through evidence of crimes committed contemporaneously with the charged incident.”).

Here, Eric Thomas testified he pled guilty to assault with a deadly weapon with a gang enhancement for his role in the stabbing of Vincent. RT 494:27-497:22. Moreover, the trial court took judicial notice that: (1) on November 18, 1996, Donny Ray McKinley was convicted of first-degree murder, four counts of attempted robbery, and assault with a deadly weapon, all of which occurred on January 16, 1995, he personally used a handgun in the commission of the offenses, and the murder occurred during the commission of a robbery and commercial burglary; (2) on December 23, 1997, Donald Leon Hammond was convicted of two counts of robbery, both crimes occurring on December 6, 1997, with both crimes occurring at the direction of, or for the benefit of a criminal street gang with the specific intent to promote, further or assist in any criminal conduct of the gang members; (3) on April 8,1993, Wilfred Clyde Smith was convicted of attempted robbery for a crime occurring on January 23, 1993; (4) on March 1, 1994, Wilfred Clyde Smith was convicted of robbery for a crime occurring on January 19, 1994; and (5) on March 31, 1994, Eric Thomas was convicted of attempted robbery for a crime occurring on January 22, 1994. RT 1299:16-1302:23; see also RT 540:12-541:27, 717:11-20 (Eric Thomas admitted he was convicted of armed robbery on March 31, 1994). Eric Thomas also testified: (1) he “believe[d]” Donny Ray McKinley was a Raymond Street Crips gang member in 1995, RT 714:20-28; (2) Donald Leon Hammond was a Raymond Street Crips gang member when he committed the robberies in 1997, RT 716:16-717:10; and (3) Wilfred Smith was a Raymond Street Crips gang member who had been in the gang longer than Thomas. RT 548:23-549:24. Based on this evidence, “the prosecution established the requisite ‘pattern of criminal gang activity’ consisting of ‘two or more’ statutorily enumerated offenses that were ‘committed on separate occasions, or by two or more persons.’ ” Gardeley, 14 Cal.4th at 625, 59 Cal.Rptr.2d at 368-69, 927 P.2d 713.

Therefore, there was sufficient evidence to show the assault and stabbing of Vincent Thomas was associated with, at the direction of and to benefit the Raymond Street Crips gang, and was committed with the specific intent to retaliate against Vincent Thomas for the earlier beating of petitioner, and to bolster the Raymond Street Crips gang’s reputation after the earlier fights; thus, promoting the interests of the gang and its advancement. Fellows v. Dexter, 551 F.Supp.2d 969, 981-82 (C.D.Cal.2008).

B. Ground Ten

1. Assault With A Deadly Weapon (P.C. § 245(a)(1)):

P.C. § 245(a)(1) “punishes assault ‘with a deadly weapon [or instrument] other than a firearm or by any means of force likely to produce great bodily injury.’ ” People v. Miles, 43 Cal.4th 1074, 1084, 77 Cal.Rptr.3d 270, 278, 183 P.3d 1236 (2008) (quoting P.C. § 245(a)(1)). A deadly weapon within the meaning of P.C. § 245(a)(1) “is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury[,]’ ” People v. Aguilar, 16 Cal.4th 1023, 1028-29, 68 Cal.Rptr.2d 655, 658, 945 P.2d 1204 (1997) (citation omitted); In re R.P., 176 Cal.App.4th 562, 567, 97 Cal.Rptr.3d 822 (2009), which obviously can include a knife. See, e.g., People v. Pruett, 57 Cal.App.4th 77, 86, 66 Cal.Rptr.2d 750 (1997) (“Nearly all knives have sharp edges and points which are designed to cut things, and knives can be — and all too often are— employed to cut-and kill-people.”); People v. Herd, 220 Cal.App.2d 847, 850, 34 Cal.Rptr. 141 (1963) (“Although not an inherently deadly weapon, a knife becomes such when used in such a manner as to cause severe bodily injury.”).

Under California law an “aider and abettor is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” People v. Jurado, 38 Cal.4th 72, 136, 41 Cal.Rptr.3d 319, 371, 131 P.3d 400 (2006) (citations and internal quotation marks omitted), cert. denied, 549 U.S. 956, 127 S.Ct. 383, 166 L.Ed.2d 276 (2006); People v. Prettyman, 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 832-33, 926 P.2d 1013 (1996); see also P.C. § 31. The requisite intent to render such aid must be formed prior to or during the commission of the crime. People v. Cooper, 53 Cal.3d 1158, 1164, 282 Cal.Rptr. 450, 455, 811 P.2d 742 (1991); People v. Beeman, 35 Cal.3d 547, 558, 199 Cal.Rptr. 60, 66-67, 674 P.2d 1318 (1984). Whether an individual is an aider and abettor depends on whether the crime committed by the perpetrator was reasonably foreseeable. People v. Hayes, 21 Cal.4th 1211, 1271 n. 20, 91 Cal.Rptr.2d 211, 253 n. 20, 989 P.2d 645 (2000), cert. denied, 531 U.S. 980, 121 S.Ct. 431, 148 L.Ed.2d 438 (2000); see also People v. Karapetyan, 140 Cal.App.4th 1172, 1177, 45 Cal.Rptr.3d 245 (2006) (“[T]he question is not whether the aider and abettor actually foresaw the ... crime, but whether, judged objectively, it was reasonably foreseeable.” (citation and internal quotation marks omitted; emphasis in original)).

Here, petitioner was convicted of violating P.C. § 245(a)(1) on an aiding and abetting theory. At trial, Vincent Thomas identified the group that pursued and attacked him in the park as being the same group involved in the fights at Mel’s Liquor and at Victor Street, RT 91:18-94:10, and Traeylin Crump testified that both petitioner and Vanpool were in this group. RT 995:12-1000:14, 1003:14-17. Eric Thomas testified that the assault on Vincent Thomas was a Raymond Street Crips gang activity, with gang members, including petitioner, Vanpool, and others intentionally confronting and fighting Vincent in retaliation or because petitioner or “Crazy D got his butt kicked over at Mel’s and possibly over at Victor Street.” RT 574:6-577:10. Indeed, prior to the stabbing of Vincent Thomas, while petitioner was still on Victor Street, petitioner stated, “ ‘All you Niggas out here in Moreno Valley claimin’ Raymond who never been in the hood are gonna get put on the hood or get smoked[,]’ ” and petitioner referred to Vincent and his friends as “busters,” RT 314:18-315:11, 325:16-327:6, a derogatory term meaning a “low-class wanna-be thugf,]” someone claiming to be something he’s not, or “ ‘[s]omeone who does not follow the rules of gang-bangin,’ ” RT 144:3-8, 590:25-591:9, while Crump heard petitioner say “it wasn’t over, that they were gonna get them.” RT 1015:21-28. Vincent Thomas testified a female stabbed him multiple times with a knife, RT 47:26-52:23, 93:12-94:16, 104:1-105:9; see also RT 764:19-775:19 (testimony of emergency room physician who treated Vincent describing the nature and extent of Vincent’s injuries), and told investigator Carl Smith it was Vanpool who stabbed him, RT 864:9-865:2, and-both Eric and Crump testified that Vanpool had a knife and stabbed Vincent. RT 572:17-573:22. Mack stated, however, that petitioner had an “ice pick knife thing” and “pok[ed]” Vincent before handing it to Vanpool, who “did the rest.” RT 341:24-28. Eric stated that while Vincent was being attacked, he heard people saying “Raymond” and “Raymond Crip, whew, whew[,]” RT 574:15-23, while Crump said Vanpool told Vincent “[d]on’t ever claim Raymond again[,]” RT 1036:22-1037:2, and Mack testified petitioner told Vincent not to claim his hood anymore and kicked Vincent. RT 348:26-349:6. Crump also testified that while Vincent was being stabbed, she saw petitioner in the park pointing a gun toward the park’s “play area,” RT 1033:23-1035:23, 1038:22-1040:3, 1286:22-1287:13, which was close to where Vincent was knocked to the ground and being beaten and stabbed. RT 94:12-16, 568:24-569:23. Eric Thomas testified that when he initially saw petitioner, petitioner had his arm extended, was holding what Eric believed was a gun, and was yelling while people were running away from him, RT 566:17-568:9, and Vincent stated that while he was on the ground being beaten and stabbed, petitioner had his back to the attack and was pointing his gun in an effort to keep Vincent’s brother and friends from helping Vincent. RT 108:26-110:8. Furthermore, Mack testified that petitioner stuck a gun in Vincent Thomas’s face, but the clip dropped out. RT 455:7-458:7. Additionally, Vincent told Smith that after the fight at Mel’s Liquor, “Big Crazy D” told Vincent and his friends that he was going to get a gun, and, later, at the park, “Big Crazy D” pulled up in a car, chased Vincent with a gun until Vincent was cornered, beaten and stabbed. R