Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 2, 2009, following a jury trial in the Tulare County Superior Court Petitioner was convicted of kidnapping to commit robbery, one county of robbery, assault with a firearm, assault with a deadly weapon, and conspiracy to commit robbery. It was further alleged and found true that Petitioner personally inflicted great bodily injury, the crimes were committed for the benefit of a criminal street gang, and property taken was in excess of $50,000. It was also found true that a principal in the kidnapping to commit robbery, robbery, and conspiracy to commit robbery used firearm and such allegation applied to all co-defendants, such as Petitioner, for whom the gang allegation was found true.
On August 20, 2009, Petitioner was sentenced to life in prison with a minimum of fifteen years before eligibility for parole on count one (kidnapping to commit robbery), plus a consecutive ten years for the firearm enhancement, a consecutive three years for the great bodilyinjury enhancement, and a consecutive three years for the great bodily injury enhancement. On count two (robbery), Petitioner was sentenced to a total term of sixteen years, stayed as follows: three years, the mid-term, with a consecutive ten years for the firearm enhancement, and a consecutive three years for the great bodily injury enhancement. The sections 12022.6 and 186.22 enhancements were stayed. On count three (assault with a firearm), Petitioner was sentenced to a total term of eight years, stayed as follows: three years, the mid-term, with a consecutive five years for the gang enhancement. On count four (assault with a deadly weapon), Petitioner was sentenced to a total term of thirteen years, stayed as follows: three years, the mid term, with a consecutive ten years for the gang enhancement. The section 12022.7 enhancement was stayed. On count five (conspiracy to commit robbery), Petitioner was sentenced to a total term of thirteen years, stayed as follows: three years, the mid term, with a consecutive ten years-for the firearm enhancement. The sections 186.22, 12022.6, and 12022.7 enhancements were stayed.
On March 23, 2011, the California Court of Appeal, Fifth Appellate District, modified Petitioner's sentence in count one to reflect an indeterminate term of life in prison and a determinate term of ten years for the firearm enhancement. The judgment was affirmed in all other respects. Petitioner petitioned for rehearing, and on April 21, 2011, the court issued an Order Modifying Opinion and Denying Petition for Rehearing, modifying only some of the language in the opinion. (Ex. B. to Answer.)
On July 13, 2011, the California Supreme Court denied Petitioner's Petition for Review.
On February 15, 2012, the California Court of Appeal, Fifth Appellate District, denied Petitioner's Petition for Writ of Error Coram Nobis.
Petitioner filed the instant petition for writ of habeas corpus on April 18, 2012. Respondent filed an answer to the petition on August 1, 2012. Petitioner did not file a traverse.
STATEMENT OF FACTS1
Around 9:55 p.m. on Friday, January 25, 2008, Yassen Saeed (Yassen), the manager of the N & S Chevron store near Porterville, was preparing to close the store. Yassen was cleaning the fountain drink area, and his back was to the store's front door and windows. The store's front windows faced the parking lot. There were no customers in the store. Yassen's coworker, David Santoyo (David) was outside, cleaning the parking lot.
Yassen heard the store's front door open and turned around. Four men ran into the store and rushed up to him. One man held a metallic revolver, another man had some type of gun, and a third man had a baseball bat. Yassen could not see their faces because they were wearing masks and hoods. The men pointed the guns at Yassen's head, swore and cursed at him, and ordered him to get down on the floor. Yassen immediately got on the floor and did not resist.
The two gunmen ordered Yassen to go to the back of the store. Yassen obeyed and crawled on the floor. The men pushed him to the store's rear storage area, which was not open to the public. Yassen did not hear the men shout any gang names or gang slogans. When Yassen reached the back of the store, his last memory was seeing the "guy with . . . the baseball bat." Yassen was hit in the head with the baseball bat and passed out.
When Yassen regained consciousness, he was disoriented and lying in a pool of blood at the back of the store. Yassen discovered that $800 of his own money was missing from his back pocket. The store's office was adjacent to the storage room, and the office door had been closed and locked. The store kept a large amount of cash in that office on Friday nights to cash customers' payroll checks for the weekend. Yassen discovered the office door was open, the safe and cabinet which contained the store's case were also open, and over $160,000 had been taken. The store's cash registers had not been disturbed.
The parking lot
At the time of the robbery, David, Yassen's coworker, was cleaning the parking lot and did not realize what was going on in the store. However, David noticed a silver Mitsubishi was parked behind the store. The driver was wearing a hooded sweatshirt and was the only person in the car. One or two minutes later, David saw the car drive away from the store at a slow speed. The car's headlights were not on. The car passed by David as it left the parking lot, and David saw two or three more people in the car.
At about the same time, a customer drove up to the store and saw a silver Mitsubishi "flying out" of the parking lot. The customer and David found Yassen walking around outside, and he was "busted up" and bleeding.
Yassen suffered a skull fracture and he was in the hospital for one week. He repeatedly suffered seizures as a result of his head injuries. He was placed on various medications, but his seizures were so serious that he could not return to work.
The investigation
The investigating officers found a pool of blood in the store's rear hallway. The distance from the fountain drink area to the pool of blood was 33 feet.
The store had a closed-circuit videotape system with multiple cameras. Fidel Saeed (Fidel), Yassen's cousin, was also a clerk at the store, and he watched the surveillance videotape of the robbery. Fidel immediately recognized one of the masked robbers as Michael Santoyo (Michael), David's brother and the store's former assistance manager, based on the distinctive way Michael walked and carried himself. Michael's face was partially visible above his mask.
Yassen and Michael had been good friends, and they had worked together at the Porterville store for several years. About a month before the robbery, Michael borrowed the store's truck and wrecked it, and he did not return to his job. David continued to work at the store after Michael left.
Yassen testified that Michael knew the store kept a large amount of cash in the back office on Friday nights. The office door was usually locked, but Yassen and Michael kept a little knife next to the door, on top of the power box, and they used that knife to pry open the door if they forgot the key.
Michael's trial testimony [FN 4]
FN 4. Michael voluntarily testified as a prosecution witness, without a plea agreement, even though charges were still pending against him. Michael had been offered a plea agreement with a maximum of 22 years and turned it down.
Michael testified for the prosecution and admitted his involvement in the robbery. Michael testified he told his girlfriend, Felecia Hernandez (Felecia), about the large amount of money that was kept at the store to cash checks. He also told Felecia that the store owed him. Felecia told her brother, Francisco, about the cash. Francisco said he was going to get his friends together to rob the store and asked Michael more questions about the store.
Michael testified the robbery was Felecia's idea. Felecia kept telling Michael that Francisco would do something bad to him if he did not go through with the robbery. Michael warned Francisco that he would be recognized on the store's video cameras since he used to work there. Francisco told Michael not to worry, and that he had people who would take care of Michael if he was locked up.
Michael testified he was not a member of the Fresno Bulldogs gang. However, Michael knew that Francisco was a member of a gang and he was known as "Bandit." Michael was afraid of Francisco because of things he had heard about Francisco and his friends.
On the day of the robbery, Francisco repeatedly called Michael and told him to pick up [Petitioner]. Michael knew [Petitioner] used to date Felecia, and that [Petitioner] and Francisco were good friends. [Petitioner] told Michael that they called themselves the "Primos" gang, and [Petitioner] had a dog paw tattoo.
Around 8:00 p.m. on the night of the robbery, Michael and Felecia were in Michael's black car and they picked up [Petitioner] Michael drove Felecia and [Petitioner] to the Fresno apartment where Francisco lived with his girlfriend, Celena Gonzales (Celena). Francisco was there with several other men. Francisco told Michael that they were going to rob the store that night.
Michael testified he got into his black car with Felecia. Francisco, [Petitioner], Benjamin, and Johnson got into Celena's silver car. Francisco had a silver revolver. Michael drove to Porterville, and the silver car followed him. Michael knew he was going to Porterville to rob the store with Francisco, [Petitioner], Benjamin, and Johnson. Michael testified they used two cars so they could use one car for the robbery, and the other car for
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