The opinion of the court was delivered by: VAUGHN WALKER, District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner is an inmate at Mule Creek State Prison serving 27 years
to life after he was convicted by a jury in the Superior Court of the
State of California in and for the County of Santa Clara on two counts of
forgery, one count of possession of stolen property and one count of
resisting arrest. The jury also found to be true that petitioner
committed these offenses while on bail, and that he had two prior serious
The California Court of Appeal affirmed the judgment of conviction and
the Supreme Court of California denied review. On August 14, 2002, the
Supreme Court of California also denied his final state habeas petition. While petitioner's collateral proceedings were pending, Petitioner
filed the instant federal petition for a writ of habeas corpus under
28 U.S.C. § 2254 in this court on March 12, 2002. This court granted
petitioner's motion to stay these proceedings, pending exhaustion of
state remedies. Petitioner filed his amended petition on August 22, 2002.
Per order filed on October 16, 2002, the court found that the petition,
liberally construed, stated cognizable claims under S 2254 and ordered
respondent to show cause why a writ of habeas corpus should not be
granted. Respondent has filed an answer to the order to show cause and
petitioner has filed a traverse.
On July 8, 1998, while petitioner was on bail and awaiting sentencing
for a second strike prior conviction, he attempted to cash a fictitious
check in the amount of $982.32 using his check-cashing identification
card. The cashier was suspicious of the check and unsuccessfully
attempted to contact the check's issuing company to verify the check. The
cashier photocopied petitioner's identification and the check. Petitioner
took back the identification and check and quickly ran out of the
business and fled in a car. A subsequent investigation confirmed the
check was forged.
Two days later, petitioner again tried to pass a forged check, this
time in the amount of $986.24. The police were notified and arrested
petitioner when they arrived. Petitioner offered several explanations
regarding the check.
On August 3, 1998, petitioner was stopped while driving a vehicle. When the officer approached petitioner, he sped away. A
chase ensued, during which petitioner jumped out of the vehicle while it
was still moving. The passenger in the vehicle remained in the car as it
struck a utility pole. Both petitioner and the passenger were later
The vehicle petitioner was driving had no license plates and contained
no ownership documents. A vehicle search revealed property belonging to
victims of a burglary that occurred the previous day. A residence was
broken into and the owner's property, including cameras, lenses,
binoculars, cash, a CD player and a box of blank checks, was taken. Some
of this property, including the camera equipment, lenses, a CD player,
binoculars and a pad of checks with the burglary victim's name imprinted
on them were recovered from the vehicle petitioner was driving.
A federal writ of habeas corpus may not be granted with respect to any
claim that was adjudicated on the merits in state court unless the state
court's 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).
"Under the `contrary to' clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has
on a set of materially indistinguishable facts." Williams v. Taylor,
529 U.S. 362, 412-13 (2000). "Under the `unreasonable application'
clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the] Court's
decisions but unreasonably applies that principle to the facts of the
prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable." Id. at
411. A federal habeas court making the "unreasonable application" inquiry
should ask whether the state court's application of clearly established
federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28
U.S.C. i 2254(d) is in the holdings (as opposed to the dicta) of the
Supreme Court as of the time of the state court decision. Id. at 412;
Clark v Murphy, 331 P.3d 1062, 1069 (9th Cir 2003). While circuit law may
be "persuasive authority" for purposes of determining whether a state
court decision is an unreasonable application of Supreme Court
precedent, only the Supreme Court's holdings are binding on the state
courts and only those holdings need be "reasonably" applied. Id.
Although petitioner exhausted his claim through the California Supreme
Court, the last reasoned state court opinions are from the California
court of appeal (on direct appeal) and the Santa Clara superior court (on
habeas). These are the state court opinions that must be examined against the standard of review in
28 U.S.C. § 2254 (d). See LaJoie v. Thompson. 217 F.3d 663, 669 n.7 (9th
Petitioner raises six claims for relief under § 2254: (1) ineffective
assistance of trial counsel, (2) ineffective assistance of appellate
counsel, (3) denial of due process based on improper admission of
evidence, (4) insufficiency of the evidence to support a sentence
enhancement, (5) improper application of the "Three Strikes Law" and (6)
cruel and unusual punishment.
Petitioner claims he was deprived of effective assistance of counsel
because counsel in his most recent trial: (1) failed to object to a jury
instruction, (2) failed to make a motion to strike a prior "strike"
conviction and (3) failed to make a motion to set aside a prior "strike"
conviction. Pet Brief (Doc # 1) at 13-23. Petitioner's claims have no
To prevail on his ineffective assistance of counsel claim, petitioner
must establish two things. First, he must establish that counsel's
performance was deficient, i e, that it fell below an "objective standard
of reasonableness" under prevailing professional norms. Strickland v
Washington. 466 U.S. 668, 687-88 (1984). Second, he must establish
that he was prejudiced by counsel's deficient performance, i e, that
"there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
Petitioner claims that he was denied effective assistance when his
trial counsel failed to object to the jury instruction that the jury
should not consider penalty or punishment. Pet Brief (Doc # 1) at 13.
Trial counsel's failure, argues petitioner, was unreasonable and affected
the outcome of the trial because it eliminated the jury's ...