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April 22, 2004.

MICHAEL A KNOWLES, Warden Respondent

The opinion of the court was delivered by: VAUGHN WALKER, District Judge


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 felony convictions.

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 arrested.

  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 Cir 2000).


  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 merit.

  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 ...

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