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Jiles v. Pliler

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


April 27, 2005

DEWAYNE ANTHONY JILES, PETITIONER,
v.
CHERYL PLILER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND TERMINATING ALL PENDING MOTIONS

INTRODUCTION

Petitioner Dewayne Anthony Jiles, a prisoner of the State of California, filed this petition for a writ of habeas corpus challenging the validity of his State conviction. Respondent has filed an answer to the petition along with a memorandum of points and authorities and exhibits in support thereof, and Petitioner has filed a traverse. The Court now addresses the merits of the petition.

BACKGROUND

On July 22, 1998, Petitioner was convicted by a Contra Costa County Superior Court jury of two counts of first degree burglary (Cal. Pen. Code §§ 459/460(a))*fn1 and two counts of receiving stolen property (§ 496(a)). The trial court also found true eleven prior strike felony convictions (§ 1170.2(b)-(c)), two serious felony enhancements (§ 667(a)), and two prior prison term enhancements (§ 667.5(b)). The court sentenced Petitioner to State prison for a total term of sixty years to life.

The judgment of conviction was affirmed on appeal on November 23, 1999. No petition for review was filed in the California Supreme Court. Petitioner's State habeas corpus petition was denied by the California Supreme Court without citation or comment on January 30, 2001.

Petitioner filed his federal habeas corpus petition on May 17, 2001. The Court ordered Respondent to answer the following claims: (1) whether sufficient evidence supported the trial court's finding that the 1986 prior conviction constituted a serious felony under California Penal Code section 1192.7(c) and also a strike under Penal Code section 667(d)(1), and whether counsel on appeal provided ineffective assistance by failing to argue that there was insufficient evidence to support the prior conviction; (2) whether sufficient evidence supported the conviction for burglary on count one; (3) whether Petitioner's conviction on counts of burglary and receiving stolen property for the same property constituted a violation of due process; (4) whether the trial court's denial of the admission of evidence of third party culpability constituted a violation of due process; and (5) whether the trial court's failure to grant a mistrial due to prosecutorial misconduct constituted a violation of due process.

STATEMENT OF FACTS

The following statement of underlying facts is taken from the unpublished opinion of the California Court of Appeal. The facts are discussed in more detail as relevant to each asserted claim for relief:

Tallman-Edwards Burglary

Appellant lived at 2405 Pecan Street in Antioch with his fiancée Sharmele Browne. On July 19, 1997, the home of John Tallman and his girlfriend Tamara Edwards at 2401 Pecan Street was burglarized. On this same date, at a second-hand jewelry store approximately five miles from the burgled residence, appellant pawned Ms. Edwards's wedding band that was taken in the burglary. Other items taken in the Tallman-Edwards burglary were found in October 1997 by a new tenant at 2405 Pecan Street. Appellant and Ms. Browne had moved from this address three days after the Pinter burglary.

Pinter Burglary

On September 24, 1997, the home of Frank Pinter at 2404 Redwood Drive was burglarized. A back fence separated Pinter's home from appellant's residence. Entry had been accomplished by breaking a window. Appellant's fingerprint was found on a glass shard from the broken window. Coins consistent with those taken in the Pinter burglary were pawned by appellant at the same second-hand jewelry store that he had used to pawn Ms. Edwards's wedding band.

People v. Jiles, A084204, 2 (Nov. 23, 1999) (Answer, Exh. A).

STANDARD OF REVIEW

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 claims: "(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).

"Clearly established federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000).

"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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 413.

"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 Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

To determine whether habeas relief is warranted, a federal court looks to the decision of the highest State court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000); see Packer v. Hill, 291 F.3d 569, 578-79 (9th Cir.) (where State supreme court denied habeas petition without comment federal court looks to last reasoned decision of a State court as the basis of the State court's judgment), rev'd on other grounds by Early v. Packer, 537 U.S. 3 (2002). In the present case, the California Court of Appeal was the highest State court to address the merits of Petitioner's claims of prosecutorial misconduct and trial court error based on improper questioning of witnesses, and the claim that he cannot be convicted both of burglary and receiving the stolen property that was taken in the burglary. Petitioner's other claims were not addressed in State court in a reasoned decision. Rather, they were denied summarily by the California Supreme Court on habeas corpus. Where the State court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim, a review of the record is the only means of deciding whether the State court's decision was objectively reasonable. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). When confronted with such a decision, a federal court should conduct "an independent review of the record" to determine whether the State court's decision was an unreasonable application of clearly established federal law. Id.

Even if the State court's ruling is contrary to or an unreasonable application of Supreme Court precedent, that error justifies habeas relief only if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

DISCUSSION

I. SUFFICIENCY OF EVIDENCE TO SUPPORT THE TALLMAN-EDWARDS BURGLARY CONVICTION IN COUNT ONE

A. Background

In order to prove the crime of burglary under California Penal Code section 459, each of the following elements must be proved: (1) a person entered a building, and (2) at the time of that entry, that person had the specific intent to steal and take away someone else's property, and intended to deprive the owner permanently of that property. See California Jury Instructions Criminal (CALJIC) No. 14.50. Petitioner alleges that the evidence introduced to prove he burglarized the Tallman-Edwards residence was legally insufficient because it was circumstantial and showed only that he lived next door to the Tallman-Edwards residence and had been in possession of an item taken from the residence and sold it to a pawn shop in close proximity to the estimated time of the theft. Petitioner did not raise this claim on appeal and the State supreme court denied the claim on habeas review without citation or comment. Because there is no reasoned State court opinion which discusses the claim, this Court conducts an independent review of the record to determine whether the supreme court's summary denial of the claim was an unreasonable application of clearly established federal law. See Himes, 336 F.3d at 853.

B. Applicable Federal Law

The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A State prisoner who alleges that the evidence in support of his State conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324.

A federal court reviewing collaterally a State court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The federal court "determines only whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338; Miller v. Stagner, 757 F.2d 988, 992-93 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048, and cert. denied, 475 U.S. 1049 (1986); Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838 (1984).*fn2

If confronted by a record that supports conflicting inferences, a federal habeas court "must presume -- even if it does not affirmatively appear on 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. A jury's credibility determinations are therefore entitled to near-total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). Except in the most exceptional of circumstances, Jackson does not permit a federal habeas court to revisit credibility determinations. See id. at 952 (credibility contest between victim alleging sexual molestation and defendant vehemently denying allegations of wrong-doing not a basis for revisiting jury's obvious credibility determination); see also People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 1994) (upholding conviction for sexual molestation based entirely on uncorroborated testimony of victim).

The prosecution need not affirmatively rule out every hypothesis except that of guilt. Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326); see, e.g., Davis v. Woodford, 384 F.3d 628, 639-41 (9th Cir. 2004) (finding sufficient evidence of premeditation). The existence of some small doubt based on an unsupported yet unrebutted hypothesis of innocence therefore is not sufficient to invalidate an otherwise legitimate conviction. See Taylor v. Stainer, 31 F.3d 907, 910 (9th Cir. 1994) (three hypotheses regarding petitioner's fingerprints which government failed to rebut unsupported by evidence and therefore insufficient to invalidate conviction).

Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Mere suspicion and speculation, however, cannot support logical inferences. Id.

C. Analysis

At trial, the following evidence was adduced with respect to the Tallman-Edwards burglary:

Petitioner lived with his fiancée at 2405 Pecan Street, Antioch, next door to John Tallman and Tamara Edwards, who resided at 2401 Pecan Street. (RT 152-53, 285.) The Tallman-Edwards house was burglarized on July 19, 1997, while the couple was away on a boating trip. They left about 2:00 p.m., and made a lot of noise doing so. (RT 153, 158, 193.) At 4:00 p.m. the same day, Petitioner pawned items of jewelry, including part of a wedding band, belonging to Ms. Edwards. (RT 302-03, 310.) The pawnshop owner remembered Petitioner because "he acted almost in a comical type manner." (RT 308, 339.) Scuff marks were discovered on the rear fence, suggesting the burglar came over it before breaking in a rear bedroom window. (RT 153, 156, 159, 193, 587.)

Other property belonging to the victims was discovered later in the garage of Petitioner's rented house by the subsequent tenant. (RT 160-61, 164-65, 174.) Confronted with one of these items -- a jewelry box -- Petitioner claimed he had gotten it, with the jewelry still inside, from a "dope fiend" at a park in nearby Pittsburg. (RT 498.) He pawned the jewelry, even though "he kind of knew the shit was stolen." (RT 500, 648.) He was not working at the time, so he pawned the jewelry to generate income. (RT 500.)

After changing her story several times, Petitioner's fiancée claimed that Petitioner was with her at a Walnut Creek hospital that day. (RT 460, et seq.) However, the timing of her visit to the hospital would have made it almost physically impossible for Petitioner to have been at both the hospital and the pawn shop at the times indicated in the hospital and pawn shop records. (RT 386-87.)

Evidence connecting Petitioner to the subsequent Pinter robbery also was adduced, in the form of his fingerprint on a glass shard from the rear neighbor's shattered window, (RT 480, 482), and his subsequent pawning of coins belonging to Pinter at the same pawnshop. Under California law, evidence proving Petitioner committed the Pinter burglary could be considered as an additional circumstance tending to prove he also committed the Tallman-Edwards robbery. See Cal. Evid. Code § 1101(b); People v. Sinclair, 39 Cal. App. 3d 891, 898-99 (1974).

Viewing the evidence in the light most favorable to the prosecution, and resolving any conflicting inferences in favor of the prosecution, the Court finds that "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). That is, any rational juror could have found that Petitioner entered the Tallman-Edwards residence and stole items therefrom based upon the evidence of: the proximity of Petitioner's house to the Tallman-Edwards residence, his pawning of Ms. Edwards' wedding ring and other jewelry on the same day of the robbery, his acknowledged possession of a jewelry box belonging to the victims and pawning of the jewelry inside, his weak alibi defense, and his financial situation at the time. The State court's rejection of Petitioner's sufficiency of the evidence claim was not contrary to or an unreasonable application of United States Supreme Court precedent. Accordingly, this claim for habeas corpus relief is DENIED.

II. EXCLUSION OF EVIDENCE OF THIRD-PARTY GUILT

A. Background

Petitioner argues that the trial court wrongly denied the defense presentation of evidence of third-party culpability. During in limine proceedings, defense counsel moved to present evidence of third-party guilt, specifically, evidence that a teenager named Nathan Leif had committed the Tallman-Edwards burglary. According to the record, the victim, John Tallman, spoke with his paperboy, Eric Prescott, several weeks after the burglary. Prescott said he had heard from other neighborhood juveniles that Nathan "was going around and bragging about having stolen some jewelry and coins." (RT 23.) Tallman reported this to investigating officers. (RT 73.) The officers interviewed Prescott, who said he had heard that Nathan was showing off stolen property in a park. (RT 74.) Nathan was charged in juvenile court with one burglary which occurred three-quarters of a mile away "sometime before." (RT 75.)

The trial court conducted a hearing pursuant to California Evidence Code section 402. Nathan was represented by counsel, who advised him to assert his Fifth Amendment privilege "about any questions about this burglary or about the stolen property."

(RT 76.) He did say that he did not know where Redwood or Pecan Drive was (RT 78), and he did not know Petitioner (RT 79). After the hearing, the court opined that the issue whether Nathan could be called to testify "seem[ed] like a moot point at this point," (RT 80), and defense counsel agreed, stating:

Yeah, I don't, given his testimony, which obviously renders him unavailable on this issue, I don't at this point, have an ability to connect him up through any particular statements I'm aware of to date. (Id.) He further stated that he had no other witnesses to the alleged third-party culpability. (Id.) The trial court then told counsel that if he did discover other evidence of third-party guilt he could approach the bench and another hearing could be held. (RT 81.)

B. Applicable Federal Law

A State court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). The Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted). Therefore, the defendant must establish that his right to have the jury consider the excluded evidence in the case was a "fundamental principle of justice." See id. "It is not the State which bears the burden of demonstrating that its rule is deeply rooted, but rather respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 47 (quoting Patterson, 432 U.S. at 202) (internal quotations omitted) (emphasis in original) (rule that intoxication may be considered on the question of intent was not so deeply rooted as to be a fundamental principle enshrined by the Fourteenth Amendment).

One of the fundamental rules that may be violated by the erroneous exclusion of critical, corroborative defense evidence is the Sixth Amendment right to present a defense. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and Washington v. Texas, 388 U.S. 14, 18-19 (1967)). However, while this right is well established, it does not preclude discretionary limitations on presentations of defense witnesses by the trial court where, for example, a witness has invoked the Fifth Amendment. See Arredondo v. Ortiz, 365 F.3d 778, 783-84 (9th Cir.), cert. denied, 122 S.Ct. 102 (2004).

C. Analysis

Respondent argues that the trial court cannot be charged with failing to allow the presentation of evidence of third-party culpability because no such evidence was offered by the defense. Rather, defense counsel conceded that he could not demonstrate a nexus between Nathan and the Tallman-Edwards burglary sufficient to enable him to do so. This interpretation is supported by the record, as set forth above. Moreover, even if counsel had argued that he should be allowed to present Nathan as a witness and the trial court had denied the request, no error occurred. While the right to call witnesses on behalf of the defense is well established, the Supreme Court has indicated that the right is not without limitation and it has never indicated that a trial court has no discretion in determining whether the areas on which a defense witness has properly invoked the Fifth Amendment will so affect the probative value or prejudicial impact of his testimony as a whole that he should not be allowed to take the stand at all. Id. The alternative is for the witness to testify on direct, then to strike his testimony upon refusal to answer any questions on cross-examination having to do with his credibility. It is not objectively unreasonable for the trial court to conclude that such an exercise would be pointless, confusing and wasteful. Id.

The State court's rejection of Petitioner's claim was not contrary to or an unreasonable application of clearly established Supreme Court precedent. Accordingly, this claim for relief is DENIED.

III. PROSECUTORIAL MISCONDUCT AND DENIAL OF MOTION FOR MISTRIAL

A. Background

Twice during the prosecution's case-in-chief and once during the prosecution's rebuttal case Petitioner's trial counsel moved for a mistrial following testimony concerning uncharged offenses. Petitioner claims the prosecutor committed misconduct by eliciting inadmissible testimony and that the trial court erred when it refused to grant a mistrial based on the prejudicial nature of the testimony.

1. Octa Gillen's Testimony

On direct examination by Mr. Motta, the prosecutor, Octa Gillen, a fingerprint technician who compared Petitioner's booking fingerprints to the fingerprints on the pawn receipts,*fn3 referred to Petitioner's prints in the "jail management system" and to his "booking number." (RT 377, 378.) The statements were made when Mr. Motta asked Ms. Gillen if she had compared the prints on the pawn receipts to "the known prints of a person" with Petitioner's name and date of birth.

With respect to Ms. Gillen's reference to the "jail management system," the following colloquy occurred:

Q: What did you do when you looked at those pawn slips and the prints that are on that, the thumb prints, what do you do in terms of analyzing those?

A: I would look for the name, also in our system, the jail management system.

Q: Let me strike that.

When you looked at the prints on [the pawn slips], and you had some known prints of the defendant, what did you do when you looked at those thumb prints on [the first pawn slip]? Did you compare them to each other, first of all?

A: Yes, I did.

Q: Were they the same person?

A: Yes. (RT 377.)

The reference to the "booking number" occurred in the following context:

Q: Then, when you compared those to the known prints of the defendant what were your results?

A: I compared the fingerprints that were on both pawn slips to the fingerprints for a particular booking number. Do I need to give the booking number?

Q: We'll just call those the known prints of the defendant.

What were your results?

A: I determined they were made by the same individual. (RT 378.)

At the end of the day, defense counsel moved for a mistrial, characterizing what occurred as follows:

During the testimony of Ms. Gillen, who obviously is not the most experienced witness in the world, we had her reference booking information relative to Mr. Jiles. And I'm sure this was not something that was in any way planned by the District Attorney, I would in no way indicate that, but I think the information was prejudicial to Mr. Jiles. (RT 418.)

The prosecutor responded: Well, it's her first time ever testifying. I don't know if the Court could see that. But she was rather difficult to jump start, to say the least, Your Honor. However, I did try to box her in, and I didn't have much of a chance to review with her the stipulation which we have been informally talking about but we have never entered into. She did start alluding to a booking card; I cut her off. I went into the known prints of the defendant. I tried to be very -- I tried to, attempted to, direct her in a rather strong fashion, and I don't think any bells have been rung.

I don't think there's been any damage committed. If we were to admonish the jury we would certainly just create a wound that I don't believe has been committed, or exists at this point. I don't think any damage has been done. (RT 419.)

The trial court did not find cause for a mistrial. As to the booking remark, the court noted that the prosecutor "stepped in before [Ms. Gillen] could complete her thought." (RT 420.) The court commented:

And I'm not sure that a jury would necessarily know that a booking card was from any other incident other than this. If you want to go back and look at the record and see whether there was more to it, feel free. At this point I don't think that there has been sufficient [prejudice] to warrant a mistrial. If you want to go back and look at the record, and actually take a look at what was said and renew it, that's fine. But I think mention of a booking card without more, without referencing either another incident, or -- they don't know that Mr. Jiles has been arrested for another offense. They have heard nothing of that. And she didn't reference that it was a booking card for another offense. (RT 420.)

The next morning defense counsel stated that he had reviewed the transcript of Ms. Gillen's testimony and moved again for a mistrial. (RT 424-25.) The prosecutor responded:

I think the record stands for itself, and I did everything I could humanly possible to cut her off, and I think I successfully did. So I don't think there's been any direct correlation between what may have been said to the jury understanding the defendant has some prior arrest record. I just don't think that is clearly laid out in the record . . . . (RT 425.)

The trial court again denied the motion for mistrial: Okay. From that language I think unless -- even if somebody was familiar with the system, they wouldn't necessarily be able to decipher that a booking record had to do with a case other than the case we're in court on. I'm sure the jury has assumed that Mr. Jiles was arrested for this offense and booked. There wasn't any reference to a different case by that witness. And I think the reference was generic enough that we don't have the risk that the jury is speculating that there's another offense. It's a natural assumption that he was booked on this offense. [¶] And so I'm going to deny the motion at this time. I don't believe that there's been prejudice to the defendant, because there wasn't a reference to another case, or anything more than a booking record. (RT 426.)

The record does not reflect that this claim was raised on appeal. On habeas corpus review the State supreme court denied the claim without citation or comment.

2. Detective Hill's testimony Detective Hill of the Antioch Police

Department testified in the State's case-in-chief. He testified that Petitioner was arrested on October 11 and then interviewed by Hill on October 13. What occurred next was summarized by the court of appeal as follows:*fn4

In an apparent effort to explain why certain questions were not asked of appellant by Hill, the prosecutor asked a series of questions concerning Hill's lack of detailed knowledge concerning the Pinter burglary:

Q: Now, you're familiar with the burglaries that you were familiar with at this point. Were you even familiar with Mr. Pinter's house at this point when you interviewed the defendant on the 13th?

A: In general. I knew that there were several burglaries in that particular area.

Q: With regard to Mr. Pinter, did you know anything substantial about Mr. Pinter's house?

A: There was nothing specific that stuck out about his house at all.

Q: Did you know Mr. Pinter's house backed up to Mr. Jiles' house?

A: I didn't know that.

Q: And you didn't know about print request results from other folks in your department with regards to the crime lab on the Pinter case?

A: No, absolutely not. (RT 496-97.)

There was no objection at the time. During the lunch recess defense counsel moved for a mistrial, stating:

During the examination of Detective Hill Detective Hill volunteered some information about burglaries that are not at issue here before the jury. And that raises two issues. One is that -- well, obviously Mr. Jiles is not charged with any other burglaries. And there is a prejudice issue as to him in terms of the potential inference from the jury that somehow Mr. Jiles may have had something to do with things that he's not charged with.

(RT 513-14.)

The prosecutor responded: Well, I'm not so sure that he said a number of burglaries in the area. And maybe we need the record to clarify what it is he actually said. Obviously, I tried to move on from that issue, and I told him we can't talk about other cases or the defendant's past, or his drug use. And it just came out. I think it was fairly ambiguous, the context about which he said this statement that is being questioned.

(RT 514-15.)

The trial court denied the motion for mistrial but offered to admonish the jury that Petitioner "is not accused of or connected with any other burglaries," allow counsel to stipulate to this fact before the jury, or allow defense counsel to ask the question of Hill on cross-examination. (RT 538.) Defense counsel stated: "I prefer to ask it as a question, because I think if we do it by way of stipulation there's an additional highlighting." (Id.) On cross-examination defense counsel asked Detective Hill: "Now, Mr. Jiles is not accused [sic] or connected with any burglary other than the Tallman house and then later this Pinter residence; is that right?" Detective Hill responded: "Correct."

(RT 560.)

3. John Tallman's Testimony

During the prosecution's rebuttal case, John Tallman, the victim of the burglary at 2401 Pecan Street, was recalled as a witness. He testified to a conversation he had with Petitioner's fiancée Brown shortly after the burglary. He was then asked and answered the following questions on direct examination:

Q: Now, you set up a neighborhood watch after this?

A: Yes, we did.

Q: And this was both you and Ms. Edwards setting up this neighborhood watch?

A: That is correct.

Q: And what was the first part of this neighborhood watch to get the neighborhood involved?

A: We handed out fliers, I went up and down and put a flier in everybody's mailbox on our street, the adjacent streets, the homes behind us, just trying to get everybody involved, because there were burglaries like once a week. There was one a week.

Q: When you had the neighborhood watch come -- well, when you sent out these fliers did you have a meeting set up?

A: Yes we did.

Q: Where was the first meeting set?

A: At our home. (RT 652-53.)

Defense counsel did not make an objection to the testimony and had no questions of the witness on cross-examination. After both sides rested, defense counsel made a motion for mistrial based on Mr. Tallman's reference to other burglaries in the neighborhood. In response to the prosecutor's argument that the testimony was not prejudicial, defense counsel summed up his argument as follows:

Yeah, the response is that it raises the specter of public animosity about criminal activity. It's, as we know, we are not to be appealing to prejudices and passions. And the notion that once again, now floated out here is this ominous specter again of some ongoing criminality that is in no way tied to Mr. Jiles. It's been problematic enough to attempt to proceed with some impartiality on the part of the jury with regard to there being multiple charges in this case, that is, two different burglaries alleged. But then when, in fact, there is looming out there this notion of a lot of other criminality, particularly burglaries, it is prejudicial to Mr. Jiles in the sense that it does tend to inflame the passions of jurors, I would believe. And there was simply, in any view, no need to get into that evidence at all. It wasn't as if we had some sort of substantive issue that was being explored there. And it just, once again, is a circumstance that I'm not at a lot -- or excuse me, I'm not in a position to defend against. (RT 657.)

The trial court denied the motion for mistrial but offered to advise the jury again that Petitioner was not accused of or connected to any other burglaries. (RT 657-58.) Defense counsel agreed that the jury should be so admonished (RT 658), but shortly thereafter indicated that he had spoken with Petitioner, who had raised some concerns about the admonition: "He does not desire that, and I can certainly see the logic of his position on that. So at this point I'm not going to request any admonition in line with that. It's kind of the trying to unring the bell issue, so our feeling is now we will not request that." (RT 659.)

On appeal Petitioner argued that the prosecutor engaged in misconduct when he elicited the statements from Mr. Tallman, and that the trial court was wrong to deny the motion for mistrial. The court of appeal declined to address the claim of prosecutorial misconduct, finding that "there was no timely objection, assignment of misconduct, or request for admonition. Indeed, timely or otherwise, there was no claim made in the trial court that the prosecutor had engaged in misconduct. Accordingly, the claim of prosecution misconduct, raised for the first time on this appeal, has not been preserved." (Exh. A at 5.)

The court then found that the trial court had not erred in denying the motion for mistrial:

"A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" (People v. Haskett (1982) 30 Cal.3d 841, 854; see People v. Hines (1997) 15 Cal.4th 997, 1038.) We conclude that the trial court did not abuse its discretion in denying the mistrial motion.

First of all, the reference by Tallman was not inherently prejudicial--the fact that there were other burglaries in the neighborhood does not suggest that appellant was responsible for them. Secondly, any such suggestion was entirely eliminated by the testimony of Detective Hill that appellant was "not accused or connected with any burglary other than the Tallman house and then later this Pinter residence . . . . " Third, as in Hines, any conceivable prejudice would have been cured by the admonition offered by the trial court, but appellant declined the admonition. Under these circumstances, appellant must demonstrate that the admonition would not have cured any possible prejudice and this he cannot do. Finally, given the overwhelming evidence of guilt heretofore summarized, it is inconceivable that a different result would have been reached if Tallman's reference to other neighborhood burglaries had not been made. (People v. Watson (1956) 46 Cal.2d 818.) (Id.)

Petitioner reasserted this claim in his State habeas petition, and it was denied without citation or comment.

B. Applicable Federal Law

Based on the three factual scenarios described above, Petitioner raises two separate claims for relief: prosecutorial misconduct resulting in the jury's exposure to inadmissible prejudicial testimony, and trial court error for refusing to grant a mistrial based on admission of the testimony. On federal habeas corpus review, the ultimate dispositive question raised by both of these claims is the same: whether admission of the evidence rendered Petitioner's trial fundamentally unfair.

Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate standard of review is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." See id.; Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). In considering whether a prosecutor's improper questioning of a witness deprived a criminal defendant of a fair trial, the witness's testimony should be viewed as a whole to determine the impact of the improper questioning. See Ortiz v. Stewart, 149 F.3d 923, 934-35 (9th Cir. 1998) (prosecutor's questioning witness as to whether she was afraid of defendant did not render the proceedings fundamentally unfair in light of witness's other testimony).

With respect to Petitioner's claim of trial court error in denying the motions for mistrial, a State court's procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).

State prisoners seeking federal habeas relief may obtain plenary review of Constitutional claims of trial error, but are not entitled to habeas relief unless they can establish that the error resulted in "actual prejudice." See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). A habeas petitioner is not entitled to relief unless the record demonstrates that the trial error "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

C. Analysis

The State courts' rejection of Petitioner's claims was not contrary to or an unreasonable application of clearly established Supreme Court precedent, because admission of the three witnesses' testimony did not render Petitioner's trial fundamentally unfair.

With respect to Ms. Gillen's testimony, the trial court's determination that her references to the "jail management system" and a "booking card" were not prejudicial is supported by the record, as discussed above. Ms. Gillen's statements were sufficiently oblique that there was no reason for the jury to question whether they pertained to offenses other than those charged. Therefore, even if the prosecutor deliberately elicited the testimony (a hypothesis for which there is no support), its admission did not render the trial fundamentally unfair. For this same reason, the trial court's denial of a mistrial based on Ms. Gillen's testimony did not violate Petitioner's right to due process. Accordingly, this claim for relief is denied.

Detective Hill was questioned by the prosecutor regarding his interview with Petitioner on October 13, 1997, during which he questioned Petitioner about the Tallman-Edwards burglary which occurred in July, 1997, but not about the Pinter burglary, which occurred on September 24, 1997. In an apparent effort to explain why this was so, the prosecutor asked Hill: "Were you even familiar with Mr. Pinter's house at this point when you interviewed the defendant on the 13th?" To which Hill responded: "In general. I knew that there were several burglaries in that particular area." The trial court denied a motion for mistrial based on this statement, but it did offer to admonish the jury that Petitioner "is not accused of or connected with any other burglaries," allow counsel to stipulate to this fact before the jury, or allow defense counsel to ask the question of Hill on cross-examination. Defense counsel chose the latter, and on cross-examination he asked Hill: "Now, Mr. Jiles is not accused [sic] or connected with any burglary other than the Tallman house and then later this Pinter residence; is that right?" To which Hill responded: "Correct."

The Court finds that Hill's statement about the other burglaries in the area did not render the trial fundamentally unfair. The statement was made in passing and not emphasized by the prosecutor, and it did not implicate Petitioner in any of the other burglaries. More importantly, Hill testified subsequently that Petitioner was not accused of or connected with any burglary other than the two with which he was charged. The State supreme court's rejection of Petitioner's claims of prosecutorial misconduct and trial court error based on this testimony was not contrary to or an unreasonable application of Supreme Court precedent.

Petitioner's final claims are based on the rebuttal testimony of John Tallman, one of the burglary victims. Respondent argues first that Petitioner's prosecutorial misconduct claim based on this testimony is procedurally barred from federal review. This Court agrees. In cases in which a State prisoner 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 miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Casey v. Moore, 386 F.3d 896, 919 (9th Cir. 2004).

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." People v. Samayoa, 15 Cal. 4th 795, 841 (1997). The Ninth Circuit has held that California's "contemporaneous objection rule" is an independent and adequate procedural bar. Richardson v. Newland, 342 F. Supp. 2d 900, 930-931 (E.D. Cal. 2004) (citing Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999); Rich v. Calderon, 187 F.3d 1064, 1070 (9th Cir.1999) ("We may not review his six other prosecutorial misconduct claims because [petitioner] procedurally defaulted by failing to make contemporaneous objections, and the California court consequently invoked a procedural bar to their consideration, the validity of which Rich has failed to overcome"), cert. denied, 528 U.S. 1092 (2000)); see also Davis v. Woodford, 384 F.3d 628, 653-54 (9th Cir. 2004) (recognizing and applying California's contemporaneous objection rule in affirming denial of federal habeas petition on grounds of procedural default where petitioner raised only an evidentiary, not a constitutional, objection at trial).

Here, the California Court of Appeal found Petitioner's claim of prosecutorial misconduct based on Mr. Tallman's testimony procedurally barred because Petitioner did not object in a timely fashion, did not argue for a mistrial based on a claim of prosecutorial misconduct, and refused the court's offer of a curative admonition. The State supreme court's subsequent summary denial of the claim did not silently disregard the bar and consider the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). Petitioner has not attempted to demonstrate cause or prejudice for failing to object contemporaneously to the testimony, or that a fundamental miscarriage of justice will result if this claim is barred. Thus, the claim is barred from review.

With respect to Petitioner's assertion that Mr. Tallman's statements about the other burglaries in the neighborhood were so prejudicial that a mistrial should have been granted, the State court's rejection of this claim was not contrary to or an unreasonable application of Supreme Court precedent. As noted by the court of appeal, Mr. Tallman's statements were not inherently prejudicial inasmuch as the fact that there were other burglaries in the neighborhood did not suggest that Petitioner was responsible for them. Importantly, the statement did not identify which other houses had been burgled, whereas evidence of Petitioner's connection to the two charged crimes included the fact that Mr. Tallman and Ms. Edwards lived next door to Petitioner, while Mr. Pinter was Petitioner's neighbor over the back fence. (RT 108-09, 155.) Moreover, any suggestion that Petitioner might have been involved in the other burglaries was eliminated by Detective Hill's testimony that Petitioner was not accused of or connected with any burglary other than the two with which he was charged. Finally, strong evidence of Petitioner's guilt was presented to the jury, including the fact that he pawned the stolen property very shortly after the burglary, he conceded possessing the stolen property and offered a weak explanation for how he came by it, and he left some of the stolen property behind when he moved out of the neighborhood. The admission of Mr. Tallman's statements did not render the trial fundamentally unfair. Accordingly, this claim for relief is DENIED.

IV. CONVICTIONS FOR BURGLARY AND RECEIVING STOLEN PROPERTY

A. Background

Petitioner was convicted of two counts of burglary and two counts of receiving stolen property. Sentence on the latter two convictions was stayed. (CT 290.) Both receiving stolen property convictions involved property taken in the Tallman-Edwards burglary. Count three of the information involved Ms. Edwards's ring, which Petitioner pawned on July 19, 1997. Count four involved Mr. Tallman's jewelry box, which Petitioner concealed in his garage until it was found by the next tenant and returned to Mr. Tallman. (CT 70.).

On appeal, Petitioner argued that he should not have been convicted of receiving the stolen property in count four when he had been convicted of stealing that same property in count one. The court of appeal rejected Petitioner's claim, stating: "Appellant contends that he cannot be convicted of both burglary and receiving stolen property that was taken in the burglary. This contention was recently rejected by our Supreme Court in People v. Allen, (1999) 21 Cal.4th 846." (Exh. A at 6.)

B. Applicable Federal Law

A person in custody pursuant to the judgment of a State court can obtain a federal writ of habeas corpus only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). In other words, a writ of habeas corpus is available under § 2254(a) "only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)), cert. denied, 478 U.S. 1021 (1986). It is unavailable for violations of State law or for alleged error in the interpretation or application of State law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle, 456 U.S. at 119; Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994). It is not available merely because "something in the state proceedings was contrary to general notions of fairness or violated some federal procedural right unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state court." Middleton, 768 F.2d at 1085.

Federal courts generally are bound by a State court's construction of State laws. See Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (State law determination that arsenic trioxide is a poison as a matter of law and not an element of the crime for jury determination is not open to challenge on federal habeas review); Melugin v. Hames, 38 F.3d 1478, 1487 (9th Cir. 1994) (federal court bound by Alaska Court of Appeals' interpretation and decision that State statute was applied properly to petitioner's conduct), except when it appears that its interpretation is an obvious subterfuge to evade the consideration of a federal issue. See Peltier, 15 F.3d at 862. The State's highest court is the final authority on the law of that State, Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979), and its interpretation is binding in a federal habeas action, Hicks v. Feiock, 485 U.S. 624, 629 (1988). Even a determination of State law made by an intermediate appellate court must be followed and may not be "disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." Id. at 630 n.3

C. Analysis

In People v. Allen, the California Supreme Court held that the statutory and common law prohibition against dual convictions of receiving stolen property and theft did not bar dual convictions of receiving stolen property and burglary, even though the burglary in question was an entry with intent to commit theft. 21 Cal. 4th at 866. Reviewing the legislative history of California Penal Code section 496, which provides that no person may be convicted of both receiving stolen property and of the theft of the same property, the supreme court found that the legislature did not intend that the term "theft" be read broadly to mean "the unlawful acquisition of property." Id. at 863. Rather, it was to be given the same meaning as in the general theft statute, Penal Code section 484, that is, theft committed by means of larceny, embezzlement, or false pretenses. Id. Burglary is conspicuously absent from that list. Id. Burglary is not "a theft offense;" rather, "the gist of the offense is entry with the proscribed intent, and that such an entry constitutes the completed crime of burglary 'regardless of whether . . . any felony or theft is actually committed.'" Id. at n. 18 (emphasis in original) (citation omitted).

The supreme court held further that when a defendant is charged with burglary and with a violation of Penal Code section 496 with respect to property he stole in the burglary, both Penal Code section 954, which allows for multiple convictions for "two or more different offenses connected together in their commission," and Penal Code section 654, which bars multiple punishment for the same crime, are satisfied. Id. at 867.

Petitioner has alleged nothing which suggests that this Court should not defer to the State courts' interpretation of its own laws. Accordingly, no due process violation is presented, and the State courts' rejection of Petitioner's claim was not contrary to or an unreasonable application of clearly established federal law. Therefore, this claim for relief is DENIED.

V. EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

A. Background

After Petitioner was found guilty of the charged crimes, a court trial was had on the truth of allegations of prior convictions for sentencing purposes. Ten prior felony convictions were alleged under California Penal Code section 1170.12(b) and (c), two prior serious felony convictions were alleged under section 667(a), and two prior prison terms were alleged under section 667.5(b). (RT 769.) Defense counsel argued that one of the prior serious felony convictions, a 1986 burglary conviction, could not be proved beyond a reasonable doubt based on the evidence before the court, which consisted of an abstract of judgment from the Superior Court of Los Angeles County dated June 18, 1986, denoting that Petitioner had pled guilty to one count of "Burg 1st" under Penal Code section 459. Specifically, counsel argued that the abstract of judgment did not prove that the prior conviction amounted to a serious felony under section 667(a) because it did not show that the prior conviction was a "residential burglary." In opposition, the prosecutor argued that recent California Supreme Court case law established that finding that a prior conviction for "first degree burglary" had been established beyond a reasonable doubt was sufficient to satisfy the section 667(a) requirement. Relying on the abstract of judgment the trial court concluded:

I think under the standard of beyond a reasonable doubt, looking at the abstract on People's 3, which is from County of Los Angeles, Southwest Branch, it clearly states burglary first. If it just said burglary or burg, then I would agree that the ambiguity would rise to the level of a problem of proof. But in the designation of burglary first, for purposes of the standard of beyond a reasonable doubt, I believe that is sufficient. So I will find that that prior is true. (RT 778.)

When certifying issues for appeal, trial counsel identified the issue of "insufficient proof of the 1986 conviction." (CT 291-92.) Appellate counsel did not raise the issue on appeal, however. On State habeas review and in the present petition Petitioner argues that the failure to do so resulted in the ineffective assistance of counsel on appeal because absent this error there is a reasonable probability that the court of appeal would have reversed the trial court's finding of the 1986 prior as a "strike" and would have sentenced Petitioner to a lesser term.

B. Applicable Federal Law

The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985).*fn5 Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). A defendant therefore must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Miller, 882 F.2d at 1434 & n.9 (citing Strickland, 466 U.S. at 688, 694; Birtle, 792 F.2d at 849).

C. Analysis

Petitioner argues that the record before the trial court was insufficient to prove that his 1986 conviction for first degree burglary was a residential burglary which occurred after 1982, and that appellate counsel should have raised this issue on appeal.

California Penal Code section 667(a), enacted by the voters as part of Proposition 8 in June, 1982, provides that a five-year sentence enhancement shall be imposed for each prior conviction of a serious felony designated in sections 667(d) and 1192.7(c). People v. Reynolds, 232 Cal. App. 3d 1528, 1533 (1991). California Penal Code section 1192.7(c)(18) includes burglary of a residence. Until 1982, only burglary of an inhabited dwelling in the nighttime constituted a first degree burglary. Up until that time, residential daytime and all non-residential burglaries were of the second degree. Therefore, a second degree burglary conviction which occurred prior to 1982 may, but need not, have involved entry of a residence. The nighttime requirement for first degree burglary was eliminated from the burglary statute in 1982. Thereafter, the question arose whether a residential burglary which occurred in the daytime prior to the 1982 change qualified as a serious felony conviction under section 1192.7(c)(18) for purposes of the five-year sentence enhancement authorized by section 667(a). In People v. Cruz, 13 Cal. 4th 764 (1996), the California Supreme Court found the intent of the electorate was to treat all residential burglaries as "serious" felonies, and concluded that section 1192.7(c)(18) referred "not to specific criminal offenses, but to the criminal conduct described therein." Id. at 773 (internal quotation marks and citation omitted.) Thus, under California law, a conviction for first degree burglary which occurred after 1982 amounts to a serious felony conviction for purposes of section 667(a).

In proving a prior conviction for purposes of sentence enhancement, the evidence before the trial court must be substantial, that is, "evidence which is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." People v. Garrett, 92 Cal. App. 4th 1417, 1433 (2001). Evidence which may be used to determine the nature of a burglary includes transcripts from preliminary hearings, charging documents in conjunction with a no contest plea, and a defendant's admissions in probation reports. Id.; see also People v. Castillo, 217 Cal. App. 3d 1020, 1023-25 (1990) (abstract of judgment of prior burglary conviction, plus evidence of subsequent conviction three years later, sufficient evidence for trial court to infer defendant had completed his prison term for former conviction), cert. denied, 498 U.S. 919 (1990); People v. Garcia, 216 Cal. App. 3d 233, 264 (1989) (probation report may be used to determine the truth of a prior).

Here, the trial court found beyond a reasonable doubt that Petitioner's 1986 conviction for first degree burglary was a "residential burglary" and therefore a "serious felony conviction" for purposes of section 667(a) based upon the abstract of judgment dated June 16, 1986, and the probation report prepared for the August 27, 1998 sentencing hearing, which included notations to all of Petitioner's prior convictions, including the following:

4/4/86 Inglewood PD 459 PC Los Angeles Co SC A 914531

6/16/86: Conv; (F) 2 Yrs State Prison 5/13/87: Release on Parole 4/27/88: Parole viol, ret to prison. (CT 273.) All of the other prior convictions noted in the report occurred, and were based upon events which occurred, in 1982, 1985, 1987 and 1997. (CT 273-74.) Although defense counsel argued that this evidence was not sufficient to meet the applicable standard, he did not present evidence to support an assertion that the burglary occurred before 1982 or that it was not residential. Nor has Petitioner presented any such evidence in the present petition.

The effective assistance of counsel does not require counsel to raise arguments which he knows to be meritless on the facts and the law, see Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999), and the failure to take futile action can never be deficient performance, see Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996).

The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See Miller, 882 F.2d at 1434 (footnote and citations omitted). Appellate counsel therefore will remain above an objective standard of competence and have caused his client no prejudice for the same reason - because he declined to raise a weak issue. See id.

Petitioner has failed to establish that the State court's rejection of his ineffective assistance of appellate counsel claim was contrary to or an unreasonable application of Strickland. Accordingly, this claim for relief is DENIED.

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The Clerk of Court shall TERMINATE all pending motions, and shall enter judgment and close the file.

IT IS SO ORDERED.

JUDGMENT

For the reasons stated in the Court's Order Denying the Petition for a Writ of Habeas Corpus, judgment is hereby entered in favor of Respondent.

IT IS SO ORDERED.

CLAUDIA WILKEN United States District Judge


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