The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Richard Leroy Martinez is a prisoner of the State of California who is incarcerated at the State Prison-Solano at Vacaville, California. He brings this petition pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the writ should not be granted and has filed an answer supported by a memorandum of law, the State trial record and the unpublished opinion of the California Court of Appeal. Petitioner had the opportunity to file a traverse, but did not do so. Having considered all of the papers filed by the parties and the State court trial record, the Court DENIES the petition for writ of habeas corpus.
The following facts are taken from the unpublished opinion of the Sixth Appellate District of the California Court of Appeal in People v. Martinez, H017130 (Dec. 29, 1998), affirming the judgment of conviction.
About 7 p.m. on May 16, 1996, security guard Damian Carrion, working at a Sunnyvale Safeway store, observed defendant take three packs of cigarettes from a cabinet near the checkstands and proceed to the back of the store. The guard saw defendant put two packs in his pants, then take a box of Band-Aids from the shelf and go into the bathroom. Defendant emerged from the bathroom with nothing in his hands.*fn1 He took a bottle of vodka which he stuffed inside his waistband covered by his shirt. He then walked out of the store.
The security guard stopped defendant as he was stepping into the parking lot. The guard showed his store badge and asked defendant to return to the store. Defendant replied, "'Fuck you, I'm not going anywhere.'" The guard then grabbed defendant's arm. Defendant lurched forward and attempted to pull away from the guard. He elbowed the guard several times. The guard then pulled defendant's arm behind his back, pushed him into a parked car and then forced him to the ground to handcuff him. The missing merchandise was found on defendant.*fn2 The security guard suffered cuts on his hand and a bruise on his rib cage. Defendant suffered scrapes on his face. At trial, defense counsel essentially admitted petty theft. He argued that defendant did not use force to commit a robbery, but had used force in self defense when the security guard attacked him in the parking lot.
Martinez, H017130 at 1-2 (footnotes included).
Prior to presentation of evidence, the trial court mis-spoke in his instruction to the jury as follows,
Also, if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt that interpretation which points to his guilt. RT 14 (emphasis added). The correct version of CALJIC No. 2.01 instructs that the jury "must adopt that interpretation which points to the defendant's innocence." As the Court of Appeal noted, the immediately preceding instruction directed the jury that: a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.
RT 14. "Moreover, both attorneys stated the principle correctly in their closing arguments. And the written instructions (with the correct version of CALJIC No. 2.01) were provided to the jury for their deliberation." Martinez, H017130 at 5.
At the close of evidence, the trial court instructed the jury on the elements required to prove the crime of robbery as follows:
1. A person had possession of property of some value however slight,
2. Such property was taken from such person or from his immediate presence,
3. Such property was taken against the will of such person,
4. The taking was accomplished either by force or fear, and
5. Such property was taken with the specific intent permanently to deprive such person of the property.
The trial court's final instructions continued, in relevant part, to explain,
A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape. Likewise it is still in progress as long as immediate pursuers are attempting to capture the perpetrators or to regain the stolen property. RT 87-88. The jury was also instructed on the lesser offense of petty theft. RT 90.
According to the Court of Appeal,
Defendant was convicted by jury of second degree robbery. (Pen. Code, § 211/212.5, subd. (c).) The trial court found multiple prior conviction allegations true.*fn3
The court denied defendant's motion to strike prior convictions, and sentenced him to 35 years to life in state prison.*fn4
Martinez, H017130 at 2-3 (footnotes included).
On March 31, 1998, the California Supreme Court denied Petitioner's petition for review of the Court of Appeal's decision. Petitioner filed a petition for a writ of habeas corpus in State court, which was denied by the Santa Clara County Superior Court, by the Court of Appeal and finally by the California Supreme Court on March 27, 2002.
Petitioner filed the present federal petition on April 18, 2002, and Respondent filed an answer on October 25, 2002. The petition raises three claims, all of which are exhausted for purposes of federal review: (1) appellate counsel's failure to raise the issue of insufficient evidence to support the robbery conviction violated Petitioner's Sixth Amendment right to counsel and Fourteenth Amendment right to due process, (2) a pattern of erroneous jury instructions diluted the presumption of innocence and reduced the prosecution's burden of proof in violation of the Fourteenth Amendment, and (3) admission of hearsay evidence to prove a prior "strike" without showing unavailability of the witness violated the Sixth Amendment's Confrontation Clause.
A federal court may entertain a habeas petition from a State prisoner "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).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court may not grant a petition challenging a State conviction or sentence on the basis of a claim that was reviewed 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). A decision is contrary to clearly established federal law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Clark v. Murphy, 331 F.3d 1062, 1067 (9th. Cir. 2003).
An unreasonable application of federal law occurs when the State court identifies the correct governing legal principle, but unreasonably applies that principle to the facts. Id. An unreasonable application of federal law is different from an incorrect application of federal law. Id. Relief is not proper where the State court decision is "merely erroneous." Early v. Packer, 537 U.S. 3, 10 (2002).
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as of the time of the relevant State court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). Circuit law may be persuasive authority for purposes of determining whether a State court ...