The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner pleaded guilty in the Superior Court of the State of
California in and for the County of Santa Clara to felony
transportation, sale, or distribution of a controlled substance
(Cal. Health & Saf. Code, § 11352(a) count 1), and misdemeanor
possession of controlled substance paraphernalia (§ 11364 count
2). He also admitted having suffered five prior convictions that
qualified as strikes under the California Three Strikes Law. On
or about January 15, 2001, petitioner was sentenced to 25 years
to life in state prison on count 1, with a concurrent six-month
jail sentence on count 2, pursuant to the California Three
Strikes Law. Petitioner appealed, but the California Court of
Appeal affirmed the judgment of trial court and the Supreme Court
of California denied review.
Petitioner then filed the instant federal petition for a writ
of habeas corpus under 28 U.S.C. § 2254. Per order filed on
January 18, 2005, the court found that the petition, liberally
construed, stated cognizable claims under § 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.
The California Court of Appeal summarized the facts of the case
The following summary of the offenses is taken from
the probation report. On June 12, 2001, at
approximately 1:50 p.m., an undercover San Jose
police officer was in the known high drug traffic
area of South Second Street and Fountain Alley when
[petitioner] and Manjaroe Hampton walked by.
[Petitioner] made eye contact with the officer,
approached him, and asked him what he wanted. The
officer stated that he wanted a "twenty."
[Petitioner] turned toward Hampton and said, "Give
him a rock." Hampton handed an off-white rock to
[petitioner] who placed it next to the officer's hand
that was resting in the dirt of a tree planter. The
officer picked it up and left two pre-recorded $10
bills in its place. [Petitioner] asked the officer
for a "bump," but the officer denied the request. As
the officer left, an arrest team arrested both
[petitioner] and Hampton. Hampton possessed $163 in
cash. [Petitioner] had the two $10 bills the officer
had left him in his shirt pocket along with a clear
glass pipe with a brillo pad. Crime laboratory tests
confirmed that the off-white rock contained cocaine
base and weighed. 17 grams.
People v. Mitchell, No H024188, slip op. at 2 (Cal.Ct.App.
May 29, 2003) (Resp't Ex. C) (footnote omitted).
This court may entertain a petition for a writ of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
State court 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).
The writ 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." Id. §
"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
`reasonable 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
the 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. § 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 F.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. B. Claims
Petitioner raises three claims of ineffective assistance of
counsel under § 2254. He specifically alleges that counsel was
ineffective because counsel failed to: (1) argue that
petitioner's sentence of 25 years to life was cruel and unusual
punishment under the Eighth Amendment of the United States
Constitution; (2) object at sentencing to the trial court's
misstatement that petitioner's age could not factor into the
court's discretion when deciding whether to eliminate
petitioner's previous "strikes" pursuant to People v. Superior
Court (Romero), 13 Cal. 4th 497 (1996); and (3) object to the
introduction of a "sanitized rap sheet," containing blacked-out
entries of petitioner's previous police contacts, and the
prosecutor's reference to unadjudicated arrests, leading the
trial court to consider impermissible information in connection
with petitioner's Romero motion.
In order for petitioner to prevail on an ineffective assistance
of counsel claim, he must establish that: (1) counsel's conduct,
seen objectively, was out of "the wide range of professionally
competent assistance" and (2) "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 691, 694 (1984). The court may
determine whether any prejudice was ...