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October 7, 2005.

DAVID L. RUNNELS, Warden, Respondent.

The opinion of the court was delivered by: CHARLES BREYER, District Judge


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 as follows:
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).


  A. Standard of Review

  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. § 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 `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 ...

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