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DANIELS v. WOODFORD

United States District Court, S.D. California


December 19, 2005.

TED DARNELL DANIELS, Petitioner,
v.
JEANNE S. WOODFORD, Director, Respondent.

The opinion of the court was delivered by: WILLIAM McCURINE JR., Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENYING PETITION FOR WRIT OF HABEAS CORPUS
Ted Darnell Daniels ("Daniels" or "Petitioner"), a state prisoner proceeding pro se and in forma pauperis, has filed a First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."). (Doc. No. 14.) Petitioner challenges his June 7, 2001 San Diego County Superior Court conviction for burglary, reckless driving, three counts of assault with a deadly weapon, and findings that he had suffered one serious felony confiction, two strike convictions, and five prison priors. (Pet. at 2.) He argues that the Petition should be granted on the following grounds: (1) insufficient evidence exists to support the convictions for assault with a deadly weapon; (2) ineffective assistance of trial counsel; and (3) ineffective assistance of appellate counsel. (Pet. at 6-8.) Respondent filed an Answer on July 12, 2005. (Doc. No. 30.) Petitioner filed a Traverse on September 14, 2005. (Doc. No. 37.)

This Report and Recommendation is submitted to United States District Judge Dana M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule H.C.2 of the United States District Court for the Southern District of California. For the reasons stated herein, the Court recommends that the Petition be DENIED.

  I.

  STATE PROCEEDINGS

  On June 7, 2001, Petitioner was convicted in San Diego County Superior Court of burglary in violation of California Penal Code § 459, evading an officer with reckless driving in violation of California Vehicle Code § 2800.2, and three counts of assault with a deadly weapon in violation of California Penal Code §§ 245(a)(1), 1192.7(c)(23). The jury returned true findings on the allegations that Petitioner had a previous serious felony conviction, two strike convictions, and five prison priors within the meaning of California Penal Code §§ 667(a), 667(b)-(i), and 667.5(b). (Lodgment No. 2, 15 Reporter's Transcript ("RT") at 894-897; Answer at 2; Pet. at 2.) Petitioner was sentenced to fifty-five years-to-life in state prison. (Lodgment No. 2, 16 RT at 945; Pet. at 2.)

  Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One, on the ground that there was insufficient evidence to support his convictions for assault with a deadly weapon. (Lodgment No. 3, People v. Daniels, No. D038444, SCD 149951, slip op. at 13 (Cal.Ct.App. April 9, 2002); Pet. at 2.) The court of appeal affirmed his conviction on February 26, 2003. (Lodgment No. 4, People v. Daniels, No. D038444, slip op. (Cal.Ct.App. Feb. 26, 2003); Pet. at 2.) Petitioner sought further review in the California Supreme Court. (Lodgment No. 5, California v. Daniels, No. SD2001DA1314 (Cal. April 10, 2003); Pet. at 2.) His appeal was denied on May 14, 2003. (Lodgment No. 5, People v. Daniels, No. S114808, slip op. (Cal. May 14, 2003); Pet. at 2.)

  Petitioner also filed a habeas petition in San Diego County Superior Court, case number HC17735, claiming ineffective assistance of trial and appellate counsel. (Lodgment No. 6, In re: Daniels, No. HC17735, SCD 149951 (Cal.Super.Ct. Aug. 4, 2004); Pet. at 3.) That petition was denied on August 4, 2004. (Lodgment No. 6, In re: Daniels, No. HC17735, SCD 149951, slip op. at 3; Pet. at 3.) Similar petitions were summarily denied by the California appellate court on December 7, 2004, and by the California Supreme Court on March 2, 2005. (Pet. at 3-4; Lodgment No. 7, In re: Daniels, No. S130029, slip op. at 1 (Cal. March 2, 2005).) II.

  FEDERAL PROCEEDINGS

  Petitioner filed this petition on August 11, 2004, just after his state habeas petition was denied by the San Diego Superior Court. (Doc. No. 1.) Respondent filed a Motion to Dismiss in this Court on September 14, 2004. (Doc. No. 5.) On October 6, 2004, Petitioner filed a Motion to Stay Pending Exhaustion of Unexhausted Claim in State Court, and an Opposition to the Motion to Dismiss. (Doc. No. 8.) On April 6, 2005, the Court denied the Motion to Dismiss, denied the Motion for Appointment of Counsel, and denied the Motion to Stay as moot. (Doc. No. 13.)

  After exhausting his state court remedies, Petitioner filed a First Amended Petition for Writ of Habeas Corpus on April 7, 2005. (Doc. No. 14.) Respondent filed an Answer to the Petition on July 12, 2005. (Doc. No. 30.) Petitioner filed a Traverse on September 14, 2005. (Doc. No. 37.)

  III.

  UNDERLYING FACTS

  The following statement of facts is taken from the state appellate court opinion affirming Petitioner's conviction. This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to factual findings of both state trial and appellate courts).

 

This saga began early on Christmas morning 1999, when San Diego Police responded to a burglary alarm at a Fry's Electronics store. A padlock securing the store's warehouse had been cut off, the warehouse entered and 41 laptop computers taken.
The first officer to respond was San Diego Police officer Kristen Adams. Adams observed a blue Ford van at the store with three men in it. The van drove away, passing the police car as it left the store. Officer Adams observed Daniels driving the van. Officer Adams began a pursuit with emergency lights and siren that would continue for many miles, at high speeds and ultimately involving multiple police officers and vehicles.
When the van left the Fry's lot it headed south on I-15 and then onto 40th Street. At the intersection of 40th and Monroe the van stopped briefly, the passenger and side doors opened and two men fled from the van. The van then sped away with police in pursuit. The chase continued south on I-15 until the van exited at Market Street. Running red lights, the van headed back to I-15 northbound at high speed. It crashed through orange barriers at a point where the road was closed for construction. Flat tires as a result of following Daniels and the van through the construction disabled one of the police cars in pursuit.
The chase continued northbound on I-15 at speeds in excess of 100 miles per hour. Traffic officers tried to overtake the van, get ahead of it and lay down nail strips in the roadway. One of the officers drove alongside the van and observed Daniels as the driver and sole occupant. Daniels made an abrupt exit from the freeway and returned heading south again, with police in pursuit. Eventually police abandoned the idea of laying nail strips to stop the van because of the dangerous and erratic manner in which Daniels was driving.
Daniels continued southbound at high rates of speed. Ultimately he entered I-8 eastbound until he pulled over just west of the Waring Road exit. As police slowed to approach the van, Daniels made a U-turn and started driving west in the eastbound lanes of I-8. Officer Kyler positioned his car across lanes 1 and 2 at a 45-degree angle. Daniels looked directly at the patrol car, "just gassed it" and headed towards the patrol car. His van struck the left front of the patrol car, even though there was room for him to drive past it.
After hitting Kyler's car, Daniels proceeded west in the eastbound lands of I-8. Daniels next drove at Sergeant Reschke's car, striking the front of the patrol car. Daniels drove on west bound until his car became disabled a short distance later. Daniels fled from the car and was located hiding in a nearby riverbed. By the time the pursuit ended, police had been chasing Daniels for 42 minutes.
Daniels testified on his own behalf and said he was not the driver of the van. He offered an explanation for his presence in the van and testified that an Asian man was driving throughout the police pursuit. He said that when the van was disabled he and the Asian man fled. He was later apprehended by police.
The defense called Ronald Carr, an expert witness, to testify as an accident reconstructionist. He discussed his view of the accidents, indicating he thought the van did not hit any of the patrol cars head on. He found it impossible to determine what, if any, damage occurred to the van during the encounter.
(Lodgment No. 4, People v. Daniels, No. D038444, slip op. at 2-4.)

  IV.

  STANDARD OF REVIEW

  Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application 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.A. § 2254(a) (West 1994). The Petition was filed after enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d) (West Supp. 2005).

  A state court's decision may be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the U.S. Supreme Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from [the U.S. Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. Alternatively, an unreasonable application may be found, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.

  "[A] federal habeas court may not issue the [habeas] 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 be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions." Williams, 529 U.S. at 412.

  Finally, habeas relief is also available if the state court's adjudication of a claim, "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C.A. § 2254(d)(2) (West Supp. 2005). In order to satisfy this provision, Petitioner must demonstrate that the factual finding upon which the state court's adjudication of his claim rests, assuming it rests on a factual determination, is unreasonable. Torres v. Prunty, 223 F.3d 1103, 1108 (9th Cir. 2000).

  Where there is no reasoned decision from the state's highest court, the Court "looks through" to the last reasoned state-court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Van Lynn v. Farmon, 347 F.3d 735 (9th Cir. 2003). However, if the dispositive state court order does not "furnish a basis for its reasoning," the federal court considering the habeas petition must conduct an independent review of the record to determine whether the state court unreasonably applied controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. 63).

  V.

  DISCUSSION

  A. Insufficient Evidence

  Petitioner alleges that insufficient evidence exists in the record to support his convictions for assault with a deadly weapon. (Pet. at 6.) Specifically, he states that the forensic evidence regarding damage to the van did not establish that he had used the van as a deadly weapon by intending to hit the police cars. (Id.) Petitioner contends that his argument is supported by the opinion of his expert witness, Ronald Carr. (Traverse at 4.) Respondent argues that the state appellate court properly applied the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979) in finding that the evidence presented was sufficient to support the verdict. (Answer at 4-5.)

  Clearly established federal law provides that the Fourteenth Amendment's Due Process Clause is violated, and an applicant is entitled to habeas corpus relief, "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt" of every element of the offense. Jackson, 443 U.S. at 324; In re Winship, 397 U.S. 358, 364 (1970) (holding that federal Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime). Federal habeas courts must respect the province of the jury to determine the credibility of witnesses and resolve conflicts in the evidence; the Court assumes all conflicts were resolved in a manner which supports the verdict. Jackson, 443 U.S. at 319. When reviewing a claim of insufficient evidence, federal habeas courts must analyze Jackson claims "with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16 (emphasis added). The Ninth Circuit has recently stated: "After AEDPA, we apply the standards of Jackson with an additional layer of deference." Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005).

  Because there is no reasoned decision from the California Supreme court on this ground, this Court must "look through" to the last reasoned state court opinion by the California appellate court as a basis for the analysis. Ylst, 501 U.S. at 806. In the instant case, the state appellate court applied the Jackson standard to Petitioner's appeal of the jury's verdict. (Lodgment No. 4, People v. Daniels, No. D038444, slip op. at 4-7.) Therefore, this Court must determine whether the state appellate court opinion "reflected an unreasonable application of Jackson and Winship to the facts of this case." Allen, 408 F.3d at 1275.

  The state appellate court found that there was sufficient evidence to support the jury's finding that Petitioner was guilty of assault with a deadly weapon pursuant to California Penal Code § 245. (Lodgment No. 2, People v. Daniels, No. D038444, slip op. at 6-7.) Under California Penal Code § 245, assault with a deadly weapon occurs when a person commits an assault on a person "with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." Cal. Penal Code § 245 (2005). Assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Cal. Penal Code § 240 (2005). Assault is a general intent crime, requiring the "intent to willfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another." People v. Rocha, 3 Cal.3d 893, 899 (1971). Contrary to Carr's belief that the van was not used as a deadly weapon, the prosecution presented testimony of several police officers that Petitioner drove the van directly at the patrol cars. (Lodgment No. 2, 8 RT at 20-76; Lodgment No. 4, People v. Daniels, No. D038444, slip op. at 6.) The appellate court stated that jury was not required to accept Carr's opinion as true, and was permitted to accept the police officers' version of the events instead. (Id.) Additionally, the appellate court held that the jury could have easily concluded from the evidence presented that Petitioner used the van as a weapon likely to cause death or severe bodily injury. (Id.) The general intent requirement for assault with a deadly weapon under Rocha was also satisfied as the natural and probable consequence of ramming a van into a patrol car is injury to police officers. (Id. at 5-6; see Rocha, 3 Cal.3d at 899.) As such, the appellate court concluded that the evidence presented at trial supported Petitioner's conviction for assault with a deadly weapon. (Lodgment No. 4, People v. Daniels, No. D038444, slip op. at 7.) Petitioner has failed to show that the appellate court's decision was an objectively unreasonable application of Jackson. The evidence presented at trial was sufficient to establish that Petitioner used the van in a manner constituting assault with a deadly weapon. A large van is undoubtedly a deadly weapon, particularly when used to ram into other cars. Furthermore, such action would clearly be "likely to produce great bodily injury" within the meaning of § 245. Cal. Penal Code § 245 (2005). As the appellate court stated, the jury was presented with testimony from police officers whose cars were rammed by Petitioner and chose to accept that testimony as true rather than the testimony of the expert witnesses Petitioner presented. (Lodgment No. 4, People v. Daniels, No. D038444, slip op. at 6.) This Court must respect the jury's resolution of any conflict between the police officers' version of the events and the testimony of other witnesses. Jackson, 443 U.S. at 319. A finding that Petitioner had driven the van directly into the patrol cars, which is supported by the record, would constitute assault with a deadly weapon. Because the evidence presented at trial could rationally support the jury's finding that Petitioner was guilty beyond a reasonable doubt of assault with a deadly weapon, the state appellate court did not unreasonably apply Jackson. Therefore, Petitioner's claim for habeas relief due to insufficient evidence should be denied. See Williams, 529 U.S. at 412-13.

  B. Ineffective Assistance of Trial Counsel

  As to the second ground in his Petition, Petitioner claims that his Sixth Amendment right to the effective assistance of counsel was violated as a result of his trial attorney's (1) failure to investigate or subpoena witnesses, and (2) failure to object to evidence of his prior convictions presented at trial. (Pet. at 7-7(4).) He states that his attorney failed to prepare, and that, as a result, she made "decisions [that] were unreasonable as a matter of [t]rial strategy." (Traverse at 8.) Respondent argues that Petitioner has failed to satisfy his burden as required under Strickland v. Washington, 466 U.S. 668 (1984) because he fails to show a reasonable probability of a different result but for the attorney's errors, or that he was prejudiced by the references to uncharged misconduct. (Answer at 7.)

  The San Diego County Superior Court, California Appellate Court, and the California Supreme Court all denied Petitioner's claim of ineffective assistance of counsel without reasoned opinions. (Lodgment No. 5, Daniels v. Ryan, No. HC17735 (Aug. 3, 2004); Lodgment No. 7, People v. Daniels, No. S130029, slip op. (March 2, 2005).) Because there is no reasoned state court decision on Petitioner's claim that his trial counsel was ineffective, this Court must conduct an independent review to determine if the state courts unreasonably denied his claims. Delgado, 223 F.3d at 982.

  To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy two requirements. First, he must establish that the attorney's representation did not meet an objective standard of reasonableness. Strickland, 466 U.S. at 688. The Court must inquire whether the attorney's assistance was reasonable under the circumstances. Id. In doing so, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. With regard to a claim based on a failure to investigate, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Again, the court must apply strong deference to the attorney's decisions. Id.

  The second requirement to establish ineffective assistance of counsel is that the petitioner must show a reasonable probability that but for the attorney's inadequate representation, the result would have been different. Id. at 694. Deficiencies in the attorney's representation must prejudice the defense in order to support a Sixth Amendment violation. Id. at 691. There is a strong presumption that the attorney rendered adequate assistance and exercised reasonable professional judgment. Id. at 690.

  To prevail on his claim, the petitioner must prove both requirements and the court may reject his claim by finding either that the attorney's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.

  i. Failure to Investigate and Subpoena Witnesses

  Petitioner argues that Carr's expert witness testimony was presented to the jury by a video tape that was "poorly edited" and "reviewed on a 13" T.V.," and that counsel failed to call a defense expert, Donald R. Parisette, to testify "that Police rammed, or attempted to `smash' the van against the Jersey Wall." (Pet. at 7(2)-(3); Lodgment No. 2, 8 RT at 6; Lodgment No. 2, 12 RT at 549.) However, the attorney's actions do not support a claim for ineffective assistance of counsel, particularly when viewed with deference to the attorney's decisions as required by Strickland. Strickland, 466 U.S. at 691.

  The Ninth Circuit has stated that "[m]ere criticism of a trial tactic is not sufficient to support a charge of ineffective representation." United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985) (quoting Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980)). The record indicates that Carr was leaving the country for a five week vacation, and his testimony was taken in a Conditional Examination so the trial could move forward. (Lodgment No. 2, 8 RT at 17-18). This examination was proposed by Petitioner's attorney and agreed to by the prosecution. (Id. at 18.) The videotape was presented to the jury as recorded, and Petitioner's attorney periodically paused the tape while it was being played to ensure that the jury was able to view the exhibits referred to during the videotape. (Lodgment No. 2, 12 RT at 492-497.) Nothing in the record indicates that Petitioner's trial attorney made an unreasonable decision in videotaping Carr's testimony. Particularly with the strong deference to the attorney's decisions required by Strickland, it cannot be concluded that the attorney did not meet an objective standard of reasonableness to satisfy the first Strickland requirement. In fact, the attorney's decision to videotape Carr's testimony was clearly reasonable under the circumstances as it was the best means by which Carr could testify on Petitioner's behalf.

  Furthermore, the second prong of the Strickland test has not been met with respect to the trial attorney's presentation of Carr's testimony. Petitioner's statement that the videotape was "poorly edited" is not supported by the record as there is no evidence it was edited. It was presented in its entirety to the jury, and paused briefly throughout the tape to ensure that the jury was seeing the exhibits mentioned in the video. (Pet. at 7(2); Lodgment No. 2, 12 RT at 492-497.) In addition, Petitioner fails to set forth any reason why the jury's viewing of the videotape on a 13 inch television was detrimental to his defense. Although Petitioner states that his attorney spoke to Carr "for the first time in Court just moments before the making of the video tape," he does not make a reasonable showing that, assuming this decision constituted attorney error, the result of his case would have been different without the error. (Pet. at 7(2).) As such, Petitioner has not established that his attorney's decisions with respect to Carr's testimony constitute ineffective assistance of counsel in violation of Petitioner's Sixth Amendment rights. Further, Petitioner has not shown that the state court's denial of this claim was an unreasonable application of clearly established Federal law or was based on an unreasonable determination of the facts. Williams, 529 U.S. at 412-13. Therefore, habeas relief should be denied under 28 U.S.C. § 2254(d).

  Petitioner also fails to meet the Strickland requirements on his claim that his trial attorney was ineffective for failing to call Parisette as a witness. The transcript indicates that Petitioner's attorney made every effort to do so given the circumstances; however, Parisette was on vacation and unable to be reached. (Lodgment No. 2, 8 RT at 2-6.) As such, given the deference to the attorney's decisions required by Strickland, Petitioner has failed to show how his trial counsel's failure to call Parisette did not meet an objective standard of reasonableness. See Strickland, 466 U.S. at 688, 689. Furthermore, the trial court indicated that Parisette's report stated that he concurred with defense expert Carr, that there was inadequate physical evidence to meet the legal standard of intent, that the police audiotapes were blank at the time of the alleged assault, that witness statements were inaccurate and contradictory, that the assault charges were not supported by physical evidence or confirmed statements, that it would be difficult to confirm the allegations beyond a reasonable doubt, and that the lesser charges would be more easily met given the evidence. (Lodgment No. 2, 8 RT at 6.) The information Parisette would have provided had he testified would have been duplicative of Carr's testimony. As such, Petitioner does not meet the second requirement in Strickland requiring him to show a reasonable probability that the result would have been different but-for his attorney's failure to call Parisette as a witness. Given that Parisette's testimony would have been similar to Carr's testimony which was presented to the jury, Petitioner has failed to demonstrate that his attorney's failure to call Parisette as a witness was objectively unreasonable under Strickland. Therefore, under 28 U.S.C. § 2254(d), habeas relief should be denied as to this claim.

  ii. Failure to Object to Evidence of Prior Convictions

  Petitioner contends that his attorney's assistance was ineffective because she did not object to exhibits and evidence regarding Petitioner's prior convictions, thereby preventing a fair and impartial trial. (Pet. at 7(3)-(4).) Petitioner states that Exhibit 30 presented information about his robbery conviction, referring to a charge that he had inflicted injury on a 60 year-old woman with a firearm. (Traverse at 11.) Petitioner states that he was acquitted of the charge regarding the use of a firearm. (Id.)

  Assuming Petitioner's statements are true, he has failed to meet the Strickland requirements for ineffective assistance of counsel. Even if presenting an exhibit referring to charges that Petitioner was ultimately acquitted of is unreasonable under the first prong of Strickland, Petitioner fails to establish the second prong of Strickland requiring him to show a reasonable probability that, but for the attorney's inadequate representation, the result would have been different.*fn1 Strickland, 466 U.S. at 694. Given the number and severity of Petitioner's past convictions, it is highly unlikely that this one piece of evidence swayed the jury enough to convict Petitioner. Petitioner's statement that the presentation of this exhibit might have "astounded" the jury and caused them to "become Prejudiced [sic] against the Petitioner on the charge alleged in this case" is insufficient to meet the high standard required by Strickland. Additionally, specific jury instructions were given to the jury to ensure that they would use the past convictions properly and improper prejudice would not occur. As such, the trial attorney's failure to object to evidence of Petitioner's past crimes does not constitute ineffective assistance of counsel under Strickland, and habeas relief should be denied pursuant to 28 U.S.C. § 2254(d).

  C. Ineffective Assistance of Appellate Counsel

  As his third ground for habeas relief, Petitioner argues that he was deprived of the effective assistance of appellate counsel in violation of his Fourteenth Amendment rights. (Pet. at 8.) He claims his appellate attorney failed to challenge the trial court's decision not to bifurcate the trial.*fn2 (Id.; Answer at 7, n. 5.) Respondent cites Smith v. Robbins, 528 U.S. 259 (2000) and Jones v. Barnes, 463 U.S. 745 (1983), in support of the argument that appellate counsel was not ineffective for failing to challenge the trial court's ruling given the procedural background of the case. (Answer at 7, n. 5.)

  As with Petitioner's claim of ineffective trial counsel, the state courts have not furnished a reasoned decision regarding Petitioner's claim of ineffective assistance of appellate counsel. Therefore, this Court must independently review the record to determine if the state court unreasonably applied federal law. Delgado, 223 F.3d at 982. Petitioner's claim of ineffective assistance of appellate counsel must meet the same Strickland requirements set out above. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). Appellate counsel is permitted to select the issues for appeal, and does not have to raise every nonfrivolous claim on appeal. Smith, 528 U.S. at 288 (citing Jones, 463 U.S. 745). Counsel is only ineffective if the issues not raised are shown to be stronger than the issues presented. Smith, 528 U.S. at 288. As the Jones court stated, appellate counsel should examine all arguments for appeal and select the strongest ones. Appellate counsel may reasonably conclude that including the weaker arguments does not help and may actually weaken the force of the stronger arguments. Jones, 463 U.S. at 752.

  Petitioner fails to meet the Strickland standard to establish that he was deprived of the effective assistance of appellate counsel. As discussed above, the first prong of Strickland requires the petitioner to show that the attorney's representation did not meet an objective standard of reasonableness. Strickland, 466 U.S. at 688. Here, Petitioner's appellate attorney acted reasonably given the circumstances of the case. Although the trial judge tentatively agreed to bifurcate trial when it appeared that Petitioner would not testify, she made the final decision not to bifurcate trial after Petitioner testified and refused to admit his prior convictions. (Lodgment No. 2, 10 RT at 126-132.) The trial judge indicated that the case would not be bifurcated if Petitioner testified, making the priors admissible to impeach him. (Id. at 127.) Before Petitioner even testified, but after his attorney had indicated Petitioner's intent to testify, Petitioner was given the opportunity to admit his prior convictions outside the presence of the jury. (Id. at 127-130.) When Petitioner declined to do so, instead pleading "once in jeopardy," the trial judge allowed the priors to be tried before the jury. (Id. at 131.) Petitioner was told that double jeopardy was not an issue in the case as the prior convictions constituted prison priors and strike priors. (Id.) However, because Petitioner refused to change his plea from "once in jeopardy," the trial judge decided it would be best for the jury to try the case. (Id.)

  Petitioner now claims that his appellate counsel erred by not raising this issue on appeal. (Pet. at 8.) Appellate counsel is permitted to choose which issues to appeal, and is generally only ineffective if the issues not chosen are shown to be stronger than those presented. See Smith, 528 U.S. at 288 (citing Gray v. Greer, 800 F.2d 644, 646 (Ill. 1986)). Petitioner has not presented the Court with any evidence that the bifurcation issue is stronger than the issues his appellate counsel chose for appeal, or that his attorney's failure to raise the bifurcation issue on appeal was unreasonable under Strickland. Given the circumstances presented, Petitioner's appellate counsel acted reasonably and within her discretion in deciding not to present the bifurcation issue on appeal. It was reasonable to conclude that the bifurcation argument was not as strong as other arguments for appeal, and, therefore, should not be presented. See Jones, 463 U.S. at 752; Miller, 882 F.2d at 1434. The mere failure to raise a claim on appeal does not render counsel ineffective or prejudice the petitioner. Id. Therefore, Petitioner has not met his burden to satisfy the Strickland test to prove his claim of ineffective assistance of appellate counsel, and habeas relief in unavailable under 28 U.S.C. § 2254(d).

  VI.

  CONCLUSION AND RECOMMENDATION

  For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order DENYING the Petition for Writ of Habeas Corpus.

  IT IS ORDERED that no later than January 18, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than February 1, 2006. The parties are advised that failure to file objections within the specified time may result in a waiver of the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); see also Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

  IT IS SO ORDERED.

20051219

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