The opinion of the court was delivered by: Dana M. Sabraw United States District Judge
ORDER (1) ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Herculano Delgadillo, a state prisoner proceeding pro se, is serving a fifteen-year sentence for four counts of aggravated assault, two counts of corporal injury to a cohabitant, and one count of making a terrorist threat. On July 12, 2005, Petitioner filed a first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises four claims for relief: (1) the admission of victim Rosa Ramirez's preliminary hearing testimony at trial violated his Sixth Amendment right to confrontation; (2) several pieces of evidence were inadmissible, and absent that evidence, there was insufficient evidence to support the verdicts; (3) he received ineffective assistance of appellate counsel; and (4) he received ineffective assistance of trial counsel. The Magistrate Judge issued a thorough Report and Recommendation ("R&R"), finding Petitioner was not entitled to habeas relief on his first claim, but he was entitled to habeas relief on his other claims as to counts six and seven only. Petitioner and Respondent have each filed objections to the R&R, and Petitioner has filed a reply to Respondent's objections. The Court addresses these objections below.
Respondent objects to the Magistrate Judge's recommendation that the Court grant Petitioner habeas relief as to two counts involving assault by means likely to produce great bodily injury, counts six and seven, respectively. Respondent disagrees with the Magistrate Judge's finding that Petitioner's convictions on those counts were based on inadmissible hearsay and that admission of that evidence violated Petitioner's rights under the Confrontation Clause. Respondent also asserts Petitioner did not receive ineffective assistance of counsel. Finally, Respondent disagrees with the Magistrate Judge's finding that there was insufficient evidence to support count seven.
Petitioner objects to the Magistrate Judge's recommendation to deny him relief as to counts three through five. He disagrees with the Magistrate Judge's findings that Ramirez's preliminary hearing testimony was properly admitted by the trial court. He also disagrees with the Magistrate Judge's analysis of the admissibility of Ramirez's prior statements to Officer Vasquez and Detective Behrendt. Petitioner also challenges the Magistrate Judge's analysis of his ineffective assistance of counsel claims.
Because Petitioner filed his habeas corpus petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court's review is limited by the provisions set forth in 28 U.S.C. § 2254(d). Under this Section, a habeas petitioner is not entitled to relief unless he can demonstrate that the state court's adjudication of his 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.
As the facts of the case are not in dispute, Petitioner is entitled to federal habeas relief only if he can meet one of the two bases for relief provided in Section 2254(d)(1). Price v. Vincent, 538 U.S. 634, 639--40 (2003). According to the Supreme Court, Section 2254(d)(1) imposes a "highly deferential standard for evaluating state-court rulings," and "demands that state court decisions be given the benefit of the doubt." Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003) (citing Lindh v. Murphy, 521 U.S. 320, 333 (1997); Woodford v. Visciotti, 537 U.S. 19 (2002)). The Supreme Court reemphasized the deferential standard of review imposed by AEDPA when it reversed the Ninth Circuit's grant of a habeas petition for "fail[ing] to give appropriate deference to the state court's decision." Middleton v. McNeil, 541 U.S. 433, 437 (2004).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court clarified the terms "contrary to" and "unreasonable application of" under Section 2254(d)(1). A state court's 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. Id. at 405. On the other hand, a state court's decision involves an "unreasonable application of" federal law if it either (1) correctly identifies the correct governing legal rule but then applies it to a new set of facts in a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.
Id. at 407. The Supreme Court has repeatedly emphasized that "an unreasonable application of federal law is different from an incorrect application of federal law." Clark, 331 F.3d at 1067 (citing Williams, 529 U.S. at 410). See also Woodford, 537 U.S. at 24 (a federal court may not "substitute its own judgment for that of the state court, in contravention of 28 U.S.C. § 2254(d)."); Penry v. Johnson, 532 U.S. 782, 793 (2001) ("Even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable.") Thus, a "federal habeas court may not issue [a] writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411. Rather, the application must be objectively unreasonable. Yarborough v. Alvarado, 541 U.S. 652, 665-66 (2004).
In addition, when ruling on a habeas petition under AEDPA, the key inquiry is not whether the state court "erred." In Lockyer v. Andrade, 538 U.S. 63 (2003), the Supreme Court did "not reach the question whether the state court erred" in deciding whether habeas relief should be granted, but rather focused "solely on whether § 2254(d) forecloses habeas relief." Id. at 71. In doing so, the Supreme Court overruled the Ninth Circuit's previous requirement that federal habeas courts review the state decision de novo before applying the AEDPA standard of review, and expressly held that the only question that matters under Section 2254(d)(1) is whether the state court decision is contrary to, or involved an unreasonable application of, clearly established federal law. Id.
B. Confrontation Clause: Admission of Ramirez's Preliminary Hearing Testimony at Trial
As indicated in the R&R, the victim, Rosa Ramirez, did not testify at Delgadillo's trial. However, Ramirez's testimony at the preliminary hearing was read into the record. Petitioner argues the admission of Ramirez's preliminary hearing testimony violated his Sixth Amendment confrontation rights. The state appellate court and the Magistrate Judge disagreed. Petitioner nonetheless objects to the finding in the R&R, and maintains his confrontation rights were violated.
Petitioner argues the admission of Ramirez's preliminary hearing testimony does not meet the "unavailability" requirement of the Sixth Amendment's Confrontation Clause because the prosecution did not exercise "reasonable diligence" to procure Ramirez's presence at trial. Specifically, Petitioner argues the prosecution's efforts were unreasonable given that Ramirez was a critical witness, and was known to be uncooperative and unwilling to testify at trial. Although the prosecution (a) subpoenaed Ramirez, (b) requested the state trial judge to order her back, (c) requested the court to issue a warrant of attachment after she failed to appear, and (d) had investigators drive to her last known address in Los Angeles in an attempt to execute the warrant, Petitioner argues the prosecution should have done more to secure Ramirez's attendance. Namely, the prosecution should not have left Ramirez's last known address immediately after the search, and the prosecution should have requested a continuance to attempt to procure Ramirez's presence at trial.
The California Court of Appeal determined the prosecution exercised due diligence to secure Ramirez's presence at trial. This Court agrees with this finding. For essentially the same reasons outlined in the California Court of Appeal's "unavailability analysis," the totality of the circumstances indicates the prosecution employed reasonable diligence in its efforts to secure Ramirez's presence at trial. Namely, the prosecution subpoenaed Ramirez and had the trial judge order her back. When she failed to appear for trial on September 6, 2000, the prosecution obtained a warrant of attachment from the court and directed investigators to drive to Ramirez's last known address in Los Angeles to execute the warrant and physically return her to court. On September 7, 2000, the investigators interviewed the occupants of Ramirez's residence, searched the house, and searched the street for Ramirez's car. However, the investigators were unable to locate her. Because the prosecution took these affirmative and timely steps to secure Ramirez's presence at trial, it appears the prosecution made a good-faith effort to locate and present the witness. Ramirez was appropriately deemed unavailable ...