The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (Document 1)
Petitioner David Michael Alvarado ("Petitioner") is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.
On August 20, 2004, in the Tulare County Superior Court, a jury convicted Petitioner of carjacking with a firearm use enhancement. He was sentenced to 16 years and 8 months in prison.*fn1
On February 17, 2005, Petitioner appealed his conviction to the California Court of Appeal, Fifth Appellate District. The court affirmed the judgment, but directed the trial court to amend the sentencing order and abstract of judgment to delete any references to the imposition of a restitution fine or a parole revocation fine.
On August 9, 2006, Petitioner filed a petition for writ of habeas corpus in the Tulare County Superior Court. The court denied the petition on August 10, 2006.
Petitioner filed a petition for writ of habeas corpus in the Fifth District Court of Appeal on September 13, 2006. The petition was denied on March 23, 2007.
On April 18, 2007, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The court denied the petition on October 10, 2007.
Petitioner filed the instant federal petition for writ of habeas corpus on July 12, 2007. He alleges (1) ineffective assistance of counsel; (2) ineffective assistance of appellate counsel; (3) violations of his Fifth Amendment right against self-incrimination; and (4) identification through an impermissible lineup.
Respondent filed an answer on April 3, 2008.
Petitioner did not file a traverse.
On January 10, 2004, Randall Clemons arrived home and parked his car in his driveway. According to Clemons, Petitioner approached his car, placed a gun to his head, and ordered Clemons to give him the keys to his car. Petitioner subsequently grabbed Clemons' car keys and ordered Clemons to go inside his house. Petitioner then drove off with Clemons' car. Two days later, a California Highway Patrol officer spotted Petitioner driving Clemons' car and activated his police emergency lights. Petitioner attempted to evade the officer by recklessly driving at a rate of 100 miles per hour. A pursuit ensued, and Petitioner eventually stopped the car in an orchard. Petitioner got out of the car and attempted to flee the scene. The officer caught up with Petitioner, who allegedly told the officer, "'[d]on't arrest me, don't arrest me, I can give you other people, other things, drug dealers and stolen car.'" Petitioner admitted to the officer that he knew the car was stolen and claimed to have bought it from another person for $500. Petitioner also stated that "'[c]arjacking is a big thing, isn't it? But they need to have a gun to prove it. The most they've got is joyriding.'"
Petitioner initially identified himself as his brother, Jesse Alvarado, Jr., and provided a false date of birth. Based on this information, a photo lineup was generated but Clemons was unable to positively identify the gunman. A second photographic lineup included a picture of Petitioner, but Clemons was again unable to make an identification.
On the day of the preliminary hearing, Clemons and Officer Alvarez entered the courtroom to wait for the hearing to begin. Clemons immediately identified Petitioner, who was seated in the jury box with two other inmates, as the carjacker. RT 211. He was 100 percent sure of his identification and he informed Officer Alvarez. RT 214.
During trial, Clemons described the person as a short Hispanic male, approximately 25 to 35 years old. RT 121. He identified Petitioner as the assailant. RT 126.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. Petitioner challenges his conviction imposed by the Tulare County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
This Court may entertain a petition for 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 AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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); Lockyer v. Andrade,123 S.Ct.1166 (2003) (disapproving of the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000)); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).
While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983); Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769 (1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997).
C. Ineffective Assistance of Trial Counsel
Petitioner presents numerous claims of ineffective assistance of counsel. Specifically, he alleges that counsel was ineffective for (1) failing to advise Petitioner that he would be subject to a ten year enhancement if he rejected the plea deal and the firearm enhancement was proven at trial; (2) refusing to let Petitioner testify in support of a third-party culpability defense; (3) interviewing Petitioner only twice before trial; (4) failing to interview and investigate potential and actual witnesses before trial; and (5) failing to investigate and obtain materials relating to police procedures for obtaining Miranda waivers.
The law governing ineffective assistance of counsel claims is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998.) In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell below an objective standard of reasonableness, and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's ...