FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on August 24, 2001 in the Sacramento County Superior Court following his trial and conviction on charges of possession of more than 28.5 grams of marijuana, transportation of marijuana and driving without a valid license. He seeks relief on the grounds that: (1) jury instruction error violated his right to due process; (2) his trial and appellate counsel rendered ineffective assistance; and (3) his right to due process was violated at his sentencing hearing. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
An amended information charged defendant Billy Shelton Vaughan and co-defendant Henry Vaughan with possession of marijuana for sale (Health & Saf.Code, § 11359; count one) and transportation of marijuana (Health & Saf.Code, § 11360, subd. (a); count two). Defendant was also charged with driving without a valid license, a misdemeanor (Veh.Code, § 12500, subd. (a); count three). It was further alleged that defendant had a strike prior (1979 robbery) (Pen.Code, §§ 667, subds.(b)-(i), 1170.12) and that co-defendant Henry Vaughan had served five prior prison terms (§ 667.5, subd. (b)).
A jury acquitted defendant on count one but convicted him of the lesser included offense of possession of more than 28.5 grams of marijuana (Health & Saf.Code, § 11357, subd. (c)). The jury also convicted defendant on counts two and three. In bifurcated proceedings, the court found the strike prior to be true.
Sentenced to state prison, defendant appeals, contending the trial court committed instructional error.*fn2 We will affirm.
About 6:30 p.m. on March 4, 2001, Sacramento Police Officer Douglas Tracy pulled over a red Escort for speeding. As the officer approached the car, he smelled marijuana. Defendant was the driver and unable to produce a driver's license. Henry Vaughan was sitting in the passenger's seat. As Henry looked in the glove box, apparently for the registration and evidence of insurance, the officer shined his flashlight into the glove box for reasons of officer safety. On the passenger floorboard between Henry's feet and not under the seat, Officer Tracy saw a baggie containing 281 grams of marijuana in brick form. Defendant and Henry were ordered from the car. A search of the car revealed a scale in the baggie with the marijuana brick and 5.63 grams of marijuana in a baggie stuck between the driver's seat and the center console. An officer found 1.99 grams of marijuana, $2,399 and a pager on Henry's person. No marijuana cigarette butts or rolling papers were found. An expert opined that the marijuana was possessed for sale. Based on two or three marijuana cigarettes per gram, the 281-gram brick would produce between 561 and 837 marijuana cigarettes; a chronic user uses five to six a day. A subsequent search of the residence defendant and Henry shared with others revealed no other evidence.
Defendant testified. He and Henry are step-brothers. Defendant claimed he used marijuana occasionally but that Henry used marijuana all the time; he had never seen Henry sell it. At the time of the stop, defendant was driving Henry's car but did not have a valid driver's license. They had started to help a friend move and then ran errands. Afterward, Henry asked defendant to drive his car. Defendant claimed he had difficulty seeing out of his right eye at the time but had surgery after his arrest to remove a cataract. While driving Henry's car, defendant knew that Henry was rolling a marijuana cigarette because Henry said he was and defendant could hear it but did not see it. Defendant later said he saw Henry smoking a marijuana cigarette. Defendant denied seeing the marijuana brick on the floorboard or any other marijuana. The automatic shift on Henry's car was on the console between the seats. Defendant denied speeding. He admitted having previously been convicted of robbery in 1979 and possession of counterfeit money in 1998.
Henry also testified. He claimed that the marijuana brick, the baggie with marijuana found between the seat and console and the baggie in his pocket all belonged to him, not defendant. Henry explained that the marijuana was intended for his personal use, not to sell, and that it was cheaper to purchase in a large quantity. After the death of his father, Henry increased his marijuana use from four to five marijuana cigarettes a day to as many as 15 a day. Dr. Joseph Martel, an ophthalmologist, examined defendant on May 23, 2001, and performed surgery on him on May 31, 2001, to remove a mature (at least a year old) cataract on his right eye which made defendant's vision "considerably worse" than the standard of legal blindness.
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
A. Jury Instruction Error
Petitioner claims that the trial court violated his right to due process when it instructed the jury with CALJIC Nos. 2.62 and 17.41.1. (Petition filed March 14, 2006 (hereinafter Pet.) at 5, 9-11.) After setting forth the applicable legal principles, the court will address both of these jury instruction error claims in turn below.
A challenge to jury instructions does not generally state a federal constitutional claim. See Middleton v. Cupp, 768 F.2d at 1085 (citing Engle v. Isaac, 456 U.S. at 119); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). However, a "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)). See also Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (To prevail on such a claim petitioner must demonstrate that an erroneous instruction "so infected the entire trial that the resulting conviction violates due process.") The analysis for determining whether a trial is "so infected with unfairness" as to rise to the level of a due process violation is similar to the analysis used in determining, under Brecht, 507 U.S. at 623, whether an error had "a substantial and injurious effect" on the outcome. See Polk v. Sandoval, 503 F.3d 903, 911 (9th Cir. 2007) (standard applied to habeas petition presenting a jury instruction challenge); McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993).
In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely 'undesirable, erroneous, or even "universally condemned,"' but must violate some due process right guaranteed by the fourteenth amendment." Prantil, 843 F.2d at 317 (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). In making its determination in this regard, the court must evaluate the challenged jury instructions "'in the context of the overall charge to the jury as a component of the entire trial process.'" Prantil, 843 F.2d at 817 (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). The United States Supreme Court has cautioned that "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton v. McNeil, 541 U.S. 433, 437 (2004). Further, in reviewing an allegedly ambiguous instruction, the court "must inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). See also United States v. Smith, 520 F.3d 1097, 1102 (9th Cir. 2008).
Petitioner's first jury instruction claim is that the trial court violated his right to due process, in violation of Carella v. California, 491 U.S. 263 (1989) and Sandstrom v. Montana, 442 U.S. 510 (1979), when it instructed the jury with CALJIC No. 2.62. (Pet. at 9-11.) Petitioner argues that this instruction constituted an improper mandatory presumption because it "removed the element of specific intent" and essentially directed a guilty verdict. (Traverse at 2.) Petitioner further argues that the language of CALJIC No. 2.62 conflicted with the language of CALJIC No. 2.01 which was also read, thereby confusing the jury.*fn3 (Id. at 4-5.) Finally, petitioner claims that the giving of CALJIC No. 2.62 was a structural error that is not subject to harmless error review because the challenged instruction "directed a verdict for the prosecution in a criminal trial." (Id. at 5.)
The California Court of Appeal determined that the trial court did not err in instructing the jury with CALJIC No. 2.62. In the alternative, the court concluded that any error was ...