The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction for two counts of home invasion robbery in concert with others, assault with a firearm, receipt of stolen property and possession of a firearm as a felon. Petitioner was also originally convicted of personally using a handgun in connection with the home-invasion robberies. On appeal, his convictions for personally using a handgun were reversed and he was resentenced to 18 years.
This action is proceeding on the amended petition filed October 26, 2006, and the supplemental petition filed December 12, 2007. The October 26, 2006, amended petition raises claims challenging the use of petitioner's prior juvenile conviction as a strike to increase his sentence. In particular, petitioner claims that use of the juvenile conviction as a strike violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the juvenile conviction is invalid because the juvenile court failed to state on the record what factors it considered in aggravation as well as the reasons for confining petitioner in the California Youth Authority for the maximum period allowable, and his juvenile conviction should not have been used as a strike because it should have been reduced to a misdemeanor.
The December 12, 2007, supplemental petition raises the following new claims: 1) the trial court denied petitioner's Sixth Amendment right to counsel by refusing to permit him to withdraw his Faretta waiver; 2) the trial court violated the equal protection clause when it failed to impose concurrent sentences; 3) the trial court violated the due process clause by denying petitioner's motion for a new trial; 4) juror misconduct; 5) ineffective assistance of appellate counsel and counsel who represented petitioner at sentencing; 6) jury instruction error; 7) cumulative error.
After carefully considering the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).
In order to determine the proper standard of review to apply to each claim, the following background information is necessary. In his direct appeal petitioner raised two claims:
1) denial of the right to counsel; and 2) use of the prior juvenile conviction as a strike violated Apprendi, supra. The California Court of Appeal issued a reasoned decision denying these claims. Respondent's Lodged Document 4. The California Supreme Court denied the petition for review without comment or citation. Id., 7. However, Justice Kennard was of the opinion that the petition should be granted. Id. Accordingly, the court considers whether the denial of these claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.
On May 5, 2004, petitioner filed a habeas corpus petition in the Sacramento County Superior Court raising the following claims: 1) the trial court erred when it failed to impose concurrent sentences; 2) ineffective assistance of counsel at sentencing; 3) ineffective assistance of appellate counsel. Id., 8. On June 17, 2004, the Superior Court issued a reasoned opinion denying these claims on the merits. Id., 9.
On July 8, 2004, petitioner filed a second habeas corpus petition in Sacramento County Superior Court. Id., 12. This petition raised claims alleging 1) ineffective assistance of counsel and appellate counsel; 2) juror misconduct; 3) the trial court erred in denying petitioner's new trial motion. Id., 12. On August 25, 2004, the Superior Court issued an opinion denying the petition as successive. The Superior Court also denied the juror misconduct claim on the merits. Id., 13. The Superior Court found that petitioner's claim alleging that the trial court improperly denied his new trial motion should have been raised on appeal, citing In re Dixon, 41 Cal.2d 756, 759 (1953). Id. The court denied the ineffective assistance of trial and appellate counsel claims on the merits. Id.
On August 17, 2004, petitioner filed a third habeas corpus petition in Sacramento County Superior Court. Id., 14. This petition raised claims alleging that the trial court failed to consider his ability to pay in setting the amount of the restitution fine and that if this error was waived, then trial counsel was ineffective for failing to object. Id. On September 26, 2005, the Superior Court denied this petition as untimely, successive and on the merits. Id., 15.*fn1
On July 19, 2004, petitioner filed a habeas corpus petition in the California Court of Appeal. Id., 16. This petition raised the following claims: 1) ineffective assistance of trial and appellate counsel; 2) the trial court erred in failing to impose concurrent sentences. Id. On July 22, 2004, the California Court of Appeal denied this petition without comment or citation. Id., 17.
On January 19, 2005, petitioner filed a second habeas petition in the California Court of Appeal. Id., 18. This petition raised the following claims: 1) ineffective assistance of trial and appellate counsel; 2) juror misconduct; 3) the trial court erred in denying his motion for a new trial. Id. On January 27, 2005, the California Court of Appeal denied this petition without comment or citation. Id., 19.
On October 27, 2005, petitioner filed a third habeas petition in the California Court of Appeal. Id., 20. In this petition, petitioner requested that the restitution order be vacated. Id. On November 10, 2005, the California Court of Appeal denied this petition without comment or citation. Id., 21.
On June 12, 2006, petitioner filed a petition for a writ of mandate in the California Court of Appeal. Id., 22. On June 22, 2006, the California Court of Appeal denied this petition without comment or citation. Id., 23. On August 21, 2006, petitioner filed a petition for a writ of error coram vobis in the California Court of Appeal. Id., 24. On August 31, 2006, the California Court of Appeal denied this petition without comment or citation. Id., 25.
On July 3, 2006, petitioner filed a petition for review of the denial of his petition for writ of mandate in the California Supreme Court. Id., 26. On August 16, 2006, the California Supreme Court denied this petition without comment or citation. Id., 27.
On September 11, 2006, petitioner filed a petition for review of the denial of his petition for a writ of error coram vobis in the California Supreme Court. Id., 28. On October 18, 2006, the California Supreme Court denied this petition without comment or citation. Id., 29.
In the petitions for review filed in the California Supreme Court, petitioner raised the same claims he raises in the instant petition challenging the use of his juvenile conviction as a strike. Id, 26, 28. Because no state court issued a reasoned decision denying these claims, this court independently reviews these claims to determine whether their denial by the California Supreme Court was an unreasonable application of clearly established Supreme Court authority.*fn2
This court agrees with respondent that petitioner's remaining claims (trial court erred in imposing concurrent sentences and denying new trial motion, juror misconduct, ineffective assistance of trial and appellate counsel, and jury instruction error) are unexhausted because they were not presented to the California Supreme Court. However, because these claims are without merit they may be considered despite lack of exhaustion. 28 U.S.C. § 2254(b)(2). The court reviews these claims de novo. See Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
FACTUAL AND PROCEDURAL BACKGROUND
Robbery victim Michelle Coleman (Michelle) lived with her sister Eva Jacobs (Eva), their young children, and an infant cousin in a duplex on Libra Avenue in Sacramento County.*fn3
On the evening of the robberies, Michelle and Eva went to a nightclub with Eva's boyfriend, Emory Jackson (Emory). Michelle's brother-in-law, Joe Johnson (Joe), stayed at home with the children.
At the nightclub, Eva saw co-defendant Richard Ward, whom she knew, and the two had a friendly exchange.
After the club closed, Eva and her boyfriend Emory drove home to the duplex on surface streets. At a stop sign, a small, dark-colored car drew alongside them. Someone from that car fired a gun toward Eva's car, and then sped off, followed closely by a second car, an older model, white Cadillac. Eva and Emory then returned to Eva's house, parking her car outside. A bullet hole was later found in the car's rear passenger door.
Around that time, Michelle returned to the duplex, accompanied by Mark Bluster (Mark), with whom she had been drinking at the nightclub. The two sat talking in Mark's car, in front of the house.
After she was inside the duplex, Eva heard a car pull up, but saw no car lights. Emory looked out the window and told Eva that it was the "guys" who had shot at them earlier. Eva accordingly ran toward the rear bedroom where Joe and the children were sleeping, and yelled to him to wake up and get out of the house. She then climbed out a back window with her daughter and Emory. They hid in a neighbor's shed.
As Michelle sat with Mark outside the duplex, she saw a newer model silver or gray car with no rear license plate light circling "in the court." Michelle "had a bad feeling about the way the car came in the court because there was no back license plate light." Suddenly, Michelle heard a lot of shouting, and she and Mark were physically pulled from their car. Michelle's coat was pulled over her head so that she could see nothing. Mark saw a gun or guns pointed at him as he was pulled from the car, but thereafter only felt a gun. Michelle was "pistol whipped" on the back of her head and moved toward the front door of the duplex, where one of her assailants demanded that she open the door. After Michelle failed to comply, someone kicked the door in. Once inside the house, Mark was made to lay face down and was hit in the head; someone took his jewelry, cell phone, and pager.
Michelle did not see her assailants, did not see what type of clothing they were wearing, and did not actually see the car in which the assailants had arrived. Mark noticed that some of the robbers were wearing gloves, but did not see their faces because they all wore masks; and he could not describe their height, except to say that no one was taller than his 6 feet, 5 inches. In sum, he said that he "didn't see nothing because my face was bend [ sic ] down." Both Michelle and Mark testified that they heard three or four different voices during the attack, and Mark testified at trial that there were four or five assailants.
Inside the duplex, Joe (Michelle's brother-in-law and babysitter) had been awakened by Eva's yelling and emerged from the rear bedroom. He saw four men in the hallway, all wearing black masks, jackets, long pants, and gloves. He could not see their faces or discern their race.
Joe noticed that two of the men had handguns. One of the robbers stuck Joe in the neck with what Joe thought was a black Beretta or other nine-millimeter handgun, and asked who else was in the house, demanding money, jewelry, and the keys to the car parked out front. He then directed Joe to lay down as others searched the house. While Joe was on the floor, he was hit in the back of the head by one of the robbers, and someone stepped on him.
When the assailants had gone, Michelle saw that the house had been "demolished," the stereo was gone, and $400 was missing from her dresser drawer. Michelle had a raised lump on the back of her head and a bruise on the back of her neck; Mark had a bump on the back of his head; and Joe had a bruise on the back of his head and a rash on his neck where the gun had made contact with him.
From their hiding place in the neighbor's shed, Eva and her boyfriend Emory used her cell phone to call the police, reported that there were intruders in the house, and described the shooting earlier that night.
A nearby sheriff's deputy, Kristina Albright, heard a radio report of the robbery and learned that the suspects may have used a newer, silver Cadillac. Shortly thereafter, she saw a newer, silver Cadillac emerge from the Libra Avenue cul-de-sac and followed it.
Other officers responded to the deputy's dispatch and also began following the Cadillac. Sergeant Robert Rinelli saw that two people were in the car. The driver was a light-skinned black man; the passenger was a darker-skinned black man wearing a dark knit ski cap and dark clothing. When Deputy Albright activated her car lights, the Cadillac accelerated briefly and then stopped abruptly. The passenger opened the car door and fled through the adjacent yards; Rinelli chased him. At trial, Sergeant Rinelli identified defendant as the fleeing passenger. Co-defendant Ward was the driver of the Cadillac. When the car stopped, he was wearing black shorts, a red and black coat, and a white shirt.
A few minutes later, defendant was found by officers hiding in a trash can behind a nearby house. With him in the trash can were a black jacket, a black sweat shirt, a black stocking cap, and one black glove, which an officer testified were the clothes that defendant had been wearing when he ran from the Cadillac.
A nine-millimeter Beretta pistol with live ammunition was found on the sidewalk five to 10 feet away from the Cadillac's open front-passenger door.
When Michelle saw the car in which Ward and the defendant had been riding, she told police that she was "100 percent positive" that it was the same car that the assailants had been driving. Mark was also taken to view the car; he told police that he noticed the car in the cul-de-sac once, 15 or 20 minutes before the assault. Inside the Cadillac were various items that Eva identified as belonging to her, including stereo equipment and a duffel bag. Ward had $400 wadded up in his pants pocket, outside his wallet. None of Mark's property was found in the car. Defendant and Ward were charged with the robbery of Michelle and Mark, receipt of stolen property, and assault of Joe Johnson with a firearm. In connection with the robbery charges, it was charged that defendant and Ward acted in concert and entered an inhabited structure (in violation of section 213, subdivision (a)(1)(A)), that Ward was armed with a firearm, and that defendant personally used a firearm in the commission of each robbery. Defendant alone was charged with being a felon in possession of a firearm (§ 12022.53, subd. (b)).
Defendant and Ward were tried together before the same jury.
The key issue in the case was identity, because none of the victims were able to describe or identify their assailants. The prosecution's theory was that defendant was the robber who personally pointed a gun at Michelle and Mark in the course of the robberies, and that Ward was liable only as an aider and abettor. As to the assault on Joe, the prosecution sought to hold both defendant and Ward liable as aiders and abettors under the theory that an assault with a deadly weapon was the natural and probable consequence of their participation in an armed home-invasion robbery.
For their part, the defense sought to impeach the victims' testimony by (among other things) highlighting the inconsistencies between their trial testimony and their reports to police on the night of the crimes. They introduced a stipulation that Michelle had reported to police that the robbers arrived when she was standing on her front porch trying to unlock the door, not while sitting in the car; that she never saw any gun, but only felt "something hard being pushed against [her] head"; and that she did not report to police that she was pistol-whipped by her attackers. In addition, they showed that Michelle had several felony convictions. They also elicited testimony that in contrast to his trial testimony, Joe had advised police that he had seen only one robber in the hallway outside the bedroom and mentioned that only one other robber entered the room.
At trial, Joe testified that he told police that "the first guy sounded black, but he could have been a white kid raised in the ghetto, [and] the second guy was lighter than the first." To rebut Joe's testimony that even though he could not remember seeing the skin color of any of the robbers, his use of the word "lighter" in his earlier interview with police must have referred to the robbers' respective skin color, the officer who interviewed Joe testified for the defense that Joe reported that he could not describe the robbers' race and used the word "lighter" to describe the robbers' relative weights.
Eva's credibility was challenged with her admissions that her original reports to police falsely omitted all mention of her boyfriend Emory: Because Emory had an outstanding warrant for his arrest, she told police that she (not Emory) saw the assailants from the front window and that she (not Emory) was driving when her car was fired upon.
Defendant emphasized that no fingerprints were found on the Beretta pistol recovered by the police. And Sergeant Rinelli testified that he did not see defendant drop or toss any weapon as he emerged from the Cadillac, even though he had a clear view of defendant the entire time and the street lights were bright. To explain why co-defendant Ward had $400 in his pocket when the Cadillac was stopped, his girlfriend testified on his behalf that she had given him $400 in cash on the night of the robberies.
The jury nonetheless found both defendants guilty on all counts and found true all enhancement allegations submitted to them.
Respondent's Lodged Document 4, pp. 3-10.
A. Claims Challenging Use of Juvenile Conviction as Strike: Amended Petition, Supplemental Petition (Claims 5, 8)
The amended petition raises the following claims challenging use of petitioner's prior juvenile conviction as a strike. First, petitioner argues that the juvenile conviction should not have been used as a strike because the sentencing judge during the juvenile proceedings failed to state on the record what factors he considered in aggravation as well as the reasons for confining him to the California Youth Authority (CYA) for the maximum allowable period. Petitioner also alleges that his prior juvenile conviction should not have been used as a strike because it should have been reduced to a misdemeanor following his release from CYA. The amended petition also appears to raise a claim alleging that use of the prior juvenile conviction as a strike violated Apprendi v. New Jersey, supra.
Claim 5 of the supplemental petition realleges the claim that use of the prior juvenile conviction as a strike violated Apprendi v. New Jersey, supra. Claim 8 realleges the claim that petitioner's juvenile conviction should not have been used as a strike because it should have been reduced as a misdemeanor when he was discharged from the Youth Authority. The court now turns to the merits of these claims.
Petitioner's claims alleging that his juvenile conviction should not have been used as a strike because the sentencing judge failed to state on the record what factors he considered in aggravation as well as the reasons for confining him to CYA for the maximum period challenge the validity of the prior juvenile conviction.
The United States Supreme Court held in Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567 (2001), that "once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available....the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained." Lackawanna, 532 U.S. at 403-404, 121 S.Ct. 1567.
The Supreme Court recognized an exception to this rule where the prior conviction was obtained in violation of the Sixth Amendment right to counsel under Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792 (1963). See Lackawanna, 532 U.S. at 404. The Supreme Court also left open the possibility of two other exceptions -- where the defendant cannot be faulted for failing to obtain timely review of a constitutional claim (e.g., where a state court, "without justification, refuses to rule on a constitutional claim that has been properly presented to it"), and where, after the time for direct or collateral review has expired, the defendant obtains ...