The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's petition (Doc. 1), respondent's answer (Doc. 10), and petitioner's reply (Doc. 12).
Petitioner was convicted of assault with a deadly weapon with a finding he personally inflicted great bodily injury. In July 2001, he was sentenced to an aggregate term of six years in state prison. While petitioner's direct appeal was pending, petitioner requested that the trial court re-sentence him due to ineffective assistance of counsel. Specifically, petitioner asserted that his trial counsel had failed to inform him of a plea offer by the court. The trial court recalled petitioner's sentence on November 13, 2001, and later conducted an evidentiary hearing. A February 26, 2003, opinion by the California Court of Appeal reveals the following concerning petitioner's request for re-sentencing:
At the hearing, defendant's . . . counsel testified that the court (Judge Gary Ransom), "would give one year, no work furlough." The People's offer was "five years." Counsel stated that he did not have a specific recollection of communicating the offer to defendant. Defendant testified that the first time he heard of the offer by the court was when it was withdrawn and that he would have accepted the offer because he found out he could keep his job.
The court found that prior counsel "did not have a meaningful discussion with the defendant about the [court's] offer." However, upon reviewing the probation officer's report, the court concluded Judge Ransom would not have approved the bargain. Because of a lack of prejudice, the court denied defendant's request for modification of his sentence, but agreed to stay the ruling for one week to afford defendant the opportunity to speak with Judge Ransom regarding whether Judge Ransom would have followed through on the bargain.
Judge Ransom issued a memorandum stating: "It has been brought to my attention that at one time I had offered [defendant] a plea bargain of No State Prison at the Outset. Upon reviewing the contents of the Probation Report as it relates to the actual incident, I note two things. First, I was not made fully aware of the true actions of [defendant] at the time of my offer. Second, upon reviewing the probation report, I would have withdrawn the No State Prison offer. I feel that his actions clearly warrant a state prison commitment."
Based on Judge Ransom's memorandum, the original six-year sentence was ratified by the trial court on March 29, 2002.
On September 25, 2002, petitioner's appointed counsel filed an opening brief pursuant to People v. Wende, 25 Cal.3d 1979), in the California Court of Appeal requesting that the court conduct an independent review of the record. On November 7, 2002, petitioner filed a pro se supplemental opening in the California Court of Appeal arguing: (1) ineffective assistance of counsel relating to the plea offer; and (2) violation of Brady v. Maryland, 376 U.S. 83 (1963), when the prosecution failed to submit a toxicology report. The Court of Appeal's February 2003 opinion addressed petitioner's claim of ineffective assistance of counsel. On March 12, 2003, petitioner filed a petition for rehearing of the Court of Appeal's February 2003, decision. The Court of Appeal denied rehearing on March 18, 2003, without comment or citation.
On April 7, 2003, petitioner filed a pro se petition for review in the California Supreme Court, raising the following claims: (1) ineffective assistance of counsel regarding the plea offer; and (2) a Brady violation regarding the toxicology report. As to his claim of ineffective assistance of counsel, petitioner argued that the trial court had improperly considered evidence in denying re-sentencing, and that the probation report relied on by Judge Ransom was incorrect. The California Supreme Court denied review on June 11, 2003, without comment or citation.
On April 11, 2003, petitioner filed a motion to vacate the judgment which was re-imposed in March 2002. That motion was denied on May 28, 2003, and petitioner appealed. On December 4, 2003, petitioner filed a counseled opening brief in the Court of Appeal raising a procedural challenge to the re-imposition of the original sentence in March 2002. In particular, petitioner argued that the motion to vacate should have been granted because the original sentence had not been recalled within 120 days of its imposition. On April 20, 2004, the California Court of Appeal issued a reasoned decision rejecting this claim. It does not appear that this issue was ever raised in the California Supreme Court.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings unless ...