The opinion of the court was delivered by: Alfred T. Goodwin United States Circuit Judge Sitting by designation
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DOCUMENT # 29)
Earl Price is currently in the custody of the California Department of Corrections at the State Prison in Solano,*fn1 serving a sentence of 14 years pursuant to a judgment of the Superior Court of the State of California, in and for the County of San Joaquin, entered August 12, 2003. A jury convicted Price of selling cocaine base in violation of California Health and Safety Code section 11352.*fn2
The trial court found that Price had two prior convictions for similar offenses and had served three prior prison terms. The court sentenced him to serve consecutive terms of five years, the upper limit for his conviction under section 11352; two three-year terms for each of his prior narcotics convictions pursuant to California Health and Safety Code section 11370.2(a); and three one-year terms for each of his prior prison terms pursuant to California Penal Code section 667.5(b).*fn3
Price timely appealed to the California Court of Appeal, which modified the judgment but affirmed his conviction and sentence on June 29, 2004. After the United States Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. 296 (2004), Price petitioned for rehearing and argued that the trial court's imposition of the upper term violated the Sixth Amendment because it was based on factors that were not found by a jury to be true beyond a reasonable doubt. The Court of Appeal rejected the challenge in an unpublished opinion. People v. Price, 2004 Cal. App. Unpub. LEXIS 8995 (Cal. Ct. App. 2004). Price appealed to the California Supreme Court, which denied review without prejudice pending its decisions in two cases that would determine the effect of Blakely on California law. People v. Price, 2004 Cal. LEXIS 12124 (Cal. 2004).
Price then petitioned for a writ of habeas corpus in the San Joaquin County Superior Court, which issued a reasoned decision denying the petition on May 10, 2005. He filed the same petition with the California Court of Appeal, which issued a denial without comment on June 9, 2005. Price then sought review by the California Supreme Court, which denied his request without comment on May 10, 2006.
This petition for habeas corpus is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), which took effect on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA standard, this court cannot grant a habeas petition unless the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was (2) "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)(1)--(2). The term "clearly established Federal law" refers to the holdings of the Supreme Court and not dicta. Carey v. Musladin, 549 U.S. 70, 74 (2006). "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en banc).
A state court decision is "contrary to" clearly established Supreme Court precedent if the decision "contradicts the governing law set forth in" Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision constitutes an "unreasonable application" of federal law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. A federal court may not issue the writ simply by concluding in its independent judgment that the state court applied federal law incorrectly. Id. at 411. "An 'unreasonable application of federal law is different from an incorrect application of federal law.'" Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (quoting Williams, 529 U.S. at 410).
Price has the burden of establishing that the state court's decision is contrary to or involved an unreasonable application of Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Duhaime v. Ducharme, 200 F.3d 597, 600--01 (9th Cir. 1999). AEDPA requires that this court "give great deference to the state court's factual findings." Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The state court's factual findings are presumed correct. 22 U.S.C. § 2254(e)(1).
In his petition, Price raises seven grounds for relief: (1) his right to a speedy trial was violated because 76 days elapsed between his arraignment on the charges and the commencement of his trial; (2) his Sixth and Fourteenth Amendment rights were violated because he was compelled to appear before the jury in jail attire; (3) ineffective assistance of trial counsel; (4) his Sixth and Fourteenth Amendment rights were violated because the trial court failed to obtain a knowing and intelligent waiver on his right to a jury trial on his prior convictions; (5) his Fourteenth Amendment due process rights were violated because the trial court failed to issue a sua sponte jury instruction on entrapment; (6) ineffective assistance of appellate counsel; and (7) his Sixth Amendment right to a jury trial was violated because the trial court relied on factors other than his prior convictions that were not found by a jury to be true beyond a reasonable doubt when the court imposed an upper-term sentence.
The exhaustion doctrine requires a petitioner to provide the state court with the opportunity to rule on the federal aspect of each claim prior to bringing it into federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2005); Fields v. Waddington, 401 F.3d 1018, 1020--21 (9th Cir. 2005). The State concedes that Price has exhausted all claims except claim two, which it asserts that Price did not exhaust because he failed to allege facts with sufficient particularity to justify relief. Notwithstanding Price's alleged failure to exhaust this claim, this court may nonetheless deny the claim on the merits. 28 U.S.C. § 2254(b)(2). Because the California Court of Appeal and California Supreme Court both summarily denied Price's petitions, this court will "look through" these summary dispositions to the last reasoned decision, which is that of the San Joaquin County Superior Court. See Ylst v. Nunnemaker, 501 U.S. 797, 803--04 (1991).
I. Claims One, Four, and Five
Price asserts in claim one that the trial court violated his right to a speedy trial because 76 days passed between the date on which he was arraigned on the complaint and the start of his trial; in claim four that the trial court did not obtain a knowing and intelligent waiver of his right to a jury trial on his prior convictions; and in claim five that the trial court failed to provide a sua sponte jury instruction on the law of ...