The opinion of the court was delivered by: Timothy M. Burgess United States District Judge
Petitioner Enedino Calderon, a state prisoner appearing through counsel, has petitioned for a writ of habeas corpus under 28 U.S.C. 2254. Calderon is presently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Calipatria State Prison, Calipatria, California.
I. BACKGROUND/PRIOR PROCEEDINGS
In January 2004 Calderon was convicted by a jury of kidnapping for ransom (Count One), robbery (Count Two), false imprisonment (Count Three), and assault with a firearm (Count Four). The jury also found true an allegation that the victim of the kidnapping suffered bodily harm. The jury further found that Calderon personally used a handgun during the commission of Counts One through Four. Calderon was sentenced to a prison term of life without parole ("LWOP") on Count One, plus four years consecutive for the firearm enhancement associated with Count One. The trial court also imposed prison terms on Counts Two through Four and the associated enhancements, but stayed the prison terms pursuant to California Penal Code § 654.
Calderon timely appealed to the California Court of Appeal, Third Appellate District, which reversed the conviction as to Count Three and affirmed the judgment in all other respects in an unpublished decision.*fn1 The California Supreme Court summarily denied review without opinion or citation to authority on January 18, 2006. Calderon's conviction became final 90 days later, April 18, 2006, when his time to petition for a writ of certiorari in the United States Supreme Court lapsed.
On April 6, 2007, Calderon, represented by counsel, filed a petition for a writ of habeas corpus in the California Supreme Court, which denied his petition citing People v. Duvall (1995) 9 Cal.4th 464, 474.*fn2
Calderon, appearing pro se, timely filed a petition for relief in this Court on April 6, 2006 (date stamped April 10, 2006).*fn3 On April 5, 2007, Calderon, represented by counsel, filed his First Amended Petition for relief with leave of court.
The following description of the facts of the crime is distilled from the decision of the California Court of Appeal.*fn4 In the early hours of the morning the victim arrived at work, parked his truck in front of his office, and walked towards the front door of the business. As he did so, three males wearing dark clothing ran toward him. Two of the men were wearing masks, and one of the masked men was armed with a gun. The men grabbed the victim and started beating him about the face, causing him to fall to the ground. One of the assailants pointed the gun at him, and the victim heard what he perceived to be a gunshot. The victim managed to get up and run towards his truck; however, the men caught him and continued beating him, hitting him in the face and on the neck with the gun. During the struggle, the victim managed to unmask the two masked men and recognized them as Calderon and his brother, his former employees. Calderon told the victim nothing would happen to him if he behaved. Calderon, his brother, and the other assailant tied the victim up with red tape. As they were doing so, the victim had the opportunity to observe Calderon and his brother for a couple of minutes before a small, blue car pulled up next to the victim's truck. At that point, the assailants taped the victim's eyes shut, placed him in the trunk of the blue car, got into the vehicle, and drove away from the parking lot. Calderon also told the victim that he was being kidnapped for ransom of $500,000.
II. GROUNDS PRESENTED/DEFENSES
In his amended petition Calderon raises four grounds: (1) Denial of due process by failing to obtain his personal consent to share an interpreter; (2) denial of due process by excluding his eyewitness identification expert; (3) ineffective assistance of counsel by failing to move that the trial court impose a juvenile sentence under California law; and (4) imposition of a LWOP sentence constituted cruel and unusual punishment, and the failure of appellate counsel to raise the issue constituted ineffective assistance of counsel.
Respondent contends that, except as to the first and second grounds, Calderon has failed to properly exhaust his state court remedies.
In his traverse Calderon voluntarily abandoned his third ground.
Because Calderon filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6
Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable, "not just incorrect."*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn9
Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn10
In applying this standard, this Court reviews the last reasoned decision by the state court,*fn11 which in this case was that of the California Court of Appeal. In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn12
When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must assume that the state court decided all the issues presented to it and performed an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn13 The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams.... Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn14
Ground 1: Personal Consent to Share Interpreter.
In this case, counsel for the co-defendants consented to the use of a "shared" interpreter. Calderon argues that the consent by his counsel was insufficient; that his express personal consent was required. As the California Court of Appeal noted,*fn15 the waiver of the right to an interpreter when an interpreter is required under California law must be made personally by the defendant. The Federal Court Interpreters Act contains a similar provision requiring the waiver to be "made expressly by [the defendant] on the record after opportunity to consult with counsel."*fn16 That is not the issue before ...