The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Willie Bailey, III, a state prisoner appearing through counsel, filed a petition for relief in the Court under 28 U.S.C. § 2254. Bailey is currently in the custody of the California Department of Corrections incarcerated at the California State Prison -- Sacramento. Respondent has filed an answer to the petition, to which Bailey has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Bailey was convicted in December 1997 of two counts of first degree murder. Bailey was sentenced to two consecutive terms of life without the possibility of parole (LWOP), plus an additional 20 years for firearm enhancements with the determinate firearm enhancements to be served before the concurrent LWOP sentences. Bailey timely appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed his conviction in a reasoned, unpublished decision. The California Supreme Court summarily denied review without opinion or citation to authority on October 17, 2001. On April 22, 2002, Bailey filed a petition for a writ of habeas corpus in the California Supreme Court, which summarily denied the petition citing In re Dixon (1953) 41 Cal. 2d 756 [264 P.2d 513] and In re Waltreus (1965) 62 Cal. 2d 218 [397 P.2d 1001], on May 22, 2002.
Bailey timely filed his pro se petition for relief in this Court on June 10, 2002.
The Court appointed counsel for Bailey and granted counsel's motion to stay the proceedings pending exhaustion of additional claims in state court. On May 23, 2006, Bailey, through counsel, filed an amended petition. On July 16, 2007, upon the motion of Respondent, the Court vacated the stay nunc pro tunc and dismissed all claims that were not exhausted on October 2, 2003, and the case proceeded on only the claims that were exhausted in the original petition. On July 24, 2007, the Court ordered that Respondent respond to the exhausted claims.
II. GROUNDS RAISED/DEFENSES
In his amended petition Bailey raises five claims: (1) admission of a hearsay statement made by co-defendant violated his right to confrontation under Bruton;*fn2 (2) the prosecution's suppression of tape recording of a telephone conversation allegedly between Bailey and another person until morning of trial denied him a fair trial; (3) trial court's refusal to permit the testimony of a voice identification expert denied him a fair trial; (4) ineffective trial counsel in failing to (a) seek a continuance when the tape was first produced on the morning of trial, (b) obtain more than one witness to support the proffer of expert testimony of the voice identification expert, (c) call counsel's secretary to rebut the voice identification on the tape recording, (d) adequately investigate Bailey's alibi defense, and (e) adequately advise or consult with Bailey concerning his right to testify; and (5) ineffective appellate counsel by failing to raise second through fourth grounds on direct appeal.
The Court has reviewed the record on direct appeal and the application for a writ of habeas corpus filed in the California Supreme Court to determine those grounds that were properly exhausted. In his direct appeal, Bailey raised six issues, only one of which is raised in the amended petition: admission of hearsay statement made by co-defendant violated his right to confrontation under Bruton (Ground 1). On direct appeal Bailey also claimed that the trial court erred in not granting a continuance when the existence of the taped telephone conversation was not disclosed until the day of opening statements.*fn3 Respondent concedes that this issue included the ineffective assistance of trial counsel claim to the extent that it alleges failure to seek a continuance when the existence of a taped telephone conversation was initially disclosed (Ground 4(a)). In his petition for a writ of habeas corpus to the California Supreme Court, Bailey raised a single issue: that the trial court erred in not granting a continuance to obtain a voice identification expert. Neither Bailey nor Respondent have identified any other claim that was exhausted as of October 2, 2003. In his traverse, Bailey addresses solely the first ground.
Accordingly, the Court will address only Ground 1 and Ground 4(a) in this decision. All other grounds raised in the amended petition have been dismissed.
Because Bailey 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 state court 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."*fn4 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."*fn5 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.'"*fn6 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 or erroneous."*fn7 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.*fn8 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.*fn9
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn10 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn11
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 perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn12 ...