FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on October 24, 2002, in the Sacramento County Superior Court on charges of assault and aggravated assault on a correctional officer and possession of a weapon by a prison inmate. Petitioner was sentenced to two consecutive terms of 25 years to life in state prison. He seeks relief on the grounds that: (1) his trial counsel rendered ineffective assistance; (2) the trial court erroneously denied him the right to represent himself; and (3) his sentence of fifty years to life constitutes cruel and unusual punishment under the California Constitution. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
Rene Cazares (defendant) was convicted by a jury of one count of battery upon a non-confined person (Pen.Code, § 4501.5*fn2 (count one)), one count of gassing a peace officer (§ 4501.1 (count two)), and one count of being a prisoner in possession of a weapon (§ 4502, subd. (a) (count three)). The jury also found that defendant had suffered prior serious felony convictions of robbery (§§ 211, 667, subds.(b)-(i), 1170.12) and attempted robbery (§§ 664/211, 667, subds.(b)-(i), 1170.12). Sentenced to two consecutive 25-year-to-life terms on counts one and three,*fn3 defendant appeals, and argues: (1) he received ineffective assistance of counsel in the preparation of his defense; (2) his motion to represent himself was improperly denied; and (3) his sentence constitutes cruel and unusual punishment. For the reasons stated below, we shall conclude these arguments lack merit, and therefore affirm the judgment.
On September 19, 1999, Robert Williamson III, a correctional officer at California State Prison, Sacramento, was escorting defendant from his cell in administrative segregation to the exercise yard. While enroute, defendant struck up a conversation with several inmates from the general population, which was against prison rules. Defendant began walking toward an open door that led to a kitchen where general population inmates were preparing food. Williamson twice ordered defendant to continue moving. After defendant twice refused, Williamson took hold of defendant's arm. Defendant muttered something to Williamson, turned around, and head butted him two times, knocking Williamson into a broom closet. Williamson shouted for help and attempted to subdue defendant. Correctional Officer Wesley Hupe assisted Williamson. Defendant was kicking his legs and moving his body. Hupe grabbed hold of defendant's legs while other correctional officers held the rest of his body. After defendant was subdued, and while he was being escorted to a holding cell by two correctional officers, defendant spit in the face of Correctional Officer Mark Scott. Defendant's assault on Williamson formed the basis of count one, while the spitting incident formed the basis of count two.
Approximately two months later, on November 25, 1999, defendant was searched following time in the exercise yard. The officer conducting the search, Brad Whitaker, discovered a three and one-half inch piece of hard plastic, sharpened at one end and wrapped in white tissue and cellophane, secreted in defendant's sock.
Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
A. Ineffective Assistance of Counsel
Petitioner's first claim is that his trial counsel rendered ineffective assistance.
Specifically, he argues that trial counsel: (1) failed to investigate and present witnesses that could have provided exculpatory information; (2) failed to investigate the facts of the case; (3) "was not consistent in showing up" for court hearings; (4) did not visit or consult sufficiently with petitioner in order to get petitioner's input into the defense strategy; (5) refused to file motions that petitioner requested him to file; (6) forced petitioner to proceed to trial against his wishes when counsel had not "done any investigating nor filed any motions" and was therefore not ready for trial; (7) refused to let petitioner "address the court;" and (8) "acted unethically in every way possible."*fn4 (Petition filed November 1, 2006 (Pet.), at consecutive pgs. 5, 7 & 12.)
The California Court of Appeal rejected petitioner's claims of ineffective assistance of counsel, reasoning as follows:
Following his conviction, defendant filed a motion for new trial based in part on the claim that trial counsel was ineffective because he failed to locate and interview inmates and correctional officers who may have been percipient witnesses to the incidents giving rise to the criminal charges. The court denied the motion because defendant had failed to offer any factual support for his claims, and thus had failed to show how counsel's representation had prejudiced him. On appeal, defendant renews his ...