FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner was convicted on November 21, 1997. On February 2, 1999, the California Court of Appeal, Third Appellate District, affirmed petitioner's conviction. (Answer, Ex. A.) On May 12, 1999, the California Supreme Court denied his petition for review. (Answer, Ex. B.)
On May 22, 2000, petitioner filed the instant petition raising three claims: (1) violation of Miranda v. Arizona, 384 U.S. 436 (1966); (2) a search and seizure claim; and (3) a prosecutorial misconduct claim based on the examination of a trial witness. (Pet. at 1.) Respondents filed an answer on July 31, 2000. (Docket No. 4.)
On June 3, 2005, petitioner filed an amended petition, which set forth the following three claims: (1) the same Miranda claim; (2) a new claim under Batson v. Kentucky, 476 U.S. 79 (1986); and (3) a new claim of ineffective assistance of appellate counsel for failing to raise the Batson claim on appeal. (Am. Pet. at 14-17.)*fn1 On June 3, 2005, the court granted petitioner's motion to amend and recommended that the action be stayed pending exhaustion of state remedies.*fn2 Respondent had opposed the motion to amend on the grounds that (1) petitioner unduly delayed raising the claims; (2) it was likely the California Supreme Court would reject them as untimely; and (3) the new claims were barred by the statute of limitations.
On July 8, 2005, respondent filed a motion for relief from the June 3, 2005 order.*fn3
On July 12, 2005, the district court adopted the recommendation that this action be stayed. On July 13, 2005, respondent filed a motion for reconsideration of that order.
While this action was stayed, petitioner exhausted state remedies. The state court denied relief on May 10, 2006. (See Resp.'s Response filed March 16, 2007, at 2 n.1.)
On March 21, 2007, petitioner's motion to lift the stay was granted and respondents' motions were denied without prejudice to their right to reassert the statute of limitations defense in a new motion to dismiss.
On March 23, 2007, respondents filed a motion to dismiss claims two and three. On December 13, 2007, the claims alleged as Grounds 2 and 3 in petitioner's amended petition were dismissed and petitioner was granted thirty days in which to file a traverse addressing the first claim of petitioner's June 3, 2005 amended petition. No traverse has been filed.
From April 13 to April 27, 1996, the [petitioner] went on a robbery spree through south Sacramento. His standard method of operation, which he used most of the time, was to enter a store, approach a cashier, calmly state that he had a gun, obtain cash in a bag and walk out of the store. He commonly used a yellow Cadillac for transportation. We give details of some of the robberies as they became relevant to the discuss, but this is a summary of the counts of which the jury found him guilty.
CountDate of CrimeStoreCrime
Count 1April 13, 1996Famous FootwearRobbery
Count 2April 14, 1996Payless ShoesRobbery
Count 4April 15, 1996Montgomery WardRobbery
Count 5April 16, 1996Mervyn'sRobbery
Count 6April 19, 1996Famous FootwearAttempted Robbery
Count 8April 21, 1996Payless DrugsRobbery
Count 9April 22, 1996Payless DrugsRobbery
Count 10April 25, 1996Mervyn'sRobbery
Count 11April 26, 1996SearsRobbery
Count 12April 27, 1996Payless ShoesRobbery
Count 3 (attempted robbery) was dismissed on a prosecution motion during the trial. Count 7 (robbery) was dismissed on a prosecution motion after the trial court granted a new trial on that count.
(People v. Perridon, slip op. at 2.)
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner claims that his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966) were violated when the police ignored his invocation of his right to counsel. (Am. Pet. at 14.) When petitioner was arrested, the police told him they wanted to question him about a string of robberies, and petitioner responded: "not without no lawyer, man. Not without no cigarette." (Am. Pet. at 14.) Petitioner was given a cigarette, but not a lawyer. (Id.)
Respondent contends that petitioner's claims "are simply abridged versions of the claims raised in state court, without any citation to authority for the proposition that the resolution of his claims were contrary to federal law." (Answer at 29.) Respondent argues petitioner's statement was given in full compliance with Miranda and was voluntary. (Id. at 30.)
Petitioner's argument in this regard was rejected by the California Court of Appeal in a written decision on petitioner's direct appeal, and without comment by the California Supreme Court in denying the petition for review. (See Answer, Exs. A, B.) The California Court of Appeal recited the pertinent facts, explained the background to the claim, and its reasoning in rejecting it, as follows:
On the morning of April 30, 1996, [petitioner] was in custody at the Sacramento County Jail on a parole violation. Detective Scott Belchamber, accompanied by Detective Chuck Provencher, visited [petitioner]. They told [petitioner] he was a suspect in several robberies and asked if he would accompany ...