The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks to challenge his 2003 conviction for first degree burglary with a prior conviction. He alleges relief is warranted on the grounds that: (1) there was insufficient evidence of his intent to support the jury's verdict; (2) his right to due process was violated by a modified jury instruction on other crimes evidence; (3) his right to due process was violated by a modified jury instruction on consideration of prior crimes; (4) his trial counsel rendered ineffective assistance of counsel by failing to object to the modified jury instructions; (5) the trial court deprived him of his right to counsel by denying Petitioner's Marsden motion; (6) trial counsel rendered ineffective assistance by persuading Petitioner to testify in his defense; (7) the trial court violated Petitioner's Miranda rights by failing to inform him of them prior to his trial testimony; and (8) he was denied a fair trial when his trial counsel placed a lemon on the table next to Petitioner. Docket No. 25, Attach. 1 (Third Amended Pet.). Respondent asserts that Petitioner's arguments fail on the merits. Docket No. 34. Petitioner has filed a Traverse. Docket Nos. 36 (Trav.); 37 (Mem.).
In an unpublished opinion filed on October 27, 2004, the California Court of Appeal, Third Appellate District, summarized the factual background of the offense and trial:
On September 19, 2002, as the victim returned home around 6:15 p.m., she heard a rustling of the vertical blinds near the rear sliding glass door and discovered the door was open. Money totaling about $80 to $100 was missing from an envelope and glass jar in her kitchen. Nothing was disturbed in the rest of the house. There were "jimmy marks," which the victim believed were new, on a side door to the garage and on the sliding back door. Defendant's fingerprints were found on the glass jar.
Defendant testified at trial. He admitted he entered the victim's home but said he did so seeking shelter, without intent to steal. He was homeless. He had been walking the streets when he felt pain in his spleen (which he previously ruptured in a bicycle accident), and he was ready to collapse. He entered the victim's home through an unlocked door. After resting on the floor, he washed his face and wet his hair in the kitchen sink. (The victim testified she did not notice any water around the sink.)
Defendant said he then saw the glass jar and envelope with money, and he took the money.
Defendant admitted he had a prior conviction for burglary (in 1990). Defendant also said he has trespassed on other people's property for shelter without stealing anything. One such property was an unoccupied house where defendant stayed for four or five months. After the owner found out, defendant was charged with vandalism, based on a broken window that defendant did not break. Another property was a home for rent behind a hospital where defendant's father was recovering from a stroke. Defendant stayed there for four days until police arrested him on a burglary charge. (Citing the probation report but no trial evidence, defendant asserts the charge was dismissed.)
The jurors in this case were instructed that, in order to find defendant guilty of burglary under section 459, they must find (1) a person entered a building or residence, and (2) "At the time of the entry, that person had the specific intent to steal and take away someone else's property, and intended to deprive the owner permanently of that property.
The jury found defendant guilty of first degree burglary. The trial court found true a prior conviction allegation based on the 1990 burglary conviction. The court sentenced defendant to nine years in prison as follows: The low term of two years for burglary, doubled to four years under the three strikes law (§§ 667, subd. (b)-(i), 1170.12), and a five-year enhancement under section 667, subdivision (a).
People v. Adams, No. C043704, 2004 WL 1663960, *1 (Cal. Ct. App. July 27, 2004).
Petitioner appealed his conviction, arguing that the modified CALJIC 2.50 instruction violated his right to due process and that his counsel was ineffective for objecting to the instruction. Lodged Document No. 1. The Court of Appeal affirmed the conviction in a reasoned opinion issued July 27, 2004. Adams, No. C043704, 2004 WL 1663960, *4. Petitioner sought review from the Supreme Court of California, making the same eight arguments found in the instant petition. Lodged Document No. 5. The Supreme Court denied review without comment on October 27, 2004. People v. Adams, No. S127968, Slip Op. at 1 (Cal. Oct. 27, 2004). The original federal petition was timely filed on May 27, 2005. Docket No. 1. The Court is now proceeding on Petitioner's third amended petition. Docket No. 25, Attach. 1.
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 an 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, 1149-50 (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).
Because the instant petition was filed after April 24, 1996, any claim therein that was adjudicated by a state court on the merits is governed by the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Where a state court has adjudicated the merits of a petitioner's claim, this Court, under AEDPA, may not grant relief unless the state court decision "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 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." 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves an unreasonable application of Supreme Court case law if it "identifies the correct governing legal principle from [the Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id. To qualify as "unreasonable," it must be objectively unreasonable, a substantially higher threshold than merely incorrect. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939 (2007).
Clearly established federal law refers only to the holdings of the Supreme Court's decisions in effect at the time of the relevant state-court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006). In the absence of an applicable holding of the Supreme Court, it cannot be said that a state court decision is contrary to or an unreasonable application of clearly established federal law. See id. at 77. Finally, even if the AEDPA standard is satisfied, the Court cannot grant relief unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); Fry v. Pliler, 127 S.Ct. 2321, 2326-27 (2007) (Brecht standard continues to apply after enactment of AEDPA).
In applying this standard, a federal district 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). The Court presumes that the state court's findings of fact are correct, unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Where a state court has "silently denied" a claim on the merits without explaining its ratio decidendi, a district court independently reviews the record to determine if the denial was an unreasonable application of clearly established federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006).
I - Sufficiency of the Evidence
Petitioner alleges there was insufficient evidence of his intent to steal to support the jury's verdict. Respondent argues that the California Supreme Court's denial of this claim was not an unreasonable application of clearly established federal law because Petitioner's version of events was implausible in light of the jimmy marks on the door and the absence of water around the kitchen sink. Respondent submits that it was inappropriate to refer to the jimmy marks on the sliding glass door because the trial court struck that testimony from the record. Docket No. 37 at 15.
The constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original). Because the Supreme Court of California denied this claim without a reasoned decision, this Court must independently review the record to determine if that denial was an unreasonable application of Jackson.
Petitioner is correct that the victim's testimony regarding "jimmy" marks on the sliding glass door was stricken as hearsay. Reporter's Transcript ("RT") at 47-48. However, there was still ample evidence from which the jury could have inferred that the Petitioner had an intent to steal at the time he entered the victim's residence. Petitioner mistakenly believes it is within the purview of this Court to reassess the credibility of witnesses and ultimately reweigh the evidence. Under Jackson, the role of this Court is to simply determine whether there is any evidence, if accepted as credible by the jury, sufficient to sustain conviction of the crime as prescribed by state law. That such evidence exists is clearly established by the record in this case.
First, there was evidence supporting the contention that Petitioner forced his entry into the home. The victim testified that there were fresh jimmy marks on the side door into the garage. RT at 46, 58. She testified that she locked the sliding glass door before leaving for work. RT at 59. She testified that after Petitioner's entry into her home the frame around the sliding glass door was "jarred loose a little bit but not splintered." RT at 59. While Petitioner testified that he "just moved [his] hands from the glass door and it just slid open," the Court must view the evidence in the light most favorable to the prosecution. See RT at 106. In that light, the Court infers that Petitioner forced entry into the home.
Second, the evidence belies Petitioner's story that he entered the home only to rest. Petitioner testified that near collapse he walked through an open gate, entered the residence through a door that just "slid open," laid down on the floor for 20 minutes, washed his face and wetted his hair in the kitchen sink, and then noticed the money and formed the intent to steal. RT at 104-08. The victim testified that the gate was closed with a piece of bailing wire, the door was closed and locked, and there was no water around the sink when she got home. RT at 45-53. Petitioner points out that the water around the sink could have evaporated by the time the victim arrived home. Docket No. 37 at 15. Again, this argument fundamentally misunderstands the Court's role in reviewing a sufficiency of the evidence claim on habeas review. The Court does not reweigh the evidence. There was ample evidence upon which the jury could ...