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McConico v. Hartley

March 23, 2009

WAYNE LEE MCCONICO II, PETITIONER,
v.
JAMES D. HARTLEY, ET AL., RESPONDENT.



The opinion of the court was delivered by: John C. Coughenour United States District Judge

ORDER

This matter comes before the Court on Petitioner Wayne Lee McConico II's amended petition for writ of habeas corpus (Dkt. No. 4); Respondent James D. Hartley's answer to the amended petition (Dkt. No. 17);*fn1 and Petitioner's traverse to the answer (Dkt. No. 19). Having reviewed the relevant documents, the governing law, and the balance of the record, the Court DENIES the amended habeas petition for the reasons explained herein.

I. BACKGROUND

Petitioner is a state prisoner in Avenal, California, serving a six-year sentence pursuant to a 2004 conviction for child molestation. (See Clerk's Tr. 371--72 (Dkt. No. 18-13).) In late 2003, the State charged Petitioner with fifteen counts of lewd or lascivious acts with two of his daughter's friends, both children under the age of fourteen. (Id. at 257--64.) See CAL. PENAL CODE § 288(a).

On September 20, 2004, a jury convicted Petitioner of one of the counts but split on the remaining fourteen counts (Clerk's Tr. 334 (Dkt. No. 18-13)), which the prosecutor's office chose not to retry (see Answer 4 (Dkt. No. 17 at 10)). The California Court of Appeal, Third Appellate District, affirmed the conviction, People v. McConico, No. C048916, 2005 WL 3497711, at *4 (Cal. Ct. App. Dec. 22, 2005), and both the California Supreme Court and the United States Supreme Court denied review (Cal. Sup. Ct. Order (Dkt. No. 18-2); Sup. Ct. Order (Dkt. No. 18-3)). In 2007, the California Supreme Court also denied Petitioner's two petitions for writ of habeas corpus. (See Cal. Sup. Ct. Register (Dkt. No. 18-5) (denying petition on June 27, 2007); Cal. Sup. Ct. Register (Dkt. No. 18-7) (denying petition on procedural grounds on Nov. 14, 2007).)

On July 7, 2007, Petitioner, proceeding pro se, filed an application for a writ of habeas corpus with the United States District Court for the Eastern District of California. (Dkt. No. 1.) Petitioner presents four substantive grounds for relief in his amended petition: (1) unlawful state interference with jury selection in violation of Petitioner's right to a fair jury and (2) in violation of his right to due process of law; (3) ineffective assistance of appellate counsel; and (4) miscarriage of justice. (Am. Pet. 9, 18 (Dkt. No. 4 at 7, 16).)

II. APPLICABLE STANDARD

Federal law requires that a state prisoner provide the state court with the opportunity to rule on federal habeas claims before presenting those claims to the federal court. See Picard v. Connor, 404 U.S. 270, 275 (1971); 28 U.S.C. § 2254(b)(1). Respondent concedes that Petitioner has exhausted his available state remedies. (Answer 2 (Dkt. No. 17 at 8).)

A federal court will not grant a state prisoner's habeas petition unless the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or (2) "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" federal law if the state court applies a rule that contradicts the governing rule from Supreme Court precedent or decides the case differently from a Supreme Court case with materially indistinguishable facts. See Williams v. Taylor,529 U.S. 362, 405--06 (2000). A decision is an "unreasonable application" of federal law if the state court correctly identifies the governing rule but unreasonably applies the rule to the facts of the petitioner's case. See id. at 413. An unreasonable application must be more than incorrect or clearly erroneous; rather, the application must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75--76 (2003) (citations omitted). Similarly, state court factual findings, which are presumed correct, may be rebutted only with a clear and convincing showing that the findings were objectively unreasonable in light of the evidence presented. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(d)(2), (e)(1)).

When a state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court must perform an "independent review of the record" to determine whether the state court clearly erred in its application of Supreme Court precedent. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (citing Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). An independent review is not the equivalent of de novo review; rather, the Court is required to determine whether a silent state court decision is objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Although the federal court independently reviews the record, it still defers to the state court's ultimate decision. Pirtle, 313 F.3d at 1167.

The California Supreme Court denied Petitioner's first habeas petition without reasoning or citation. (See Cal. Sup. Ct. Register (Dkt. No. 18-5).) This denial constitutes a decision on the merits of the federal claims. See Hunter v. Aispuro, 982 F.2d 344, 347--48 (9th Cir. 1992). The Court, therefore, must perform an "independent review of the record" to determine whether the state court decision was objectively unreasonable. See Himes, 336 F.3d at 853.

III. DISCUSSION

The Court addresses each of Petitioner's grounds for ...


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