The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Petitioner Armster Hampton filed an application for a writ of habeas corpus in pro se pursuant to 28 U.S.C. § 2254(a) on March 21, 2007. (Doc. 1). On September 18, 2007, Petitioner filed an amended application for a writ of habeas corpus in pro se. (Doc. 15).
On October 4, 2007, Respondent filed its response to Petitioner's amended application. (Doc. 19). Petitioner filed a traverse to Respondent's answer on April 22, 2008. (Doc. 33).
On August 4, 2008, Petitioner filed a motion in pro se for an evidentiary hearing. (Doc. 44). On October 16, 2008, this Court granted Petitioner's motion for an evidentiary hearing. (Doc. 52). Petitioner filed a motion for the appointment of counsel on October 24, 2008. (Doc. 53). This Court granted Petitioner's motion for the appointment of counsel on November 4, 2008. (Doc. 55). On November 14, 2008, the Court appointed Henry Chao-lon Su as counsel for Petitioner. (Doc. 56). The Court scheduled an evidentiary hearing for February 10, 2009. (Doc 56). The evidentiary hearing was conducted on that date. (Doc. 71).
In his amended application for a writ of habeas corpus, Petitioner raised seven federal constitutional claims. In its October 4, 2007 answer to the amended application for a writ of habeas corpus, Respondent admitted that Petitioner has exhausted claims one through six before the California Supreme Court. The record supports this concession. Respondent also correctly asserted that Petitioner had failed to exhaust claim seven of his amended application in which he alleged a violation of Cunningham v. California, 549 U.S. 270 (2007). That claim was exhausted before the California Supreme Court in a summary denial filed on May 21, 2008. (Case No. S158039).
On May 29, 2008, Petitioner filed a notice of exhaustion of his Cunningham claim. (Doc. 34). In its reply to Petitioner's notice of exhaustion, Respondent correctly conceded that Petitioner had exhausted each of the claims set forth in his amended application for habeas corpus relief. (Doc. 36).
For the reasons discussed below, Petitioner's application for a writ of habeas corpus is denied.
Petitioner was convicted on June 13, 2003 of second degree robbery and of being a felon in possession of a firearm after a trial by jury in the San Joaquin County Superior Court. He was sentenced to 20 years and 4 months.
In affirming the trial court's judgment of conviction and sentence, the California Court of Appeal for the Third Appellate District summarized the facts in its unpublished opinion as follows:
This case involves a less-than-sophisticated robbery of a grocery store early on the afternoon of January 29, 2002. Security guards at the market became suspicious when they spotted an unidentified white male (Suspect 1) loading food items haphazardly into a cart. Suspect 1 left the store without paying for his cartful of food.
One of the security guards, Matt Bauer, immediately followed and saw that Suspect 1 had wheeled the cart to a Cadillac parked in the handicapped parking space closest to the store. [Petitioner] was holding the cart at the rear of the car and may have been putting items into the back seat. Bauer identified himself and tried to detain Suspect 1, who was walking toward the driver's side of the car. Suspect 1 grabbed onto a pole and struggled against both Bauer and the second guard, Josh Sanders, who had also come outside. The guards told Suspect 1 to stop fighting, but Suspect 1 did not comply. [Petitioner] approached the struggle, but Bauer told him to drive off and not get involved. [Petitioner] opened the driver's door of the car and Bauer assumed [Petitioner] was going to drive away. Instead, Sanders yelled to Bauer that [Petitioner] had a gun. When [Petitioner] ordered Bauer to let Suspect 1 go, Bauer released his grip, put his hands up, stepped back, and said, "It's cool." Suspect 1 ran to the passenger's side of the car, got in, and [Petitioner] drove the car away. Bauer and Sanders gave chase on foot, got the license plate number of the car, and called 911.
Police officer Nicky Ezell heard the police radio report and drove to the registered address of the car. Ezell was in plain clothes and in an unmarked car. He parked and kept an eye on the registered address. At approximately 1:50 p.m., [Petitioner] drove up in the Cadillac. He was alone in the car. [Petitioner] stopped for a few moments, then drove to a nearby street. Ezell followed and watched [Petitioner] as he got out of the car and walked toward a house.
Backup support arrived on the scene, and the officers went to the house to look for [Petitioner]. However, [Petitioner] was not there. Ezell returned to [Petitioner's] car and looked inside. He saw pieces of mail addressed to [Petitioner] on the front seat.
Officer Sean Fenner knew [Petitioner] and went to another address to look for him. [Petitioner] was not there, but Fenner took a photograph of [Petitioner] from the house and showed it to Ezell. Ezell immediately identified [Petitioner] as the person he had seen in the car a few minutes earlier.
Ezell returned to the car to impound it. Officers found a loaded handgun under the seat and also found grocery items, including a package of frozen chicken. Approximately three hours after the robbery, another police officer assembled a six photo line-up with [Petitioner's] picture in it and showed the lineup to Bauer and Sanders, the store security guards. Both immediately identified [Petitioner]. [Petitioner] had been keeping his twice-weekly meetings with his parole officer up until the week before the robbery, but failed to keep subsequent appointments. The parole officer had no contact with [Petitioner] until [Petitioner's] arrest in December 2002, nearly one year after the robbery.
At trial, Bauer described the events that he had witnessed. Sanders, the other security guard, did not testify. A surveillance tape from the market's security system was played for the jury. It showed the events that transpired in the store and the parking lot, but [Petitioner] was out of camera range when he was alleged to have drawn a gun on Bauer. Beer bottles with [Petitioner's] fingerprints were found outside the market. [Petitioner] tendered an alibi defense, claiming to have been at his son's surprise birthday barbecue in a nearby park when the robbery occurred. [Petitioner] challenged the accuracy of the photo identifications and presented testimony from an expert witness who outlined problems associated with eyewitness identifications.
The jury convicted [Petitioner] of robbery and being a felon in possession of a handgun, but was unable to reach a verdict on the enhancement charging personal use of a firearm in the commission of the robbery. The trial court found charged priors to be true, and sentenced defendant to an aggregate prison sentence of 20 years 4 months.
People v. Hampton, No. C046365, 2005 Cal. App. Unpub. LEXIS 5373, at *2-5 (Cal. App. 3d Dist. June 22, 2005).
Federal review of a Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. §2254(a) is circumscribed by the Antiterrorism Effective Death Penalty Act of 1996 ("AEDPA") because it was filed after April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). AEDPA mandates a highly deferential standard for reviewing state court determinations. Under AEDPA, habeas corpus relief is not available for any claim decided on the merits by a state court unless its 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 § 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 a result different from [the Supreme Court's] precedent." Early v. Packer, 537 U.S. 3, 8 (2002) (citing and quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of § 2254(d)(1), a federal court may grant habeas corpus relief if the state court identified the correct governing legal principle from the Supreme Court's decisions, but unreasonably applied that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court, however, "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 411; see also Lockyer, 538 U.S. at 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'")(quoting Andrade v. Attorney General of California, 270 F.3d 743, 753 (9th Cir 2001)).
A federal court must look 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) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Where the state court reaches a decision on the merits, but provides no reasoning to support its conclusion, a federal court must independently review the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
Petitioner's first claim is that he "was denied access to and communication with counsel in violation of 6th and 14th amendment to the U.S. Const." Am. Pet. 5. In his Traverse, however, "Petitioner admits that he is not entitled to habeas corpus relief for Ground I of his Federal habeas petition." (Doc. 33 at 4). Accordingly, this claim must be denied.
Petitioner's second claim for relief is that trial counsel "rendered ineffective assistance of counsel in violation of the 6th Amendment of the U.S. Constitution" by (1) failing competently to advise Petitioner on the merits of the eight-year plea offer and, (2) failing to contact, interview, or compel the presence of Craig Baker as a defense witness. Am. Pet. at 5, 8-16.*fn1
Ineffective assistance of counsel claims are analyzed under the "unreasonable application" prong of Williams v. Taylor. 529 U.S. 362 (2000). Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir. 2000). The Supreme Court enunciated the standards for judging ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 688. To this end, the defendant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. "The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance." Id.
Second, a defendant "must show that the deficient performance prejudiced the defense." Id. at 687. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985).
A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since the defendant must prove prejudice, any deficiency that does not result in prejudice must necessarily fail. However, there are certain instances which are legally presumed to result in prejudice, e.g., where there has been actual or constructive denial of assistance of counsel or where the State has interfered with counsel's assistance. Id. at 692.
The basis of Petitioner's first ineffective assistance of counsel claim is that his trial counsel failed to advise him to accept an initial plea offer of eight years, made by the prosecutor at the pre-preliminary hearing stage of the same criminal proceedings. Petitioner rejected the offer. He was convicted by a jury and sentenced to a term of 20 years and four months.*fn2
At the time of his arrest in 2002, Petitioner had six prior felony convictions for which he has served separate prison terms. Of particular relevance here, Petitioner pleaded no contest in 1988 to having violated Cal. Penal Code § 245(a)(2), assault with a firearm in San Joaquin County, a serious felony. Mtn. Evid. Hrg., Exh. L. Petitioner also admitted to a gun use enhancement pursuant to Cal. Penal Code § 12022.5. Id. Other charges were dismissed. Petitioner was sentenced to the low term of four years. Petitioner was represented by counsel at the change of plea hearing. Id. The court agreed to commit Petitioner to the California Youth Authority for housing. Mtn. Evid. Hrg., Exh. L at 4.
In 2000, Petitioner was charged with the felony possession of a weapon, in violation of Cal. Penal Code § 12021(a)(1), among other crimes. Petitioner appeared at a change of plea hearing on October 24, 2000. He was represented by attorney Robert Williams. Mtn. Evid. Hrg., Exh. E. At the change of plea hearing for this offense, the following colloquy occurred:
COURT: The second charge, sir, is a violation of Section 12021(a)(1) of the Penal Code, possession of a firearm by a felon, same date 10-6 of 2000. What is your plea to that felony charge?
COURT: Fair enough. That admits it. Is that what you want to do?
COURT: Finally on this charge of being a felon in possession, do you admit that you were, in fact, a felon because you were previously convicted of a felony violation? We are going to use the violation you have right here - -
COURT: - - a felony violation of 12021 of the Penal Code on March 4th of 1992 right here in Stockton?
COURT: Fair enough. That's admitting you have a prior felony conviction. Do you understand that?
COURT: Okay. Now, the other charges and enhancements, which are substantial - - I'm not just saying that, I mean that - - I will dismiss on the D.A.'s motion and recommendation. Fair statement?
MR. MILLER [Prosecutor]: That is correct. With respect to the Strike enhancement, I have reviewed the transcript of the 1988 plea and there appears to be some difficulty being able to prove that is actually a strike.
COURT: Well, fair enough. I don't have that transcript. We will dismiss all the remaining enhancements, ...