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 challenges a 2001 judgment of conviction entered in the Superior Court of California, Sacramento County, on one count of burglary, four counts of assault with a deadly weapon with an additional allegation that Petitioner inflicted great bodily injury, one count of kidnapping, four counts of criminal threats, one count of elder abuse, one count of false imprisonment, one count of obstructing a telephone, and one count of being a felon in possession of a firearm. In his Second Amended Petition, Petitioner alleges relief is warranted on the following grounds: (1) ineffective assistance of trial counsel; (2) cumulative effect of trial court error; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; and (5) cruel and unusual punishment. Docket No. 55. Respondent asserts that some of Petitioner's arguments are procedurally barred and that all of the claims fail on the merits. Docket No. 72. Petitioner has filed a Traverse. Docket No. 84 (Trav.). The petition will be denied for the reasons set forth below.
In an unpublished opinion filed on September 16, 2002, the California Court of Appeal, Third Appellate District, summarized the factual background of the offense and trial:
We start by identifying the victims of defendant's violent rampage: Elsa Haro is the 78-year-old mother of Rachael Ramirez and the grandmother of Lisa Lindeman. [Footnote 2] Lindeman is married to Jason Pribyl.
[Footnote 2: Lindeman and Ramirez have a number of felony convictions.]
On August 27, 2000, Lindeman and Pribyl were staying with Ramirez in apartment 505 of an apartment complex. Lindeman had been staying there for four days and was helping her mother move out. Lindeman's two children, Amanda M. (12 years old) and Sara (11 months old), were staying there too. Lindeman's nephew Justin J. (13 years old) and her niece Lena A. (seven years old) also lived with their grandmother in apartment 505.
DeLena Robinson lived two doors down in apartment 507. Robinson's 14-year-old daughter, Jodee L., and her 22-year-old nephew, Kenji Taylor, also lived with her in apartment 507.
According to Robinson, defendant was her boyfriend [Footnote 3] between 1995 and February 2000. During defendant's incarceration, Robinson visited him in jail almost every week. In early January 2001, Robinson told the prosecutor she and defendant were still dating and in fact had recently become engaged. Robinson approached the district attorney a short time later to tell him she had actually broken up with defendant in February 2000. Robinson claimed defendant lived with her in apartment 507 from 1997 to February 2000. A DMV registration with defendant's name, however, suggested he lived at apartment 507 after February 2000. Even as late as the trial date, defendant continued to receive mail at apartment 507.
[Footnote 3: Throughout the transcript, Lindeman and Amanda M. identified Robinson as defendant's "wife." Defendant often referred to Robinson as his wife.]
In August 2000, tension was high between the residents of apartments 505 and 507. The parties stipulated that on August 21, 2000, Jodee L. reported to the police that the night before, she had been the victim of unlawful sexual intercourse perpetuated by Justin J. and two other male juveniles. In addition, two weeks prior to the incident at issue in this case, defendant told Lindeman's mother, Ramirez, that Justin J. had stolen $2,000 worth of stereo equipment from defendant's car.
We now turn to the events of August 27, 2000. Late that evening Lindeman noticed defendant standing outside of apartment 507. Lindeman had seen defendant five or six times prior to this night. Defendant and Robinson gave Lindeman a dirty look. Lindeman hurried into her apartment.
A couple of minutes later, defendant knocked on the door of apartment 505. Amanda M. opened the door and defendant pushed his way in. Lindeman returned from the kitchen and saw defendant in the threshold with the door shut behind him. Defendant was angry and yelled where "the fuck" was Justin J. and Justin J.'s uncle. Lindeman told defendant she "wasn't fucking" going to tell him.
Defendant pulled out a gun and grabbed Lindeman by the throat and stuck the gun in her face. For about 15 to 20 seconds, defendant squeezed Lindeman's throat tight enough to cut off her air supply.
At this point, Amanda M. grabbed baby Sara and ran up the stairs. Defendant pointed his gun at Amanda M. and ordered her to come back down. Amanda M. continued up the stairs. Lindeman started pushing defendant and defendant hit Lindeman in the face six to eight times with his gun until she fell down. He was calling Lindeman a "fucking bitch" and demanding to know where Justin J. was. Lindeman screamed for her husband, Pribyl, and her mother, Ramirez. During his tirade, defendant referred to himself as their neighbor and the "shit [that] lives two doors down from you."
Haro tried to push defendant away from Lindeman. Defendant, however, kept hitting Lindeman and moving her toward the stairs. Defendant said he told the victims "about that little bastard, I fucking told you about that little bastard."
As Lindeman's husband, Pribyl, came running down the stairs, defendant hit him in the face with the gun. Next, Lindeman's mother, Ramirez, came down stairs, and defendant hit her in the head too. Defendant repeatedly shouted he was going to kill all of them.
At this point, Lindeman went into the kitchen, grabbed the phone and called 911. Before the 911 operator could answer, defendant ordered Pribyl to get Lindeman "fucking" in here and "bring me the fucking phone." Lindeman watched defendant hold the gun to her mother's face.
Pribyl grabbed the phone from Lindeman, unplugged it and brought it back to the living room to defendant. Defendant took the phone and put it in a wardrobe box. [Footnote 4] Defendant continued to point the gun at the victims in the living room.
[Footnote 4: Ramirez claimed Pribyl put the phone in the box.] Defendant ordered the victims to get down on their knees and defendant hit Pribyl and Lindeman's mother, Ramirez, in the face and head with the gun as they were going down. Lindeman estimated defendant hit Ramirez 8 to 15 times. Defendant struck Haro twice.
While defendant was beating his victims, he was telling them "that little bastard Justin [J.], he took my daughter's virginity." Defendant also claimed his stereo was stolen out of his truck. As he beat Ramirez, defendant said, "this is for having that little bastard[, y]ou stupid fucking bitch. I talked to you about him and you didn't do a fucking thing. Him and his fucking friends stole $2,000 worth of stuff out of my truck, and now he takes my daughter's virginity."
Haro tried to stop defendant, and he hit her and ordered her to get into "this fucking closet" -- referring to a bathroom. Dazed, Haro walked around in a circle for a minute, and defendant hit her again. Then, as ordered, Haro went into the bathroom. Defendant kept yelling he was going to kill everybody and claimed Justin J. had raped his little girl.
Defendant ordered Lindeman to come over to him. She did. Defendant grabbed her and ordered her to the front door. Defendant then told her, "I want you to go down there and get them," pointing toward apartment 507. While defendant was distracted, Haro, Ramirez, and Pribyl ran out the back door to a neighbor's to call the police. Haro told the 911 operator the perpetrator of the crime lived in apartment 507.
While defendant remained outside of apartment 505, Lindeman went down to apartment 507 and knocked on the door. Lindeman begged the girl who opened the door to come down to see what defendant was doing so defendant would stop beating Lindeman's family. Lindeman saw defendant's "wife," daughter and son in the apartment. The daughter said defendant was not her dad and ran back up the stairs. Defendant's "wife" shut the door in Lindeman's face. Lindeman knocked again and begged the wife to come out.
Next, defendant told Lindeman to "get the fuck down here." Lindeman refused, and defendant went up to her, hit her with his gun about six times and then dragged her by her hair back to apartment 505 -- a distance of about 40 feet. When they got back into the apartment, all of the adults in Lindeman's family were gone. Defendant put the gun to the back of Lindeman's head and ordered Lindeman to get her family back.
At this point, defendant backed out of the apartment and left. As he left, defendant told Lindeman, "you fucking call the cops, bitch, me and my boys will come back and kill your whole fucking family. I fucking mean it." Lindeman agreed not to call the cops, shut the door, and locked it. Lindeman found the children upstairs crying.
Defendant nonchalantly walked back toward his apartment. When the police arrived, Lindeman shouted to them where defendant was. The police, however, did not capture him that night.
Defendant was arrested about two weeks after the assault at the home of Anita Lofton -- defendant's sister. Defendant ran out the back door when the police arrived and the police found him hiding behind garbage cans around the side of the house. The officers noticed a luggage bag on the floor and a pile of clothing on the couch. Lofton told the officers the bag belonged to defendant.
At trial, Detective Daniel Cabral testified Lofton told him that defendant ran out the back of her house when the police arrived to arrest him. Cabral also testified Lofton told him defendant was going to Florida because he was in trouble. Cabral testified Lofton told him defendant admitted he used a gun and hurt someone at the apartments where his girlfriend lived in a fight concerning a burglary and the victim of a sexual assault. Also, Cabral testified Lofton said defendant believed he was going to jail. Cabral also testified Lofton told him defendant owned a gun that Lofton kept in her home.
Detective Cabral interviewed defendant's girlfriend, Robinson, on September 15, 2000. Cabral testified Robinson told him a woman had come to her door the night of the crimes claiming that someone was going to hurt her or kill her. Cabral also testified Robinson told him defendant had been living at her house about three weeks prior to the interview and that defendant thought he was in trouble.
Both the statements from Lofton and Robinson were contained in two supplemental police reports that were prepared in September 2000, but not turned over to the defense until January 10, 2001 -- during the trial. At trial, Lofton and Robinson denied making these incriminating statements to Cabral. Lofton did admit telling the police defendant was going to make a career move and was going on a vacation to Florida.
In court, Lindeman, Ramirez, Haro, Pribyl, and Amanda M. positively identified defendant as their assailant, although prior to a lunch break, Haro could not identify defendant as her assailant when asked.
By information, the People charged defendant with burglary (§ 459; count one); four counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts two, five, nine, and eleven) each with an allegation defendant inflicted great bodily injury upon the victim ( § 12022.7, subd. (a)); one count of kidnapping (§ 207, subd. (a); count three); four counts of criminal threats (§ 422; counts four, eight, ten, and thirteen); one count of elder abuse ( § 368, subd. (b)(1); count six); one count of false imprisonment ( § 236; count seven); one count of obstructing a telephone ( § 591; count twelve); and one count of being a felon in possession of a firearm ( § 12021, subd. (a); count fourteen). The People also alleged enhancements under section 667, subdivisions (a), and (b) though (i), based upon six prior felony convictions.
The defendant did not testify.
The jury convicted defendant on all of the counts charged in the information and found the allegations defendant inflicted great bodily injury were true. ( § 12022.7, subd. (a).) The court found four of the prior conviction allegations to be true. The trial court sentenced defendant to 122 years to life in state prison. . . .
People v. Rogers, No. C038399, Slip op. at 2-9 (Cal. Ct. App. September 16, 2002) (available in the record as Lodged Document No. IV) (internal citations omitted).
Petitioner timely appealed his conviction, arguing that relief was warranted because the prosecutor committed misconduct during rebuttal; the trial court failed to bar evidence not timely disclosed; the evidence was insufficient to support the convictions for kidnapping and obstructing a telephone line; and his sentence constituted cruel and unusual punishment. The Court of Appeal affirmed Petitioner's convictions in a reasoned opinion filed September 16, 2002. Rogers, No. C038399, Slip. op. at 28. The Supreme Court of California denied review without comment on December 11, 2002. People v. Rogers, No. S110907 (available in the record as Lodged Document No. VI). Petitioner thereafter filed three applications for post-conviction relief with the Supreme Court of California. Lodged Document Nos. VII (Pet. filed Nov. 7, 2002); IX (Pet. filed Oct. 20, 2003); XI (Pet. filed April 5, 2005). The first two applications were denied without comment. Lodged Document Nos. VIII; X. The following citations were included in the denial of the third application: "(See In re Waltreus (1965) 62 Cal.2d 218 [42 Cal. Rptr. 9, 397 P.2d 1001]; In re Clark (1993) 5 Cal.4th 750 [21 Cal. Rptr. 2d 509, 855 P.2d 729]; In re Robbins (1998) 18 Cal.4th 770, 780 [77 Cal. Rptr. 2d 153, 959 P.2d 311]; In re Miller (1941) 17 Cal.2d 734 [112 P.2d 10]; People v. Black (2005) 35 Cal.4th 1238 [29 Cal. Rptr. 3d 740, 113 P.3d 534].)".
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 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; Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009). 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. Ineffective Assistance of Trial Counsel
Petitioner alleges that his trial counsel provided ineffective assistance when he allegedly failed to: (1) challenge the information; (2) obtain pretrial discovery; (3) file a formal discovery motion; (4) call witnesses; (5) challenge the arrest warrant; (6) impeach prosecution witnesses; (7) advise against waiving jury trial on the issue of prior convictions; and (8) request an election. Respondent contends there is no merit to Petitioner's ineffective assistance claim. This claim was denied by the Supreme Court of California with reference to several cases invoking procedural bars, such as timeliness. See Lodged Document Nos. XI - XIII. As it appears the California Supreme Court denied the petition for review on procedural grounds, this Court reviews Petitioner's claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
To demonstrate ineffective assistance of counsel, Petitioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. Petitioner must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. Hill v. Lockhart, 474 U.S. 52, 57 (1985).
1. Alleged Failure to Challenge the Information
Petitioner asserts that his trial counsel should have challenged seven of the fourteen counts after the prosecution failed to produce sufficient evidence at the preliminary hearing. Specifically, he alleges there was insufficient evidence for the kidnapping of Lindeman (count 3); elder abuse of Haro (count 6); false imprisonment of Haro (count 7); criminal threat against Haro (count 8); criminal threat against Ramirez (count 10); obstruction of a telephone line (count 12); and criminal threat against Pribyl (count 13).
A probable cause determination is not a constitutional prerequisite to the charging decision. Gerstein v. Pugh, 420 U.S. 103, 125 n.26 (1975). As Petitioner's argument sounds only in state law, it is not cognizable on habeas review. See Estelle, 502 U.S. at 67-68. Even if Petitioner's claim had constitutional dimension, a review of the transcript of the preliminary hearing reveals that there was ample evidence to meet the low ...