FINDINGS AND RECOMMENDATIONS
Petitioner Adam Shelton, Jr., a state prisoner proceeding with appointed counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his conviction in Placer County Superior Court, Case No. 62043144, for second degree commercial burglary and grand theft.
Petitioner makes the following claims:
A. The evidence was insufficient to support a conviction;
B. He received ineffective assistance of appellate counsel;
C. The prosecutor failed to disclose evidence;
D. He received ineffective assistance of trial counsel;
E. He should have been allowed to argue about 3-strikes; and
F. His life sentence was cruel and unusual punishment.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
A few minutes before 9:00 p.m. on April 20, 2004, employees of the Comp USA store in Roseville were preparing to close for the evening when an alarm sounded, signaling the rear emergency exit door had been opened. Employees had been warned about a "rash of thefts" from Comp USA stores in the region involving people "grabbing equipment and running out the back door of the store." Employee Jonathan Steel went out the front door to the north side of the store and saw defendant behind a dumpster, crouching down by a pallet and looking at the rear emergency exit door. Meanwhile, employees Richard Robinson and Kevin Fuller went to the rear emergency exit door and found it had been propped open. Robinson "saw [defendant's] head peeking up above the dumpster wall a couple of different times...." Robinson had seen defendant in the store within 10 minutes of closing "moving toward the back of the store." He did not see defendant leave through the front door of the store.
Defendant started walking toward Sunrise Boulevard. Robinson and Fuller followed defendant, telling him to "stop" because they "needed to speak with him and ask him some questions." Defendant continued walking, alternating between a "fast or a brisk walk and a slow jog." Fuller called 911 on his cellular phone as they continued to follow defendant, who had approached the Eureka Auto Mall and scaled a four-and-a-half to five foot wall. Roseville Police Officer David Flood arrived at the entrance to the auto mall and saw defendant walking toward the sidewalk. He relayed this information to Officer Jerry Fuhrman who was in his police car. Officer Fuhrman detained defendant.
Back at Comp USA, Steel had found three computer monitors behind the dumpster. They were lightweight and easy to carry and had been stored near the rear emergency exit door.
Officers Michael Pendergraft and Darin DeFreece viewed Comp USA's surveillance videotape from that evening. The camera was able to capture individuals leaving by the front door but not by the back door. There was a man on the videotape who entered through the front door as the store was getting ready to close and walked toward the back of the store within 45 seconds. The man never exited the front door.
Officer DeFreece was present when defendant was arrested. In court, he identified the man on the videotape as defendant based on "the totality of the circumstances"-"the style of [defendant's] hat," the color and style of his clothing, his ethnicity, his height and weight, and his mannerisms.
A jury convicted petitioner of second degree commercial burglary and grand theft. Id. at 1. After he admitted that he had suffered six prior strikes, serving six prior prison terms, the trial court sentenced him to an aggregate term of 31-years to life in prison. Id.
B. Post Trial Proceedings
1) State Appellate Review
Petitioner filed an appeal with the Court of Appeal for the State of California, Third Appellate District, on June 8, 2005. Answer, Lodged Doc. 1 at 1. On March 21, 2006, that court affirmed the judgment in an unpublished decision. Answer, Lodged Doc. 4 at 20.
Petitioner then petitioned the California Supreme Court on April 21, 2006. Answer, Lodged Doc. 5 at 1. That petition was denied on May 24, 2006. Answer, Lodged Doc. 6 at 1.
On January 29, 2007, petitioner filed a federal petition for writ of habeas corpus. Counsel was appointed and filed an amended petition on August 10, 2007. On that same day counsel also filed a motion to stay pending exhaustion of state remedies. That motion was granted on October 24, 2007. On January 23, 2008, petitioner notified the court that his state remedies had been exhausted.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a).
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. 28 U.S.C. § 2254(d).
Although "AEDPA does not require a federal habeas court to adopt any one methodology," Lockyer v. Andrade, 538 U.S 63, 71 (2003), there are certain principles which guide its application.
First, the "contrary to" and "unreasonable application" clauses are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). It is the habeas petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 360 (2002). It is appropriate to look to lower court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).
Second, 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). So long as the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000).
Third, in determining whether a state court decision is entitled to deference, it is not necessary for the state court to cite or even be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2003). Moreover, a state court opinion need not contain "a formulary statement" of federal law, so long as the fair import of its conclusion is consonant with federal law. Id.
V. DISCUSSION OF PETITIONER'S CLAIMS*fn2
Petitioner argues there was insufficient evidence to prove his guilt beyond a reasonable doubt "because the evidence did not show he was the person who purportedly took the computer monitors from the Comp USA store in Roseville." Petition at 7. He contends that "the evidence only showed that, after an alarm sounded inside the Comp USA store, Mr. Shelton was seen near a dumpster where an employee later reported finding three computer monitors." Id. He also points out that fingerprints taken from the fire door and computer monitor boxes did not match his. Id. Alternatively, he argues that there is no evidence to prove he entered the store with the "intent to commit larceny or any felony" because he possessed more than $150 and the placement of the monitors in the store may have "presented a target of opportunity." Id. at 7-8.
The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "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). See also Prantil v. State of Cal., 843 F.2d 314, 316 (9th Cir. 1988). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant the writ, the federal habeas court must find that the decision of the state court reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. Id. at 1275 & n.13.
The court must review the entire record when the sufficiency of the evidence is challenged in habeas proceedings. Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev'd, 483 U.S. 1 (1987). It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. If the trier of fact could draw conflicting inferences from the evidence, the court in its review will assign the inference that favors conviction. McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994). The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict. United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). Thus, "[t]he question is not whether we are personally convinced beyond a reasonable doubt" but rather "whether rational jurors could reach the conclusion that these jurors ...