Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is proceeding before the undersigned with the consent of the parties pursuant to 28 U.S.C. § 636(c). See Docket # 4, Docket # 14.
In 2005, petitioner was convicted pursuant to a no contest plea of one count of first degree burglary, three counts of sexual battery, and one count of misdemeanor trespassing. Petitioner was sentenced to the upper term of six years in prison on the first degree burglary conviction and a total of three addition years on the three counts of sexual battery. By the instant action, petitioner challenges the six year prison sentence imposed on the burglary conviction. Relying on Cunningham v. California, 549 U.S. 270 (2007), petitioner contends that the sentence violates his rights under the Sixth Amendment because the upper term sentence was based on facts neither found by a jury nor admitted by petitioner. Petitioner also claims that he received ineffective assistance of appellate counsel when his appellate attorney failed to seek relief under Cunningham, which was announced during the pendency of petitioner's direct appeal.
I. Standards for a Writ of Habeas Corpus
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.
Under section 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 different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "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 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (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.'")
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). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
Relying on Cunnningham v. California, 549 U.S. 270 (2007), petitioner's first claim is that the six year sentence imposed on his burglary conviction violates his rights under the Sixth Amendment because the facts necessary to imposition of the six year sentence were neither found by a jury nor admitted by him upon entry of his plea. The last reasoned state court rejection of this claim is the decision of the Sacramento County Superior Court on a petition for writ of habeas ...