FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 19, 2003, a Solano County Superior Court jury found petitioner guilty of three counts of felony false imprisonment in violation of California Penal Code § 236. (Answer, Ex. D - Reporter's Transcript on Appeal (hereinafter "RT") Vol. 7 at 594-600.) On March 21, 2003, the trial court found that petitioner had suffered nine prior "strike" convictions. (Id. at 620-21; Answer, Ex. A - Clerk's Transcript on Appeal (hereinafter "CT") at 171.) Petitioner was sentenced to 25 years-to-life in state prison on count one, with a consecutive term of 25 years-to-life on count two, and a concurrent term of 25 yearsto-life on count three. (RT Vol. 9 at 20-21.) In his application for habeas relief pending before this court, petitioner alleges that: (1) he was denied due process when his motion to dismiss on "speedy trial" grounds under California Penal Code § 1381 was denied, (2) his trial counsel rendered ineffective assistance by failing to protect his right to a speedy trial under state law, (3) his conviction was based on insufficient evidence with respect to counts two and three, and (4) the trial court violated his right to confrontation and due process by prohibiting his cross-examination of a prosecution witness. (Am. Pet. at 5-6.) Upon consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts were taken from an unpublished opinion of the California Court of Appeal for the First Appellate District:
The Solano County District Attorney, by second amended information filed on March 11, 2002,*fn1 charged [petitioner] with three counts of felony false imprisonment regarding a woman, "C.W.," and her daughter and granddaughter, referred to herein as P. and N. The information also alleged that [petitioner] used a deadly weapon to falsely imprison C.W., charged him with a fourth count of burglary of C.W.'s home, and alleged that [petitioner] had nine prior "strike" convictions stemming from two previous cases. After a procedural controversy that we address further in our discussion section below, [petitioner's] jury trial began on March 12, 2003. C.W. testified that on October 18, 1995, at approximately 3:00p.m., [petitioner], an acquaintance of C.W. who had been to her Vallejo home previously, knocked on her door and, when she opened it, pushed his way in. He told C.W. he wanted some water, brought his bicycle inside and locked the door behind him.
C.W. testified that she gave [petitioner] a glass of water and then, feeling increasingly uncomfortable, began running to her bedroom in order to leave the house through a door in that room. [Petitioner] chased after her, pushed her down on her bed, slapped her and started choking her. He said he had a gun and a knife and threatened to "cut [her] up." C.W. saw a handle and a little bit of the blade of what she thought was a kitchen knife in [petitioner]'s back pocket. Scared, she lay on her bed praying while [petitioner] held her down and pressed himself against her for a few seconds. [Petitioner] then stood up and told C.W. that he was going to tie her up, proceeded to tie up her mouth, wrists and ankles, and picked her up and laid her on the bedroom floor in front of her bathroom.
While C.W. was on the floor, [petitioner] picked up a Bible in the room and said, "This is the Lord's house. Nothing's not going to happen to you in this house." He told her that if she was quiet and cooperated with him, he would not do anything to her. A short time later he also told her, "Lord must be in me. I can't hurt you if I wanted to."
C.W. testified that she heard a knock on the door 35 to 40 minutes after she had been in the bedroom. P. and N., then both eight years old, came into the bedroom a few moments later, looked at C.W., and began to cry. [Petitioner] told them he was just going to tie them up and was not going to hurt them, and tied up their wrists and feet with shoestrings. He told N., "Oh, pretty eyes. You're so pretty." He had the girls lay on the floor next to C.W., where P. at one point was "kind of kicking with her leg." [Petitioner] "stepped on [her] leg to make her be still." The three stayed on the floor of the bedroom, tied up, until about 7:00 p.m. that day.
C.W. recalled that someone knocked on the front door of the house around 4:30 p.m. and [petitioner] went out of the room, then returned and described two people that C.W. thought were her adult son Derrick and his girlfriend Anna. [Petitioner] did not answer the door. Around 7:00 p.m., [petitioner] untied C.W., P., and N., apologized and started to cry. A few minutes later, [petitioner] answered a knock at the front door. Derrick was at the door and came into the house; after Derrick greeted him, [petitioner] dashed out the door with his bicycle. C.W., P., and N. told her son what happened, and Derrick went to a neighbor's house to call the police. The police came to the house and C.W. told them what [petitioner] had done.
(Answer, Ex. L at 1-3) (footnote in original).
Following his conviction, petitioner filed his opening brief on appeal on March 31, 2004, with the California Court of Appeal for the First Appellate District raising the same issues that he presents in his petition before this court. (Id., Ex. F.) On September 16, 2004, petitioner filed an application for writ of habeas corpus with the California Court of Appeal for the First Appellate District raising three additional issues, none of which he has raised in his habeas petition in this court. (Id., Ex. I.) The California Court of Appeal considered both the direct appeal and the petition for writ of habeas corpus together. (Id., Ex. L at 1.) On February 24, 2005, the California Court of Appeal affirmed petitioner's conviction and sentence and denied his application for writ of habeas corpus. (Id.) Petitioner filed a petition for review with the California Supreme Court, which was denied.*fn2 (Id. at Ex. N.)
I. Standards of Review Applicable to Habeas Corpus Claims
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 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 (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).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The 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). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 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). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
A. The Denial of Petitioner's Motion to Dismiss
Petitioner first claims that his federal constitutional right to due process was violated when the state trial court denied his motion to dismiss brought pursuant to California Penal Code § 1381. (Am. Pet. at 4.) The California Court of Appeal, analyzed petitioner's argument in this regard as follows:
Before his trial, [petitioner] moved to dismiss this action on procedural grounds, arguing that his state statutory and federal due process rights were violated when his trial date was set beyond the deadline provided for in Penal Code section 1381. The court denied his motion, a ruling which [petitioner] contends was erroneous, as well as prejudicial because respondent would not have been able to refile charges against him under the applicable statute of limitations. [Petitioner] is incorrect on both claims. Section 1381 provides that, under certain circumstances, a person already incarcerated is entitled to trial regarding another offense within 90 days after that person's delivery of written notice to the district attorney of the place of his or her imprisonment or confinement and desire for a trial within 90 days. [Petitioner] contends the Solano County District Attorney received such a written demand from him on December 19, 2001.*fn3 Apparently, the Solano County authorities lost track of [petitioner's] status after receiving his written demand, and he remained in the custody of Alameda County authorities for trial on another charge from February 14, 2002, to ...