FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction, after a guilty plea, of aggravated sexual assault on a child under the age of fourteen. He seeks relief on the grounds that his trial and appellate counsel rendered ineffective assistance, his plea of nolo contendere was involuntary, and he was not given required warnings prior to a police interrogation. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
A. Factual Background*fn1
Defendant Jose Rodriguez Garcia raped his 12-year-old stepdaughter, Sarah S. After waiving the preliminary hearing, he pleaded guilty to aggravated sexual assault on a child under the age of 14. (Pen.Code, §§ 261, subd. (a)(2), 269, subd. (a)(1).) The trial court dismissed two remaining counts pursuant to the plea agreement. The trial court sentenced defendant to 15 years to life in prison. It awarded him 281 days of presentence credit and imposed various statutory fines and fees.
Petitioner filed a timely appeal in the California Court of Appeal, Third Appellate District. The court appointed counsel to represent petitioner on appeal. (Opinion at 1.) Counsel filed an opening brief pursuant to People v. Wende, 25 Cal.3d 436 (1979), in which she set forth the facts of the case and requested that the appellate court review the record and determine whether there were any arguable issues on appeal. (Id. at 1-2.) Petitioner subsequently filed a pro se supplemental brief in which he claimed his constitutional rights were violated because:
(1) police questioned him without advising him of his Miranda*fn2 rights; (2) the authorities violated federal law by failing to inform the Mexican consulate of his arrest; (3) the authorities failed to inform him of his rights under the Vienna Convention, in violation of California Penal Code section 834c; and (4) his trial counsel rendered ineffective assistance because he failed to warn petitioner about the immigration consequences of his plea. (Id. at 2.) The California Court of Appeal rejected all of petitioner's supplemental claims in a reasoned decision. (Id. at 1-4.)
On April 28, 2005, petitioner filed a pro se petition for review in the California Supreme Court, in which he raised the same claims contained in his supplemental brief, described above. (Lodged Document No. 6.) That petition was summarily denied by order dated June 8, 2005. (Lodged Document No. 7.)
On June 7, 2006, petitioner filed a pro se petition for a writ of habeas corpus in the California Supreme Court, in which he raised essentially the same claims contained in the instant petition. (Lodged Document No. 8.) That petition was summarily denied by order dated December 20, 2006. (Lodged Document No. 10.)
II. Standards for a Writ of Habeas Corpus
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). Also, 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) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn3 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) 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). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). 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.
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In ...