The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for two counts of assault with a deadly weapon on separate victims (Cal. Penal Code § 245(a)(1)), making criminal threats (Cal. Penal Code § 422), and misdemeanor unlawful touching (Cal. Penal Code § 243.4(e)(1)). Petitioner is serving a sentence of 15 years.
The petition raises four claims: 1) violation of the right to a preliminary hearing; 2) jury instruction error; 3) ineffective assistance of appellate counsel; and 4) conviction obtained by use of perjured testimony. On January 16, 2009, respondent filed an answer. On January 28, 2009, petitioner filed a reply to respondent's answer. This brief raised a new claim alleging violations of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004) and Cunningham v. California, 549 U.S. 270 (2007). On February 26, 2009, the court ordered respondent to file briefing addressing the Apprendi, etc., claim. On March 18, 2009, respondent filed supplemental briefing. On March 31, 2009, petitioner filed a reply to respondent's supplemental briefing.
After carefully reviewing the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
In July 2002, longtime friends Connie O. and Susan C. lived together in a trailer park in Sacramento County. Connie and Susan were prostitutes and occasionally walked the stroll together. At the time, both women were also regularly using drugs, however, both women have since graduated from a recovery home and moved to transitional housing where they participate in a drug rehabilitation program.
Connie had known defendant, whom she and Susan knew as "Teddy," for approximately six months. Defendant would stand on the boulevard and harass the prostitutes. Defendant was mean, seemed to be psychotic, and bullied people on the street. Defendant would also panhandle and try to get the girls to give him money. Defendant had come to Connie's trailer once or twice to do drugs but they were not friends and did not have a sexual relationship of any kind. Susan had never been friends with defendant.
On the evening of July 6, 2002, Susan was in her trailer with the front door open when an acquaintance named Debbie ran in. She was obviously drunk and was followed in by defendant, who was swinging a flashlight at Susan. Defendant also had a friend waiting outside the trailer. Defendant tried to corner Susan on the couch and said he and his friend were going to take all the "pussy" they wanted. Susan was able to dodge the swinging flashlight, and ran out of the front door and past defendant's friend. She got her bike and went to look for Connie.
Connie saw defendant in the driveway of the trailer park as he was leaving her trailer. Defendant had a steak knife and was with a friend. Defendant stopped Connie on her bicycle and asked her if she had any money, to which she responded she did not. Defendant also said he was tired of her making a lot of money that defendant could not have. He then told Connie that, if she called the police, he was going to cut her up so she could not work as a prostitute anymore. A car drove by and defendant allowed Connie to go home.
Later that night, Connie was in the trailer when defendant came over and spent 30 minutes attempting to get inside. Defendant had a small steak knife and someone else with him. Defendant told Connie that she would eventually have to come out of the trailer and that if she did not come out, he would come back. Connie called the police but they were not sympathetic and did not take a report. Susan had returned to the trailer by the time Connie called the police.
That night, Connie's former boyfriend, Daniel R., spent the night. Connie and Daniel slept in the bedroom while Susan slept on the couch in the front room. At approximately 7:00 a.m. the next morning, Connie was awakened by someone touching her vagina over her sweatpants. She thought it was Daniel touching her and either he or defendant asked, "do you want sex?" When Connie opened her eyes, she saw defendant sitting on the side of the bed with his hands on her. She tried to kick him to get him away from her and tried to wake Daniel, who was hard to wake. When Daniel finally awoke, he got in front of Connie. When Daniel confronted defendant, Connie saw defendant retrieve a knife from his backpack. As defendant was threatening Daniel with a knife to Daniel's chest or throat, Connie ran out of the back door.
Susan had also been awakened by the sound of Connie screaming at Daniel to wake up. Susan grabbed a three-or four-foot pipe that she kept in the living room for protection and attracted defendant's attention to allow Connie to get away. Defendant walked toward Susan in the living room and Susan saw that defendant was pointing a knife at her. Defendant said either, "I'll cut your fool head off" or "Don't stand in my way, bitch. I will cut your head off." Susan was scared but, in order to allow Connie time to get away, responded by saying that her pipe was bigger than his knife. Defendant left through the back door.
Connie had run to another trailer nearby and called police. Sacramento County Sheriff's Deputy Scott Swisher arrived within approximately two minutes of being dispatched. When he arrived, Susan was talking very rapidly, was very nervous and appeared very fearful. Deputy Swisher spoke with both Susan and Connie, and radioed defendant's description to other officers in the area. Defendant was apprehended a short time later.
Respondent's Lodged Document 8, pp. 2-5.
A. Denial of Right to Preliminary Hearing
Petitioner raised this claim in a habeas petition filed in the Sacramento County Superior Court. On February 8, 2007, the Superior Court issued an order denying this claim on the merits. See exhibits attached to petition.*fn1 The California Court of Appeal denied petitioner's habeas corpus petition without comment or citation on June 7, 2007. Respondent's Lodged Document 11. The California Supreme Court denied petitioner's habeas petition without comment or citation. Respondent's Lodged Document 13. Accordingly, the court considers whether the denial of this claim by the Superior Court was an unreasonable application of clearly established Supreme Court authority. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (when reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision).
Petitioner alleges that his right to due process was violated when the charges against Susan Corbin were added two years and two months after the preliminary hearing. The background to this claim is contained in the motion to set aside the information filed by petitioner's trial counsel:
The defendant was charged by the complaint with violations of Section 459 and 245(a)(1) of the Penal Code on or about July 7th 200.
On December 19, 2002, a preliminary hearing was held before the Honorable Jeffrey L. Gunther at which time testimony was taken in support of the complaint. At the conclusion of the preliminary hearing, a holding order was issued to the felony charges of violating Penal Code of California Sections 459 and 245(a)(1) upon Connie O and a charge of 245(a)(1) upon Daniel Raynor. There was no holding order as to the alleged "victim" Susan Corbin.
The case was subsequently set for jury trial and continued a number of times at the request of the prosecution due to the "illness of Susan Corbin" who was not a named "victim" in the case.
On the eve of trial, the trial was again continued at the request of the prosecution to allow the prosecution to amend the complaint and consolidate the case with a new pending felony. Consolidation naming a minor "victim" in a separate incident and an adult (Dorothy Fox-Contreras) in another separate incident was permitted over the objection of the defendant. The case was again severed separating the case involving the minor upon motion by the defendant. Meanwhile, trial dates dragged on because prior to the consolidation, defendant was represented by different attorneys in each of the cases. Once the cases were consolidated, the defendant was still represented by two different counsels; each handling different counts of the information. To further complicate matters, the schedules of two defense attorneys had to be accommodated in addition to the deputy district attorney's schedule in order to get the case to trial.
Next, Dorothy Fox-Contreras was arrested on several felony counts and the deputy district attorney needed additional time to provide defense counsel in the case herein with relevant discovery regarding Dorothy Fox-Contreras.
Finally, approximately two years after the original complaint, the prosecution moved to amend and allege crimes against Susan Corbin in the July 7th event. No preliminary hearing was held in regard to the charges alleging acts against Susan Corbin.
In the motion to set aside the information, petitioner's trial counsel went on to argue that amendment of the information violated petitioner's right to due process because he was not permitted to cross-examine Corbin at the preliminary hearing. CT at 315. Counsel also argued that because the original complaint did not allege acts against Corbin, counsel did not prepare to defend against the new charges. Id. Counsel argued,
Cross-examination was not conducted with the thought of presenting an affirmative defense or any other defense against acts toward alleged victim Corbin. Witnesses that could have been subpoenaed in order to present such an affirmative defense were not called and did not testify. Tactical decisions were made with the knowledge that there were no charges against Corbin. Thus the amendment had the effect of denying the defendant adequate representation at the preliminary hearing in this matter.
The Superior Court denied this claim for the following reasons: Petitioner first claims there was no preliminary hearing held in the matter.
Not so. Preliminary hearing was held in Case No. 02FO5733 on December 19, 2002. Petitioner may be confused with his other case, Case No. 03FO7717, in which he waived preliminary hearing.
Petitioner then contradicts himself and admits that he had a preliminary hearing, but claims that he was denied the chance to cross-examine witnesses Corbin and Raynor at the preliminary hearing, and that appellate counsel was ineffective in failing to raise the matter on appeal.
Not so. Although other witnesses testified at the preliminary hearing, Corbin and Raynor were not called by either party, and defense counsel specifically stated no intention to call any witnesses at the preliminary hearing. Regardless, petitioner's rights simply were not violated. Corbin and Raynor did both eventually testify at trial, and petitioner had ample opportunity to cross-examine each at that time. The claim, therefore, is denied (In re Bower (1985) 38 Cal.3d 865).
See opinion of the Superior Court, attached as exhibit to petition.
In the answer, respondent correctly observes that there is no fundamental right to a preliminary hearing. Howard v. Cupp, 747 F.2d 510 (9th Cir. 1984). For this reason, respondent argues that petitioner's claim that his right to a preliminary hearing was violated regarding the Corbin charges is without merit.
While petitioner has no right to a preliminary hearing, he may also be raising a claim that the last minute amendment to the information adding the Corbin charges violated his right to due process. The original felony complaint was filed against petitioner on July 9, 2002. The preliminary hearing was held December 19, 2002. The amended information, ...