FINDINGS AND RECOMMENDATIONS
Petitioner is proceeding through counsel with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 11, 2003, petitioner was convicted in Placer County Superior Court of obstructing an executive officer (Cal. Penal Code § 69), resisting a peace officer (Cal. Penal Code § 148(a)), speeding (Cal. Veh. Code § 22350), driving without possession of valid registration (Cal. Veh. Code § 4462(a)), and assault on a peace officer (Cal. Penal Code § 241(b)). (P. & A. in Supp. of Pet. at 2, 16; Answer at 5.) In his application for federal habeas relief pending before this court, petitioner alleges that he was: (1) denied his Sixth Amendment right to a unanimous jury verdict when the trial court failed to give a standard instruction requiring that the jury agree as to which act or acts constituted the assault charged in order to convict; (2) denied his right to due process when the jury was erroneously instructed on the elements of assault and when the prosecutor committed misconduct in closing argument by misrepresenting the legal elements of assault; and (3) denied his Sixth Amendment right to effective assistance of counsel when his trial counsel failed to object to hearsay and expert opinion offered by lay witnesses, elected not to introduce evidence of prior misconduct by the arresting officer and failed to introduce additional expert testimony that would have supported the theory of the defense. (Pet. at 3.) Upon consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On the evening of January 15, 2002, petitioner was driving from the Arco Arena in Sacramento to his home in Auburn. (Answer, Reporter's Transcript (hereinafter "RT") at 489, 493-94.) Petitioner was pulled over for speeding on Highway 49 by California Highway Patrol Officer Patrick Cooney and ordered out of his vehicle. (RT at 495, 499.) A physical altercation ensued between petitioner and Officer Cooney. (Answer at 6; RT at 503.) The central factual issue at petitioner's trial was what led to the physical altercation and it was on this central issue that the parties presented widely divergent versions of the events.
According to Officer Cooney's trial testimony, when he arrived at the passenger side of the stopped vehicle, petitioner immediately questioned him in a harsh tone, stating "what do you want?" (RT at 17.) When Cooney attempted to respond, petitioner interrupted him and stated "Speed; right?" (RT at 17-18.) In response to Cooney's request for his driver's license, registration and insurance, petitioner produced his license but did not make a legitimate attempt to locate the other documents and instead stated something to the effect of "I'm in no mood for a lengthy delay, so write the fucking ticket." (RT at 18-20.) In light of petitioner's odd, belligerent and harsh, bordering on abusive, behavior Cooney directed him to exit his vehicle to assess whether petitioner was under the influence of anything or if there was something else underlying his behavior. (RT at 22-23.) Petitioner did so and walked hastily back toward Officer Cooney, waiving his arms and complaining in an agitated manner. (RT at 26.) Petitioner then stated something to the effect that he wanted Officer Cooney's badge number, reached up with his right hand and grabbed the officer's badge as well as part of the officer's uniform and took hold of it. (RT at 30.) Officer Cooney grabbed petitioner's wrist and pushed him back on petitioner's chest but petitioner pulled out of his grip. (Id.)*fn1 The officer caught back up to petitioner as he walked back toward his vehicle and grabbed him by the arm, just below the shoulder. (RT at 36.) Petitioner broke free again with a swinging motion and a closed fist. (RT at 37.) Officer Cooney then grabbed both of petitioner's forearms and told him he was under arrest at which time he was able to handcuff petitioner. (RT at 38.) However, as the officer began to walk the handcuffed petitioner back toward the patrol car, petitioner planted his foot and dipped his left shoulder forcibly back into the officer's rib cage. (RT at 42-45.) The blow knocked the officer off balance and the petitioner went to the ground with the officer falling on top of him. (RT at 46-47.) With petitioner immediately complaining that he was having a heart attack and that the officer was trying to kill him, Officer Cooney got petitioner up and into his patrol car and contacted his dispatch to report the incident. (RT at 49-53.) According to Officer Cooney the entire incident took place over a period of only five minutes. (RT at 64.)
The defense presented a significantly different version of the events to the jury. According to Dr. Hassan, he was completely cooperative and Officer Cooney was courteous up until the point that the officer learned petitioner's name. (RT at 498.) At that point, the officer very angrily and loudly ordered petitioner out of his car and let loose with a vitriolic, profanity laced tirade directed at petitioner for no reason. (RT at 499.) Nonetheless, petitioner followed the officer's direction to move to an area between the cars. (RT at 502.) At that point petitioner, while leaning forward and pointing at the officer's badge but never touching it, twice stated that he would like to see the officer's badge. (RT at 502-03.) Officer Cooney then grabbed petitioner by his belt, swung him back and forth and took him to the ground. (RT at 503.) When petitioner awoke, he was unable to breath and blood was coming from his face and Officer Cooney was still in a rage. (RT at 505.) Petitioner told the EMT that arrived on scene and others that he had been roughed up by the CHP officer and had been the victim of racial profiling. (RT at 512-14.) The jury apparently rejected petitioner's testimony, returning guilty verdicts on all counts.
As noted, on July 11, 2003, Placer County Superior Court jury found petitioner guilty on all counts. (Answer at 5.) On January 12, 2004, petitioner was placed on probation for three years with the condition that he perform 90 days of community service. (P. & A. in Supp. of Pet. at 16; Answer at 5.) Petitioner's motion for new trial was denied and he timely filed a notice of appeal. (Id.)
On December 21, 2004, the Appellate Department of the Placer County Superior Court affirmed the denial of a motion for new trial in a reasoned opinion. (Answer, Lod. Doc. "December 21, 2004, Opinion Affirming Denial of Motion for New Trial" (hereinafter "Opinion")). On January 24, 2005, the Appellate Department denied petitioner's petition for rehearing. (Answer, Lod. Doc. "January 24, 2005, Order Denying Petition for Rehearing"). On February 10, 2005, the California Court of Appeal for the Third Appellate District denied petitioner's request for transfer of appeal. (Answer, Lod. Doc. "February 10, 2005, Third Appellate District Court Denial of Transfer of Appeal").
On March 9, 2005, petitioner filed an application for writ of habeas corpus with the California Supreme Court presenting the same issues as are set forth in the instant petition. (Answer, Lod. Doc. "April 27, 2005, California Supreme Court Decision Denying Petition for Writ of Habeas Corpus"). On April 27, 2005, the California Supreme Court summarily denied the petition. (Id.)
On May 26, 2009, this Court ordered petitioner to address whether any adverse consequences of the challenged conviction remained and what, if any, effective habeas relief could still be provided through this action. (Doc. No. 7.) On June 8, 2009, petitioner filed a brief outlining numerous adverse consequences that he continues to suffer as a result of his conviction. (Doc. No. 8.) On June 16, 2009, respondent filed a response to petitioner's brief conceding that petitioner's claim was not moot. (Doc. No. 9 at 2.) Accordingly, this court will presume that petitioner's claim for habeas relief is not moot. Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994) ("Once convicted, one remains forever subject to the prospect of harsher punishment for a subsequent offense as a result of federal and state laws that either already have been or may eventually be passed.")
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). 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. Sixth Amendment Right to a Jury Trial
Petitioner alleges that he was "denied the right to a unanimous jury verdict guaranteed by the Sixth Amendment to the United States Constitution, when the trial court failed to give a standard jury instruction on unanimity, in view of varying evidence in support of three separate alleged assaults." (Pet. at 3.) Petitioner states further that "the requirement of jury unanimity has been recognized as a federal constitutional principle; it is necessarily applicable to state court trials through the habeas corpus statute." (P. & A. in Supp. of Pet. at 17) (emphasis in original.)*fn2
Essentially, petitioner argues that the prosecution argued to the jury that it could convict him of assault if it found any one of at least three discreet acts to have occurred, the grabbing of the officer's badge, the swing at the officer as petitioner broke free from the officer's hold or the spearing of the officer with his shoulder after he was handcuffed. In addition, petitioner asserts that in his closing the prosecutor argued, improperly, that petitioner could be convicted of assault based upon his mere pointing at the officer's badge and that the trial court failed to make clear to the jury that the law did not allow such a conclusion to be reached. Petitioner argues that under these circumstances it was a violation of his federal constitutional rights for the trial court not to instruct the jury with the California unanimity instruction requiring the jurors to unanimously agree on the act or acts that the defendant committed constituting the crime.*fn3
Petitioner's argument in this regard is not persuasive. First, the Appellate Department of the Placer County Superior Court relied solely on California law in rejecting his argument that the trial court improperly failed to give a unanimity instruction. (Opinion at 3-4.) Specifically, the state court concluded that:
[A]s to Appellant's argument that the trial court improperly failed to give the unanimity instruction, this court finds that there was no error. Where the evidence demonstrates more than one unlawful act could support a charged offense, either the prosecution must elect upon which act to rely, or the jurors must be given a unanimity instruction telling them they must unanimously agree which act constituted the crime. People v. Thompson (1995) 36 Cal. App. 4th 843. The unanimity requirement is designed "to eliminate the danger that the defendant will be convicted even though there is no single offense which all jurors agree the defendant committed." People v. Russo (2001) 25 Cal. 4th 1124, 1132. An exception arises where the unlawful acts are so closely connected they form a single transaction. Thompson, supra, at 851. This court finds that although defendant resisted the officer in different ways, his conduct was ongoing and could not be fairly divided into discrete criminal events. Furthermore, defendant offered the same defense to each act, i.e., "It did not happen." Defendant provided no reasonable basis for the jury to distinguish one defense from the other. This court has found no cases where incidents committed in the same vicinity and so close in time required a unanimity instruction. People v. Jefferson (1954) 123 Cal. App. 2d 219, 221.
However, a challenge to jury instructions does not generally state a federal constitutional claim. See Middleton v. Cupp, 768 F.2d at 1085 (citing Engle v. Isaac, 456 U.S. at 119); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). As noted above, habeas corpus is unavailable for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Of course, a "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)). See also Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (To prevail on such a claim petitioner must demonstrate that an erroneous instruction "so infected the entire trial that the resulting conviction violates due process.").
The analysis for determining whether a trial is "so infected with unfairness" as to rise to the level of a due process violation is similar to the analysis used in determining, under Brecht, 507 U.S. at 623, whether an error had "a substantial and injurious effect" on the outcome. See Polk v. Sandoval, 503 F.3d 903, 911 (9th Cir. 2007) (standard applied to habeas petition presenting a jury instruction challenge); McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993). In making its determination, this court must evaluate the challenged jury instructions "in the context of the overall charge to the jury as a component of the entire trial process." Prantil, 843 F.2d at 317 (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). Where, as here, the challenge is to a failure to give an instruction, petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977). See also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).
The state court concluded that petitioner's jury was adequately instructed on the elements of assault and that no unanimity instruction was required under state law under the circumstances presented in this case. The state court's conclusion that California law did not require an unanimity instruction under the circumstances of this case is binding on this court. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus"). Moreover, the state court's conclusion that the unlawful acts were so closely connected in time and otherwise so as to form a ...