FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding with an application for writ of habeas corpus under 28 U.S.C. § 2254. In 1991, petitioner was convicted of two counts of first degree murder in Butte County. For each conviction petitioner received a sentence of life imprisonment. In this action, petitioner presents two grounds for relief. First, he asserts his sentence is unconstitutional because, even though he was an aider and abettor to first degree murder, he received a longer sentence than the principal. He also claims his convictions must be reversed because his trial counsel had a conflict of interest that deprived petitioner of the effective assistance of counsel guaranteed by the Sixth Amendment.
On February 10, 2009, the undersigned filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Petitioner filed objections to the findings and recommendations. The respondent did not file any objections, nor did he respond to the objections filed by petitioner. By order of March 25, 2009, the court vacated the findings and recommendations of February 10. These findings and recommendations address the merits of the habeas petition, taking into account plaintiff's objections to the February 10 findings and recommendations.
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").*fn1 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. Early v. Packer, 537 U.S. 3, 8 (2002).
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 other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
"Clearly established" federal law is that determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law. Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at 782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of Supreme Court precedent is misplaced).
In his objections to the February 2009 Findings and Recommendations, petitioner argues for a less deferential standard of review than the one given in Himes. Relying on Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004), petitioner states that because the California Supreme Court denied his claims on procedural grounds, the court should employ a de novo standard of review. See Objections at 2-4; Lewis, 391 F.3d at 996 ("De novo review, rather than AEDPA's deferential standard, is applicable to a claim that the state court did not reach on the merits.").
The California Supreme Court's decision in this case presents something of a middle ground between Himes and Lewis. The decision is a one-sentence order denying the petition, followed by a string of citations to cases that California courts typically rely upon when they deny a habeas petition on procedural grounds. See Original Pet., Ex. C-7. The California Supreme Court's order is utterly devoid of any analysis, procedural or otherwise, and can in no way be construed as a "reasoned decision." In this respect, the order appears to warrant review using the "objectively unreasonable" standard articulated in Himes. On the other hand, the string cite following the California Supreme Court's summary denial leaves little question that the decision was based on some unspecified procedural bar to habeas relief ...