FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding with counsel on a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his Butte County convictions of vehicular manslaughter with gross negligence and felony child endangerment and the three strikes sentence of fifty-years-to-life that flowed from the court's finding that petitioner had suffered three prior serious felony convictions. After lengthy proceedings on a motion to dismiss, the court is ready to address the merits of the underlying petition.
As background for the issues raised in the petition, the court relies on the Court of Appeal's factual recitation, which is consonant with this court's reading of the record of the state proceedings:
Around 9:00 p.m. on October 25, 1999, Joshua Hughes, who was 10 years old at the time of trial, returned home with his sister from a Halloween party. Their mother, Kathleen Taylor, and defendant, who was Taylor's husband, were at home.
Joshua was in his mother's room when she awakened defendant and asked him to take her to the hospital. She had a fever and complained of severe pain in her arm. Joshua noticed defendant had difficulty getting dressed to go to the hospital and acted like he had been drinking.
Joshua accompanied Taylor and defendant to the hospital in a small white car. On the way, defendant was "not [driving] very well." He was going fast and passing other cars, which scared Joshua. When Joshua asked him to be careful, defendant told Joshua to shut up.
At the hospital, Taylor was examined and given pain medication. When she emerged from the examining room, she was in a wheelchair, had a decreased level of consciousness, and had to be helped into the car by Matthew Morrow, the emergency room security guard. Morrow observed that defendant was moving very slowly and that he spoke very quietly and slowly.
Accordingly to Joshua, defendant's driving was even worse on the way home. He drove faster, passing other cars in a dangerous fashion and hitting the gravel on the side of the road. Taylor leaned her head against defendant's shoulder one or two times and he shrugged her off. When defendant drove around a curve, the car went off the road and rolled. At the time of the crash, Taylor was leaning against the window, not against defendant.
Shortly before the crash, Kirk Vineyard was driving on the same road and observed defendant's car approaching rapidly from behind. Vineyard pulled out of the way into another lane, and defendant passed at a speed Vineyard estimated as 70 to 75 miles per hour. According to Vineyard, the right wheels of defendant's car were in Vineyard's lane as he passed, and Vineyard had to veer away. Defendant's car swerved back and forth, crossing both lanes from one edge of the road to the other. Vineyard thought an accident would happen, and he began to slow down to avoid being involved. Two other cars passed Vineyard's vehicle. The crash occurred about two miles later.
Clinton Burke was in one of the cars that passed Vineyard, and Burke's girlfriend was in the other. Burke had been driving through Lookout curve when a small white vehicle drove past him at an excessive rate of speed. The car nearly ran Burke off the road by crossing into his lane, and then it did the same thing to his girlfriend. Burke decided to accelerate and catch up to the white car, but was unable to do so despite increasing his speed to 90 miles per hour. The white car was "all over the road," on one shoulder and then another, and then driving down the middle of the road in both lanes. After it passed an SUV, the white car veered sharply to the right and hit the dirt. The driver slammed on the brakes, and the car shot across the road, went into the center divide, and crashed.
Burke stopped and approached the car, which was on its roof, and saw a boy crawl out. Defendant was in the driver's seat. Vineyard was hesitant to help defendant out of the car because given "the way the car was driving [Vineyard] really didn't know what influence the driver might have been under." Taylor, who was dead, had been thrown 30 or 40 feet from the car. Defendant told Vineyard that Taylor had been driving.
Shelly Rogers, one of the nurses who treated defendant at the hospital, testified that defendant was lethargic when he arrived. She had difficulty obtaining a blood sample from defendant and was able to draw only a small amount of blood.
Mike Cafferata, another nurse at the hospital, stated that defendant had a decreased level of consciousness and was not acting as expected for the situation. At the direction of an emergency room physician, Cafferata administered Narcan (an antagonist drug that reverses the effects of narcotics). Defendant awoke, looked at the IV in his hand, and said, "You gave me Narcan, didn't you, motherfucker."
Toxicologist Nancy Enkema testified that a urine sample taken from defendant on the night of the crash contained Carisoprodol (a muscle relaxant), Meprobamate (a central nervous system depressant), and two other narcotic analgesics. Enkema explained that muscle relaxants act like alcohol, causing poor reaction time, inattentiveness, poor judgment, and drowsiness, which would cause a driver to weave and drive erratically. A blood sample drawn from defendant showed no blood-alcohol level and reflected that he had ingested morphine or hyrocodone.
Enkema also analyzed Taylor's blood, which showed that Taylor had a 0.08 percent blood-alcohol level and had ingested therapeutic levels of Demerol, Carisopordol, and Meprobamate.
A few days after the crash, defendant told Joshua to say that Taylor had caused the crash by leaning against defendant. This was the same story that defendant gave to the investigating officer on the night of the crash. Defendant also told the officer that Taylor had been driving.
Defense Henry Rast, an accident reconstructionist, opined that the crash did not result from defendant failing to have control of the car. In his opinion, one set of wheels was on the pavement and the other was on the dirt just before the crash. Thus, as defendant drove back onto the pavement, he had to correct for the different road surfaces, and this led to the roll-over crash. According to Rast, the accident was consistent with someone having fallen onto the driver. Rebuttal Jerry Stites, who had training and experience in accident reconstruction, investigated the crash that caused Taylor's death. His investigation revealed that defendant drove on the shoulder of the road for 461 feet in one area and 122 feet in another before overcorrecting, returning to the pavement, and crossing the road. Stites disagreed with Rast's findings and opined that, if a driver reacted in the manner described by Rast, the driver was not in control of the vehicle.
II. Standards Under The AEDPA
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").*fn2 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).
III. Ineffective Assistance Of Counsel
Petitioner argues that trial counsel was ineffective in two respects: he failed to move to dismiss petitioner's prior strikes and he failed to seek an order reducing his convictions for vehicular manslaughter with gross negligence in violation of California Penal Code § 192(c)(1) and felony child endangerment in violation of California Penal Code § 273a, both of which are "wobblers"*fn3 to misdemeanors. Mem. P. & A. in Supp. Pet. (Pet.)*fn4 at 9-15 These claims were not raised on direct appeal, but rather in a state habeas petition. Lodg. Doc. 4. The last reasoned opinion on these issues was issued by the Butte County Superior Court, which said only that "petitioner has failed to demonstrate . . . that counsel's performance fell below acceptable standards in some respect." Lodg. Doc. No. 5 at 2. The California Supreme Court denied a petition raising the same claims without comment. Lodg. Doc. No. 7.
The federal law on claims of attorney ineffectiveness is clear: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. However, a court must "indulge a strong presumption" that counsel's conduct falls within the range of competence. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). An attorney is not ineffective for failing to file a frivolous motion. Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action not ineffective).
It also is petitioner's burden to establish prejudice: "A defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. When the particular claim is the failure to file a motion, there are additional requirements for the showing of prejudice: a habeas petitioner must show that the claims that should have been raised in the motion were meritorious and that there is a reasonable probability that the results of the proceeding would have been different if the motion were granted. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
In People v. Superior Court (Romero), 13 Cal.4th 497, 529-30 (1996), the California Supreme Court found that under the Three Strikes Law, a trial judge has the discretion to dismiss a prior felony conviction allegation even over the prosecutor's objection. And in People v. Superior Court (Alvarez), 14 Cal.4th 968, 977-79 (1997), the Supreme Court found that California's Three Strikes Law had not stripped a court of its discretion under California Penal Code ...