The opinion of the court was delivered by: John C. Coughenour United States District Judge
THE HONORABLE JOHN C. COUGHENOUR
This matter comes before the Court on Petitioner Bernardo Vasquez Aguirre's First Amended Petition for Writ of Habeas Corpus (Dkt. No. 9); Respondent Rosanne Campbell's Answer (Dkt. No. 25);*fn1 and Petitioner's Traverse (Dkt. No. 30). Having reviewed the relevant documents, the governing law, and the balance of the record, the Court declines to hold an evidentiary hearing and DENIES the petition, for the reasons that follow.
Petitioner is incarcerated at Mule Creek State Prison in Ione, California. (See Traverse 14 (Dkt. No. 30 at 1).) In 2004, Petitioner was convicted by a jury in the Sacramento County Superior Court of a variety of sex crimes against his wife's granddaughter, who, at all relevant times, was under twelve years old. The events occurred over a series of six years, between 1994 and 2000, when Petitioner was between thirty-two and thirty-eight years old. People v. Aguirre, No. C047644, at 2 (Cal. Ct. App. 3d Dist. Jan. 11, 2006) (Dkt. No. 26-4) (hereinafter Direct Appeal).*fn2 The jury convicted Petitioner of five separate counts of committing a lewd or lascivious act with a child under fourteen years of age (Counts 1, 2, 6, 7, and 8); three counts of aggravated sexual assault of a child under the age of fourteen by rape (Counts 3, 5, and 10); one count of aggravated sexual assault of a child under fourteen years of age by forcible oral copulation (Count 9); and one count of misdemeanor indecent exposure (Count 4). (Id. at 2--3.) The trial court sentenced Petitioner to a term of fourteen years, followed by sixty years to life. (Id. at 4.)
On direct appeal, Petitioner challenged his conviction and sentence on five grounds: (1) insufficient evidence to support convictions for four counts of aggravated sexual assault of a child; (2) failure to instruct on lesser included offenses; (3) erroneous instruction on adoptive admissions in violation of his right to silence; (4) running of the limitations period on his misdemeanor conviction; and (5) violation of his right to a jury trial in the imposition of consecutive sentences. (Direct Appeal (Dkt. No. 26-4).) The appellate court vacated the indecent exposure conviction because it was time-barred, but affirmed the remaining nine counts in a reasoned opinion. The California Supreme Court then summarily denied review. People v. Aguirre, No. S141092 (Cal. Apr. 12, 2006) (en banc) (Dkt. No. 26-6).
After exhausting his direct appeals, Petitioner began state habeas proceedings. Petitioner first sought a writ of habeas corpus in Sacramento County Superior Court, arguing that his due process rights had been violated because the prosecution used a "generic" charging document, and because the trial court failed to disqualify the trial judge. In re Bernardo Vasquez Aguirre, No. 06F06069 (Cal. Super. Ct. Sacramento Aug. 21, 2006) (Dkt. No. 26-8) (hereinafter State Habeas Op.). The superior court denied his petition on August 21, 2006. (Id.) The California Court of Appeal, and then the California Supreme Court, both summarily denied petitioner's writ. In re Bernardo Vasquez Aguirre, No. C053599 (Cal. Ct. App. 3d Dist. Sept. 14, 2006) (Dkt. No. 26-10); In re Bernardo Vasquez Aguirre, No. S147372 (Cal. Apr. 18, 2007) (Dkt. No. 26-12).*fn3
On April 26, 2007, Petitioner, proceeding pro se, filed an amended petition for habeas corpus in this Federal Court. (Am. Pet. (Dkt. No. 9).) Petitioner here presents eight substantive grounds for relief. The first four were presented on direct appeal to the California state courts:
(1) insufficient evidence on four of the counts; (2) failure of the court to instruct on lesser included offenses; (3) imposition of consecutive sentences in violation of Sixth Amendment right to jury trial; and (4) admission of video interview in which silence was allowed to infer guilt in violation of due process and Fifth Amendment right to freedom from self-incrimination. The next two grounds were presented in Petitioner's state habeas proceeding: (5) failure to indict with sufficient particularity in violation of right to due process; and (6) failure to disqualify the trial judge in violation of right to due process. The last two grounds for relief are raised for the first time on this petition: (7) infirmities with the California courts' post-conviction proceedings in violation of right to due process; and (8) ineffective assistance of counsel at trial and on appeal. Petitioner additionally requests an evidentiary hearing.
A. Federal Habeas Review, Generally
A state prisoner may collaterally attack his or her detention in federal court if he is being held in violation of the Constitution or laws and treaties of the United States. 28 U.S.C. § 2254(a). Federal review of state court incarceration is sharply limited, however. Under the strict standards imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant a state prisoner's habeas petition unless the state court's adjudication (1) "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings." Id. § 2254(d). On the whole, this is a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal citations omitted).
Under the first prong of section 2254(d), a state court decision is "contrary to" federal law if the state court applies a rule that contradicts the governing law from Supreme Court precedent or decides the case differently from a Supreme Court case with materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405--06 (2000). It is important to note that "clearly established federal law" is only the holdings (not the dicta) of Supreme Court decisions (not those of lower courts) that had been rendered at the time of the state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006). Likewise,a state-court decision is an "unreasonable application" of federal law if the state court correctly identifies the governing law but unreasonably applies the rule to the facts of the petitioner's case. See Williams, 529 U.S.at 413. An unreasonable application means more than that the district court, in its independent judgment, believes that the relevant state court decision applied the law incorrectly, or even in clear error; rather, the application must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75--76 (2003) (citations omitted).
Under the second prong of section 2254(d), to show that the state courts unreasonably determined the facts, the petitioner must overcome a presumption that the state courts correctly determined factual issues. 28 U.S.C. §§ 2254(d), (e)(1). The petitioner carries the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.
In reviewing the state court proceedings, the federal court looks to the last reasoned state-court decision. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). This includes the defendant's trial, direct appeals, and state habeas proceedings. See id. at 739 (reviewing trial record as last reasoned state-court decision); Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (last reasoned state-court opinion was direct appeal). When the state court has denied the petition on the merits without providing reasoning, the federal courts must independently review the record to determine whether the state court's decision contradicted federal law. See Greene v. Lampert, 288 F.3d 1081, 1088--89 (9th Cir. 2002). In this case, the last reasoned state-court decision differs for each of Petitioner's claims, as discussed below.
Pro se habeas petitions must be construed liberally. Laws v. Lamarque,351 F.3d 919, 924 (9th Cir. 2003) (citing Maleng v. Cook, 490 U.S. 488, 493 (1989)). The petition and the traverse may be treated as an affidavit. See id.
B. Petitioner's Second, Sixth and Seventh Claims
Three of Petitioner's eight claims for relief can be quickly addressed.
In Petitioner's second basis for relief, failure to instruct sua sponte on lesser included offenses, Petitioner fails to allege a federal cause of action. James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) ("Failure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding."). To the extent that a criminal defendant is entitled to adequate instructions on his or her theory of the defense, see Bashor v. Riley, 730 F.2d 1228, 1240 (9th Cir. 1984), the state court did give appropriate instructions on the lesser included offense of lewd conduct with a child, and thus there was no "fundamental unfairness" that offended Petitioner's due process rights. See id.
Similarly, as to Petitioner's seventh basis for relief, infirmities within the state court post-conviction proceedings, Petitioner has failed to allege a federally cognizable claim. See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) ("a petition alleging errors in the state post-conviction process is not addressable through habeas corpus proceedings").
And as to Petitioner's sixth claim, failure to disqualify the trial judge, Petitioner's claim rests on the mistaken belief that the court denied his motion; in fact, the court granted the motion, and the matter was reassigned to a different department. (State Habeas Op. 2 (Dkt. No. 26-8); see also Clerk's Tr. vol. 1, 10, 99, 109 (Dkt. No. ...