The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
This habeas case presents the interesting state law question -- by what standard under California law does one measure the "fear" necessary for the crime of robbery when force in taking property is not utilized. The Court of Appeal answered the question by holding that the standard is a subjective one, i.e., did the victim turn over property to another out of his own sincerely held belief that he might be hurt or in danger. However interesting the question of state law may be, the state court has spoken, and its ruling precipitates a denial of all claims in this federal habeas petition. The undersigned can find no federal constitutional requirement for an objective finding of fear in a robbery situation.
This habeas action proceeds before the undersigned pursuant to 28 U.S.C. § 636(c) (consent to proceed before a magistrate judge).
1. Insufficient Evidence of the Fear Element of Robbery; Failure to Require Evidence of an Objective Component of Fear, i.e., a Reasonable Victim Would Have Felt Fear
2. Sua Sponte Duty of the Court to Instruct on the Objective Component of Fear; [Claims 3 and 4 are identical claims]
3. Sua Sponte Duty of the Court to Instruct on the Lesser Offenses of Petty Theft and Theft by Trick;
4. Sua Sponte Duty of the Court to Instruct on Petty Theft and Theft by False Pretenses In discussing the issues, the undersigned will break out of issue number one the two issues of: (a) whether federal law requires an objective standard for finding fear in a robbery situation; and (b) if not, was there sufficient evidence of subjective fear. Issues 3 and 4 will be combined as they are essentially identical issues.
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 10, 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).
It is also important to emphasize in this case that the federal court does not have authority to determine the "correct" interpretation of state law. Such pronouncements are for the state courts only except in the extraordinary situation where the interpretation of state law by the state court(s) is an arbitrary attempt to avoid or obfuscate the federal issues present in the case. Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995); Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989). "State ...