The opinion of the court was delivered by: Honorable N. Randy Smith Ninth Circuit Court of Appeals Judge
The Petitioner's Federal Habeas Corpus petition, Petitioner's Request for an Evidentiary Hearing, Petitioner's Request for Sanctions against Respondent, and Petitioner's Motion for Reconsideration of Reassignment of Judge now come before the Court for decision. We deny each of Petitioner's claims and dismiss Petitioner's Habeas petition without prejudice.
Because the parties are familiar with the factual background of this case, the Court highlights here only the events giving rise to the current federal action. After exhausting his direct appeals, Petitioner filed a petition for a writ of habeas corpus and an application to recall the remittur in the California Court of Appeals, Third Appellate District, on May 15, 2006. The California Court of Appeals denied both petitions on May 18, 2006. On May 26, 2006, Petitioner filed a petition for review in the California Supreme Court arguing that the Court of Appeals did not consider his application to recall the remittur. The California Supreme Court denied review. Shortly thereafter on June 20, 2006, Petitioner filed another petition with the California Supreme Court challenging the Court of Appeals's denial of his motion to recall the remittur. The California Supreme Court denied review of the petition on July 26, 2006. On August 4, 2006, Petitioner filed his petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 5, 2007, Respondent filed a motion to dismiss, arguing Petitioner had failed to exhaust his state remedies. The Magistrate Judge disagreed and issued Findings and Recommendations, wherein the Magistrate Judge recommended denying Respondent's motion to dismiss. On February 22, 2008, the Court adopted the Magistrate's Findings and Recommendations and ordered Respondent to file an answer to Petitioner's habeas petition. Respondent filed his answer on April 21, 2008. On June 24, 2008, Petitioner filed a Traverse, along with (1) his motion for an evidentiary hearing and (2) his request that the Court issue sanctions against Respondent for noncompliance with a state document production order. On December 1, 2008, this action was reassigned to another judge. Shortly thereafter, Petitioner moved the Court for reconsideration of its reassignment.
In his habeas petition, Petitioner alleged four grounds: (1) Ineffective assistance of trial and appellate counsel; (2) Substantially materially false evidence was presented during Petitioner's pre-trial and jury trial proceedings; (3) Violation of Ex Post Facto Clause; and (4) Erroneous sentence under Blakely v. Washington, 542 U.S. 296 (2004). Each argument fails on the pleadings. Accordingly, the Court dismisses Petitioner's habeas petition without prejudice.
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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). "[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." Lockyer v. Andrade, 538 U.S. 63, 75--76 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)). "Rather, that application must be objectively unreasonable." Id. at 76.
Moreover, Habeas Rule 4 requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases.
For purposes of AEDPA review, this Court looks to the last reasoned state court decision as the basis for the state court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803--04 (1991). The California Court of Appeals's summary denial of the petition operates as the last reasoned state court decision. See Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992).*fn1 Thus, the Court must determine whether the California Court of Appeals's denial of Petitioner's habeas petition "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 "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).
A. Ineffective Assistance of Trial Counsel
Petitioner first argues that his trial counsel was ineffective for failing to argue a Fourteenth Amendment Due Process violation. Though the victim in this case filed her complaint in summer 1998, Petitioner was not arrested until spring 2003. Petitioner contends that this delay was unjustified and that his counsel should have investigated and raised this issue at trial. Petitioner's argument, therefore, is two-fold: (1) the delay between the filing of the complaint and his arrest was unjustified and violated his Due Process rights; and (2) counsel's failure to investigate and raise this issue (in the form of a Rost motion or otherwise) constituted ineffective assistance of counsel.
In deciding whether to grant habeas relief, this Court must determine: (1) whether the delay in Petitioner's arrest violated his due process rights; (2) if the delay did constitute a due process violation, whether Petitioner's counsel was ineffective for not investigating or raising the issue at trial; and (3) if there was a due process violation and Petitioner's counsel was ineffective for failing to raise the issue at trial, whether the California state court's adjudication of that issue warrants habeas relief under the AEDPA standards. Petitioner's argument fails under each test.
1. Whether the Delay in Petitioner's Arrest Violated Petitioner's Fourteenth Amendment Due Process Rights
The Ninth Circuit has developed "a two-prong test for determining if pre-indictment delay has risen to the level of a denial of due process." United States v. Moran, 759 F.2d 777, 780 (9th Cir. 1985). "The first prong of this test is that the defendant must prove 'actual prejudice' occurred from the delay." Id. Once actual prejudice is shown, "the length of the pre-indictment delay and the reason for that delay must be weighed to determine if due process has been violated." Id. at 781. California law adds an additional layer of protection, in the form of a Rost motion. In Rost v. Municipal Court, 7 Cal. Rptr. 869 (Cal. Dist. Ct. App. 1 1960), the court, apparently relying on the California Constitution, held that "the constitutional requirement of a speedy trial requires that a defendant be served with a warrant of arrest within a reasonable time after the filing of the complaint." Id. at 873.
Petitioner alleges that, due to the delay, he was unprepared to testify, he was unable to prepare a credible alibi defense, and he was hindered in rendering an accurate account of past events.*fn2
Absent evidence of government culpability, "bald assertions" of prejudice are insufficient to plead prejudicial delay. Moran, 759 F.2d at 783. In this case, Petitioner has provided only bare bone allegations that his defense was prejudiced. Petitioner contends that his alibi defense was weakened, but fails to allege exactly how, if at all, an earlier arrest would have bolstered his alibi defense. He does not state what facts, if remembered, would have helped his testimony or added to his credibility. Moreover, any claim that the evidence was stale after five years is mitigated by the fact that Petitioner was arrested within the statutory time period. See United States v. Lovasco, 431 U.S. 783, 789 (1977) ("[The] statute of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide 'the primary ...