The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge
MEMORANDUM OPINION and ORDER RE: PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Robert Mathis' (Mathis or Petitioner) Second Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Ct. Rec. 14), to which the Respondents have answered (Ct. Rec. 19). Mr. Mathis has filed a reply (Ct. Rec. 21). Mathis' grounds for relief are organized as follows: (1) the state court misapplied California law, (2) the trial judge was biased, (3) the state court committed a Marsden violation, (4) Petitioner had ineffective assistance of trial and appellate counsel, (5) the jury instructions were erroneous and vague, and (6) a sentence of twenty-five years to life amounts to cruel and unusual punishment. Respondents argue that (1) the writ should be denied on the merits and (2) the jury instructions argument is not a cognizable claim, but could also be denied on the merits.
While the court is prepared to deny the Petitioner's Petition For Writ of Habeas Corpus in accordance with this Memorandum Opinion, before the entry of a final judgment the court will give the Petitioner the opportunity, in accordance with the new Rule 11 of the Rules Governing § 2254 & 2255 proceedings, to make a substantial showing of the denial of a constitutional right for purposes of appeal. See 28 U.S.C. § 2253 (c)(2).
In the evening of April 8, 2003, Mr. Mathis entered a clothing store within a shopping complex in El Dorado County, California. Mathis was accompanied by another man by the name of Dan Dillon. Mathis picked up a woman's silver accordion style concha belt priced at $219.99 and began throwing it in the air. When Mathis walked behind one of the displays, the belt disappeared from observation of his hands. He then headed toward the exit. The store clerk confronted Mathis who denied having the belt though it was visibly in his front pocket. When the clerk stated that she could see the belt in Petitioner's pocket, he removed it, asked for her name and repeatedly threatened her, stating "It's okay. I will be back. You'll see me again." The clerk then called the police. Officers responding to the clerk's call found Mathis and Dillon in a nearby store where Mathis admitted that he had wanted the belt, intended to take it and still wanted it. Mathis was subsequently arrested and booked. Dillon was not arrested. During booking it was discovered that Mathis did not have money with which to purchase the belt as he had only change in his wallet and no bills, checks or credit cards.
Mathis was charged with attempted petty theft, petty theft, and commercial burglary. Under California law petty theft with a prior conviction is a so-called "wobbler" offense because it is punishable either as a misdemeanor or as a felony. Ewing v. California, 538 U.S. 11, 16-17(2003). The decision to prosecute petty theft with a prior conviction as a misdemeanor or as a felony is in the discretion of the prosecutor. Id. at 17. The trial court also has discretion to reduce the charge to a misdemeanor at the time of sentencing. Id. Mathis was prosecuted on a felony petty theft charge. The charge of attempted petty theft was dismissed. Mathis was convicted by a jury of petty theft and acquitted of burglary. For sentencing purposes it was alleged that Mathis had previously been convicted of four "strike" offenses (two robberies, a rape and a burglary) and had served a prior theft-related prison term. After Mathis waived a jury trial on the sentencing allegations, the prior convictions were found to be established at a bench trial. The trial court did not reduce the petty theft felony to a misdemeanor. On May 20, 2004, the court sentenced Mathis to state prison for a term of twenty-five years to life.
Mathis appealed and the California Court of Appeals affirmed the judgment on August 17, 2005 (Ct. Rec. 14-2, p. 24). The California Supreme Court denied review (Ct. Rec. 14, p. 2). Subsequently, Petitioner unsuccessfully filed habeas petitions in state courts: the Superior Court (December 2006), Court of Appeals (January 2007), and Supreme Court of California (July 2007) (Ct. Rec. 14, p. 9-12). Mr. Mathis' Second Amended Writ of Habeas Corpus was filed in the United States District Court for the Eastern District of California on October 26, 2007. The parties agree that it is timely.
Mr. Mathis' petition is reviewed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), as his federal petition was filed in 2007. Woodford v. Garceau, 538 U.S. 202, 210 (2003)(holding that AEDPA applies to applications filed in the federal courts after April 24, 1996). "We . . . review the state court's determinations through a 'highly deferential' lens." Matylinksy v. Budge, 577 F.3d 1083, 1090 (9th Cir. 2009).
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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).
A decision is "contrary to" clearly established federal law in two circumstances. First, when "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams v. Taylor, 529 U.S. 362, 405 (2000). Second, a state court decision is "contrary to" clearly established federal law when the state court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than the [Supreme Court] has on a set of materially indistinguishable facts." Id. at 412-413. A state court unreasonably applies clearly established federal law when it applies the law in a manner that is "objectively unreasonable." Id. at 409. "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) - whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law." Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
In examining whether state courts reached a decision that was contrary to federal law or whether the state courts unreasonably applied such law, the court should look to the last reasoned state court decision reviewing the conviction and sentence. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
B. Petitioner's State Law Sentencing Theories (Ground One and Six*fn1)
Mr. Mathis claims that his conviction of theft was a misapplication of state sentencing law. Specifically, he argues that his actions were at most attempted theft and therefore not a strikeable offense, that the arresting officer's classification of the crime as an attempted petty theft is controlling, and that it is relevant that he gave the belt back to the clerk when stopped rather than leaving the store with it.
Respondents respond that under California law, petty theft can be a felony when a defendant has previously served a prior theft-related prison term (Cal. Penal Code § 666 (West Supp. 2009). It is undisputed Mathis had served such a term. Furthermore, California's Three Strikes Law, which provides for a term of twenty-five years to life for felonies, applies to such a petty-theft-turned-felony. Lockyer v. Andrade, 538 U.S. 63, 68 (2003). Additionally, Respondents argue that claims ...