AMENDED FINDINGS AND RECOMMENDATIONS
In light of petitioner's objections to the findings and recommendations issued in this case and good cause appearing, this court vacates the findings and recommendations issued on October 9, 2009, and hereby issues the following amended findings and recommendations.
Petitioner is a former state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on July 11, 2005 in the Nevada County Superior Court on charges of assault with a deadly weapon and making criminal threats, following his plea of nolo contendere to those charges. He seeks relief on the grounds that his trial counsel rendered ineffective assistance. Petitioner also requests an evidentiary hearing. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND
At petitioner's preliminary examination, Alex Felty testified that on October 14, 2004, he was at his gold mining camp on the Bear River when he was approached by petitioner, whom he had known and worked with for several years. (CT at 73-74.) Petitioner asked Felty to return some mining equipment he had loaned to him, and which should have been returned the day before. (Id. at 74-75.) Mr. Felty had been unable to return the equipment on the previous day because he had run over his girlfriend's puppy with his truck and had to stay home to console his girlfriend. (Id. at 75-76.) When Felty explained this to petitioner, petitioner became very angry and hit Felty on the forehead with a stick while threatening to kill him. (Id. at 76-77.) Mr. Felty sustained a deep gash on his forehead and was treated at the hospital. (Id. at 78-79.) On cross-examination, Mr. Felty testified that he and petitioner had quarreled in the past but had "gotten back to the point where we were very good friends." (Id. at 83.) He further testified that petitioner's girlfriend, T.C.; Felty's "dredge partner" Richard Sales; and a woman named Lyne McCarthy were present at the scene. (Id. at 85.)
Jesse King, a Nevada County Deputy Sheriff, testified that he responded to an address in Grass Valley on the night of October 14, 2004. (Id. at 89.) He spoke to T.C., who told him that petitioner threatened to kill Mr. Felty and assaulted him with a stick at Felty's mining camp. (Id. at 90-92.) Officer King arrested petitioner and searched his tent, where he found a wooden stick and drug paraphernalia. (Id. at 91, 93-95.) On the way to the county jail, petitioner told Officer King that he had been "framed" and that he had merely been defending himself against Mr. Felty, who had a knife. (Id. at 101.) No other person mentioned to Officer King that Mr. Felty had a knife. (Id. at 103-04.) Lyne McCarthy told Officer King that she heard petitioner and Felty arguing and then saw petitioner chasing Felty with a stick or a bat in his hand. (Id. at 105-08.)
Subsequently, petitioner pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) [fn omitted]- -count 1) and threatening to commit a crime that will result in death or great bodily injury (§ 422 --count 2). In exchange, the prosecution amended count 2 from a felony to a misdemeanor; and dismissed a great bodily injury enhancement (§ 12022.7, subd. (a)) on count 1, a count of possession of paraphernalia ( Health & Saf. Code, § 11364 -- count 3), and an unrelated misdemeanor (case No. M05-063). Defendant was sentenced to state prison for four years and to county jail for six months consecutively. To satisfy the latter term, the court used 120 of the reported 265 days of custody credit and added 60 days of conduct credit (180 days total). Defendant was awarded the balance of 145 days of custody credit and 72 days of conduct credit. He was ordered to pay a $635 fine, including penalty assessments, a $200 restitution fine (§ 1202.4), and a $200 restitution fine suspended unless parole is revoked (§ 1202.45).
(Resp'ts' Lodged Doc. 2, Decision of the California Court of Appeal for the Third Appellate District, at 1-2.)
Petitioner's appellate counsel filed a timely notice of appeal and a brief in accordance with the decision in People v. Wende, 25 Cal. 3d 436 (1979), in which counsel set forth the facts of the case and requested that the appellate court review the record and determine whether there were any arguable issues on appeal. (Resp'ts' Lodged Doc.1.) The California Court of Appeal for the Third Appellate District modified the judgment to award petitioner additional custody and conduct credits but otherwise affirmed petitioner's judgment of conviction. (Resp'ts' Lodged Doc. 2 at 3.)
Petitioner subsequently filed a petition for a writ of habeas corpus in the Nevada County Superior Court. (Lodged Doc. 3.) The Superior Court rejected petitioner's claims, reasoning as follows:
Petitioner, following his plea of "no-contest" and sentence to prison, has filed this petition for a writ of habeas corpus. He claims he was denied effective assistance of counsel at his preliminary hearing, because counsel did not investigate his defenses beforehand. Assuming, without finding, that his allegations are true, he is not entitled to relief. His "no contest" plea waived any claim he had that he did not receive proper representation at the preliminary hearing. See Blackledge v. Perry (1974) 417 U.S. 21, 29-30.)
The petition is therefore denied.
(Resp'ts' Lodged Doc. 4.)
Petitioner subsequently filed petitions seeking habeas relief in the California Court of Appeal for the Third Appellate District and California Supreme Court. (Resp'ts' Lodged Docs. 5, 7.) Both of those petitions were summarily denied. (Resp'ts' Lodged Docs. 6, 8.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); ...