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Wolcott v. Clark

February 2, 2010

BRANDON LEE WOLCOTT, PETITIONER,
v.
KEN CLARK, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for rape in violation of Cal. Penal Code § 261(a)(2). Pursuant to the Three Strikes Law, petitioner is serving a sentence of fifty years to life.

The petition raises the following claims: 1) prosecutorial misconduct; 2) ineffective assistance of counsel (5 claims); 3) evidentiary errors (5 claims); 4) jury instruction error; 5) Cal. Evid. Code § 1108 is unconstitutional; 6) cumulative error.

After carefully considering the record, the court recommends the petition be denied. Also pending is petitioner's motion to stay this action pending exhaustion of additional claims. For the reasons discussed below, this motion should be denied as well.

II. Exhaustion

The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021, 102 S.Ct. 1198 (1986).

In the answer, respondent argues that several of the claims raised in the petition are unexhausted but that they should be denied anyway as they have no merit. 28 U.S.C. § 2254(a)(2) (an application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the state courts).*fn1

On June 24, 2009, petitioner filed a motion to stay proceedings so that he may return to state court and exhaust the unexhausted claims. In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005) the United States Supreme Court found that a stay and abeyance of a mixed federal petition should be available only in the limited circumstance that good cause is shown for a failure to have first exhausted the claims in state court, that the claim or claims at issue potentially have merit and that there has been no indication that petitioner has been intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78, 125 S.Ct at 1535.

A district court may avoid ruling on exhaustion if the unexhausted claims can be denied on their merits. 28 U.S.C. § 2254(2)(b). Because the undersigned finds that all of the claims raised in the petition are without merit, the motion to stay should be denied. No further exhaustion analysis will be made.

III. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

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).

"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).

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 9, 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).

When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000)

In the instant case, the California Court of Appeal was the last state court to issue a reasoned decision addressing several of petitioner's claims. See Respondent's Lodged Documents 4, 6. Accordingly, the undersigned considers whether the denial of these claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.

Petitioner's claim alleging that counsel was ineffective for failing to challenge the prosecutor's motion in limine to exclude testimony from the victim's ex-boyfriend regarding her promiscuitywas raised only in a habeas corpus petition filed in the Butte County Superior Court. The Butte County Superior Court issued an opinion denying this petition, which raised several additional claims, on the following grounds. First, it found that the facts alleged, if true, failed to establish a prima facie case for relief. Respondent's Lodged Document 8. It also denied the petition on the following procedural grounds. It found that it raised claims that were raised or could have been raised on appeal, citing In re Waltreus, 62 Cal.2d 218, 225 (1965). Id. It also found that petitioner failed to justify the reasons for his delay in seeking habeas relief. Id. Finally, the Superior Court found that petitioner failed to demonstrate that newly discovered evidence cast a fundamental doubt on the reliability of his trial. Id.

Ineffective assistance of counsel claims are generally raised in habeas rather than on direct appeal. People v. Diaz, 3 Cal.4th 495, 557-558 (1992). For that reason, only two of the reasons given by the Superior Court for denying the petition could have applied to the ineffective assistance of counsel claim raised in the instant action, i.e. petitioner failed to establish a prima facie case for relief and untimeliness.*fn2

Because it is unclear whether the Superior Court rejected petitioner's ineffective assistance of counsel claim on the merits or on procedural grounds, in an abundance of caution, this court will conduct a de novo review of this claim. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (where no state court has reached the merits of a claim, the federal court conducts a de novo review).

As will be discussed below, several of the claims raised in this action were not raised in any state court action. Accordingly, the undersigned will conduct a de novo review of those claims as well. Pirtle, supra.

IV. Factual Background

The opinion of the California Court of Appeal contains a factual summary of petitioner's offense. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.

The district attorney filed an information charging defendant with forcible rape and alleging that defendant had suffered a prior conviction for rape, subjecting him to enhanced punishment under section 667, subdivision (a)(1). The information further alleged the prior rape conviction constituted a serious or violent felony within the meaning of section 667. Finally, the information alleged that an aggravated circumstance applied: defendant had been previously convicted of the same offense, subjecting him to 25 years to life under section 667.61, subdivisions (a) and (d)(1).

A jury trial followed. The victim testified about the events leading up to the assault.

In winter of 2004 the victim moved to Butte County and planned to enroll at a local university. Since she did not know anyone, she used an instant message service to chat on her computer with other people.

One afternoon, defendant contacted the victim via an instant message. The victim replied, saying she was new in the area and felt isolated. Defendant said he wanted to meet her and asked if she "liked to party." The victim responded that the question made her uncomfortable since she had just met him on line.

Defendant told the victim he was coming to town to register that afternoon at the university. The victim agreed to go with defendant to find out about the university's registration process. Defendant and the victim exchanged telephone numbers, and defendant planned to pick up the victim at home that afternoon. Defendant and the victim visited the campus for about half an hour and figured out the registration process. The victim felt comfortable with defendant; he "seemed like a nice guy." She asked defendant if he would like to get a drink. Because the victim had lost her driver's license and did not have identification, she could not "get into an establishment." Defendant suggested they drink in a nearby park, so the couple went to a liquor store and purchased a pint of rum and two one-liter bottles of Pepsi Cola. By the time they got to the park, it had started to get dark. The pair proceeded to a secluded picnic table, sat down, and talked as they drank.

About half an hour later, defendant began to kiss the victim. They kissed on and off for a while. Defendant attempted to touch the victim's breasts, but she pushed his hands away and told him to stop. Defendant persisted and the victim told him, "Cut it out. I don't want you to do that."

Defendant then tried to remove the victim's pants, but she again pushed his hands away. Defendant tried to touch the victim under her shirt. His attempts became increasingly forceful. The victim continued to tell defendant to stop and that she wanted to go home.

In response to her protests, defendant put his hands around her neck and squeezed. She pulled his hands away. Defendant put his hands around her neck over a dozen times. Every time the victim pushed his hands away, defendant tried to take off her clothes.

The victim became terrified and repeatedly asked, "Why are you doing this to me?" She attempted to hit defendant in the head with the rum bottle, but defendant grabbed it. Defendant asked: "What the hell do you think you're trying to do? You're not going to get out of this. You're not going to get away. You started this; you have to finish it." The victim continued to struggle.

Defendant threw the victim into a blackberry patch and lay on top of her, pinning her down. The victim feared she could not get away, "[t]hat he was going to do it regardless. And I didn't want to-it was going to be worse if it was on the ground." After the victim told defendant, "All right, I'll give you what you want," he let her get up.

The victim tried to formulate some sort of plan and again tried to hit defendant with the rum bottle. When defendant grabbed the bottle, the victim screamed "Rape!"

The victim believed her life was in danger and began to cry. She told defendant to "get it over with" and asked him to use a condom. The victim unfastened her pants and made sure defendant had a condom on. Defendant had sexual intercourse with her as she cried.

Afterward, the victim pulled up her pants and tried to calm down. As defendant searched for something under the picnic table, the victim began to slowly walk away. As she moved down the path, defendant began following her. The victim began to run.

The victim spotted a security guard's car with a rotating yellow light. She ran toward the guard and told him she had been raped and the man was following her down the path.

The security guard who testified corroborated the victim's testimony. She was crying hysterically and the guard put her in his car. The victim pointed to defendant's car in the parking lot, and the guard parked behind the vehicle, blocking it from leaving. The victim told the guard she feared defendant was going to kill her. The guard then called the police, who arrived within minutes. Officer Todd Lefkowitz testified that he responded to the guard's call. He saw defendant standing behind the guard's car. When defendant saw Lefkowitz he approached the officer. According to the officer, defendant "was cooperative, but he appeared like somebody that needed to get his side of the story heard. [¶] He was-he was very talkative." The victim would not speak with the male officers, but later spoke with a female officer.

About an hour later the victim spoke with Detective Cesar Sandoval at the police department. Sandoval testified that the victim was still upset and appeared to have been crying for quite a while. The victim's statement to Sandoval comported with her testimony at trial.

Sandoval requested blood alcohol tests for both defendant and the victim. The victim's blood alcohol level was .11 percent; defendant's was zero.

Later on the evening of the incident, the victim went to the hospital for a sexual assault examination. Family nurse practitioner Sally Vertolli testified that her examination of the victim revealed a small laceration over her left breast and lacerations on her left buttock. In addition, Vertolli found abrasions and lacerations on the victim's neck. Redness on the victim's neck appeared to be from pressure on the skin causing broken blood vessels. In addition, the examination revealed an abrasion just below the vaginal opening "consistent with vaginal penetration with struggle."

Vertolli also examined defendant. Vertolli found lacerations on the back of defendant's hands and scrapes on his shins. Defendant had a red area on his neck that Vertolli believed was a pressure injury, possibly a "hickey." In addition, there was a small area of redness on the underside of defendant's penis. The clothing of both victim and defendant was muddy and wet.

Officers who investigated the crime scene testified they recovered a condom wrapper, an artificial fingernail, and a plastic soda bottle on the night of the incident. The following day they found a rum bottle and the other soda bottle. Inside the soda bottle was a used condom.

The prosecution also introduced evidence of a prior rape committed by defendant against a 15-year-old girl. R.V. testified she met defendant in January 2000 at a friend's house. After she left to walk home, R.V. took a shortcut through a park. When she entered the park, defendant walked up and R.V. realized he had been following her. R.V. told defendant she needed to go home; he continued to follow her.

Defendant pushed R.V. against a cabin in the park and began to kiss her. She pushed him away and told him again she needed to go home. Defendant continued to follow R.V. He pushed her against a bridge railing and tried to kiss her. Once again she rebuffed him.

Defendant responded by pushing R.V. to the ground. As she began screaming, defendant grabbed her and slammed her head against the ground until she stopped yelling. He dragged her under a nearby bridge as she begged him to leave her alone. Defendant hit her in the face, pulled down her pants, and began having sexual intercourse with her.

R.V. asked defendant what his children would think if they knew what he was doing. Defendant got up and called her obscene names. R.V. pulled on her clothes and began to leave. Defendant followed and told R.V. he would kill her if she told anyone. The parties stipulated that defendant pled guilty or no contest to rape. Defendant testified in his own behalf. According to defendant's version of events, he and the victim met on line. The victim was new in town, and she asked defendant to take her to the university to register. After they registered, defendant asked the victim what she wanted to do. The victim responded: "Well, is it too early to drink?"

The victim told defendant that when she drank she had a tendency to black out or become belligerent. Since the victim would need identification to get into a bar but did not have any, they purchased rum at a liquor store. The victim wanted to "get somewhere fast" and begin drinking, so the pair went to a nearby park. The victim began drinking as they were walking into the park.

The victim and defendant sat on a picnic table. Defendant had only a couple of sips of rum; the victim finished the bottle. They began to kiss, and the victim sucked on defendant's neck. She put her hands under his clothing as she continued to drink.

The victim asked defendant if he had a condom and he said he did. They had intercourse on the picnic table. During the act of intercourse, the victim told defendant she really liked him and wanted them to be together. However, when defendant demurred and said he considered it a "one-night stand," the victim became angry. She shoved him off and defendant scraped his shins on the table's bench.

As they dressed, the victim said she did not "just do this with anybody" and she was "not that kind of girl." She became angry and told defendant she was going to yell "rape." When defendant looked at her as if she were crazy, the victim grabbed him by the throat and yelled rape. Defendant grabbed the victim by the throat to "get her off" him and they began wrestling. Defendant fell into some thorny bushes.

The victim appeared to calm down, so defendant let her up. She grabbed the rum bottle and tried to hit defendant in the head. Defendant fended off the blow. The victim said she wanted to leave, and defendant let her go.

As they proceeded up the path, defendant saw flashing lights and the victim began to run. Defendant went to "talk to whoever was up there, because [he] knew where this was going." After the police officer arrived, defendant told him "I'm pretty sure I'm the guy you're looking for." He identified himself and said, "She's accusing me of raping her."

Defendant admitted the prior assault on R.V. He had been drinking that night and had been under the influence of alcohol.

Defendant's former girlfriend, Athena Breitenstein, testified she met him on the Internet in 2003. Eventually they met in person. When defendant made a sexual advance, Breitenstein told him she did not want to become intimate. Defendant never tried to force her. They later became romantically involved. Although they are no longer involved, Breitenstein still cares for defendant as a friend. Defendant's mother also testified. As she sat outside the courtroom, she heard prosecution witness Miars, the security guard, tell someone: "This guy's done this before. Somebody should just take him behind the barn and shoot him."

The jury found defendant guilty of forcible rape. Defendant waived a jury trial on the prior conviction. The court found the prior allegation true.

The court sentenced defendant to 25 years to life for rape under section 667.61, subdivision (a). The court doubled the sentence as a result of the prior strike to 50 years to life imprisonment under sections 667, subdivision (c)(1) and 1170.12, subdivision (c)(1). The court stayed the five-year enhancement under section 667, subdivision (a)(1). In sum, the court sentenced defendant to life imprisonment with no possibility of parole for 50 years. Defendant filed a timely notice of appeal.

Lodged Document 4, 2-10.

V. Discussion

A. Prosecutorial Misconduct

Petitioner argues that the prosecutor committed misconduct during closing argument by referencing evidence it had successfully excluded from trial. The California Court of Appeal, the last state court to issue a reasoned decision addressing this claim, denied this claim as follows:

Defendant argues the prosecution committed misconduct during closing argument by referencing evidence it had successfully excluded from trial. According to defendant, the prosecution "elected to take unfair advantage of the absence of such evidence." We disagree.

Background

During closing argument, defense counsel argued that the credibility of the victim and defendant formed a central issue in the case. Defense counsel reasoned: "How can you say that you think [the victim] is any more credible than [defendant] when you don't know a darn thing about her? Do you know who her best friend is? Do you know what she studies in school? Do you know anything about that woman at all other than what she let you see during her testimony for what was maybe less than two hours total? That's all you know. [¶] So I don't see how under this circumstance any human being who's being truthful and honest about the situation could say that with the limited information you have on these two people, that you can say one or the other is much more reliable, and that she's much more reliable than not, to prove it to you beyond a reasonable doubt, the highest burden in the world."

The prosecution, during closing argument, responded: "You were asked, well, do you know her? Do you know [the victim], who her friends are, who her family is? You're being asked to assume facts not in evidence. And I'm sure Counsel didn't mean for you to do that, because you're not allowed to do that. [¶] Your object, your sworn duty is to say: What is the evidence? What do we know? What did we hear? And then apply that to the law. [¶] [The victim] did take the stand. She was unfortunately asked questions upon questions upon questions of a personal nature upon something very personal about something that hurt her deeply. She could have been asked about her social background, her friends, but she wasn't. Because it's not something that they didn't ask then but they want you to consider now." Defense counsel objected to the prosecution's argument as improper, stating: "Your Honor makes the rulings."

Discussion

Defendant contends the prosecution committed misconduct because it had previously successfully moved to exclude evidence of the victim's sexual proclivities. A prosecutor's misconduct violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render the trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. ( People v. Prieto (2003) 30 Cal.4th 226, 260.)

Defendant focuses on the prosecutor's statement that "[the victim] could have been asked about her social background, her friends, but she wasn't. Because it's not something that they didn't ask then but they want you to consider now." However, the prosecution was responding to defense counsel's closing argument, which questioned why the jury wasn't told more about the victim's background. The prosecution did not suggest defense counsel should have presented evidence concerning the victim's sexual history. The prosecution did not bring up the lack of information; defense counsel raised the issue.

In addition, the trial court ruled only that evidence of the victim's prior sexual conduct could not be broached. The trial court's ruling did not prevent defense counsel from introducing evidence regarding other aspects of the victim's background, including friends and social activities, the very evidence defense counsel stated was lacking in closing argument. We find no misconduct.

Respondent's Lodged Document 4, pp. 32-35.

The Ninth Circuit stated the applicable standard for prosecutorial misconduct claims in Tak Sun Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.2005):

In evaluating the petitioners' allegations of prosecutorial misconduct on a writ of habeas corpus, Darden v. Wainwright instructs us that "it 'is not enough that the prosecutors' remarks were undesirable or even universally condemned[,]' [t]he relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (citations omitted). In other words, under Darden, the first issue is whether the prosecutor's remarks were improper and, if so, whether they infected the trial with unfairness.

Based on the reasoning of the California Court of Appeal, the undersigned finds that the prosecutor's at-issue remarks during closing argument did not infect the trial with unfairness, much less being an "unreasonable" application of Supreme Court authority. The undersigned agrees with the California Court of Appeal that the comments were not related to the excluded evidence of the victim's prior sexual conduct. The comments were in response to defense counsel's argument regarding a lack of evidence of the victim's social history. The trial court's ruling excluding evidence of the victim's sexual history did not prevent defense counsel from presenting evidence of the victim's social history, i.e. her friends, course of study in school, etc. For that reason, the prosecutor did not commit misconduct by suggesting that trial counsel could have offered this social history evidence.

The denial of this claim by the California Court of Appeal, the last state court to issue a reasoned decision addressing this claim, was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

B. Ineffective Assistance of Counsel

Legal Standard The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id., 104 S.Ct. at 2066. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland at 466 U.S. at 689, 104 S.Ct. at 2065).

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id., 104 S.Ct. at 2068.

In extraordinary cases, ineffective assistance of counsel claims are evaluated based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93, 120 S.Ct. 1495, 1512-13 (2000), (citing Lockhart v. Fretwell, 113 S.Ct. 838, 506 U.S. 364 (1993)).

The Supreme Court has emphasized the importance of giving deference to trial counsel's decisions, especially in the AEDPA context:

In Strickland we said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S., at 689, 104 S.Ct. 2052. Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a [petitioner] must overcome the "presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. See Williams, supra, at 411, 65 S.Ct. 363.*fn3 Rather, he must show that the [ ]Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner.

Bell v. Cone, 535 U.S. 685, 698-699, 122 S.Ct. 1843,1852 (2002).

Counsel Allowed Petitioner to Waive Jury Trial on Prior Conviction Petitioner argues that trial counsel was ineffective for waiving a jury trial on his prior conviction. The California Court of Appeal, the last state court to issue a reasoned decision addressing this claim, denied this claim as follows:

Defendant claims trial counsel performed ineffectively in failing to insist upon a jury trial for the prior conviction allegation after the jury was discharged. Defendant argues that had counsel insisted upon a jury trial, the priors could not have been found after discharge of the jury. The argument is at odds with Supreme Court authority.

Background

The information charged defendant with rape and alleged he had suffered a prior conviction for forcible rape in May 2000. The trial court granted defense counsel's motion to bifurcate the trial of the prior conviction.

At trial, R.V. testified about the 2000 rape. The parties stipulated that defendant pled guilty or no contest to rape. Following the verdict, defense counsel stated: "Your Honor, I have no objection to you doing a formal waiver [admonition]." The court advised defendant of his right to a jury trial on the truth of the prior conviction allegation. Defendant waived his right to a jury trial.

The prosecution submitted a certified abstract of judgment reflecting the prior conviction, a photograph, and fingerprints. The court found the prior conviction true and sentenced defendant to 25 years to life for rape under section 667.61, subdivision (a). The court doubled the sentence as a result of the prior strike, yielding a sentence of 50 years to life under sections 667, subdivision (c)(1) and 1170.12, subdivision (c)(1).

Discussion

Defendant contends defense counsel performed ineffectively in waiving a jury trial on the prior conviction allegation. According to defendant, since the jury had been discharged before he personally waived a jury trial, had he instead insisted on a jury trial, the jury could not have been reconvened. The court could not have proceeded and the enhancement allegation could not have been found true. Therefore, defense counsel was ineffective in not taking advantage of a procedural gaffe.

When a defendant is charged with having suffered a prior conviction, "the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty." (§ 1025, subd. (b).) Defendant argues that once the court dismissed the jury, it was powerless to reconvene the jury had he asserted his right to a jury trial on the prior convictions. Defendant is mistaken.

In People v. Saunders (1993) 5 Cal.4th 580 ( Saunders ), the Supreme Court confronted a similar issue. The trial court had bifurcated trial on the prior conviction allegations on the defendant's motion. After the jury found the defendant guilty of burglary, the court discharged the jury. The following day, the defendant waived his right to a jury trial on the prior conviction allegations. ( Id. at p. 586.) Defense counsel, who was not present when the jury returned its verdict, argued she would not have advised the defendant to waive a jury trial had she known the court had already discharged the jury. The trial court allowed the defendant to withdraw his waiver and impaneled a new jury to try the prior conviction allegations. ( Id. at pp. 586-587.)

The Supreme Court found no error in the trial court's impaneling of the second jury. According to the court: "We do not believe that the Legislature, in enacting sections 1025 and 1164, intended to create a procedural trap that would enable defense counsel to ambush the trial judge and deprive the People of their statutory right to prove one or more alleged prior convictions for the purpose of enhancing the punishment of the repeat offender. Nor should the law place a defense attorney in the untenable position of having to choose between honoring counsel's commitment to the court (that jury trial on the prior conviction allegation would be waived) and counsel's duty to his or her client (to offer all available defenses to the charges and allegations contained in the accusatory pleading) ." ( Saunders, supra, 5 Cal.4th at pp. 590-591.)

Defendant's argument thus rests on the erroneous premise that the trial court would have been powerless to act had he requested a jury trial. Under Saunders the court could have impaneled a second jury had defendant asserted his right to a jury trial on the prior conviction. Therefore, defense counsel did not perform ineffectively in failing to insist on a jury trial.

Respondent's Lodged Document 4, pp. 38-41.

The trial court granted the motion by petitioner's counsel to bifurcate the trial of the prior conviction. RT at 1-2. After the jury ...


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