FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a June 14, 2002, judgment of conviction entered against him in Sacramento Superior Court on charges of first degree burglary. He seeks relief on the grounds that: (1) the trial court violated his right to due process by allowing a security officer to stand behind him during his trial without a showing of a "manifest security need" and by allowing jurors to see him in physical restraints; and (2) his sentence of sixty years-to-life constitutes cruel and unusual punishment. Petitioner also raises several claims in the traverse. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural and Factual Background*fn1
A jury convicted defendant Jeffrey Quinton Miles of two counts of first degree burglary, and the trial court found he had two prior serious felony convictions and strikes under the three strikes law. The court sentenced him to state prison for two consecutive indeterminate terms of 25 years to life and additional determinate enhancements totaling 10 years.
Defendant broke into two different apartments on separate occasions in January of 2002. In the second incident, the tenant arrived home while defendant was still inside. When the tenant confronted him, defendant said he had a gun and reached behind his back. The tenant ran out of the apartment, and defendant initially chased him before getting into his car and driving away. Defendant was 42 years old at the time of the offenses. He indicated he had worked at a car wash for four years but was laid off in October of 2001. He is apparently divorced and has children. The trial court received letters of support for defendant from some family members and friends.
Defendant's prior record is lengthy and characteristic of a recidivist offender. As a juvenile, he committed battery, receiving stolen property, petty theft, and multiple burglaries. As an adult, he was convicted of: (1) assault with a deadly weapon in 1979; (2) obstructing a peace officer in 1982; (3) (misdemeanor) burglary in 1982; (4) obstructing a peace officer in 1983; (5) attempted first degree burglary in 1984; (6) first degree burglary in 1985; and (7) first degree burglary in 1990. Defendant's two prior strikes stemmed from the 1984 attempted burglary and 1990 burglary convictions.
Petitioner filed a timely appeal of his conviction in the California Court of Appeal for the Third Appellate District. Answer, Ex. A. The Court of Appeal affirmed petitioner's conviction and sentence in a reasoned decision dated August 19, 2003. Answer, Ex. D. Subsequently, petitioner filed a petition for review in the California Supreme Court. Answer, Ex. F. That petition was summarily denied by order dated October 29, 2003. Answer, Ex. E.
A. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
1. Violation of Right to Due Process
Petitioner's first claim is that he was "denied due process and was prejudiced" when the trial court allowed a security escort officer to stand behind him during trial without any showing of need. He argues that the presence of the security officer "is closely analogous to the use of physical restraints and jail clothing." Pet. at 5. Petitioner also claims that jurors saw him being escorted from the courtroom in handcuffs, in violation of his right to due process. Id. In the traverse, petitioner claims that his right to due process was violated when the trial court informed the jury that petitioner was in custody and could not make bail, and that his trial counsel rendered ineffective assistance when he failed to object to the presence of the security guard. Traverse at 5, 6, 9.
On direct appeal, petitioner claimed that the trial court erred by telling the jury he was in custody and by allowing a security escort officer to stand behind him during trial. Opinion at 3. Alternatively, petitioner claimed his trial counsel rendered ineffective assistance in failing to object to the presence of the security officer. Id. The California Court of Appeal rejected these claims, reasoning as follows:
Trial Judge's Statement to Jury that Defendant was in Custody Before trial, defense counsel made a motion to have defendant appear in court without physical restraints. The court noted that defendant did not seem to have any restraints and asked the bailiff, "I assume, . . . there isn't any reason that the Sheriff's Department is requesting any extraordinary physical restraints on the defendant?" The bailiff said the court was correct. The prosecutor did not object, and the court granted defendant's motion.
After the trial, defendant requested new counsel to bring a new trial motion based on ineffective assistance of trial counsel. One of defendant's claims was that his counsel "failed to object to the court informing the jury that [defendant] was still incarcerated because [he] could not make bail." The court held a Marsden hearing to consider defendant's claims. (People v. Marsden (1970) 2 Cal.3d 118.)
At the hearing, defense counsel explained: "Early on, the court gave me the option of whether I wanted the jury to know [defendant] was or was not in custody. Given the fact that he was in custody, and I think pretty obviously, so I chose, tactically, that the jury be advised that he is in custody. [¶] And the court suggested, and I agreed, that you give them some kind of admonition so that they understand he's in custody not because he's violent or perhaps a three-strike candidate but simply because he can't make bail. [¶] I advised my client of that at the time . . . . And I was happy that the court gave that admonition rather than let the jury wonder why he is in and can't get out."
The trial court commented it was "wise for defense counsel to confront this issue head on." The court explained, "Jurors are not stupid. They know when they see an officer behind you that you are in custody. And unless we tell them why you're in custody, they may succumb to wild speculation. They may think you're dangerous. They may think you're a three-strikes defendant. They may assume all sorts of things . . . . [¶] And it is true bail will not be set in a three-strikes case and so perhaps it was a little misleading about not being able to make bail but that was to your benefit to tell them. And I did tell them that we don't think you're a flight risk, we don't think you're dangerous, we don't think you're guilty. I told them the only reason you're in custody is because you couldn't make the bail, which is true because there was none. So that's all to your advantage."
On appeal, defendant contends "the only possible meaning the jury could take from the court's misinformation that [defendant] could not make bail was that he was poor or unemployed." However, since defendant agreed to this procedure, he has waived his right to direct appellate review.
Presence of Escort Officer Near Defendant
Defendant argues on appeal (but not at the trial court) "that this record establishes that [defendant] was shadowed by an 'escort officer' who stood behind him during trial, that [defendant] presented no security risk to justify this procedure, [and] that defense counsel did not object, . . ." Defendant characterizes the court's actions in advising the jury of his custody status and having an escort officer present as "remarkable" considering it granted his motions to be tried in civilian clothes without physical restraints. Defendant claims the court deprived him of the presumption of innocence and denied his rights to due process and a fair trial. Preliminarily, we conclude that defendant's failure to raise the issue of the presence of the escort officer in a timely manner in the trial court waived his right to direct appellate review. Established case law recognizes that a defendant's failure to object waives similar issues, including the imposition of physical restraints (People v. Tuilaepa (1992) 4 Cal.4th 569, 583) or the use of identifiable jail clothes at trial (People v. Taylor (1982) 31 Cal.3d 488, 495-496). "A timely objection allows the court to remedy the situation before any prejudice accrues." (Id . at p. 496.) Additionally, tactical considerations may warrant emphasis on a defendant's custody status. (Cf. ibid.)
Although defendant suggests that the use of an escort officer is customary and any objection would have been futile, we do not agree. Defendant supports his argument by citing a declaration in another case that is not part of the record and by asserting that the trial court "implied" as much in its comments. Defendant has not shown that the court lacked discretion in the matter or that it made any statements to that effect. An objection would have allowed the parties and the court to make a record of the reasons, facts, and other attendant circumstances concerning the security precautions. The court could very well have taken some action to minimize the impact of an officer's presence, particularly if it was unduly obtrusive.
Ineffective Assistance of Counsel
We now consider defendant's fallback argument that his counsel was ineffective. To prevail on this claim, defendant must show his counsel's representation fell below an objective standard of reasonableness and, but for counsel's error, there is a reasonable probability of an outcome more favorable to defendant. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Further, defendant is not entitled to relief on direct appeal if the record does not show why counsel acted or failed to act in the manner defendant challenges unless there is no satisfactory explanation for counsel's conduct or counsel was asked for an explanation and failed to provide one. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here, defendant has not shown his counsel was ineffective for failing to object to the escort officer or for agreeing to have the jury admonished concerning defendant's custody status.
First, we consider the escort officer. Although it does not appear there was a security issue that necessitated the imposition of physical restraints, that is not to say there was no reason to have the officer present. Our state Supreme Court has recognized that the trial court has broad discretion concerning the use of such security measures, and "the presence of armed guards in the courtroom would not require justification on the record '[u]nless they are present in unreasonable numbers.'" (People v. Jenkins (2000) 22 Cal.4th 900, 995.)
Further, the use of security officers is not inherently prejudicial and must be considered on a case-by-case basis. (See Holbrook v. Flynn (1986) 475 U.S. 560, 569 [89 L.Ed.2d 525, 535]; People v. Jenkins, supra, 22 Cal.4th at pp. 996-997.) "While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendants trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence . . . . If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendants special status. (Holbrook v. Flynn, supra, at p. 569 [89 L.Ed.2d at pp. 534-535].)
Here, the existing record does not indicate that the security measures at issue were unreasonable or obtrusive so as to suggest that defendant was being singled out for special treatment. Contrary to defendant's speculation and hyperbolic argument, the record does not show "[t]he constant presence of [a] uniformed deputy, dogging [defendant's] footsteps" and "restrict[ing] effective communication [with] counsel," or that the officer "would have shadowed [him] to the witness stand had he testified." The record indicates little more than that an officer was present "behind" defendant at some parts of the trial, and that the jury could have ...