The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
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 six counts of lewd conduct upon a child under the age of fourteen years (Cal. Penal Code § 288(a)) and two counts of kidnapping for the purpose of child molestation (Cal. Penal Code § 207(b)). In connection with the lewd acts, the jury found that petitioner kidnapped the victim, increasing the risk inherent in the underlying offense (Cal. Penal Code § 667.61(d)(2)). For purposes of sentencing, in aggravation the jury found that the victim was particularly vulnerable and the manner in which petitioner carried out the offenses indicated planning or sophistication.
Petitioner is serving a sentence of 41 years to life. The petition raises the following claims: 1) jury instruction error; 2) the sentence violated the Sixth Amendment; 3) ineffective assistance of counsel.*fn1
Petitioner contends throughout all three issues that the jury instruction on planning and sophistication was erroneous. However, as it turns out, this factor was not used to find an upper term, but rather was used to impose consecutive sentencing. Neither under California law, or federal constitutional principles, need a jury make findings for the purpose of imposing consecutive sentences. Thus, because this factor was not used for the imposition of the upper term, any alleged jury instruction error is meaningless. After carefully considering the record, the court recommends that the petition be denied.
II. 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).
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).
The California Court of Appeal was the last state court to issue a reasoned decision addressing petitioner's jury instruction and Sixth Amendment claims. Respondent's Lodged Documents 4, 6. Accordingly, the court considers whether the denial of these claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (when reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision). Petitioner raised his ineffective assistance of counsel claims in a habeas corpus petition filed in the California Supreme Court. Respondent's Lodged Document 7. The California Supreme Court issued a summary denial of these claims. Respondent's Lodged Document 8. Accordingly, the court will independently review the record to determine whether the denial of these claims by the California Supreme Court was an unreasonable application of clearly established Supreme Court authority.
The opinion of the California Court of Appeal contains a brief, factual summary. The court has independently reviewed the record and finds this summary to be accurate. Considering the nature of petitioner's claims, this ...