The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Michael William Gresham, a state prisoner appearing through counsel,*fn1 has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Gresham is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison. Respondent has answered, and Gresham has replied. Respondent has also filed a response to the traverse objecting to additional facts contained in the traverse.
I. BACKGROUND/PRIOR PROCEEDING
Following the entry of a nolo contendere plea, Gresham was convicted in the Sacramento County Superior Court on an amended complaint of one count each of Engaging in Sex Acts with a Child (Cal. Penal Code § 288.5(a)) and Engaging in Lewd Acts with a Child (Cal. Penal Code § 288(a)).*fn2 On August 18, 2002, in accordance with the plea agreement, the Sacramento Superior Court sentenced Gresham to the upper term of 16 years on the § 288.5(a) conviction and the mid-term of 6 years on the § 288(a) conviction, to be served consecutively, for an aggregate prison term of 22 years plus restitution. Gresham did not appeal his conviction.
Gresham filed a petition for habeas corpus relief in the Sacramento Superior Court on October 18, 2005, which was denied in an unpublished reasoned decision on December 22, 2005. A subsequent motion to reopen the habeas proceeding was denied by the Sacramento County Superior Court on March 28, 2006. Gresham then filed successive petitions for habeas relief in the California Court of Appeal, Third Appellate District, and the California Supreme Court, which petitions were summarily denied on December 14, 2006, and September 12, 2007, respectively.*fn3 Gresham filed his petition in this court on October 10, 2007. Respondent filed a motion to dismiss the petition as untimely, which this court, finding that the time was equitably tolled, denied.*fn4
II. GROUNDS RAISED/DEFENSES
In his petition Gresham raises five grounds: (1) ineffective assistance of counsel; (2) guilty plea was not entered knowingly and voluntarily; (3) the sentence imposed was entered contrary to law; (4) prosecutorial misconduct; and (5) transcripts were destroyed precluding pursuit of an appeal. Respondent has raised no affirmative defense.*fn5
Because the petition was filed after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn8 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn10 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn11 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn14
In applying this standard, this court reviews the last reasoned decision by the state court,*fn15 which in this case was that of the Sacramento County Superior Court. Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn16 This presumption applies to state trial courts and appellate courts alike.*fn17
In his traverse Gresham addresses only the response to the first ground-ineffective assistance of counsel. 28 U.S.C. § 2248 provides:
The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.
Under § 2248, where the is no denial of the Respondent's allegations in the answer, or the denial is merely formal unsupported by an evidentiary basis, the court must accept Respondent's allegations.*fn18 Where a petitioner has not disputed a contention in the response and it does not appear from the record before the court that the contention is erroneous, the court may accept that contention.*fn19 As they have not been traversed, Respondent's contentions to the second through fifth grounds will be accepted, except to the extent that they are unsupported by the record or are contrary to the law.
Gresham recites numerous facts in his traverse that were not alleged in the petition. Gresham has also attached the affidavit of his mother, Diane Huson. It also appears, as Respondent contends, that numerous of these facts were not presented to the California courts in the petitions for habeas relief presented to those courts. This court does not ordinarily consider grounds raised or facts presented for the first time in the traverse. "The petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; [and] (3) state the relief requested. . . ."*fn20
To the extent that Gresham is alleging a factual basis for his claims, other than those presented to the highest state court, as Respondent correctly notes, he runs afoul of the exhaustion requirement. Exhaustion of state remedies requires the petitioner to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.*fn21 A petitioner fairly presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim:
(1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.*fn22 In order to present the substance of a claim to a state court, the petitioner must reference a specific federal constitutional provision as well as a statement of facts that entitle the petitioner to relief.*fn23 The required level of explicitness is the same for pro se petitioners and petitioners who are represented by counsel.*fn24
Ground 1: Ineffective Assistance of Counsel.
Gresham contends that his counsel, an appointed public defender, was ineffective in that counsel failed to, inter alia: (1) hire an investigator and properly investigate the facts of the case; (2) investigate his mental condition and obtain a psychological evaluation of his mental competency; (3) advise him of his rights; (4) inform him of his parents desire to obtain private counsel; (5) return his mother's calls; and (6) disclose any written plea agreement or discuss the plea agreement with him. The Sacramento County Superior Court rejected Gresham's arguments, holding:
Petitioner further alleges that he failed to receive effective assistance of counsel.
In evaluating a claim of ineffective assistance of counsel, the court applies a two-part test:
"[A] defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness ... under prevailing professional norms.'" (In re Harris (1993) 5 Cal.4th 813, 832-833, citing Strickland v. Washington (1984) 466 U.S. 668 and People v. Pope (1979) 23 Cal.3d 412; see also In re Scott (2003) 29 Cal.4th 783, 811-812.)
In the second part of the test, a petitioner "must also show prejudice flowing from counsel's performance or lack thereof. [cites omitted] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a 'probability sufficient to undermine confidence in the outcome.' [cites omitted]" (Ibid.)
The Strickland standard has been applied to plea bargains. (See Hill v. Lockhart (1985) 474 U.S. 53.) In describing the "prejudice" analysis, the Hill court said: "The ... 'prejudice' requirement ... focuses on whether counsel's constitutionally ineffective performance affected that outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Hill, supra, 474 U.S. at p. 59.)
Hill further suggests that the test is not subjective. A petitioner must state facts indicating that his choice of going to trial would have been reasonable under the circumstances.
Finally, courts are advised that it is frequently easier to resolve an ineffective assistance claim by looking first at the issue of prejudice; if none is established, then it will be unnecessary to consider counsel's performance. (In re Fields (1990) 51 Cal.3d 1063, 1077.)
Petitioner entered a plea bargain to two of four counts. The other two counts, both violations of Penal Code §269, were dismissed. The dismissed counts each carried a sentence of 15 years to life. The allegations were rape and-sodomy of a young victim, and petitioner has not denied that he was sexually involved with the victim. Instead, he denies penetration. Only slight penetration is required, however, in a crime for which penetration is an issue. (See People v. Karsa (1982) 131 Cal. App. 3d 224, 231, disapproved on other grounds in People v. Jones (1988) 46 Cal. 3d 585.)
Thus, if counsel strongly urged petitioner to take a bargain that assured him that he would not receive a life sentence, that was good advice. Objectively, going to trial would not have been reasonable in petitioner's circumstances. Petitioner has failed to state facts that show prejudice in the entry of his plea.
At Gresham's change of plea hearing, the following colloquy took place between the court, Gresham, and Gresham's counsel.
THE COURT: Defendant is present with Miss Allardyce; Miss Smith on behalf of the People.
MS. ALLARDYCE: Yes. Your honor at this time Mr. Gresham is going to enter a no contest pleas [sic]. He's going to be pleading to - -
MS. SMITH: Does the Court have the amended - -
It should be Count Three I believe is a 288.5. I didn't receive a copy of the amended back. And I am guessing there's a Count Four with the victim named [name omitted].
Thank you. [Counsel conferring]
MS. SMITH: So he will be pleading to Count Three for upper term of sixteen years, and Count Four. The agreement will be that will be mid term. Not one-third the mid-term, but for the mid-term of six years, to be a total of twenty-two-year stipulated sentence.
THE COURT: We're referring this to probation or not?
MS. ALLARDYCE: No, we're not, Your Honor. Its's going to be a stipulated term, be we would like sentencing on August 19th.
THE COURT: Mr. Gresham, is that what you are prepared to do, plead to one count of engaging in three or more acts of substantial sexual conduct with [name omitted], who was under the age of fourteen, and a separate count of lewd lascivious conduct upon the body of a child, [name omitted], under the age of fourteen?
THE DEFENDANT: Yes ma'am.
THE COURT: Do you understand these are both serious felonies; you will have two strikes on your record after today; you would be facing life if you commit another felony?
THE DEFENDANT: Yes, ma'am.
THE COURT: In addition, you will have to serve eighty-five percent of your time?
THE DEFENDANT: Yes, ma'am.
THE COURT: Counsel have you discussed with him the elements of all of these charges, the possible defenses he may have, his constitutional rights, ...