The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER: DENYING PETITION FOR WRIT OF HABEAS CORPUS
On December 18, 2008, Steven L. Upsher, Jr. ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his convictions alleging constitutionally ineffective trial counsel. (Id.) On March 24, 2009, Matthew Cate ("Respondent") moved to dismiss the Petition for failure to state a claim and for failure to exhaust the claims in state courts. (Doc. No. 9.) On July 15, 2009 the Court denied Respondent's motion to dismiss. (Doc. No. 12.) On October 7, 2009 Respondent filed an answer to the Petition. (Doc. No. 16.) On October 28, 2009 Petitioner filed a traverse. (Doc. No. 18.) On February 16, 2010, the magistrate judge issued a Report and Recommendation ("R&R") that the Court deny the Petition. (Doc. No. 19.) On March 8, 2010, Petitioner filed an objection to the R&R. (Doc. No. 20.)
The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines this matter is appropriate for resolution without oral argument and submits the matter on the papers. After due consideration, the Court ADOPTS the R&R and DENIES the Petition.
On May 3, 2006, a jury convicted Petitioner of dissuading a witness while having previously been convicted of dissuading a witness under Cal. Penal Code § 136.1(c)(1); attempting to dissuade a witness from reporting a crime under Cal. Penal Code § 136.1(b)(1); and battery upon a person with whom he was in a former or current dating relationship under Cal. Penal Code § 243(e)(1). (Lodgment 13 at 62-64.) Petitioner received a nine year sentence for the convictions. (Lodgment 13 at 123-26.)
Petitioner directly appealed his convictions to the California Court of Appeal. (Lodgment 1.) Petitioner also filed a writ of habeas corpus in the California Court of Appeal. (Lodgment 4.) The appellate court consolidated the state habeas petition with the direct appeal. (Lodgment 5.) The California Court of Appeal affirmed in part and reversed in part the judgment and denied the habeas petition. (Lodgment 6.) Specifically, the appellate court reversed Petitioner's conviction on count 2 for violation of Cal. Penal Code § 136.1(b)(1) and directed the trial court to strike the stayed term imposed for that conviction. (Id. at 11.) The California Court of Appeal also denied a petition for rehearing. (Lodgment 9.)
Petitioner next filed a petition for review in the California Supreme Court claiming (1) ineffective assistance of counsel; (2) Cal Penal Code § 136.1(c)(1) lists sentencing factors and not elements of a substantive offense; and (3) that the California Supreme Court should determine whether increased punishment based on the recidivism of the offense in Cal. Penal Code § 136.1 (c)(1) is a sentencing provision or an element of a separate offense. (Lodgments 10, 11.) The California Supreme Court denied the petition for review without comment or citation. (Lodgment 12.)
Petitioner then filed this Petition claiming (1) ineffective assistance of counsel under state and federal constitutions when his counsel failed to recognize Petitioner's prior conviction as sentencing factors and not as elements of the substantive offense under Cal. Penal Code § 136.1(c)(1); and (2) ineffective assistance of counsel under the Federal Constitution when his attorney elicited inculpatory evidence and failed to move for an acquittal on the battery charge. (Doc. No. 1.)
Respondent asks this Court to deny Claim 1 on the merits and to determine that Claim 2 is procedurally barred, or alternatively, to deny that claim on the merits.
Federal habeas courts presume the correctness of a state court's determination of factual issues unless Petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (2006); see Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002). The parties do not challenge the accuracy of the California Court of Appeal's summary of the underlying facts adduced at trial. The court of appeal summarized the underlying facts as follows:
In the early morning of November 6, 2005, Cruz Alfaro was at an AM/PM market on Oceanside Boulevard on his way home from his job as a security officer, when he heard screaming coming from a house across the street. Alfaro saw a woman, Natasha Teague, running quickly from the house in his direction screaming for help, with Upsher chasing after her. Alfaro watched as Teague fell on the ground in the middle of the street; when Upsher pulled her hair he screamed at Upsher to let her go. Teague got up and started running towards Alfaro. Upsher came after Alfaro, who had called 911, and began to scream at him, saying, "You want to be a hero, mother fucker? You're going to die." Upsher proceeded to chase Alfaro around his security vehicle telling him to hang up the phone because he was known by the FBI and the Oceanside Police Department. At some point, Upsher told Alfaro to mind his own business, saying, "It's none of your fucking business what I do to my girl." After Alfaro abandoned his call to 911, Upsher returned to the house and got into a car. Alfaro told Teague to get into the store. Upsher drove the car behind Alfaro's security vehicle and began to chase Alfaro's work partner, Alonso Resarias. Eventually, Upsher gave up chasing the men and left in his car.
Oceanside Police Officer Michael Kos responded to a call about the incident at approximately 4:30 a.m., and shortly afterwards arrived at the AM/PM, where he contacted Teague and eventually Alfaro and Upsher. Officer Kos already knew Upsher and that he lived at 656 Crouch Street, nearby the AM/PM market. Teague was visibly upset and appeared to have been crying, and she was holding a paper towel to her mouth, which was still bleeding. As Officer Kos was speaking to Teague, Upsher pulled up in his car and parked it in front of the AM/PM. Noticing his vehicle, Teague became very scared and immediately stood up and turned to leave toward Crouch Street. When Officer Kos told her to sit back down, she responded, "No, I don't want to get shot." Upsher exited his car and approached Teague and Officer Kos, who told him to sit down on the curb. After Alfaro identified Upsher to Officer Kos ...