The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: OVERRULING PETITIONER'S OBJECTION TO BATTAGLIA'S R&R; ADOPTING MAGISTRATE JUDGE BATTAGLIA'S R&R; DENYING PETITIONER'S WRIT OF HABEAS CORPUS; AND APPEALABILITY MAGISTRATE JUDGE DENYING CERTIFICATE OF
On March 3, 2003, petitioner Steven William Delander ("Petitioner") was convicted in San Diego Superior Court of carjacking (Cal. Pen. Code § 215), assault with a semi-automatic weapon (Cal. Pen. Code § 245), and possession of a firearm by a felon (Cal. Pen. Code § 12021). (Doc. 1 ("Petition") at 3.) From May 2004 through June 2006, Petitioner filed multiple petitions for habeas corpus relief in the California state courts. (Lodgments 5, 7, 9, 12, 14, 16, 18, 20, 22, 24, 27, 29.) All were denied. (Lodgments 4, 6, 8, 10, 13, 15, 17, 19, 21, 23, 26, 28, 30, Supp. Lodgment 4, Second Supp. Lodgment.) On August 28, 2007, Petitioner filed a petition for writ of habeas corpus in this Court. (Petition at 2.) Petitioner alleged ineffective assistance of counsel, improper sentencing enhancements, and cumulative error. (Id.) Respondent filed her response on October 15, 2008. (Doc. No. 14.) On January 7, 2009, Magistrate Judge Anthony J. Battaglia issued a Report and Recommendation recommending that the Court deny and dismiss the Petition. (Doc. No. 18 ("R&R").) On January 21, 2009, Petitioner timely filed his objections to the R&R. (Doc. No. 19 ("Objection").) Respondent did not file a reply to the Objection.
FACTUAL AND PROCEDURAL BACKGROUND
The Magistrate Judge's R&R extensively lays out the procedural and factual background in this matter. Petitioner makes no specific objection to these summaries. Thus, the Court adopts by reference the Magistrate Judge's recitation of the procedural history and facts as set forth in the R&R. (See R&R at 2--5.)
I. REVIEW OF REPORT AND RECOMMENDATION
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. section 636(b)(1) set forth the duties of the district court in reviewing a magistrate judge's report and recommendation. "The district court must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the finding or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court for N. Dist. of Cal., 501 F.2d 196, 206 (9th Cir. 1974)).
II. REVIEW OF HABEAS CORPUS PETITION
Pursuant to 28 U.S.C. section 2254(a) (Anti-Terrorism and Effective Death Penalty Act or AEDPA), this Court may review claims within an application for a writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under 28 U.S.C. section 2254(d), the Court may only grant the petition if 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.
28 U.S.C. § 2254(d)(1),(2) (emphasis added).
The Court must first identify the clearly established federal law to determine whether the state court's application of that law "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d)(1). Clearly established law "refers to the holdings, as opposed to the dicta, of [the United States Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). Ninth Circuit case law may be "persuasive authority for purposes of determining whether a particular state court decision is an 'unreasonable application' of Supreme Court law, and also may help [the court] determine what law is 'clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000).
A state court decision may be "contrary to" clearly established precedent in two circumstances. First, "if the state court applies a rule that contradicts the governing law set forth in" decisions of the Supreme Court, it is "contrary to" clearly established law. Williams, 529 U.S. at 405. Second, where "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from our precedent," it will also be "contrary to" clearly established law. Id. at 406. Fulfilling this test "does not require citation of [Supreme Court] cases . . . so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002)
A state court decision involves an "unreasonable application" of clearly established law in two general cases. First, "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams,529 U.S. at 407. Second, a state court unreasonably applies federal law where it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. An application of federal law must be "objectively unreasonable" under this test. Id. at 409.
AEDPA also authorizes habeas relief where the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C. § 2254(d)(2). This provision requires that the petitioner demonstrate by clear and convincing evidence that the factual findings upon which the state court's adjudication of his claims rest are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
To apply the AEDPA, the Court looks to the "state's last reasoned decision." Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision from the state's highest court, the court "looks through" to the underlying appellate decision. Ylst v. Nunnemaker, 501 U.S. 707, 804 (1991). In the absence of a reasoned state court decision, federal habeas view is not de novo. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Instead, an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Id. If a state court "has not reached the merits of a properly raised issue" then review by a federal court is de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
III. EXHAUSTION OF REMEDIES REQUIRED
A petitioner must exhaust available state remedies as a prerequisite to a federal court's consideration of claims presented in a habeas corpus proceeding. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971). If petitioner has not exhausted the available state remedies, he must show that there is an absence of available state corrective process or that circumstances exist that render such process ineffective to protect his rights. 28 U.S.C. § 2254(b)(i),(ii). Exhaustion is accomplished if the state's highest court had an opportunity to rule on the merits of the claim. Batcherlor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982), cert. denied, 463 U.S. 1212 (1983). The petitioner is required to "provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1982) (quoting Picard, 404 U.S. at 276--77). Also, the petitioner must have "'fairly presented' to the state courts the 'substance' of his federal habeas corpus claim." Id. at 6 (quoting Picard, 404 U.S. at 275, 277-78). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made." Id. (citing Picard, 404 U.S. at 277). Instead, the petitioner must "present the state courts with the same claim he urges upon the federal courts." Picard, 404 U.S. at 276.
IV. REVIEW OF STATE COURT INTERPRETATION OF STATE LAW
The law is clear that a federal habeas court is not to re-examine state court determinations on state law questions. Estelle v. McGuire, 502 U.S. 62, 68 (1991). The Supreme Court has stated that "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68; see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (stating that "[p]petitioner may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process"). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir.1994).