The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Clinton Morris Reddick, a state prisoner proceeding pro se, has filed a Petition for Habeas Corpus relief under 28 U.S.C. § 2254. Reddick is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Folsom State Prison. Respondent has answered, and Reddick has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Reddick was convicted in the California Superior Court, Sacramento County, of five counts of second-degree robbery (Cal. Penal Code § 211), with use of a personal firearm (Cal. Penal Code § 12022.53(b)). The Sacramento County Superior Court sentenced Reddick to an aggregate term of 32 years and 4 months. Reddick timely appealed his conviction to the California Court of Appeal, Third District, which affirmed his conviction in an unpublished, reasoned decision.*fn2 The California Supreme Court summarily denied review without opinion or citation to authority on August 10, 2005.*fn3 On February 28, 2006, Reddick filed a petition for habeas corpus relief in the Sacramento County Superior Court, which denied his petition in an unpublished, reasoned decision.*fn4 On August 6, 2006, Reddick filed a successive petition for habeas corpus relief in the Sacramento County Superior Court asserting grounds different than those asserted in his first petition. On October 16, 2006, the Sacramento County Superior Court denied his petition as an impermissible successive petition, citing In re Clark (1993) 5 Cal. 4th 750, 769.*fn5 Reddick then filed a petition for habeas corpus relief in the California Court of Appeal, Third District, on December 19, 2006, asserting the same grounds as he asserted in his second petition to the Sacramento County Superior Court. The Court of Appeal summarily denied his petition without opinion or citation to authority on January 4, 2007.*fn6 Reddick filed a petition for habeas corpus relief in the California Supreme Court on January 29, 2007, asserting the same grounds asserted before the superior court and the court of appeal. The California Supreme Court summarily denied his petition citing In re Dixon (1953) 41 Cal. 2d 756; In re Swain (1949) 34 Cal. 2d 300, 304; People v. Duvall (1995) 9 Cal. 4th 464, 474, on March 14, 2007.*fn7 Reddick filed his Petition for relief in this Court on June 10, 2007.
II. GROUNDS RAISED/DEFENSES
In his Petition Reddick raises six grounds: (1) he was illegally tried in absentia; (2) he was denied the right to represent himself; (3) he was improperly sentenced (multiple sentences for a single act); (4) he received ineffective assistance of trial counsel; (5) he received ineffective assistance of appellate counsel; and (6) the trial court erred in instructing jury on constructive possession by an employee. Respondent contends that: (1) the Petition is time barred;*fn8 (2) grounds one through five are procedurally barred; and (3) the fourth and fifth grounds are unexhausted. Respondent raises no other affirmative defenses.*fn9
Because Petitioner filed his petition 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 renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn10 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."*fn11 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.*fn12 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.'"*fn13 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.*fn14 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.*fn15 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.*fn16
In applying this standard, this Court reviews the last reasoned decision by the state-court.*fn17 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.*fn18 When there is no reasoned state-court decision denying an issue presented to the state-court and raised in a federal habeas petition, this Court must assume that the state-court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state-court decision was objectively unreasonable.*fn19 The scope of this review is for clear error of the state-court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn20
"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn21
Respondent contends that because the California Supreme Court denied Reddick's petition for habeas relief citing Dixon,*fn22 Swain*fn23 and Duvall,*fn24 Reddick procedurally defaulted on his first five grounds and is, therefore, barred from raising them in this proceeding.
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn25 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn26 "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."*fn27 A discretionary state procedural rule can be firmly established and regularly followed, so as to bar federal habeas review, even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.*fn28
Although the ultimate burden of proving adequacy of a state procedural bar is on the Respondent, once the Respondent has "adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner." Reddick may satisfy his burden "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule."*fn29 In his Traverse, Reddick has not addressed procedural bar. Consequently, Reddick has not met the minimal burden imposed upon him to place procedural bar at issue. Therefore, his first five grounds are procedurally barred. Moreover, as discussed further below in subpart C, even if this Court were to reach the merits on Reddick's first five grounds he would not prevail.
Respondent contends that Reddick failed to exhaust his state court remedies with respect to his fourth and fifth grounds. Respondent does not, however, address the exhaustion of remedies defense in his Memorandum of Points and Authorities accompanying the response. Furthermore, the Petition may be denied on the merits notwithstanding the failure to exhaust state court remedies.*fn30 Therefore, this Court declines to reach the exhaustion issue.
Ground 1: Trial in absentia.
Reddick argues that he was illegally tried in absentia. Although he conceded that a criminal defendant may be tried in absentia, Reddick argues that at the time he absented himself, jeopardy had not attached and, therefore, trial had not commenced.*fn31 The record reflects that on the last day that Reddick was present in court, Wednesday August 13, 2003, the court completed jury selection and adjourned for the day to resume on the following Monday.*fn32 The record also reflects that the jury was sworn to try the case on Wednesday August 13.*fn33 When trial resumed on Monday August 18, 2003, Reddick was not present.*fn34 Thereafter, Reddick continued to absent himself. Reddick does not contend that his absence was not voluntary. The trial court, in ruling that the trial would continue in the absence of Reddick stated:
I recognize I have discretion in this matter and I carefully thought about the exercise of this discretion, and I believe that the cause of this delay, if there is to be a delay, is solely on Mr. Reddick's hand and head. I believe that whatever mistakes have led to his being released from jail pending the ability of him being brought here, I believe that he is the cause of his nonappearance, and that it's a conscious nonappearance. Since he was already facing 17 years in Judge Fall's court, and the potential of more sentence that existed in this case, I don't expect him to voluntarily reappear.
My feeling is this is a person who has absconded and he is running and he is running hard and he's running fast, and when I juxtapose and balance out the difficulties of this type of a case on the People and the witnesses and the fact that he has caused the inconvenience of calling these witnesses all back after a year of delay until this case gets to trial for a year's time because that was the nature of the case, it is my judgment and opinion and my ruling that we will try Mr. Reddick in absentia.*fn35
The law is clear that a criminal defendant in a non-capital case can waive his right to be present at trial by his voluntary absence. It is unnecessary that the defendant knew or had been expressly warned that trial would continue in his absence.*fn36 The law is also clear that jeopardy attaches in a jury trial when the jury is sworn.*fn37 Accordingly, contrary to Reddick's factual assertions, the trial had commenced before he absented himself. Thus, under the facts of this case, conducting the trial in Reddick's absence did not violate any constitutionally protected right. Reddick is not entitled to relief under his first ground.
Ground 2: Right to Self-Representation.
Reddick contends that he was denied his Sixth Amendment right to represent himself at trial. On August 6, 2003, the day before the case was originally set to be called for trial, Reddick made both a Marsden motion*fn38 to relieve counsel and a Faretta motion*fn39 that he be allowed to represent himself. Both motions were denied and the trial was continued for a week due to the illness of counsel for Reddick's co-defendant. On August 12, the day to which trial was continued, the trial court held a second Marsden hearing, finding that Reddick's appointed counsel was effectively representing him. The next morning, the trial court conducted a hearing on Reddick's renewed Faretta motion. After providing Reddick with the required Faretta warnings, the trial court made extensive inquiries into Reddick's ability to represent himself. In response to questions by the court, Reddick revealed that he had no law school education, had dropped out of school in the twelfth grade, and had no high school diploma or GED certificate.*fn40
Other than to having "been to the law library," Reddick had no "legal background, training or knowledge" other than what he had received prior to dropping out of high school.*fn41 Based upon this colloquy, the trial court denied Reddick's Faretta motion, holding:
THE COURT: My concern in this case is certainly contained in the People versus Burton case at 48 Cal. 3d 843 at page 853, and also I recognize that I need to apply the People versus Windham factors at 19 Cal. 3d at 121, 128, wherein the request to represent . themselves at mid-trial is not a constitutional right but solely at the discretion of the trial court following and subject to the following criteria:
First, I consider the quality of representation of counsel.
I consider Mr Higgins to be one of the finest counsel that we have in our courts practicing criminal law. He has all the tools and has demonstrated them repeatedly before me in regards to his defense of criminal cases in trial, in motions and in proceedings and procedures. He has always shown exemplary knowledge, skill, and training. I balance that out with your dropping out of school some time in the twelfth grade, not going forward to get a GED, and the very technical nature of this case. I also consider your prior proclivity to substitute counsel. Quite frankly, the record should reflect that your motions have been made repeatedly. They were made just last week. It's only out of an abundance of caution that I'm going forward and hearing your motions in this regard, both the Marsden as well as this Faretta. I believe there should have been and there was adequate record in the prior motions, but just in case there was something new, something that shows a change of circumstances, something that a Court ought to consider at this late last moment for trial, I wanted to give you the opportunity to present it if it was there. I don't see that.
Your reasons, what are your reasons?
DEFENDANT REDDICK: For what?
THE COURT: For wanting to represent yourself at this time?
DEFENDANT REDDICK: Because I would rather represent myself than him. I feel I will do more to help myself than he ...