FINDINGS AND RECOMMENDATIONS
Petitioner Lonnie James Shoulders is a state prisoner proceeding through counsel with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner is currently serving an aggregate sentence of nine years and four months in state prison. The pending petition challenges his 2004 conviction in the Shasta County Superior Court for petty theft, with a prior theft conviction, for which he was sentenced to a prison term of five years. Petitioner challenges the constitutionality of that conviction and its accompanying sentence enhancements. After a thorough review of the review and the applicable law, it is recommended that the petition be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
The following factual summary was set forth in the unpublished opinion of the California of Appeal, Third District. Petitioner is the defendant referred to therein.
In June 2003, loss prevention specialist Timothy Bryant watched on a closed circuit television system in a "high-theft" area of a Redding department store. Defendant was "fingering through" compact discs but, at the same time, he was looking around appearing to pay more attention to his surroundings than the discs. Defendant selected a disc with his right hand and turned his back to the camera. When defendant turned back around, he was fixing his shirt and the disc was no longer visible. Bryant informed Gary Ninman, the store's loss prevention manager, that he thought he had seen something on the video monitors.
Bryant continued to watch as defendant purchased two compact discs, neither of which was the one that Bryant had first seen in defendant's hand. The cashier put the two discs in a bag and defendant walked away. After passing the optical department, defendant put his hand in his pants, pulled something out, placed it in the bag, and left the store.
When Ninman first saw defendant on the monitor, he was "fiddling" with the waistband of his pants more than a person would normally be expected to do. Ninman saw defendant walk toward the front of the store, reach into the waistband of his pants, take out a compact disc, and put it in the bag with the items he had purchased.
Bryant and Ninman contacted defendant outside the store and asked to see his receipt. Three compact discs were in the bag, but only two were listed on the receipt. Defendant told Bryant that the "employee must not have rang him up for the third C.D." Bryant, Ninman, and the defendant went back inside the store to the loss prevention office. Defendant continued to claim that he had put the third disc on the counter, that the clerk failed to ring him up for it, and that the clerk nevertheless placed the disc in the bag. Redding Police Officer Bradley LaCroix responded to the store. LaCroix took defendant into custody and advised him of his constitutional rights. Defendant acknowledged to LaCroix that he concealed the disc on his person; however, he was "quite insistent" that he was going to pay for it. At booking, defendant had in excess of $100 cash on his person.
The defense rested without presenting evidence or testimony.
(People v. Shoulders, No. C047665, 2005 WL 2461820 at 1-2.)
Petitioner was convicted by jury of petty theft with a prior theft conviction. In a bifurcated proceeding, the jury also found true a prior prison term allegation under Cal. Penal Code §667.5(b), and that petitioner had incurred a prior strike under Cal. Penal code §1170.12 (California's habitual criminals or "three strikes" law), based on a 1981 juvenile adjudication for robbery.
For the conviction of petty theft with a prior, the court imposed the middle term of two years, which was doubled to four years by virtue of being petitioner's second strike. An additional year was imposed as an enhancement for petitioner's prior prison term, for a total sentence of five years. Thereafter, in another unrelated Shasta County criminal case, petitioner was sentenced to an additional four years and four months, to be served consecutively to the sentence imposed for the conviction and enhancements at issue in the pending petition.
The California Court of Appeal affirmed petitioner's conviction and sentence on direct appeal, and the California Supreme court denied review. Petitioner sought habeas corpus relief in state court with respect to issues not presented in this federal petition; that relief was likewise denied.
Subsequently, petitioner filed an original habeas corpus petition in the Ninth Circuit Court of Appeals. The Ninth Circuit acknowledged receipt of the petition on February 2, 2007. On August 28, 2007, it was ordered that the original petition filed in the Ninth Circuit be transferred to this court.
Petitioner's original pro se filing presented all the issues he raised on direct appeal as well as those raised in state court habeas corpus proceedings. The amended petition, filed on June 24, 2009 by appointed counsel, presents only four issues which were adjudicated on their merits on direct appeal and fairly presented to the California Supreme Court.
Respondent admits that petitioner has properly exhausted the four claims presented in the pending amended petition. Respondent denies that the petition was timely filed.
A state prisoner challenging his custody has one year to file his federal petition from the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review. 28 U.S.C. §2244(d)(1)(A).
Here, the California Supreme Court denied the petition for review on December 21, 2005. The 90 day period for seeking review in the United States Supreme Court expired on March 21, 2006. See 28 U.S.C. §2101(c). Petitioner and respondent agree that the statute of limitations for the issues raised on direct appeal and presented in this federal action began running the next day, on March 22, 2006. See Fed. R. Civ. P. 6(a)). Absent any tolling of the limitations period, the last day for petitioner to file a timely federal petition was March 22, 2007. See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) (applying Fed. R. Civ. P. 6(a) to AEDPA statute of limitations).
Petitioner contends that his petition was timely filed within that period of time, on February 2, 2007, the date of the Ninth Circuit's receipt of his original petition, or, in the alternative, on January 30, 2007, pursuant to the "mailbox rule" for prisoners (see Houston v. Lack, 487 U.S. 266, 276 (1988)). In contrast, respondent asserts that the petition received in the Ninth Circuit on February 2, 2007 was improperly filed in that court and that the true filing date was August 28, 2007, the date it was transferred to this court.
A federal court of appeals has no jurisdiction as a court to grant original writs of habeas corpus. See Felker v. Turpin, 518 U.S. 651, 660-61 (1996). Rather, writs of habeas corpus can be granted by "the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." 28 U.S.C. §2241(a). It is also the case that the Supreme Court, any justice thereof, or any circuit judge may decline to entertain an application for a writ of habeas corpus that has been presented, instead transferring the petition to a district court with jurisdiction to entertain it. 28 U.S.C. §2241(a). The Federal Rules of Appellate Procedure provide:
Application for the Original Writ
An application for a writ of habeas corpus must be made to the appropriate district court. If made to a circuit judge, the application must be transferred to the appropriate district court...
In addition, the federal statute for transfer to cure want of jurisdiction provides: Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of an administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in... the court from which it is transferred.
Citing no binding authority, respondent asserts that section 1631 does not apply to federal habeas corpus petitions governed by the AEDPA. But the Ninth Circuit Court of Appeals has specifically held that "[t]he federal transfer statute is applicable in habeas proceedings." Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001) (transferring petition construed as an original petition for writ of habeas corpus to a district court with jurisdiction) (citing Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990). The purpose of section 1631 is "to aid litigants who were confused about the proper forum for review." Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (internal quotations omitted); see also Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir. 2003) ("The purpose of the transfer statute is to aid parties whom might be confused about which court has subject matter jurisdiction, and to preserve their opportunity to present the merits of the claim, which if dismissed for filing in the wrong court, might subsequently be barred by a statute of limitations."); Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999) ("A compelling reason for transfer is that the plaintiff, whose case if transferred is for statute of limitations purposes deemed by section 1631 to have been filed in the transferor court, will be time-barred if his case is dismissed and thus has to be filed anew in the right court.").
Pursuant to 28 U.S.C. §1631, this action should proceed in this court as if it had been filed in this court no later than February 2, 2007, the date it was received in the Ninth Circuit Court of Appeals. The petition is timely.
In the pending amended petition, petitioner claims that (A) trial counsel provided constitutionally deficient representation under the Sixth Amendment when he allowed the parties' stipulation to the fact that petitioner had a prior theft conviction to be read to the jury during trial; (B) the prosecutor violated petitioner's rights under the Fifth and Fourteenth Amendments when he made a comment during closing argument referencing the fact that petitioner had not testified in his own defense; (C) the cumulative effect of the two errors alleged in (A) and (B) deprived petitioner of a fair trial; and (D) at sentencing, petitioner's previous juvenile adjudication for robbery was improperly counted as a prior strike and used to enhance petitioner's sentence.
V. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). A reviewing court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).
Under AEDPA, the "contrary to" and "unreasonable application" clauses are different. Relief may be available under the "contrary to" clause of §2254(d)(1) if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. As the Third Circuit has explained, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3rd Cir. 1999) (en banc) (emphasis in original). The state court is not required to cite the specific controlling test or the Supreme Court authority, so long as neither the reasoning nor the result of the state court decision contradict same. Early v. Packer, 537 U.S. 3, 8-9 (2002).
Under the "unreasonable application" clause, relief may be available if the state court correctly identifies the governing legal principle but unreasonably applies it to the facts of the particular case. The focus of this inquiry is whether the state court's application of clearly established federal law is objectively unreasonable. Williams, 529 U.S. at 410. "[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." Id.
A. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. A showing of ineffective assistance of counsel has two components. First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). After the acts or omissions that are alleged not to have been the result of reasonable professional judgment are identified, a reviewing court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). In assessing an ineffective assistance of counsel claim, "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). In addition, there is a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
The second factor required for a showing of ineffective assistance of counsel is actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000).
Here, petitioner alleges that counsel performed deficiently when he permitted the fact of petitioner's prior theft conviction and subsequent incarceration to be read aloud to the jury and referenced multiple times during trial, where instead such information should have been used only as a sentencing factor for the court.
In People v. Bouzas, 53 Cal.3d 467 (1991), the California Supreme Court held that "the prior conviction and incarceration requirement of [California Penal Code] section 666 is a sentencing factor for the trial court and not an 'element' of the section 666 'offense' that must be determined by a jury." Id. at 480. Thus, a criminal defendant has a right to stipulate to the prior conviction and incarceration, thereby precluding the jury from learning of the fact of his prior conviction. Id. At petitioner's trial, counsel agreed to such a stipulation, however, the stipulation was then read to the jury as part of the court's jury instructions. Specifically, the jury was instructed just prior to deliberation:
The parties stipulate that the defendant admits a prior theft conviction as alleged in the Information and that he served a term in a penal institution for such conviction. This is a fact ...