The opinion of the court was delivered by: Honorable N. Randy Smith U.S. Court of Appeals for the Ninth Circuit
Petitioner Ledell Kinsey, Jr., is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2005, a jury convicted Kinsey of corporal injury upon a cohabitant or former cohabitant, assault by means of force likely to produce great bodily injury, making criminal threats, and forcible rape. He was subsequently sentenced to state prison for 50 years to life plus a determinate sentence of 28 years.
In his habeas petition, Kinsey claims: (1) the admission of evidence regarding prior acts of domestic violence to prove his propensity to commit the charged assault violated his federal constitutional rights to due process and a fair trial under the Fifth and Sixth Amendments;*fn1 (2) the preponderance of the evidence standard, used in the court's jury instructions regarding prior acts of domestic violence, violated his constitutional rights to due process and a fair trial under the Fifth and Sixth Amendments; (3) his right to effective assistance of counsel under the Sixth Amendment was violated when his trial counsel failed to call a key defense witness; (4) the trial court improperly imposed two great bodily injury sentencing enhancements; and (5) the trial court erred by imposing two one-year sentences due to petitioner's prior prison terms.
Kinsey brought all but the last of his claims to the California Court of Appeal, Third Appellate Division, which denied his petition in a reasoned opinion. His petition for review with the California Supreme Court was subsequently denied. On August 23, 2007, Kinsey filed a writ of habeas corpus with this court. Having received the State's Answer and Kinsey's Traverse, the court now DENIES all of the claims raised in Kinsey's petition.
This court may entertain a petition for writ of habeas corpus "in 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 the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for habeas corpus will not be granted unless the 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). "[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." Lockyer v. Andrade, 538 U.S. 63, 75--76 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)). "Rather, that application must be objectively unreasonable." Id. at 76.
Moreover, Rule 4 of the Rules Governing § 2254 Cases requires the court to make a preliminary review of each petition for writ of habeas corpus. The court must dismiss a petition "[i]f it plainly appears from the petition... that the petitioner is not entitled to relief." Habeas Corpus Rule 4.
When determining whether a petitioner is entitled to habeas relief from the state court judgment, the court looks to the last reasoned state court decision as the basis for the state court judgment. Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) ("In reviewing a state court's summary denial of a habeas petition, this court must 'look through' the summary disposition to the last reasoned decision."); see also Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803--04 (1991)). Thus, the court must determine whether the California Court of Appeal's denial of Petitioner's habeas petition "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 "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).
A. Admission of Domestic Violence Propensity Evidence
Kinsey first claims that the admission of evidence of his prior acts of domestic violence to prove his propensity to commit the charged assault violated his state and federal constitutional rights to due process and a fair trial under the Fifth and Sixth Amendments. Pursuant to California Evidence Code section 1109, the trial court allowed the prosecution to admit evidence of Kinsey's prior acts of violence against the victim, Joni M., and against Kinsey's former girlfriend, Wanda Jackson. Kinsey argues that section 1109, and its enabling counterpart, section 1101, are unconstitutional. Relying on California case law, the Court of Appeal denied Kinsey's constitutional challenge to the admission of domestic violence propensity evidence.*fn2
For purposes of this habeas petition, Kinsey has not demonstrated that the state court's decision was "contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has yet to rule on the question whether propensity evidence admitted in a criminal trial pursuant to state law violates the Due Process Clause. See Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991) ("[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime."); Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001), rev'd on other grounds, 538 U.S. 202 (2003) (explaining that "the Supreme Court has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith" (citing Estelle, 502 U.S. at 75 n. 5)). Since the Supreme Court has not clearly established that use of propensity evidence in a criminal trial violates due process, a state court's decision on the matter cannot be contrary to or an unreasonable application of Supreme Court precedent under AEDPA. Alberni v. McDaniel, 458 F.3d 860, 866--67 (2006) (denying a due process claim upon the use of propensity evidence for want of a "clearly established" rule from the Supreme Court). Therefore, Kinsey's claim for relief on this ground is DENIED.
B. Propensity Evidence Jury Instruction
Kinsey next claims that the preponderance of the evidence standard used in the jury instructions-regarding prior acts of domestic violence-violated his constitutional right to (1) due process and (2) to a jury trial by proof beyond a reasonable doubt. The jury charge at ...