The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his February 28, 2005 conviction on one count of securities fraud (Cal. Corp. Code §§ 25540, 24501), based on his guilty plea. (Clerk's Transcript ("CT") at 475.) Petitioner also admitted two enhancements: petitioner took property of a value exceeding $150,000.00 (Cal. Penal Code § 12022.6(a)(2), and committed two or more related felonies, a material element of which was fraud or embezzlement, involving the taking of more than $500,000.00 (Cal. Penal Code § 186.11(A)(2).) Petitioner was sentenced to seven years in prison on August 4, 2005. Petitioner raises six claims in his petition, filed December 4, 2007, that his prison sentence violates the Constitution.
Petitioner has also filed motions for an evidentiary hearing, expansion of the record and for summary judgment. The court will address these pending motions following ruling on the merits of the petition.
On August 17, 2004, petitioner's counsel filed an appeal in the Court of Appeal for the State of California, Third Appellate District. (Resp't's Supplemental Lodged Document ("Supp. LD") 7.) The People filed a motion to dismiss the appeal based on petitioner's failure to obtain a certificate of probable cause. (Supp. LD 8.) There was subsequent briefing on the motion. (Supp. LD, 9-11.) While the motion was pending, both parties filed briefing on the merits. (Supp. LD 12-13.)
On December 8, 2006, petitioner's appeal was dismissed as barred due to petitioner's failure to obtain a certificate of probable cause in the trial court. (Resp't's Lodged Documents ("LD") 1.)
On September 18, 2006, petitioner, proceeding without counsel, filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, Case No. C053648. (Supp. LD 14.) On September 28, 2006, the petition was summarily denied without comment or citation. (Supp. LD 15.)
On January 17, 2007, petitioner's counsel filed a petition for review of the order dismissing petitioner's appeal in the California Supreme Court, Case No. S149532. (LD 2.) Petitioner, proceeding without counsel, filed a petition for review in the California Supreme Court on January 17, 2007, also in Case No. S149532. (LD 3.) The California Supreme Court denied both petitions on March 21, 2007, without comment or citation. (LD 4.)
On December 4, 2007, petitioner, proceeding without counsel, filed a petition for writ of habeas corpus in the instant action. (Dkt. No. 1.) On March 3, 2008, petitioner filed an amended petition. (Dkt. No. 10.) On April 9, 2008, respondent was directed to file an answer or motion in response. (Dkt. No. 15.) On August 8, 2008, respondent filed a motion to dismiss the amended petition for failure to exhaust state court remedies. (Dkt. No. 20.)
On September 18, 2008, petitioner, proceeding without counsel, filed a petition for writ of habeas corpus in the California Supreme Court. (Dkt. No. 27.) On October 22, 2008, the California Supreme Court summarily denied the petition without comment or citation. (Dkt. No. 33 at 5.) Thereafter, the court found petitioner had exhausted his state court remedies and denied the motion to dismiss. (Dkt. Nos. 38, 41.) Respondent filed an answer on July 10, 2009, and petitioner filed a traverse on October 13, 2009. (Dkt. Nos. 46, 50.)
Respondent concedes petitioner has exhausted his state remedies as to each claim raised herein. (Dkt. Nos. 21, 31, 35, 41 & 46.)
III. Background and Facts
Petitioner was initially charged in Calaveras County Superior Court on or about November 17, 2004. (Dkt. No. 2 at 6.) On or about February 3, 2005,*fn2 a felony amended complaint was filed in the Calaveras County Superior Court charging petitioner with conspiracy to commit grand theft and securities fraud (Cal. Penal Code §§ 182(a)(1), 487; Cal. Corp. Code §§ 25540, 25401) (count 1); nine counts of securities fraud (Cal. Corp. Code §§ 25540, 25401) (counts 2, 5, 8, 11, 14, 17, 20, 22, 24); seven counts of residential burglary (Cal. Penal Code § 459) (counts 3, 6, 9, 12, 15, 18, 21); and eight counts of grand theft (Cal. Penal Code § 487) (counts 4, 7, 10, 13, 16, 19, 23, 25). (CT 63-74.)
On February 3, 2005, petitioner was also charged by felony complaint in San Joaquin County Superior Court with ten counts of securities fraud (Corp. Code, § 25401/25540) (counts 1, 3, 5, 7, 9, 11, 12, 14, 16, 18), seven counts of residential burglary (Pen. Code, § 459) (counts 2, 4, 6, 8, 10, 13, 15), and one count of grand theft (Pen. Code, § 487) (count 17). (CT 1- 4.) The information also alleged the following enhancements: (1) petitioner took property of a value exceeding $150,000.00, within the meaning of Penal Code section 12022.6, subdivision (a)(2); (2) that, pursuant to Penal Code § 186.11(a)(2), the offenses set forth in counts 1-25 were related to felonies, a material element of which is fraud and embezzlement, which involves a pattern of related felony conduct which involves the taking of more than $500,000.00; and (3) pursuant to Penal Code § 667.9(a), the offenses in counts 2, 4, 6, 8, 10, 13 and 15 were committed against a person who was 65 years of age or older and such disability and condition was known and reasonably should have been known to petitioner. (CT 5.)
On February 28, 2005, pursuant to a negotiated disposition, [petitioner] pled guilty to a single count (count eleven) of securities fraud (Corp. Code, § 25401/25540). In addition, he admitted the two enhancements. ([Cal. Penal Code] §§ 186.11, subd. (a)(2); 12022.6, subd. (a)(2).) Because the white collar criminal enhancement only applies to a person who has been convicted of two felonies, and because [petitioner] was convicted of only one, he waived the two-felony requirements. (RT 16.) In exchange for his plea, [petitioner] was promised either six or eight years in prison. (RT 2-3.)
On August 4, 2005, the trial court sentenced [petitioner] to seven years in prison. (RT 69-70.) The court imposed the mid-term (three years) for count eleven, the low-term (two years) for the white collar criminal enhancement, and the fixed term of two years for the [Cal. Penal Code] section 12022.6(a)(2) enhancement. (RT 70-71; CT 462, 464, 475.)
[Petitioner] filed a timely notice of appeal on August 17, 2004. (CT 481.) [Petitioner] requested a certificate of probable cause, which the trial court denied. (CT 481-482.)
According to the probation report, [petitioner] sold notes to investors that were secured by pieces of property he intended to develop. Eventually, the interest payments on the notes ceased. An investigation revealed that [petitioner] used investor funds to pay off other investors and for his personal benefit. In addition, he failed to take "sufficient steps" to develop the properties. It was also discovered that the investors would not be able to recoup their losses based on the properties used as security. (CT 319.)
People v. Erb, No. C050865, Third District Court of Appeal, Opening Brief, filed April 6, 2006, at 1-3. (Supp. LD 7.)*fn3
On February 28, 2005, the case came on for bail review and further arraignment; both petitioner and his counsel were present. (CT 206.) As noted above, the parties arrived at the following plea agreement: petitioner would plead guilty to count eleven of the February 3, 2005 complaint, admit the § 12022.6(as)(2) and 186.11(a)(2) enhancements, and waive any requirement that the 186.11(a)(2) enhancement has to have two felony convictions, and agree that the term can be imposed upon one felony conviction. (RT 2.) Petitioner agreed to be sentenced to an aggregate term of six*fn4 or eight*fn5 years, depending on whether the low or middle term of imprisonment was imposed for securities fraud. (RT 2.) In exchange for that plea, the other counts in the San Joaquin County case and all of the counts in the Calaveras County case would be dismissed. (RT 3, 11.) In addition, petitioner agreed to cooperate with the disposition of property listed on the lis pendens filed by the Deputy Attorney General. (RT 11.)
The prosecution offered the following factual basis for the plea:
The date in question, within the County of San Joaquin, in reference to the alleged victim, the [petitioner] sold a security and in selling the security made an omission; specifically he did not tell the victim in this particular count that he had prior business dealings that went bad. Additionally, he did not tell the victim in this particular count that he owed the State of California approximately $600,000 in unpaid taxes.
In total, the amount of securities that were sold exceeded half a million dollars, and there was more than two sales that were conducted.
(LD 18 at 14.) The prosecution referred to the date of "[o]n or about November 21, 2001." (CT 3.) Petitioner's counsel conferred with petitioner and stipulated to the factual basis. (Id. at 15.)
IV. Standards for a Writ of Habeas Corpus
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citation omitted) A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be used to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v.Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citation omitted).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where, as here, the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) ("Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable."); accord Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle, 313 F.3d at 1167.
A. Ineffective Assistance of Counsel/Involuntary or Coerced Guilty Plea*fn6
Petitioner's first and third claims assert that his trial attorney rendered ineffective assistance by failing to get petitioner released on bondable bail, refusing to file a demurrer, failing to file a motion to suppress, and coercing petitioner to accept a guilty plea.
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the 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).
Second, a petitioner must establish that he was prejudiced by counsel's 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). "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Strickland, 466 U.S. at 697.
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) (citation omitted). Additionally, 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) (citation omitted).
All of the instances of ineffective assistance of trial counsel alleged by petitioner occurred prior to the entry of petitioner's plea of guilty to the charges against him. The law is clear that petitioner may not raise claims of deprivation of his constitutional rights that occurred prior to his plea. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973). See also McMann v. Richardson, 397 U.S. 759, 770-71 (1970); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) ("As a general rule, one who voluntarily pleads guilty to a criminal charge may not subsequently seek federal habeas relief on the basis of pre-plea constitutional violations"), overruled on other grounds in Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003); Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985) (superseded on other grounds by AEDPA) (voluntary and intelligent guilty plea precludes federal habeas relief based upon "independent claims" of pre-plea constitutional violations). Under these circumstances, a prisoner may attack only the voluntary and intelligent character of his guilty plea in habeas proceedings. Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992). To the extent that a petitioner seeks to ...