The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a former state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction on charges of corporal injury of a cohabitant, assault with a deadly weapon, making terrorist threats, and dissuading a witness. Petitioner was sentenced to nine years in state prison. Petitioner raises three claims in his petition, filed June 6, 2005, that his prison sentence violates the Constitution.
Petitioner filed a timely appeal to the California Court of Appeal, Third Appellate District. (Resp'ts' Lodged Document ("LD") 1, 2 & 3.) The conviction and sentence were affirmed. (LD 4.) Petitioner did not file a petition for review in the California Supreme Court.
Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, which was denied. (LD 9.) Petitioner filed two petitions for writ of habeas corpus in the Sacramento County Superior Court which were denied. (LD 10 & 11.) Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on June 3, 2004. (LD 5.) The petition was denied. (LD 6.)
In August 2001, [petitioner] stabbed Deborah N., his live-in girlfriend, with a butcher knife. When she raised her right arm to protect herself, he stabbed her through the top portion of her arm, through the back of her arm, and into her left breast.
In October 2001, Deborah N. testified against [petitioner] at the preliminary hearing. After she testified, [petitioner] told her that he was "going to get" her. Deborah N. took his statement as a threat and she was scared.
Deborah N.'s friend saw [petitioner] turn around and look at Deborah N. when she sat down in the audience. [Petitioner] said something to the effect that she was lying and he was "going to get" her. As a result, Deborah N. was visibly afraid; she started shaking and crying.
The court reporter who was reporting the case saw [petitioner] mouth the words, "I'm going to get you."
The supervising victim advocate, who had accompanied Deborah N. to the hearing, saw [petitioner] look over his shoulder and say to her, "I'm going to get you." Deborah N. was crying and visibly upset; she took the statement as a threat and believed that [petitioner] would come and get her.
[Petitioner] testified on his own behalf. He denied threatening Deborah N. at the preliminary hearing. He denied saying or mouthing anything to her.
(People v. Martin, slip op. at 2-3.)
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. Failure to Remove Prospective Juror
Petitioner first claims that because the trial court denied a defense challenge for cause against Juror One who allegedly revealed an obvious bias against the defense, petitioner's conviction must be reversed. Respondents contend this claim is procedurally barred as defense counsel failed to use his remaining peremptory challenge to remove Juror One from the panel.
The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:
[Petitioner] contends the trial court erred by denying his challenge for cause to a prospective juror who "revealed an obvious bias against the defense." The People respond that the claim is barred because after the challenge was denied [petitioner] failed to use his remaining peremptory challenge to remove the juror and instead removed a different juror. [Petitioner] replies that cases suggesting the defense must use a peremptory challenge to remove the juror in question are mistaken. The People have the better argument.
Toward the end of jury selection, [petitioner] challenged Juror No. 1 for cause. The trial court denied the challenge. [Petitioner] then exercised his remaining peremptory challenge against Juror No. 10. When he later attempted to exercise a challenge against Juror No. 1, he found that he was out of challenges.
"To preserve a claim based on the trial court's overruling a defense challenge for cause, a [petitioner] must show (1) he used an available peremptory challenge to remove the juror in question; (2) he exhausted all of his peremptory challenges or can justify the failure to do so; and (3) he expressed dissatisfaction with the jury ultimately selected." (People v. Maury (2003) 30 Cal.4th 342, 379, italics added.)
Contrary to [petitioner's] argument, the requirement that the juror in question be removed is neither new nor an apparent mistake. Prior to People v. Maury, our Supreme Court had stated the requirement in several cases. (E.g., People v. Weaver (2001) 26 Cal.4th 876, 911; People v. Seaton (2001) 26 Cal.4th 598, 637; People v. Cunningham (2001) 25 Cal.4th 926, 976; People v. Samayoa (1997) 15 Cal.4th 795, 821; People v. Carpenter (1997) 15 Cal.4th 312, 355; People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Morris (1991) 53 Cal.3d 152, 184, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; People v. Bittaker (1989) 48 Cal.3d 1046, 1087 (Bittaker); People v. Coleman (1988) 46 Cal.3d 749, 770.)
Under these cases, the [petitioner] must, if possible, remove the objectionable prospective juror by peremptory challenge and show that he was thereby "deprived of a peremptory challenge which he would have used to excuse a juror who sat on his case." (Bittaker, supra, 48 Cal.3d at p. 1088, italics added.) In this case, the denial of the challenge for cause to Juror No. 1 did not deprive [petitioner] of a peremptory challenge, because he did not use a peremptory challenge to remove Juror No. 1.
Not only is this rule not mistaken, it is not of recent origin. In People v. Coleman, supra, 46 Cal.3d 749, the court relied on our opinion in Kimbley v. Kaiser Foundation Hospitals (1985) 164 Cal.App.3d 1166 at page 1169, which in turn relied on People v. Goldberg (1952) 110 Cal.App.2d 17 at page 23. Goldberg explained that "The rule, supported by ample authority, is stated as follows in 8 California Jurisprudence, page 609, section 595: 'The erroneous disallowance of a challenge for cause is harmless if it does not appear that an objectionable juror was forced upon the [petitioner]. If the [petitioner] had not exhausted his peremptory challenges he cannot complain of the error, for, if he afterwards peremptorily challenged the objectionable juror, he is not prejudiced; and if he did not do so, he cannot complain of an error the injurious effects of which he has suffered, if at all, only by reason of his acquiescence in or failure to avoid it when he had the means and opportunity to do so.'" (Ibid., italics added.)
In this case, the disallowance of the challenge to Juror No. 1 was harmless because, at the time, [petitioner] had not exhausted his peremptory challenges and he did not exercise a peremptory challenge immediately thereafter, " when he had the means and opportunity to do so." (People v. Goldberg, supra, 110 Cal.App.2d at p. 23, italics added.) Instead, he delayed his challenge until after he challenged Juror No. 10; at that point, he no longer had "the means," i.e., an available challenge, with which to challenge Juror No. 1. (People v. Martin, slip op. at 3-5.)
Federal courts may reach the merits of habeas petitions, despite an asserted procedural bar, so long as they are clearly not meritorious. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). Because the instant claim is without merit, the undersigned will not reach the procedural bar issue.
Because no state court has considered the merits of this claim, the undersigned conducts a de novo review. Nulph v. Cook, 333 F.2d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
The Sixth Amendment right to a jury trial "guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Green v. White, 232 F.3d 671, 676 (9th Cir. 2000). Due process requires that the defendant be tried by "a jury capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982). Jurors are objectionable if they have formed such deep and strong impressions that they will not listen to testimony with an open mind. Irvin, 366 U.S. at 722 n.3.
Juror One was questioned as follows:
BY THE COURT: And Mr. ****** ...