FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2003 judgment of conviction entered against him in Sacramento County Superior Court on charges of failing to stop at an accident resulting in property damage (Cal. Veh. Code § 20002(a)), driving with a suspended license (Cal. Veh. Code § 14601.2(a)), two counts of driving under the influence (DUI) (Cal. Veh. Code § 23152(a)), and two counts of driving with .08 percent or greater blood-alcohol content (Cal. Veh. Code § 23152(b)), with findings that petitioner committed two of the felony offenses while released from custody on the other felony charges (Cal. Pen. Code § 12022.1), that petitioner was previously convicted of a strike under California's Three Strikes Law (Cal. Pen. Code §§ 667(b) - (I), 1170.12), and that petitioner had two prior DUI convictions for which he had also served prison terms within the meaning of Cal. Pen. Code § 667.5(b)). Petitioner seeks relief on the grounds that: (1) he received ineffective assistance of appellate counsel; (2) his right to due process was violated when he was not allowed to attend the trial or sentencing proceedings; and (3) his right to due process was violated when he was not allowed to testify at trial. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
A jury convicted defendant Mark Anthony of failing to stop at an accident resulting in property damage (Veh.Code, § 20002, subd. (a)), driving with a suspended license (Veh.Code, § 14601.2, subd. (a)), two counts of driving under the influence (DUI) (Veh.Code, § 23152, subd. (a)), and two counts of driving with .08 percent or greater blood-alcohol content (Veh.Code, § 23152, subd. (b)). In a bifurcated proceeding, the jury further found he committed two of the felony offenses while released from custody on the other felony charges (Pen.Code, § 12022.1), he was previously convicted of a strike under the Three Strikes law (Pen.Code, §§ 667, subds.(b)-(I), 1170.12), and he had two prior DUI convictions for which he had also served prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to state prison for an aggregate term of 11 years four months.
On September 29, 2001, at approximately 9:00 p.m., Sergeant David Yenne of the Grant School District Police Department noticed defendant driving and apparently slowing for a turn. Defendant subsequently "corrected the turn" and continued on before swerving into a parking lot, back into the road, and then back into the parking lot. Defendant stopped so his car was positioned partly in the road and partly in the parking lot, and Sergeant Yenne stopped behind him and activated his emergency lights.
Sergeant Yenne noticed defendant's eyes were bloodshot and glassy, his speech was slightly slurred, and he smelled of alcohol. Defendant said he had just left his girlfriend's house and admitted he had been drinking there. He did not have a driver's license. Yenne called his dispatcher and asked for a California Highway Patrol (CHP) officer to meet him at the scene to conduct a DUI evaluation.
CHP Officer Ragnar Schubert arrived at approximately 9:23 p.m. Officer Schubert also noticed that defendant exhibited signs of intoxication, including the strong odor of alcohol, red and watery eyes, and somewhat slow and slurred speech. Defendant said he had last eaten at approximately 5:00 p.m. and had drank half a can of Budweiser beer 45 minutes prior, and had finished drinking within the last five to 10 minutes. Schubert had defendant do five field sobriety tests, which he did not perform satisfactorily. After a preliminary alcohol screening test indicated the presence of alcohol, Schubert arrested defendant. Defendant subsequently became upset and angry. After defendant was arrested, Sergeant Yenne searched the car. He found a large, open beer can in a paper bag in the front passenger side of defendant's car.
A blood sample taken from defendant at approximately 11:15 p.m. had a blood-alcohol level of .20 percent. It appeared to Schubert that defendant's level of intoxication might have increased slightly after their initial encounter.
On May 20, 2002, at approximately 11:00 p.m., Zakayaiah Smith was walking toward her car when defendant drove rapidly down the street, without using his headlights, and swerved and hit her car. Defendant appeared to be seriously injured when his head hit the front windshield, and Smith went to investigate. As she approached, defendant got out of the car and she noticed his face was bloody. It appeared defendant had been drinking; he staggered and "could barely stand up straight." He said he was going to leave, and Smith told him he could not leave and she was going to call the police. When defendant tried to leave, another person struggled with him and knocked him unconscious. However, he got up several minutes later and left without giving his name.
CHP officers found defendant walking near the scene of the accident. He was bleeding from the left side of his head, there was blood on his face, and he said he had hit a car that was parked in the middle of the road and was looking for a phone to call someone to come and get him. He did not have a driver's license. He exhibited signs of intoxication, including red and watery eyes, difficulty keeping his balance, an odor of alcohol from his breath, and slurred speech. However, he said he had not had anything to drink.
Because of his injuries, defendant was taken to the hospital, and no field sobriety tests were given. Defendant told a paramedic that he took insulin, and the paramedic noted defendant could have sustained a concussion. Lack of insulin or a concussion can cause slurred speech, difficulty balancing, or irrational behavior.
Defendant became combative and made threatening statements to the paramedic. A blood sample taken from defendant at approximately 1:40 a.m. had a blood-alcohol level of .26 percent.
Defendant was charged for his conduct in the first incident by an amended information (case No. 01F08222) with DUI, driving with a .08 percent or more blood-alcohol level, driving with a suspended license, and related enhancements. He pleaded guilty to the misdemeanor charge of driving with a suspended license, and he went to trial on the alcohol-related charges. The jury reached a deadlock, and the trial court declared a mistrial.*fn2 Over defendant's opposition, the People subsequently filed a consolidated information including the charges in case No. 01F08222 with the charges in case No. 02F05503, which were based on the second incident. Defendant requested a severance of the charges before trial, but the trial court denied relief.
Petitioner appealed his conviction to the California Court of Appeal for the Third Appellate District, claiming that the trial court erred by denying his motion to sever and that the evidence was insufficient to sustain the strike enhancement. Resp.'s Lodg. Doc. A. On November 5, 2004, petitioner's judgment of conviction was affirmed. Lodg. Doc. C.
On December 17, 2004, petitioner filed a petition for review in the California Supreme Court. Lodg. Doc. D. Although the claims contained in that petition are difficult to decipher, it appears that petitioner raised all of the claims that are contained in the habeas petition filed in this court on March 10, 2005. Id. The petition for review was summarily denied by order dated January 19, 2005. Lodg. Doc. E.
On March 10, 2005, petitioner filed his federal habeas petition in this court. Dckt. No. 1. Respondent filed an answer on July 8, 2005. Dckt. No. 8. Petitioner filed a traverse on January 18, 2006, and a supplemental traverse on December 7, 2006. Dckt. Nos. 24, 29.
On February 28, 2008, petitioner filed a motion to file a supplemental petition, along with a supplemental petition containing the sole claim that his rights under the Sixth And Fourteenth Amendments were violated during sentencing, in violation of the rule set forth in Cunningham v. California, 549 U.S. 270 (2007). Dckt. Nos. 32, 33. By order dated March 30, 2009, this court construed petitioner's filings as a motion to file an amended petition, and denied the motion without prejudice on the grounds that the supplemental petition did not include the claims raised in petitioner's original habeas petition and was therefore not complete in itself, in violation of Local Rule 220. Dckt. No. 36. On April 22, 2009, petitioner filed a motion for reconsideration of the March 30, 2009 order. Dckt. No. 37. On July 15, 2009, the motion for reconsideration was denied by the district judge assigned to this action. Dckt. No. 38.
On August 26, 2009, petitioner filed a motion to stay and abey these proceedings so that he could exhaust in state court the claims raised in the habeas petition filed in this court on March 10, 2005, and possibly his Cunningham claim as well. Dckt. Nos. 39, 42. On October 8, 2009, petitioner filed an amended petition for writ of habeas corpus, which included the claims contained in his March 10, 2005 habeas petition and also a Cunningham claim. Dckt. No. 41. Previously, on approximately August 22, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, in which he raised the claims contained in the March 10, 2005 petition filed in this court, but did not raise a Cunningham claim. Ex. to Dckt. No. 39. On October 14, 2009, the California Supreme Court summarily denied that petition. Dckt. No. 42. On October 30, 2009, petitioner notified this court that the California Supreme Court had denied his habeas petition, and requested that this court rule on the merits of all of the claims contained in his October 8, 2009 amended petition. By order dated February 2, 2010, this court denied petitioner's August 26, 2009 motion for stay and abeyance on the ground that it was moot in light of the decision of the California Supreme Court. Dckt. No. 43.
In light of the circumstances described above, the habeas petition filed in this court on March 10, 2005 is the operative petition in this matter. The "first amended petition" filed on October 8, 2009 was not properly filed; therefore, the allegations contained therein will not be considered by this court. Petitioner's claim based on the Cunningham decision has not been raised in any operative petition filed in this court and appears to be unexhausted. Accordingly, this court will not address petitioner's Cunningham claim.
A. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief 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.
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 a different result. ...