The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a 2005 jury trial, Petitioner was convicted of assault with a deadly weapon by means to produce great bodily injury and battery with serious bodily injury. He received a sentence of three years imprisonment on the assault conviction along with three years imprisonment due to the enhancement of personally inflicting great bodily injury during the assault for a total sentence of six years imprisonment. The trial court stayed the sentence on the battery conviction.
Petitioner raises several claims in this federal habeas petition; specifically: (1) Petitioner's constitutional rights were violated when the trial court failed to sua sponte instruct the jury on defense's theory of mistake/accident ("Claim I"); (2) ineffective assistance of counsel for failing to argue the difference between self-defense versus intentional infliction of harm ("Claim II"); (3) ineffective assistance of counsel for failing to argue the difference between accidental and misfortunate injury versus willful intent to commit injury ("Claim III"); (4) ineffective assistance of counsel for failing to diligently represent Petitioner at sentencing resulting in a harsher sentence ("Claim IV"); and (5) ineffective assistance of counsel for failing to request a jury instruction on mistake/accident ("Claim V"). Petitioner requests an evidentiary hearing on these Claims. For the following reasons, the request for an evidentiary hearing is denied and the Petition for writ of habeas corpus should be denied.
II. FACTUAL BACKGROUND*fn1
On December 1, 2003, defendant went to his mother-in-law's home to pick up his baby. Upon arrival, he found not only his wife and their infant, but also his wife's ex-husband, Haskell Allen, Sr., and two adolescent sons from that former marriage. Defendant became agitated as he looked for his child's clothes while Allen followed him throughout the home. A confrontation eventually occurred in front of the house, in which Allen was stabbed twice. Allen testified that defendant stabbed him without any provocation. Allen's sons testified that defendant initiated physical contact with their father, striking him twice. The older son testified that defendant and Allen stood facing each other on the front lawn, with defendant's wife and baby between them. The two men exchanged heated words. Without Allen having thrown a punch, defendant reached around his wife and stabbed Allen twice. Before joining Allen on the front lawn, defendant had entered the kitchen where steak knives were kept. The older son saw neither defendant nor his father holding a weapon until he glimpsed a blood-stained knife in defendant's hand after the fight. The younger son testified similarly except that he never saw the knife. The surgeon who treated Allen testified that one stab wound penetrated the kidney and that a second slashing type wound was found where his neck and back converge.
Defendant testified that he drove to his mother-in-law's house to pick up his baby unaware that Allen would be present, and stressed that he would not have come if he had know [sic] Allen would be there. Allen had physically threatened him two years before at a child custody hearing. Defendant insisted that he "didn't come there for any trouble" and that while he was searching for his baby's clothing, Allen yelled at him while his two sons laughed. Trailing defendant throughout the house, Allen taunted him. Eventually, the two of them were at the front of the house. Defendant was frightened and believed that Allen carried a gun although there was no demonstratable indication he possessed a weapon. With wife and baby between the two men, Allen assertedly "wrenched" around his ex-wife and attempted to stab defendant. Concerned for his wife and baby as well as himself, defendant grabbed Allen's hand and seized the knife. Defendant commanded Allen to "get off of [him]" as Allen continued trying to stab him. When Allen twice lunged towards defendant, he was injured.
Defendant testified that throughout the struggle he was acting in self-defense and that "basically [Allen] ran into [the knife]." The prosecutor asked if Allen "ran into the knife accidentally," to which defendant responded, "Well, I didn't move. I mean, I just stood like that there when he came at me." Defendant maintained that he was never fully aware that he had stabbed Allen because everything happened so quickly. Regarding the second knife wound to Allen's back, the prosecutor again asked whether Allen "ran into [the] knife accidentally." Defendant responded that he told Allen to "get off of [him]" and that Allen came at him, but that he did not stab him. During the struggle, defendant received no injuries.
In closing argument, the defense insisted that Allen attacked defendant with a knife and that defendant reacted defensively, resulting in Allen's two wounds. "Mr. Phillips, afraid for his life and safety, did what the law allows him to do, which is to protect himself and act in self defense." The prosecutor argued that defendant's story of taking the knife from Allen's hand without being cut, with Allen being inadvertently stabbed twice, was implausible and that the prosecution's evidence proved that defendant initiated the attack.
The jury was instructed concerning the elements of the assault charge . . . and the elements of battery with serious bodily injury . . . . Both crimes, as defined require the defendant to have acted "willfully and unlawfully." "Willfully" was defined both in accordance with CALJIC No. 1.20 and, as part of the definition of assault, to mean "that the person committing the act did so intentionally." The instructions for both crimes state explicitly that the use of force upon another "is not unlawful when done in lawful self-defense" which the prosecution has the burden of negating beyond a reasonable doubt. The defense requested several instructions defining self-defense, all of which the court gave as requested.
The court was not requested to give, and did not give, an instruction on the defense of mistake or accident. (Slip Op. at p. 2-5 (footnotes omitted).)
III. PROCEDURAL BACKGROUND
After sentencing, Petitioner appealed to the California Court of Appeal raising Claim I. On August 9, 2006, the California Court of Appeal affirmed the judgment in a written opinion. The California Supreme Court denied the petition for review on November 1, 2006 without a written opinion.
Petitioner filed a federal habeas petition on October 7, 2007. On September 23, 2008, that habeas petition was dismissed as Petitioner had neither paid the filing fee nor filed an affidavit in support of a request to proceed in forma pauperis. Petitioner was given thirty days to file an amended habeas petition. Petitioner filed his first amended habeas petition with an application to proceed in forma pauperis on October 22, 2008. However, that habeas petition was a "mixed" habeas petition and Petitioner was ordered to either: (1) file a second amended habeas petition; (2) move for stay and abeyance; or (3) elect to proceed forward on his first amended habeas petition on his only exhausted claim. On July 8, 2009, Petitioner moved for a stay and abeyance. Subsequently, on August 17, 2009, Petitioner filed a second amended federal habeas petition. In that second amended habeas petition, Petitioner indicated that all of his claims were now exhausted as the California Supreme Court denied relief on his previously unexhausted ineffective assistance of counsel claims on August 12, 2009. Subsequently, Petitioner's motion for a stay and abeyance was denied as moot and the Respondent was ordered to answer the second amended habeas petition. On May 10, 2010, Respondent answered the second amended habeas petition. Respondent agreed that Petitioner had exhausted his state remedies with respect to all of the claims raised in his second amended federal habeas petition. (See Resp't's Answer at p. 3.)
IV. 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 only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). If a state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a petitioner's habeas claims. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Additionally, if a 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 the state court clearly erred in its application of Supreme Court law. See Larson v. Palmateer, 515 F.3d 1057, 1062 (9th Cir. 2010).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrande, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The state courts provided no reasoning to support the denial of Petitioner's ineffective assistance of counsel claims (Claims II-V). Thus, the record on Claims II-V will be independently reviewed to determine whether habeas corpus relief is available. See Larson, 515 F.3d at 1062. However, the California Court of Appeal, First Appellate District provided a reasoned decision on Claim I.
V. JURISDICTION AND MOOTNESS
Jurisdiction must be established before reaching the merits of Petitioner's Claims. Petitioner filed a notice of change of address on July 26, 2010. Petitioner indicated he was released from prison. Even though Petitioner is no longer incarcerated, Petitioner was "in custody" at the time he filed his federal habeas petition. This is all that the "in custody" provision of § 2254 requires. See Spencer v. Kemma, 523 U.S. 1, 7 (1998) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Maleng v. Cook, 490 U.S. 488, 490-91) (1989) (per curiam)).
Furthermore, even though Petitioner has been released from prison, this does not moot his federal habeas petition under these circumstances. In Spencer, the Supreme Court held that a petitioner's release from custody did not offend Article III's "case or controversy" requirement so long as it appears that the petitioner could suffer adverse collateral consequences as a result of the conviction. 523 U.S. at 7-14. There is a presumption that Petitioner's criminal conviction carries with it collateral consequences. See, e.g., Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005); Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994), overruled on other grounds by 28 U.S.C. § 2254(c). As the instant federal habeas petition is not moot, the merits of Petitioner's Claims can be analyzed.
VI. PETITIONER'S CLAIMS FOR REVIEW AND REQUEST FOR AN EVIDENTIARY HEARING
In Claim I, Petitioner asserts that his constitutional rights were violated when the trial court did not sua sponte give jury instructions on the defense of mistake or accident. Specifically, Petitioner asserts that the trial court should have instructed the jury with CALJIC No. 4.45 which states: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose, [nor] [[criminal] negligence,] [he] [she] does not thereby commit a crime." The California Court of Appeal analyzed this Claim on the merits. In denying the Claim, the California Court of Appeal stated:
"The trial court has a duty to instruct sua sponte regarding a defense ' "only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." [Citation.] [W]hen the trial court believes "there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory."'" (People v. Gonzales (1999) 74 Cal.App.4th 382, 389, citing People v. Breverman (1998) 19 Cal.4th 142, 157, italics added by the Breverman court.)
Here the defense did not rely explicitly on the theory of mistake or accident. These words were never uttered by defendant in his testimony or by defense counsel in his [sic] argument. Rather, the theory of the defense was self-defense. Nonetheless, defendant's testimony provided substantial evidence on which the jury might have found the defense to apply and the defense was not inconsistent with defendant's theory of the case. Self-defense requires that a "defendant . . . reasonably believe in the need to defend" and the " 'fear must be of imminent danger to life or great bodily injury.'" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Thus, a jury might reject the theory of self-defense, not finding the defendant to have entertained such a reasonable belief, but nonetheless have found that the defendant failed to form the mental state necessary to have rendered his action criminal. (People v. Lara (1996) 44 Cal.App.4th 102, 110.) On cross-examination, defendant declined to state that the stabbings were "accidental," but under the version of events that he described he was merely grabbing the knife from Allen and attempting to avoid being struck by him when the injuries occurred. According to defendant's testimony, he made no attempt to stab Allen. He testified that he did not even realize at the time that Allen had been stabbed. Had the jury believed defendant's testimony, or felt that there was at least a reasonable doubt as to its accuracy, the ...