The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
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 1996 conviction on charges of attempted first degree robbery, two counts of assault with a firearm, possession of a firearm by a felon, and burglary. Various weapon enhancements and prior conviction allegations were found to be true. On November 22, 1996, petitioner was sentenced to 94 years to life*fn1 in prison. (January 13, 2004 Answer, Ex. F at 2.) Petitioner raises multiple claims in his second amended petition (hereafter "Pet."), filed August 10, 2003, that his prison sentence violates the Constitution. After carefully considering the record, the undersigned recommends that the petition be denied.
As noted above, on November 22, 1996, petitioner was sentenced to 94 years to life in prison. Petitioner appealed his conviction. On April 22, 1999, the California Court of Appeal for the Third Appellate District affirmed the conviction, but remanded the case to the Sacramento County Superior Court for further proceedings on sentencing. (Respondent's Ex. B.)
On June 4, 1999, petitioner filed a petition for review in the California Supreme Court. (Respondent's Ex. C.) The petition for review was denied on August 11, 1999.
Petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court on June 16, 1999, which was denied on August 6, 1999. (Respondent's Ex. D.)
On September 22, 1999, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. That petition was denied on September 30, 1999. (Respondent's Ex. E.)
On November 15, 1999, after hearing on the remand, the Sacramento County Superior Court sentenced petitioner to a state prison term of 94 years to life. (Reporter's Transcript ("RT") at 9-10.)
After re-sentencing, petitioner filed an appeal to the California Court of Appeal, Third Appellate District. The sentence was affirmed on August 7, 2001. (Respondent's Ex. F.)
On September 10, 2001, petitioner filed a second petition for review on the issue of sentencing. On October 17, 2001, the California Supreme Court denied the petition for review. (Respondent's Ex. G.)
Petitioner filed a second petition for writ of habeas corpus in the Sacramento County Superior Court on December 26, 2001. The petition was denied on February 4, 2002, as untimely and successive. (Respondent's Ex. H.)
On February 7, 2002, petitioner filed a second petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. The petition was denied on April 11, 2002. (Respondent's Ex. I.)
On June 3, 2002, petitioner filed a third petition for writ of habeas corpus in the California Court of Appeal. That petition was denied on June 6, 2002. (Respondent's Ex. J.)
On July 3, 2002, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on March 26, 2003. (Respondent's Ex. K.)
On August 13, 2003, petitioner filed a petition for writ of habeas corpus in this case. Respondent filed an answer on January 13, 2004. Petitioner's motion for stay and abeyance was granted on April 14, 2005, and this action was stayed pending petitioner's return to state court to exhaust state court remedies.
Petitioner filed a third petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on May 9, 2005. (Am. Pet., Ex. D.)
On May 25, 2005, petitioner filed a fourth petition for writ of habeas corpus in the California Court of Appeal, which was denied on June 9, 2005. (Am. Pet., Ex. E.) Petitioner filed that same petition for writ of habeas corpus in the California Supreme Court on June 27, 2005. The California Supreme Court denied that petition on May 10, 2006. (Am., Pet., Ex. DD.)
On August 14, 2006, petitioner filed a motion to amend and a proposed second amended petition. (Dkt. No. 29.) On September 15, 2006, the stay was lifted, and respondent was ordered to file either an opposition to the motion or to file a response to the amended petition. (Dkt. No. 30.) Respondent filed an answer to the second amended petition on December 8, 2006. (Dkt. No. 36.) Petitioner filed a traverse on January 3, 2007. (Dkt. No. 37.)
On August 18, 1995, [petitioner] was a guest in Henry Trujillo's house. [Petitioner] told Trujillo, a drug user, that he was interested in buying drugs. Trujillo arranged to buy one-eighth ounce of methamphetamine for [petitioner] for $140 from a local drug dealer. Trujillo facilitated the exchange of money for drugs on [petitioner's] behalf. The substance, however, was not methamphetamine; in fact the substance turned into dough and was useless. [Petitioner] was very angry and demanded a refund.
Trujllo tried unsuccessfully to find the dealer. [Petitioner's] anger escalated over the next few days. He appeared at Trujillo's often, threatening violence if Trujillo did not get his money back. He was accompanied on several occasions by Lisa McGuire. She suggested he take Trujillo's television as compensation for the loss.
On the afternoon of August 20, [petitioner] and McGuire visited a friend. At approximately 1:30 a.m. the following day they went to Trujillo's, at which time [petitioner] told McGuire he had obtained a firearm earlier at his friend's house. They entered the house through an unlocked door. He awoke Trujillo, who was sleeping on the couch, and ordered him to unplug the television. He then hit Trujillo on the head with the handgun which discharged and struck McGuire in the stomach. Both victims were seriously injured.
[Petitioner] did not testify. His witnesses testified he was not the intruder.
(Respondent's Ex. B. 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 v. Cupp, 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 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. Alleged Brady v. Maryland Violation
Petitioner claims the deputy district attorney produced an incomplete arrest record for witness Lisa McGuire, depriving petitioner of critical impeachment evidence that Ms. McGuire had sustained an additional ten felony arrests. (Am. Pet. at 7.)
The last reasoned rejection of this claim is the decision of the Sacramento County Superior Court on petitioner's first petition for writ of habeas corpus. (Respondent's Ex. D.) The superior court addressed this claim as follows:
Petitioner further states that the prosecution in the most recent case failed to provide a complete rap sheet for Ms. McGuire. The court's file in that case shows that petitioner previously raised this question in a new trial motion and the court had its bailiff check the information given to petitioner's attorney. The court found that the correct information was given.
The United States Supreme Court has held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Bailey v. Rae, 339 F.3d 1107, 1113 (9th Cir. 2003). The duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). A Brady violation may also occur when the government fails to turn over evidence that is "known only to police investigators and not to the prosecutor." Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) (quoting Kyles v. Whitley, 514 U.S. 419, 437, 438) ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"). There are three components of a Brady violation: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Banks v. Dretke, 540 U.S. 668, 691 (2004); Silva v. Brown, 416 F.3d 980, 985 (9th Cir. 2005). In order to establish prejudice, a petitioner must demonstrate that "there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler, 527 U.S. at 289. "The question is not whether petitioner would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. (quoting Kyles, 514 U.S. at 434); see also Silva, 416 F.3d at 986 ("a Brady violation is established where there 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'") Once the materiality of the suppressed evidence is established, no further harmless error analysis is required. Kyles, 514 U.S. at 435-36; Silva, 416 F.3d at 986. "When the government has suppressed material evidence favorable to the defendant, the conviction must be set aside." Silva, 416 F.3d at 986.
The last reasoned decision on petitioner's Brady claim is the ruling by the state superior court in response to petitioner's habeas petition. Accordingly, this court will analyze the trial court's decision as the relevant state-court determination under AEDPA. See Taylor v. Maddox, 366 F. 3d 992, 999 n.5 (9th Cir. 2004). In denying the petition, the superior court found that the trial court had the bailiff confirm that the rap sheet presented at trial was accurate. The bailiff confirmed this information was correct. (RT 817.) Under these circumstances, petitioner's failure to have the proposed evidence admitted at trial could not have had a negative impact on his defense.*fn3 Petitioner has not demonstrated how possible impeachment by these alleged arrests would have harmed Ms. McGuire's credibility more than it was impugned at trial. Lisa McGuire was impeached by her felony conviction for burglary. (Reporter's Transcript ("RT") 306-07.) Ms. McGuire was also impeached by her own prior conflicting statements as to petitioner's culpability. (RT 475; 482; 488; 493-95 (testimony of four separate witnesses).) This court finds petitioner received a fair trial, even in the absence of this information as to alleged arrests of Ms. McGuire. Accordingly, petitioner is not entitled to federal habeas relief with respect to this claim.
B. Alleged Prosecutorial Misconduct
Petitioner claims he suffered prosecutorial misconduct when the prosecution allowed witness McGuire to deny receiving a plea bargain to avoid prison in exchange for her allegedly perjurious testimony, and the prosecution allegedly misstated the law in front of the jury to protect the allegedly false testimony. (Pet. at 5.)
The last reasoned rejection of this claim is the 2005 decision of the Sacramento County Superior Court on petitioner's petition for writ of habeas corpus. After finding the petition was successive and untimely, the superior court reviewed the documents petitioner presented in connection with this claim and found:
None of the above constitutes any "newly discovered evidence" of any kind of impropriety on the part of Judge Crossland or trial counsel. To the contrary, it shows that (1) Lisa McGuire freely entered into a plea bargain to admit one count in her own criminal case, in exchange for dismissal of a second count and a promise of probation at the outset, and without any promise that she testify truthfully at petitioner's trial, (2) petitioner's trial counsel fully and effectively cross-examined Lisa McGuire on the matter, and (3) the jury was not left with any uncorrected perjurious testimony by McGuire. That Judge Crossland took McGuire's plea and had independent knowledge of it was of no consequence, and Judge Crossland did not possess any knowledge beyond that which petitioner's trial counsel fully examined McGuire. Contrary to petitioner's claim now, there was simply no false presentation of any evidence, no ineffective assistance of counsel in failing to fully cross-examine on the matter, and no impropriety on the part of Judge Crossland. (Dkt. No. 29-4 at 21.)
Federal habeas review of alleged prosecutorial misconduct is limited to the issue of whether the conduct violated due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986); Sassounian v. Roe, 230 F.3d 1097, 1106 (9th Cir. 2000); Thomas v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996). Prosecutorial misconduct violates due process when it has a "substantial and injurious effect or influence in determining the jury's verdict." See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (quoting O'Neal v. McAninch, 513 U.S. 432, 443 (1995)). A claimant must show "first that the prosecution engaged in improper conduct and second that it was more probable than not that the prosecutor's conduct materially affected the fairness of the trial." United States v. Smith, 893 F.2d 1573, 1583 (9th Cir. 1990) (citation omitted). If left with "grave doubt" whether the error had substantial influence over the verdict, a court must grant collateral relief. Brecht v. Abrahamson, 507 U.S. 619, 631 (1993); Ortiz-Sandoval, 81 F.3d at 899.
The superior court's ruling is supported by the record. Lisa McGuire testified during the prosecution's case-in-chief that petitioner accidentally shot her while attempting to hit the victim, Trujillo. (RT 306-19.) Ms. McGuire also testified that she was on probation during this incident, and that she pled guilty to burglary based on her involvement in the incident. (RT 306-07; 322.) On cross-examination, defense counsel asked Ms. McGuire about the deal she received, implying she had been offered a plea bargain in exchange for her testimony. (RT 336.) Ms. McGuire replied, "Excuse me, but I did not get no deal." (RT 336.) Ms. McGuire confirmed she was not incarcerated in state prison. (Id.) The prosecution objected that the line of questioning was argumentative, and stated "there's no evidence in front of this court that if you are convicted of a burglary for the first time offense, you're gonna get prison." (Id.) The judge called for a sidebar, where counsel and the judge had a discussion off the record and outside the presence of the jury. (Id.)
When cross-examination resumed, Ms. McGuire testified that she had been charged with two criminal counts, one for attempted robbery and one for burglary, and the district attorney offered to drop one of the counts in exchange for a guilty plea. (RT 337.) Ms. McGuire denied the plea bargain included a condition that she testify against petitioner, and stated she "came willingly to testify for the DA." (RT 338.)
Petitioner has presented no evidence to the contrary. In fact, the transcript of Ms. McGuire's plea hearing, provided by petitioner, demonstrates that Ms. McGuire was offered a plea based on the facts of the case, her age of 27 with no record, and "the fact that she was shot in the stomach by a co-defendant inadvertently during this crime." (Petitioner's Ex. J.)
Moreover, petitioner's claim that the prosecution misstated the law is baseless. As noted by respondent, the sentencing judge has discretion, under California law, to grant probation to a defendant convicted of burglary. California Penal Code §§ 461, 462, 1203. "The trial judge's discretion in determining whether to grant probation is broad." People v. Stuart, 156 Cal.App.4th 165, 178-79 (2007). In the absence of a showing that the trial judge's sentence was "irrational or arbitrary," the judge is "presumed to have acted to achieve legitimate sentencing objections." People v. Carmony, 33 Cal.4th 367, 376-77 (2004). Ms. McGuire pled guilty to burglary and was sentenced to probation. (Petitioner's Ex. J at 29.) Because the prosecution did not misstate the law and Ms. McGuire was appropriately sentenced under California law, the prosecutor did not engage in misconduct, and this claim has no merit.
Therefore, the state court's rejection of petitioner's second claim for relief was neither contrary to, nor an unreasonable application of, controlling principles of United States Supreme Court ...