The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
I. Introduction Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 conviction for possession of cocaine base and his 2007 conviction for pandering, battery and vandalism. The petition raises two claims challenging his sentence.
After carefully considering the record, the undersigned recommends that the petition be denied.*fn1
II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")
In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 405. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law; or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law. . . .[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 410-11 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority, in arriving at their decision. Early v. Packer, 537 U.S. 3 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Petitioner alleges that imposition of his upper term and consecutive sentences violated Cunningham v. California, 549 U.S. 270 (2007). The background to these claims is contained is contained in the opinion of the California Court of Appeal:
In case No. 06F00442, defendant Emmett Christian pleaded no contest to a charge of cocaine possession. The trial court suspended imposition of sentence and placed him on probation in February 2006 with the condition that he participate in a drug treatment program and serve six months in jail (which condition it stayed pending the successful completion of the program).
However, based on subsequent events occurring in May 2006, a jury convicted him in February 2007 in case No. 06F04779 of pandering, battery, and felony vandalism. The trial court sustained five recidivist allegations. In sustaining defendant's objection to submitting any sentencing factors to the jury, the trial court noted that defendant's multiple prior convictions and probationary status would allow the imposition of the upper term on any count even without any jury findings.
At sentencing in April 2007, defendant moved for a reduction of the felony vandalism count to a misdemeanor and requested that the court exercise its discretion to strike the recidivist findings. The trial court granted the motion and also exercised its discretion to strike four of the recidivist findings on the ground that these robbery convictions represented a "single period of aberrant behavior" that occurred when defendant was 16, but declined to strike the finding that was based on his federal conviction as an adult for bank robbery. The court then imposed the upper term for the pandering conviction (doubled by virtue of his prior conviction), with concurrent jail terms for the two misdemeanors. Having previously found defendant in violation ...