The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner Jimmy Ray Guyton is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, (1) it is recommended that the petition be denied; and (2) Petitioner's motion to expedite proceedings is denied.
1. "On September 8, 2006, [Petitioner] entered a negotiated plea" of "no contest to one count of voluntary manslaughter (Pen. Code, § 192, subd. (a)) with an enhancement for personal use of a firearm (id., § 12022.5, subd. (a)) in exchange for dismissal of more serious charges and a stipulated upper-term sentence of 21 years." Lodged Doc. 2, at 1, 3; see Lodged Doc. 5, Rep.'s Tr. 1-4.
2. "On November 3, 2006, [Petitioner] filed a motion to withdraw his plea, alleging 1 ineffective assistance of counsel at the time of the plea." Lodged Doc. 2, at 3; see Lodged Doc. 6, Clerk's Tr. 70-76.
3. On April 27, 2007, Petitioner withdrew his motion to withdraw his plea. Lodged Doc. 5, Rep.'s Tr. 36-37.
4. On May 4, 2007, Petitioner was sentenced according to the negotiated plea. Id. at 40, 49-51.
5. On October 31, 2007, Petitioner filed his direct appeal in the California Court of Appeal, Third Appellate District. See Lodged Doc. 1.
6. On April 22, 2008, the California Court of Appeal denied his appeal and affirmed judgment in a reasoned opinion. Lodged Doc. 2, at 6.
7. Petitioner did not file a direct appeal in the California Supreme Court. Resp't's Answer 10-11, ECF No. 12. The record also does not show that Petitioner filed habeas petitions in the Superior Court or California Court of Appeal. See id.
8. On May 22, 2008, Petitioner filed a habeas petition in the California Supreme Court. See Lodged Doc. 3.
9. On October 22, 2008, the California Supreme Court denied the petition without a written opinion. Lodged Doc. 4.
10. On January 13, 2009, Petitioner filed the instant federal habeas petition.
11. On June 4, 2009, Respondent filed an answer to the petition.
12. On June 29, 2009, Petitioner filed a traverse.
13. On March 15, 2010, Petitioner filed an "informal request... to contemplate expedited treatment of this case." Pet'r's Letter 1, Mar. 15, 2010, ECF No. 15.
III. FACTUAL BACKGROUND*fn1
In the early evening of April 26, 2005, Kevin Moore was walking toward his residence at the Parkview Apartments on Munson Way in Sacramento when [Petitioner] ran up behind him and said[,] "Don't move, nigga. Don't move, nigga." As Moore began to turn around, [Petitioner] shot him in the buttocks with a 9 millimeter handgun. The shot "obliterated" the victim's femoral artery, causing him to bleed to death.
Shortly thereafter, [Petitioner] was arrested and admitted shooting the victim. He told police, "I had to do it[,] man, I had to protect my family" and "something had to be done, I'm just tired of these Crips harassing my kids." [Petitioner's] wife told police she had received a call from her sons' high school the day before and was told there had been a fight between her sons and students allegedly associated with the 29th Street Crips. She said there were rumors of payback and she called [Petitioner] to pick the boys up from school.
On the day of the shooting, the victim had been seen walking around the apartment complex wearing a long leather coat and the police had been called because of concerns that he might be armed. Officers were dispatched to the scene, detained and searched the victim, but found no weapons. [Petitioner] shot the victim shortly thereafter. He later told police he thought the victim was in the apartment complex to retaliate against his sons.
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 be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more than one state court has adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (finding presumption that later unexplained orders, upholding judgment or rejecting same claim, rests upon same ground as prior order)). A federal habeas court looks through ambiguous or unexplained state court decisions to the last reasoned decision to determine whether that decision was contrary to, or an unreasonable application of, clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). When no state court reached the merits of a claim, the federal court must review that claim de novo. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005), cert. denied, 547 U.S. 1128 (2006) (applying de novo standard of review to claim in habeas petition that was not adjudicated on merits by state court); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (same); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) ("[W]hen it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo.").
The petition for writ of habeas corpus sets forth three grounds for relief. First, Petitioner argues "imposition of the aggravated terms violated Petitioner's Sixth Amendment right to a jury trial, Fifth Amendment right [to] a fair trial and due process, and [the] Ex Post Facto Clause of the United States Constitution." Pet'r's Pet. 15, ECF No. 1. Second, Petitioner argues his plea agreement was breached because "he would have to do 85% of his sentence" and "was not receiving 50% (halftime)" credit. Id. at 21. Third, Petitioner alleges his trial and appellate counsel rendered ineffective assistance, violating the Sixth and Fourteenth Amendments. Id. at 23.
Respondent asserts "Petitioner has not exhausted his state remedies as to his claim of appellate counsel's asserted ineffective assistance of counsel...." Resp't's Answer 7. Respondent admits, however, that "Petitioner has exhausted state remedies" for his "remaining issues." Id. Because exhaustion is a procedural defect that could prevent consideration of any of the claims in the current petition, Rose v. Lundy, 455 U.S. 509, 522 (1982) ("[W]e hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims."), the exhaustion issue is addressed prior to addressing any claim.
1. Legal Standard for Exhaustion
"Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the 'opportunity to pass upon and correct' alleged violations of prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). "The state courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue's factual and legal basis." Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing Duncan, 513 U.S. at 365 (legal basis); Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 1998) (factual basis)). "A petitioner has satisfied the exhaustion requirement if: (1) he has 'fairly presented' his federal claim to the highest state court with jurisdiction to consider it,... or (2) he demonstrates that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
To have exhausted via the first avenue, a petitioner must have presented each federal claim as a federal claim to the California Supreme Court on (1) direct review (e.g., in a petition for review); or (2) collateral review (e.g., in a petition for a writ of habeas corpus). See Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1990); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("To 'fairly present' [a] federal claim to the state courts, [a petitioner] had to alert the state courts to the fact that he was asserting a claim under the United States Constitution." (citing Duncan, 513 U.S. at 365-66)). A "mere similarity between a claim of state and federal error is insufficient to establish exhaustion." Duncan, 513 U.S. at 366.
A claim is considered exhausted via the second avenue "'if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law.'" Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)); see also Valerio v. Dir. of the Dep't of Prisons, 306 F.3d 742, 770 (9th Cir. 2002) ("[T]he claim is exhausted because it is procedurally barred."). A claim is also "exhausted because a return to state court for exhaustion would be futile." Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (citation and internal quotation marks omitted).
2. Analysis of Exhaustion
Here, Petitioner exhausted grounds one, two, and part of three (ineffective assistance of trial counsel). Petitioner only raised ground one, i.e., imposition of aggravated prison terms, in his direct appeal to the California Court of Appeal. Compare Pet'r's Pet. 15, with Lodged Doc. 1, at ii. Specifically, Petitioner argued the "imposition of the aggravated term was violative of [Petitioner's] Sixth Amendment right to a jury trial, Fifth Amendment right to a fair trial and due process, and the Ex Post Facto Clause of the United States Constitution." Lodged Doc. 1, at ii.
The Court of Appeal denied Petitioner's direct appeal on April 22, 2008. Lodged Doc. 2, at 6. The Court of Appeal found Petitioner was procedurally barred from "this argument by failing to raise" this "challenge at the time of sentencing." Id. at 4. The Court of Appeal noted that "[a]t the time of sentencing on May 4, 2007, Cunningham had been decided. Yet [Petitioner] failed to object to his upper term sentence on this basis." Id. (citing Cunningham v. California, 549 U.S. 270, 274-75 (2007) (holding that defendant is entitled to jury finding on any factor other than prior conviction before being sentenced to upper term)). The Court of Appeal also held that "[w]hen [Petitioner] agreed to a plea deal providing for a sentence of 21 years, he effectively admitted the existence of facts necessary to impose the upper term on the substantive offense and enhancement." Id. at 6. Petitioner did not file a direct appeal in the California Supreme Court, nor did he file habeas petitions in the Superior Court or Court of Appeal.
Instead, on May 22, 2008, Petitioner filed a habeas petition in the California Supreme Court raising grounds one, two, and part of three (ineffective assistance of trial counsel). See Lodged Doc. 3. In his California Supreme Court habeas petition, Petitioner argued: (1) imposition of the aggravated term violated "Petitioner's Sixth Amendment right to a jury trial, Fifth Amendment right to [a] fair trial[,] and due process," id. at 10 (raising ex post facto claim, too, by alleging, "The United States Supreme Court had not yet filed it's [sic] disposition in Cunningham at the time of the plea[,] [t]hereby undermining it's [sic] validity" (citation omitted)); (2) "the state breached petitioner's plea agreement," id. at 6; and (3) his trial counsel rendered ineffective assistance in permitting the first two alleged errors. Id. at 13. The record does not show that Petitioner raised his ineffective assistance of appellate counsel claim in the state courts.
The California Supreme Court denied Petitioner's habeas petition without a written opinion on October 22, 2008. See Lodged Doc. 4. As part of the record, Respondent only provided a copy of the "Docket (Register of Actions)," which stated the "[p]etition for writ of habeas corpus [is] denied." Id. No citations were listed in the decision announced in the "Docket." Id. An independent search by this Court also showed that the California Supreme Court's decision was a "'postcard' denial," i.e., a decision "without comment or citation." Gaston v. Palmer, 387 F.3d 1004, 1013 (9th Cir. 2004) (citing Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992)), amended for other reasons by 447 F.3d 1165 (9th Cir. 2006); compare Supreme Court Minutes, 20 (Oct. 22, 2008), http://www.courtinfo.ca.gov/courts/minutes/ documents/SOCT2208.PDF (last visited Oct. 28, 2010) ("Petition for writ of habeas corpus [is] denied" for Guyton (Jimmy) on H.C., No. S163777.), with, e.g., id. ("Petition for writ of habeas corpus [is] denied ([s]ee People v. Duvall (1995) 9 Cal.4th 464, 474.)" for Miller (Larry) on H.C., No. S163764.).
"[T]he California Constitution provides that each of the three levels of state courts --Superior Courts, Courts of Appeal, and the Supreme Court -- has 'original jurisdiction in habeas corpus proceedings.'" Gaston, 387 F.3d at 1010 (quoting Cal. Const. art. VI, § 10). A California prisoner may file an original habeas petition in each of the three courts, and each court may exercise its original jurisdiction. See, e.g., In re Clark, 5 Cal. 4th 750, 760-62, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (1993) (noting petitioner's first habeas application was filed in California Supreme Court). When the state's higher courts issue postcard denials, i.e., decisions without comment or citation, the Ninth Circuit construes those denials as decisions on the merits. Gaston, 387 F.3d at 1013 (citing Hunter, 982 F.2d at 348); see In re Clark, 5 Cal. 4th at 769 n.9, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (noting "summary denial" of state habeas petition "does not mean that the court has not considered the merits of the claims").
Here, Petitioner exhausted grounds one, two, and part of three (ineffective assistance of trial counsel) since the highest state court with jurisdiction reviewed those grounds. Johnson, 88 F.3d at 829. The California Supreme Court denied those grounds on the merits when it denied Petitioner's habeas petition without comment. Hunter, 982 F.2d at 348. However, Petitioner failed to raise the other part of ground three (ineffective assistance of appellate counsel) in the state courts. That part of ground three is either: (1) unexhausted because no state court reviewed it, Johnson, 88 F.3d at 829; or (2) exhausted because it is procedurally barred. Phillips, 267 F.3d at 974 ("The district court correctly concluded that [the] claims were nonetheless exhausted because 'a return to state court for exhaustion would be futile.'") (citation omitted); see infra Part V.D.4 (finding ineffective assistance of appellate counsel claim meritless).
Even if Petitioner's claim is unexhausted, an application for a writ of habeas corpus may be denied on the merits, notwithstanding the applicant's failure to exhaust available state remedies. 28 U.S.C. § 2254(b)(2). A federal court considering a habeas petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not "colorable." Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). The merits of Petitioner's ineffective assistance of appellate counsel claim will ...