The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Ray Woodfork, a state petitioner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Woodfork is currently in the custody of the California Department of Corrections, incarcerated at the High Desert State Prison in Susanville, California. Respondent has filed an answer, and Woodfork has filed a traverse.
On December 20, 2001, defendant fatally shot Roberto Grandados-Arguello in the head. The victim had just cashed a check in a convenience store. The jury found that defendant was attempting to rob Arguello when he fired the gun.
At trial, defendant maintained that he was panhandling and that he fired the gun accidentally when Arguello suddenly reached for him. However, in a taped, pretext telephone conversation that defendant had with his ex-girlfriend--a tape the jury heard-- defendant admitted that the shooting was neither self-defense nor an accident, that he committed the crime because he needed the money, the he had melted down the pistol to dispose of the evidence, and the he felt no remorse. The court sentenced defendant to life without the possibility of parole.*fn1
Woodfork appealed his conviction and sentence to the California Court of Appeal, Third Appellate District, which affirmed his judgment and conviction in a reasoned, unpublished decision. The California Supreme Court denied Woodfork's petition for review.
In May 2007 Woodfork filed a petition for habeas corpus in the Sacramento County Superior Court which denied the petition in a reasoned decision in July 2007. In September 2007 Woodfork filed a petition for habeas corpus in the California Court of Appeal which summarily denied the petition without comment in October 2007. In September 2007, the day after Woodfork filed his petition for habeas corpus in the California Court of Appeal, Woodfork filed a second petition for habeas corpus in the Sacramento County Superior Court. That petition was denied in an unreported, reasoned decision in November 2007. In December 2007 Woodfork filed his petition in the California Supreme Court which summarily denied his petition without comment in July 2008.
On January 7, 2009, Woodfork filed the instant Petition in this Court. In his Petition, Woodfork raises eleven grounds for relief:
1. Trial counsel was ineffective for pursuing a manslaughter defense instead of accidental murder.
2. Trial counsel was ineffective for failure to pursue the defense of accidental murder.
3. Trial counsel was ineffective for failure to object to the jury instruction regarding first degree murder.
4. The trial court improperly allowed the admission of the pretext phone call between Woodfork and his ex-girlfriend which:
a. violated the Fourth Amendment;
b. violated the Fifth Amendment;
c. violated Sixth Amendment right to have counsel present during interrogation;
d. violated criminal code which prohibits the recording of confidential communications and
e. trial counsel was ineffective for failing to call Woodfork's ex-girlfriend (Kweanna Smith);*fn2
5. Trial court erred by allowing the introduction of his prior conviction because it violated the Sixth and Fourteenth Amendments;
6. Trial court erred by giving CALJIC 17.10 to the jurors during their deliberations because doing so violated the Fourteenth Amendment. Similarly, trial counsel was ineffective for failing to object when the court gave CALJIC 17.10 to the jurors during their deliberations;*fn3
7. Trial counsel was ineffective for failing to object to the prosecution's motion to exclude the introduction of witness testimony concerning the victim's alleged affair;
8. The prosecutor's use of known perjured testimony led to the unlawful conviction of Woodfork and violated the Fourteenth Amendment;
9. Evidence was insufficient to sustain a conviction of first-degree murder;
10. The cumulative effect of the errors requires reversal; and
11. Appellate counsel was ineffective.
Respondent asserts that grounds five, six, seven, eight, nine, ten and eleven are unexhausted. Respondent does not assert any other affirmative defenses.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn9 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn10 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn11 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn12
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn13 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn14 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn15 This is considered as the functional equivalent of the appeal process.*fn16 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn17 This presumption applies to state trial courts and appellate courts alike.*fn18
When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must assume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn19 The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. ...