The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge
REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On May 26, 2006, in San Bernardino County Superior Court case no. FWV035414, the People filed a first amended information charging petitioner Kennard Gerald Johnson, aka Kennard Gerlard Johnson, with one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code ("Veh. C.") § 10851 (count 1), one count of grand theft auto in violation of California Penal Code ("P.C.") § 487(d)(1) (count 2), one count of receiving stolen property in violation of P.C. § 496d(a) (count 3), and one count of forgery in violation of P.C. § 476 (count 4); as to all counts, petitioner was also charged with having suffered a prior serious or violent felony within the meaning of the California Three Strikes law, P.C. §§ 1170.12(a)-(d) and 667(b)-(i) (L.A. no. BA209791), and having suffered five prior terms for which he had not remained free from custody for five years after release within the meaning of P.C. § 667.5 (L.A. nos. BA209791, KA055864, and VA062637; S.B. no. FVA013569; and Riv. no. HEF003778); and, as to counts 1 through 3, petitioner was further charged with having suffered a previous conviction for violating P.C. § 487d, within the meaning of P.C. § 666.5. Clerk's Transcript ("CT") 48-51. On September 8, 2006, petitioner pleaded guilty to all counts, admitted all special allegations, and agreed to be immediately sentenced to 14 years and 4 months pursuant to a Vargas waiver,*fn1 and the trial court temporarily stayed petitioner's sentence, released petitioner on his own recognizance ("OR"), and agreed to later reduce petitioner's sentence to 6 years if the Vargas conditions were met. CT 59-65; Reporter's Transcript ("RT") 6:12-17:25. On March 21, 2008, the trial court found petitioner was in violation of the Vargas conditions and lifted the stay on the previously imposed sentence of 14 years and 4 months. CT 117-21; RT 26:13-31:25.
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 122-23, which, on May 18, 2009, affirmed the judgment, and also denied a habeas corpus petition which had been consolidated with the appeal. Lodgment nos. 3-12. The petitioner sought a rehearing from the California Court of Appeal, which denied the petition, modified certain language in its written decision, and did not change the judgment. Lodgment nos. 13-14. On July 1, 2009, petitioner, proceeding through counsel, filed two petitions for review in the California Supreme Court, which the California Supreme Court denied on August 12 and September 9, 2009. Lodgment nos. 15-16, 18; People v. Johnson, California Supreme Court case no. S174301.
II The California Court of Appeal, in affirming petitioner's judgment, made the following findings of fact underlying petitioner's offenses:*fn2
On June 28, 2005, [petitioner] entered an automobile dealership, submitted a credit application, and signed a sales contract to purchase a used vehicle [2003 Ford Focus, California license #5BIW671 (CT 27)]. To facilitate the sales contract, [petitioner] wrote a fraudulent check in the amount of $4,000. He also included false information in the credit application.
III Lodgment no. 12 at 2 (footnote omitted).
On February 2, 2010, petitioner, proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his convictions and sentence, and on March 26, 2010, respondent filed an answer to the petition. On June 7, 2010, petitioner filed his reply, and on August 5, 2010, respondent filed a supplemental memorandum of points and authorities. After reviewing respondent's supplemental memorandum, this Court appointed counsel to represent petitioner, pursuant to 18 U.S.C. § 3006A, and on October 13, 2010, held an evidentiary hearing. Following the evidentiary hearing, petitioner and respondent filed post-hearing briefs.
The pending petition raises the following claims: Ground One -- Trial counsel was ineffective in violation of petitioner's Sixth and Fourteenth Amendment rights "by failing to object to imposition of a sentence clearly higher than authorized by law and to convictions unauthorized by law"; and Ground Two -- "Trial counsel provided ineffective assistance [in] violation of the Sixth and Fourteenth Amendments by failing to advise [petitioner] that the plea agreement required a plea to illegal convictions and a sentence clearly higher than authorized by law." Petition at 5. // // //
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534, 156 L. Ed. 2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:
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.
28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000); Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850, 152 L. Ed. 2d 914 (2002). "Under the 'unreasonable application' clause, 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 [petitioner's] case." Williams, 529 U.S. at 413, 120 S. Ct. at 1523; Andrade, 538 U.S. at 75, 123 S. Ct. at 1174.
"Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'" Andrade, 538 U.S. at 71, 123 S. Ct. at 1172 (quoting Williams, 529 U.S. at 412, 120 S. Ct. at 1523). "Although the statutory formulation restricts federal law to Supreme Court precedent, . . . 'Ninth Circuit precedent may be persuasive authority for purposes of determining whether a particular state court decision is an unreasonable application of Supreme Court law, and may also help . . . determine what law is clearly established.'" Sims v. Rowland, 414 F.3d 1148, 1151 (9th Cir.), cert. denied, 546 U.S. 1066 (2005); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004).
The California Supreme Court reached the merits of petitioner's claims when it denied his petitions for review without comment or citation to authority. Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir. 2005), amended by, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992), cert. denied, 510 U.S. 887 (1993). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc), cert. denied, 552 U.S. 1316 (2008). Thus, in addressing petitioner's claims, this Court will consider the reasoned opinion of the California Court of Appeal, which denied these claims on their merits. Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010); Collins v. Runnels, 603 F.3d 1127, 1130 (9th Cir.), cert. denied, __ S. Ct. __, 2010 WL 2632367 (2010).
V The AEDPA modified the circumstances under which a Court may grant an evidentiary hearing on a state prisoner's habeas corpus petition, providing:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, [a district] court shall not hold an evidentiary hearing on the claim unless the applicant shows that - [¶] (A) the claim relies on - [¶] (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or [¶] (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and [¶] (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2) (emphasis added).
The respondent contends an evidentiary hearing is not proper since petitioner has not satisfied Section 2254(e)(2). Answer at 16:19-17:22. However, "[b]y the terms of its opening clause the statute applies only to [petitioners] who have 'failed to develop the factual basis of a claim in State court proceedings.' If the [petitioner] has failed to develop the facts, an evidentiary hearing cannot be granted unless the [petitioner's] case meets the other conditions of § 2254(e)(2)." Williams v. Taylor, 529 U.S. 420, 430, 120 S. Ct. 1479, 1487, 146 L. Ed. 2d 435 (2000); Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003). "[A] failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the [petitioner] or the [petitioner's] counsel." Williams, 529 U.S. at 432, 120 S. Ct. at 1488; Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010). "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Williams, 529 U.S. at 437, 120 S. Ct. at 1490; Bragg v. Galaza, 242 F.3d 1082, 1090 (9th Cir. 2001), amended by, 253 F.3d 1150 (9th Cir. 2001).
Here, when petitioner sought habeas corpus relief from the California Court of Appeal, he submitted supporting evidence and requested an evidentiary hearing, although none was held. See Lodgment no. 4. Under these circumstances, petitioner has not failed to develop the facts regarding his ineffective assistance of counsel claims, see Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010) ("A petitioner who has previously sought and been denied an evidentiary hearing has not failed to develop the factual basis of his claim and therefore satisfies § 2254(e)(2)."); Perez v. Rosario, 459 F.3d 943, 953-54 (9th Cir. 2006) (Petitioner "requested evidentiary hearings in the state court; the district court was thus not barred from conducting a hearing."), and an evidentiary hearing is appropriate to further develop the facts regarding petitioner's ineffective assistance of counsel claims. See Stanley, 598 F.3d at 624 ("[A]n evidentiary hearing is justified where, as here, 'the material facts were not adequately developed at the state-court hearing.' Therefore, [petitioner] is entitled to an evidentiary hearing on his ineffective assistance claim if his allegations, if proved, would entitle him to federal habeas relief." (citations omitted)).
This Court makes the following findings of fact and conclusions of law based on the record and the evidence adduced at the evidentiary hearing:
1. Prior to the People filing charges against petitioner in San
Bernardino County Superior Court case no. FWV035414,*fn3
the case challenged in the pending habeas petition,
petitioner had suffered at
least the following convictions:
a. On August 14, 2000, in San Bernardino County Superior Court case no. FVA013569, petitioner pleaded guilty to, and was convicted of, one count of forgery in violation of P.C. § 475(c), and he was placed on probation. Lodgment nos. 19, 25. Subsequently, petitioner's probation was revoked, and on December 2, 2002, he was sentenced to two years in state prison to run concurrent to any sentence being served in any other case. Ibid.
b. On April 19, 2001, in Los Angeles County Superior Court case no. BA209791, pursuant to a negotiated plea bargain, petitioner pleaded nolo contendere to, and was convicted of, one count of having sexual intercourse with a minor in violation of P.C. § 261.5(c) and one count of making terrorist threats in violation of P.C. § 422, and petitioner was placed on probation. Lodgment no. 21. Subsequently, on June 19, 2002, petitioner's probation was terminated following his conviction and sentencing in case no. VA062637. Id.
c. On April 30, 2001, in Los Angeles County Superior Court case no. VA062637, petitioner pleaded guilty to, and was convicted of, one count of grand theft auto in violation of P.C. § 487d, and he was placed on probation. Lodgment nos. 19, 24. Subsequently, petitioner's probation was revoked, and on June 19, 2002, he was sentenced to three years in state prison. Ibid.
d. On October 15, 2001, in Riverside County Superior Court case no. HEF003778, petitioner pleaded guilty to, and was convicted of, one count of grand theft in violation of P.C. § 487(a), and petitioner was placed on probation. Lodgment nos. 19-20. Subsequently, petitioner was determined to have violated probation, and on December 16, 2004, he was sentenced to one year and four months in state prison. Ibid.
e. On June 7, 2002, in Los Angeles County Superior Court case no. KA055864, petitioner pleaded guilty to, and was convicted of, one count of grand theft auto in violation of P.C. § 487d, one count of second degree burglary in violation of P.C. § 459, one count of making a false financial statement in violation of P.C. § 532a(2), and four counts of forgery in violation of P.C. §§ 470(b), 470(d), 475(b) or 475(c) (counts 3, 5-7). Lodgment no. 19, 23. On July 9, 2002, ...