The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction for several counts related to bringing heroin and methamphetamine into the prison where petitioner was already incarcerated. Petitioner was sentenced to an indeterminate prison term of 25 years to life. This action raises the following claims: 1) sufficiency of the evidence; and 2) the trial court erred by admitting certain evidence during trial. Petition at 4-8. After carefully considering the record, the court orders that the petition be denied.*fn1 \\\\\ \\\\\
This action is proceeding on the original petition filed February 2, 2009.
However, because the procedural history is somewhat complex, a short discussion is set forth here.
The original petition raised eight claims. Respondent brought a motion to dismiss asserting that most claims were unexhausted. On August 6, 2009, petitioner conceded that most claims were unexhausted. In a written order, the undersigned initially vacated the motion to dismiss advising petitioner of the two alternatives for seeking a stay pending exhaustion. Petitioner was ordered to file an amended petition, along with a motion to stay, within 28 days from August 20, 2009; an extension of time of 30 days was granted on September 16, 2009. However on November 17, 2009, petitioner, not having filed an amended petition or motion to stay, or having otherwise communicated with the court, the undersigned reinstated to the motion to dismiss. All claims, save Claims 1 and 2, were dismissed as unexhausted, and respondent was ordered to answer those claims. Petitioner was ordered to file a traverse 28 days after the answer.
On December 4, 2009, petitioner filed a motion for a 30 day extension to file a motion to stay, as petitioner stated he had not received several court orders. Before the court could address petitioner's request, respondent duly filed their answer on December 14, 2009. The undersigned then granted petitioner 21 days to file a motion to stay and an amended petition. Petitioner filed an "Unperfected Petition for Writ of Habeas Corpus and Motion to Stay" on January 11, 2010.
On April 6, 2010, the undersigned denied the motion to stay and dismissed the unexhausted claims. That order also stated that respondent shall file an answer to the unexhausted claims in the amended petition and later that petitioner should file a traverse. However, the exhausted claims in the amended petition were identical to the unexhausted claims in the original petition, which of course, respondent filed an answer to on December 14, 2009.
Petitioner never filed a traverse. The undersigned believed that it was possible due to the complex nature of the procedural history, petitioner could be waiting for an answer to the amended petition before he filed a traverse. On October 1, 2010, the undersigned granted petitioner 28 days to file a traverse, though petitioner was not required to file a traverse. On November 10, 2010, petitioner requested a 20 day extension to file a traverse that was granted by the court. The 20 day period has passed and petitioner has still not filed a traverse or otherwise communicated with the court. Therefore, the undersigned has addressed the petition and answer.
III. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked
substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (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 1519. "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. Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). 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." Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at 1522 (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, 123 S. Ct. 357 (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, 125, 128 S.Ct. 743, 746 (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, 127 S.Ct. 649, 653-54 (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, 123 S. Ct. 362 (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, 123 S. Ct. 1166, 1175 (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, 123 S. Ct. at 366.
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).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
On February 12, 2004, [petitioner] was an inmate at Mule Creek State Prison. Prior to meeting with a visitor, [petitioner] lubricated his ear with hair grease and secreted in his nasal ...