FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on May 25, 2007 in the Sacramento County Superior Court on charges of possession of methamphetamine, transportation of methamphetamine, and possession of drug paraphernalia. He seeks federal habeas relief on the following grounds: (1) his sentence violates the Double Jeopardy Clause and his federal constitutional rights to due process and to a jury trial; (2) the sentence imposed upon him was not supported by sufficient evidence; and (3) his trial and appellate counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
A jury convicted defendant Malcolm Augustus Johnson of two counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and single counts of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, § 11364). Defendant admitted an on-bail allegation and two prior convictions for transportation of methamphetamine for personal use. The court struck one of the prior conviction allegations, and imposed a term of eight years and eight months in state prison.*fn2
On March 1, 2006, Sacramento County Sheriff's Detective Kevin Reali and other officers went to defendant's residence, where he was found lying on a baggie of 1.62 grams of methamphetamine. A search of the residence also revealed a functional digital scale, a narcotics pipe, and two notebooks containing pay/owe sheets. Defendant's wallet contained $258 cash: a $100 bill, one $50 bill, four $20 bills, one $5 bill, and twenty-three $1 dollar bills. Searching defendant's car, officers found methylsulfonylmethane (MSM), an additive commonly added to methamphetamine to increase the product. The methamphetamine was not analyzed to see whether it contained any MSM.
On November 12, 2006, Sacramento County Sheriff's Sergeant John Zwolinski pulled over defendant's car for running a stop sign. Sergeant Zwolinski searched the car and found two cellular phones, two black plastic scales, and a small CD case containing syringes, spoons, numerous small plastic baggies, and two baggies of methamphetamine.
The baggies with methamphetamine were found in a false bottom of a cigarette box in which cigarettes had been glued to the top.
On the outside of the two baggies was written the word "ball" in black pen. They contained respectively 3.72 grams and 2.97 grams of methamphetamine. The pipes were like those used for smoking methamphetamine, and the spoons, scales, and pipes contained methamphetamine residue. Sergeant Zwolinski also found a bottle of prenatal dietary supplement, which defendant claimed was vitamin B-12, which he used when "jones'ing." Appellant had $286 in cash: twelve $20 bills, three $10 bills, one $5 bill, and eleven $1 dollar bills.
Defendant gave a Miranda v. Arizona (1966) 384 U.S. 436 [16 L .Ed.2d 694] waiver and told Sergeant Zwolinski he was not a drug dealer, but he admitted selling methamphetamine from time to time. He injected methamphetamine, which he last used two days ago. Defendant used about a gram each time, three to four times a week, and denied knowledge of the methamphetamine in his car. Over defendant's objection, Detective Reali testified as an expert regarding possession of methamphetamine for sale. He testified that .1 grams of methamphetamine was a useable dose, but most consumers will need a greater dose. A typical user will carry one to two grams on their person, and someone with sufficient tolerance could use one-and-a-half to two grams. The detective admitted some addicts may use scales to avoid accidental overdose. While the 1.62 grams found on defendant in his residence was consistent with personal use and not a large amount of methamphetamine, the pay/owe sheets demonstrated possession for the purpose of sale. Based on a hypothetical regarding the drugs found in the November 12 stop, Deputy Reali concluded that they were also used for sale.
Defendant, testifying, said he had been using drugs for the last 31 years, since he was 14. At the time of his arrest he was using two to four grams of methamphetamine a day, if he could afford it. He was relatively clean on March 1, 2006, so a half a gram would have lasted him the day.
Defendant said the pay/owe sheets were a shopping list and list of people to whom he owed money, both unrelated to methamphetamine. He intended to use rather than sell the methamphetamine found in both searches. Defendant also denied making any of the statements to Sergeant Zwolinski.
Defendant was charged with possession of methamphetamine for sale (Health & Saf.Code, § 11378) in counts 1 and 2 along with transportation of methamphetamine in count 3, and possession of drug paraphernalia in count 4. The jury convicted defendant on counts 3 and 4, acquitted him of counts 1 and 2, but convicted him in counts 1 and 2 of the lesser included offenses of possession of methamphetamine.
At sentencing, the court determined that in order to be eligible for Proposition 36 probation defendant had the burden of proving by a preponderance of the evidence his possession and transportation offenses were for personal use and not for sale. Defendant objected to placing the burden of proof on him, and requested Proposition 36 probation on the basis of the jury's acquittal on the possession for sale charges. The court disagreed, finding defendant did not possess the methamphetamine for personal use, and was therefore ineligible for Proposition 36 probation.
I. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a 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). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), 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 prisoner's case.*fn3
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "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, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
A. Whether Petitioner's Sentence Violates his Rights to Due Process and a Jury Trial In petitioner's first ground for relief, he claims that the trial judge violated his rights to due process and to a jury trial when he sentenced petitioner to prison time instead of releasing him on probation pursuant to California Proposition 36. (Pet. at 35.)*fn4 Petitioner argues that his sentence "exceeded the statutory maximum . . . which was out patient treatment pursuant to Proposition 36 and not prison." (Id.) As explained by the California Court of Appeal, in declining to sentence petitioner to an outpatient treatment program pursuant to Proposition 36, the trial judge found that petitioner possessed the methamphetamine for sale rather than personal use even though the jury had acquitted him of possession of methamphetamine for sale. (Opinion at 5, 10.) Petitioner claims this finding by the trial judge violated his rights to due process and to a jury trial, as set forth in Cunningham v. California, 549 U.S. 270 (2007). Petitioner explains, "[t]he verdict established outpatient treatment as the maximum sentence allowed based on facts found true by the jury, such that petitioner's prison sentence relying on facts rejected by the jury violated his federal right to due process and jury trial." (Id.)
Petitioner also argues that the state appellate court's decision rejecting his sentencing claims is contrary to the rule of law established in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), and that the state courts' reliance on state law permitting a trial court to use acquitted upon conduct to impose a sentence above the statutory maximum is contrary to the holdings in Apprendi, Blakely, and Cunningham. (Id. at 35-37.) Petitioner claims that the state court's finding that the provisions of Proposition 36 do not constitute his statutory maximum sentence is contrary to "clearly established federal law holding that a statutory maximum is defined by facts admitted by a defendant or found true by a jury." (Id. at 37-38.) Petitioner argues, "the statutory maximum was Proposition 36, because under California law, if a person is eligible for outpatient therapy, as petitioner was once he was found not guilty of possession for sale, incarceration is not a possible option, the trial court was mandated to sentence him to participation in Proposition 36 outpatient therapy as petitioner requested." (Id. at 37.) Petitioner summarizes his first ground for relief as follows: "Once the jury's verdict rejected petitioner's charge for possession for sale, there were no barriers to petitioner's statutory eligibility, and the trial court's failure to sentence him to outpatient therapy exceeded the statutory maximum for his sentence as defined by federal law, and violated his right to due process and jury trial under the Fifth and Sixth Amendments to the United States Constitution." (Id. at 38.)
In his second ground for relief, petitioner claims that "the trial court's use of acquitted conduct in sentencing petitioner beyond the statutory maximum violated his Fifth Amendment Rights to Due Process and Sixth Amendment right to jury trial." (Id.) Again, petitioner argues that the sentencing judge was not entitled to make his own finding, contrary to the jury verdict, that petitioner possessed the methamphetamine for sale, and then use that finding to sentence him to prison. (Id. at 38-39.) Petitioner cites the decisions in Cunningham and United States v. Brady, 928 F.2d ...