The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was found guilty by a jury of attempted murder, assault with a deadly weapon, inflicting corporal injury on a former cohabitant and grand theft. He was sentenced to life with the possibility of parole plus five years.
Petitioner raises four claims in the instant petition: 1) ineffective assistance of counsel; 2) the trial court erred in denying a request for a continuance; 3) the trial court erred by denying petitioner's request to include a lesser included jury instruction; and 4) the trial court erred with a jury instruction regarding reasonable doubt.
After carefully considering the record, the court recommends that the petition be denied.
II. 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 California Court of Appeal set forth the following factual summary that the court adopts below.
[Petitioner] and the victim, Melissa Melger, began dating in July 2005, ultimately living together for five or six months before Melger ended the relationship in September 2006.
Over the two to three weeks following their break-up, [petitioner] sent approximately six e-mails to Melger expressing that he wanted to "get back with [Melger]." When Melger did not respond, [petitioner] called Melger's friend, asking where Melger was. Melger called [petitioner] and told him to stop calling her friends. Then she had her phone number "blocked."
Melger nevertheless needed to retrieve her important documents and personal belongings still in [petitioner's] possession. Thus, via e-mail, [petitioner] told her to meet him at "his" apartment, number 720 at the Tamaron Ranch Apartments, in order to pick up her things. Apartment No. 720, however, was not [petitioner's] apartment, but it was at the "very back of the apartment complex" and it was vacant.
On the morning of their scheduled meeting, Melger walked to [petitioner's] apartment complex. As she walked around looking for apartment No. 720, [petitioner] approached Melger from behind and put a blanket over her head, holding her with his arms wrapped around her chest.
After "[a]bout two seconds," [petitioner] removed the blanket from Melger's head and she saw he had a butcher knife in the back of his pants. She also saw that [petitioner] was wearing "dark gray sweats[,] a light gray hooded sweatshirt," a "beanie" on his head with eye holes cut out and blue latex "hospital gloves." Melger asked [petitioner] what he was doing; "[h]e said nothing."
Melger asked where her belongings were and [petitioner] pointed in "the opposite direction" from apartment No. 720. [Petitioner] began walking in that direction. As he was walking, [petitioner] asked Melger if she was alone, why she "hated him," and why she "didn't love him anymore." Melger said she was not alone, but did not answer his other questions; she simply asked where her things were and began following him. [Petitioner] continued walking but Melger turned back "to go on the path [she] came from." Then defendant grabbed Melger, stabbing her repeatedly while she screamed and tried to fight him off. [Petitioner] ran away, returning briefly to take Melger's purse and pick up his work vest and shoes before leaving the scene. Melger suffered multiple stab wounds but survived the attack. [petitioner] was subsequently arrested and charged with attempted murder, assault with a deadly weapon, corporal injury of a former cohabitant, and felony theft. [Petitioner] pled not guilty, but was convicted on all counts after a jury found him guilty as charged. The court sentenced [petitioner] to life in prison with the possibility of parole, plus five years to be served consecutively. People v. Watkins, 2008 WL 3412226 at *1-2.
Claim 1--Ineffective Assistance of Counsel Petitioner argues that trial counsel was ineffective for waiving the preliminary hearing and counsel was not prepared for trial.
The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690, 104 S. Ct. at 2066. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id., 104 S. Ct. at 2066. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland at 466 U.S. at 689, 104 S. Ct. at 2065).
Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. A reasonable probability is "a ...