The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Robert D. Ricardo, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Ricardo is currently in the custody of the California Department of Corrections, incarcerated at the Mule Creek State Prison, in Ione, California. Respondent has filed an answer, and Ricardo has filed a traverse.
The following statement of the facts is taken verbatim from the decision of the California Court of Appeal, First District:*fn1
This appeal arises from the rape of a 14-year-old victim . . . by [Ricardo] and his co-defendant, Santonio Reese.
On October 19, 2004, [the victim] got out of school around two-thirty or three in the afternoon, and got onto a bus to go to the house of a friend named Maribelle who lived in Suisun. After [the victim] got off the bus and was walking towards Maribelle's house, [the victim] was hailed on the street by two young males driving by. A young man subsequently identified as [Ricardo] was driving, and he had a male passenger, subsequently identified as Santonio Reese (Reese), with him in the front seat on the passenger side.
The two males started talking to [the victim], and began trying to persuade her to "hang out" with them. Eventually, [the victim] agreed, and got into the car. She sat in the back. She noticed that the male who had previously been on the passenger side in the front seat, i.e., not [Ricardo], had a distinctive tattoo on his arm, showing a cross and words or names, saying, "Lil" and "Tone." They all drove to [Ricardo's] house.
After they got to [Ricardo's] house, they began talking in the garage and [the victim] told the young men that she was not a "ho" and did not want to do anything sexual with them. Later they started watching television in a bedroom. They all began drinking Jack Daniels whiskey straight from the bottle; [the victim] had a big drink. [Ricardo's] dad came to the door of the bedroom at some point to check to see if there was anyone present besides [Ricardo], but [the victim] hid, and [Ricardo] assured his dad that there was no one else present.
After [Ricardo's] dad left, the young people kept on drinking. The bottle had been full when they started, but it went down to about half full. Reese began trying to touch her in a sexual way. [The victim] resisted and pushed him off, and told him to get off of her. [Ricardo] also began touching her in a sexual way. Then Reese tried to get on top of her again, but she tried to push him away. Then she passed out.
According to the testimony of Reese, who testified against [Ricardo] at trial after making a plea bargain, [Ricardo] took off the victim's clothes and began placing his penis into her vagina for about 15 or 20 minutes, while Reese grabbed her breasts. At some point the victim fell off the bed and hit her head, and then [Ricardo] and Reese dressed her again and drove her to another neighborhood, where they left her in the front yard of a house. She was later found by the police, bleeding and in pain from her vagina.
An examination of the victim by a nurse showed bleeding and injury to her vagina, and other injuries such as an abrasion on her face, and scratches and bruises on other parts of her body. The vaginal injuries were consistent with "a lot of trauma-blunt trauma or force against that area or repeated rubbing with poor lubrication."
[The victim] was interviewed by the police. She described the two young men who had attacked her to Officer Erik Watts, who testified at trial. She described the distinctive tattoos on the arms of the suspect later identified as Reese, and she described [Ricardo] and his home. After she had been drinking, Reese tried to get on top of her, and pinned her arms to the bed, but she began yelling and forced him off. Then [Ricardo], who had been standing behind her, pulled her pants down, exposing part of her buttocks. [The victim] could see that his pants were pulled down, and his erect penis was exposed.*fn2
[Ricardo] got on top of her on the bed, but she pushed him off. Then the two young men talked to each other, and Reese got back on top of her, pinning her to the bed. That was the last thing she could recall at the house.
A concerned citizen learned from a newspaper article about the victim's description of the distinctive tattoos on the arms of one of the suspects, and called the police to tell them that a young man she knew as "Tone" had dated her younger sister, and had tattoos like that. She told the police where "Tone" lived.
The day after the rape, [Ricardo] warned Reese not to talk to anyone about the rape. However, Reese told some people at school, and he and [Ricardo] got into a fight about it, which their teacher had to break up.
Ricardo was charged with the crimes of Rape in Concert, Rape by the Use of Intoxicants, and Rape of an Unconscious Victim (Califonia Pen.Code, §§ 264.1, 261(a)(3), 261(a)(4) respectively). After a jury trial, Ricardo was convicted on all counts and sentenced to seven years in prison on the Rape in Concert count, with sentences stayed on the other counts.
Ricardo appealed his conviction and on May 2, 2007, the California Court of Appeal, First District, affirmed the judgment. Ricardo filed a Petition for Review in the California Supreme Court, which was denied on July 11, 2007.
Ricardo then filed a Petition for Writ of Habeas Corpus in the California Court of Appeal on August 26, 2008. He added two claims to the petition on September 16, 2008, and the petition was denied on September 25, 2008. In order to exhaust claims not raised on direct appeal, Ricardo filed additional habeas petitions in the Solano County Superior Court, the California Court of Appeal, and the California Supreme Court, all of which were denied.
Ricardo timely filed his Petition in this Court on October 3, 2008, raising three grounds for relief: 1) The evidence was insufficient to sustain his convictions; 2) both his trial counsel and appellate counsel were ineffective, and; 3) the prosecutor committed misconduct. Respondent concedes that all of Ricardo's claims are exhausted and does not contend that any of the claims are procedurally barred.
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."*fn3 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."*fn4 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.*fn5 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.'"*fn6 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.*fn7 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.*fn8 "[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.'"*fn9
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.*fn10
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.*fn11
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn12 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn13 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.*fn14 This is considered as the functional equivalent of the appeal process.*fn15 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.*fn16 This presumption applies to state trial courts and appellate courts alike.*fn17
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 presume 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.*fn18 In so doing, because it is not clear that it did not so do, the Court presumes that the state court decided the claim on the merits and the decision rested on federal grounds, giving the presumed decision the same deference as a reasoned decision.*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 ...