FINDINGS AND RECOMMENDATIONS
Petitioner Bennett, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bennett stands convicted of numerous offenses in the Shasta County Superior Court, case number 05F1924, for which he is currently serving an aggregate sentence of 15 years and 4 months.
Pursuant to a warrant,*fn2 police officers conducted a search of a residence shortly after Bennett left the residence in a car. Behind a false ceiling in the garage, an officer located two snack food containers holding nearly 240 grams of cocaine base and more than 7 grams of cocaine salt, a sawed-off shotgun with a 14-inch barrel wrapped in duct tape, and what appeared to be "pay/owe" sheets. Located in the same bag as the cocaine was a receipt for a money order made out to Bennett and a shipping label bearing his name. In the kitchen, officers located ammunition, scales (including an electronic gram scale), and four boxes of baking soda (which can be used to turn cocaine salt into cocaine base).
The master bedroom appeared as if someone was using it, and contained male hygiene products and clothing that appeared to be Bennett's size. A loaded nine-millimeter handgun and a loaded .38 caliber revolver were discovered in the room in a location that was readily accessible from the bed. Also located in the master bedroom was a large sum of money, two baggies containing white powder (one of which tested positive for cocaine base), a bag containing over 100 small plastic baggies, and paperwork that was consistent with pay-owe notations. An insurance card, receipts for the repair of one of Bennett's vehicles, a fax cover sheet, "slips" from a copy store, numerous receipts from a local veterinary office, and legal paperwork- all bearing Bennett's name- were located in the closet of the master bedroom. Bennett's fingerprints were found on two of the empty baggies found in the master bedroom.
A second bedroom containing similarly sized clothing appeared to be used as a weight room, and a third bedroom containing female clothing did not appear to have been recently occupied. A photo album containing pictures of Bennett was found in the living room area. A car in the garage and a van parked at the house were registered to Bennett, as was the car he was driving when he was stopped by the police. Officers later located $10,000 in cash under the kitchen sink after listening to a tape of a telephone call from Bennett to another individual.
An officer who was an expert on the possession of narcotics for sale testified that, based on his experience, the cocaine located in the residence was possessed for the purpose of sale.
The police stopped Bennett's car shortly after he was observed leaving the residence. After law enforcement officers gave him Miranda warnings, Bennett admitted he had been "in and out of the residence for several months" and that he had handled several of the firearms there, although not the sawed-off shotgun. Bennett also said several other people lived at the residence.
Two neighbors picked Bennett out of a line-up as the individual who was living at the residence at the time of the search. One of these neighbors also identified him in court.
Bennett's friend testified she had visited him in Los Angeles between six and 10 times and, to the best of her knowledge, he lived there.
Bennett's former girlfriend testified that her brother and his acquaintance lived in the residence searched by the officers and that Bennett had stayed there overnight on two occasions. According to the former girlfriend, she and Bennett owned dogs which her brother allowed them to keep at the residence for a period of time.
A jury convicted Bennett of possession for sale of cocaine; possession for sale of cocaine base; possession of cocaine while armed with a firearm; four counts of possession of a firearm by a felon; possession of a deadly weapon; and illegal possession of ammunition. The jury also found true personal arming enhancements. In a bench trial, the court found true prior narcotics conviction enhancements and an enhancement for possession of cocaine while armed. The trial court imposed an aggregate determinate sentence of 15 years four months.
Bennett appealed to the California Court of Appeal, Third District, where the judgment was affirmed in an unpublished decision. The California Supreme Court denied a petition for review and further denied Bennett's state petition for writ of habeas corpus.
The petition sets forth eight grounds for relief. Each will be separately set forth and discussed herein, except that grounds two and three will be addressed together in one subsection. Bennett claims:
Ground One: The trial court erred in admitting his statements given prior to Miranda warnings;
Ground Two: Trial counsel rendered ineffective assistance by failing to request the transcript of the preliminary hearing in order to raise a Fourth Amendment challenge to the search and seizure;
Ground Three: Appellate counsel rendered ineffective assistance by failing to raise on appeal trial counsel's alleged ineffective assistance;
Ground Four: The superior court denied him his right to effectively appeal his convictions by failing to provide a copy of the transcript of his preliminary hearing;
Ground Five: The trial court made an instructional error in relation to the sawed-off shotgun count;
Ground Six: An upper term sentence was imposed in violation of the rule set forth in Blakely v. Washington, 542 U.S. 296 (2004);
Ground Seven: Trial counsel rendered ineffective assistance at sentencing; and Ground Eight: The trial court's decision not to stay sentencing on counts two, nine, and ten violated section 654 of the California Penal Code and federal due process.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under 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); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded for any claim decided on the merits in state court proceedings unless the state court's 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
This court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
A. Ground One: Admission of the un-Mirandized Statements
After Bennett left the residence in his car, he was stopped and arrested on an unrelated warrant. Another officer arrived and, prior to the time Bennett was given his Miranda rights, asked him if anyone else was at his residence. Bennett told the officer there was no one else at the house. The officer asked Bennett if he had any animals at his residence, and Bennett said he had dogs in the backyard. The officer asked Bennett if he had keys to the residence. Bennett said he did, and gave the officer the keys. The officer gained access to the residence with the keys provided by Bennett.
Bennett moved to suppress these statements based on the officer's failure to read him his Miranda rights before questioning him. The trial court ruled that the statements were admissible because the officer's questions were not designed to elicit an incriminating response within the meaning of Miranda. On appeal, the state court rejected ...