The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Richard Leon Loughmiller, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Loughmiller is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Medical Facility, in Vacaville, California. Respondent has filed an answer, and Loughmiller 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
Patricia Oberman testified at trial that on the morning of April 15, 2005, [Loughmiller] came to her home. [Loughmiller] and Oberman had dated in the past, but were not getting along well at that time. [Loughmiller] banged on the front door of Oberman's house and yelled that she should open the door. Oberman told [Loughmiller] to go away. [Loughmiller] refused and Oberman then heard a loud crash and saw the front door falling off its hinges into her entry hallway. [Loughmiller] entered the house and walked into the living room. He was carrying a backpack, which he set down in the living room.
Arthur Weber, who had gone on several dates with Oberman, testified that on that same morning he visited Oberman and had coffee with her. After the visit, Weber left Oberman's home through the back door, and as he was leaving, he heard a loud crash. He went around to the front of the house and saw that the door had fallen in. He walked up the front steps and looked into the house, where he saw [Loughmiller] standing in the living room. Weber entered the house with some difficulty because of the position of the door, and stood in the entryway, five or six feet from [Loughmiller].
Weber further testified that [Loughmiller] then pulled a gun out of his backpack. Weber began backing up, out of the doorway and down the front steps. [Loughmiller] said to Weber something to the effect of "I knew you were here. I'm gonna get you. I'm gonna kill you." He walked toward Weber, pointing the gun at him. When [Loughmiller] was six or seven feet from Weber, he fired the gun. Weber testified that then "[e]verything turned white," and he slipped on the front steps. When Weber got up, he did not see [Loughmiller] or Oberman. He noticed blood on his right hand, which he later discovered was coming from what looked like a burn or small scratch on his ring finger. He did not know if the injury was caused by a bullet or by his fall on the front steps.
Police arrested [Loughmiller] later that day, and found a loaded gun in [Loughmiller's] van and a knife in his pocket. Vallejo Police Officer Pedretti testified that after [Loughmiller's] arrest, he waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and agreed to speak with Pedretti. [Loughmiller] told Pedretti that Weber pushed him through the front door of Oberman's house and tried to hit him with a potted plant, and [Loughmiller] fired a "warning shot" to get Weber to leave him alone. Weber testified that he did not attack [Loughmiller] or try to hit him with a potted plant. Oberman testified that she did not see Weber attack [Loughmiller], and although she kept a potted tree in her dining room, it was not disturbed during the incident.
Following a jury trial, Loughmiller was convicted of attempted murder (Cal. Pen. Code §§ 187(a), 664); first degree burglary (Cal. Pen. Code § 459); and discharging a firearm with gross negligence (Cal. Pen. Code § 246.3). The jury also found true enhancements for the personal use and intentional discharge of a deadly or dangerous weapon (Cal. Pen. Code §§ 1203.06(a)(1), 12022.5(a)(1), & 12022.53(c)), and for being personally armed with a deadly or dangerous weapon (Cal. Pen. Code, § 12022(a)(1)). The trial court sentenced Loughmiller to 27 years in prison.
Loughmiller timely appealed his conviction and on July 15, 2008, the California Court of Appeal affirmed his conviction in a reasoned, unreported decision. Loughmiller's subsequent petition for review was denied by the California Supreme Court.
Petitioner timely filed his Petition in this Court on July 29, 2009, raising three grounds for relief: 1) the trial court improperly ignored Loughmiller's petition to substitute counsel; 2) ineffective assistance of trial counsel, and; 3) Loughmiller may not have been competent to stand trial.
Respondent has filed her Answer, but has not responded to Loughmiller's third claim that he was incompetent to stand trial. Respondent concedes that Loughmiller's claims are properly exhausted,*fn2 and does not assert that any of Loughmiller's 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 independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn20
"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn21
As noted above, Loughmiller raises three grounds for relief. This Court will discuss the grounds in the order presented.
I. Trial Court Failed to Conduct a Marsden Hearing Loughmiller claims
that the trial court violated the Sixth Amendment when it failed to
hold a Marsden hearing in response to his written motion.*fn22
Regardless of whether a state court failed to conduct a
hearing under Marsden or denied the motion after a full hearing, the
proper inquiry in federal habeas review is whether Loughmiller's Sixth
Amendment right to counsel was violated.*fn23 That is,
this Court must consider whether the trial court's denial of or
failure to rule on the motion "actually violated [Loughmiller's]
constitutional rights in that the conflict between [Loughmiller] and
his attorney had become so great that it resulted in a total lack
of communication or other significant impediment that resulted in turn in
an attorney-client relationship that fell short of that required by
the Sixth Amendment."*fn24
After a thorough analysis, the California Court of Appeal rejected Loughmiller's claim, finding that he had abandoned his Marsden motion on the basis of his post-motion conduct:*fn25
[Loughmiller] contends the court erred in not conducting a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) in response to his written motion for substitution of counsel and his letters to the court expressing dissatisfaction with his counsel's performance.
The clerk's transcript contains a "Notice of Motion and Motion for Substitution of Counsel" signed by [Loughmiller] and dated July 19, 2005. The motion stated that "on the 21 day of July, 2005, at the hour of 08:30 in Department C of the above-entitled court, or as soon therefore as this motion can be heard, defendant and/or counsel will move the court for an order to dismiss and/or relieve counsel due to inadequate representation." In the attached declaration, [Loughmiller] declared that "[d]ue to the fundamental breakdown in the relationship between declarant and counsel which reaches well beyond disagreements in trial tactics, declarant cannot and will not receive adequate representation by counsel of record in this case," and stated that [Loughmiller] would provide evidence to support this claim at the hearing on the motion. The declaration listed a number of [Loughmiller's] concerns with his counsel, including that counsel had failed to confer or communicate with him, had failed to pursue evidence favorable to the defense, and had failed to perform investigations necessary to the defense. The attached proof of service, also dated July 19, 2005, stated that "on this date," [Loughmiller] caused a true and correct copy of his "Marsden Motion to be served on the parties to this action by [¶] delivering same in person to the address as follows and ...