The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, William Rennie, III, is a state prisoner proceeding with a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of ten years in prison after a jury convicted him of three counts of lewd and lascivious acts with a child under the age of 14. Petitioner raises two claims in this federal habeas petition; specifically: (1) the nearly eight year delay between the time the information was filed and Petitioner was brought to trial violates his right to a speedy trial ("Claim I"); and (2) trial counsel's failure to send a letter to the District Attorney confirming the District Attorney's intent to dismiss the case amounted to ineffective assistance of counsel ("Claim II"). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND*fn1
Given the nature of defendant's claims on appeal, a detailed description of the underlying offenses is unnecessary. Suffice it to say that in 1996, defendant orally copulated Kimberly R. on multiple occasions, attempted to fondle Kimberly's sister, Sheila R., and inappropriately touched another young girl, Tanya N. Prosecution of this case came to a standstill from 1998 to 2004 while defendant was incarcerated in Oregon.
II. PROCEDURAL HISTORY AND ADDITIONAL BACKGROUND
On August 26, 1997, an information was filed in case number 58669, in Nevada County Superior Court, charging Petitioner with seven counts of violation of California Penal Code section 288(a), lewd and lascivious act with a child under the age of 14. Lodged Doc. No. 3 (Clerk's Transcript on Appeal), at 8. Petitioner was released on bail, and was subsequently arrested on October 3, 1997, after a court appearance in the California case which is the subject of this petition, on an arrest warrant arising from separate conduct in Oregon. Id. at 13. On January 9, 1998, Petitioner filed a motion to continue his trial, and on March 6, 1998, noting that Petitioner was incarcerated in Oregon, the Superior Court vacated the trial date. Id. at 17. According to the Clerk's transcript, nothing occurred in the case for the next six years. See id. at 18.
In support of Petitioner's writ of habeas corpus filed in Nevada County Superior Court, Petitioner submitted the declaration of his trial attorney, Stephen Munkelt, which set forth the discussions between Mr. Munkelt and the District Attorney's office during the time Petitioner was incarcerated in Oregon. See Pet'r's Pet., ECF No. 2, Ex. G (hereinafter "Munkelt Decl."). Because Respondent offered no evidence to controvert the declaration, the state court accepted its content as true. See Lodged Doc. No. 10 (Writ of Habeas Corpus Transcript of Proceeding), at 35.
According to the declaration, between 1998 and 2001Munkelt spoke on numerous occasions with Julie McManus, the prosecutor handling Petitioner's case. Munkelt Delc. at ¶ 3. In either 1999 or 2000, Munkelt urged McManus to either dismiss the charges or bring Petitioner back for trial. Id. At some point McManus told Munkelt that she "intended to dismiss the case, in part due to the passage of time." Id.; see also Aff. of William Rennie III (hereinafter "Rennie Aff."), attached to Lodged Doc. No. 12 at ¶ 9. In reliance on this statement, Munkelt ceased investigation and preparation of Petitioner's defense. Munkelt Delc. at ¶ 4. McManus never formally dismissed the case before she left the District Attorney's office in or about 2001 and the case was reassigned to Charles O'Rourke. Id. at ¶¶ 3-4. Munkelt told O'Rourke about McManus' representation that she intended to dismiss the case, and asked O'Rourke to dismiss the case on a few occasions. Id. at ¶ 4. On May 22, 2001, Munkelt sent O'Rourke a letter, later relied on by the Superior Court, which stated as follows:
I spoke with you last week about Mr. Rennie's old 288 case, which was being prosecuted by Ms. McManus several years ago. Mr. Rennie has been in prison in Oregon for the last three years or so, and in my most recent discussion with Julie, she indicated that she had decided to drop the local matter, due in part to the passage of time.
The reason for contacting you is that Mr. Rennie has told me Nevada County still has a "hold" on him at the Oregon prison. My guess is that you or your office heeds [sic] to take action to cancel the warrant or other notice that creates this hold.
I know that your records include a dizzying array of "Rennie" matters, but when you have a few minutes to identify the correct case, we would appreciate action to wind the matter up. Thank you for your assistance.
Lodged Doc. No. 3 (Clerk's Transcript on Appeal), at 33.*fn2
During this time period, Munkelt spoke to Petitioner on multiple occasions, advising him that the prosecution intended to dismiss the case and that he should not file documents pursuant to the Interstate Agreement on Detainers, which would force the prosecution to either dismiss the case or bring him to trial within a certain amount of time. Id. at ¶ 5; see also Rennie Aff. at ¶ 10; note 8, infra. This advice was based on Munkelt's impression that the case was going to be dismissed, which was based primarily on McMansus' statement. Munkelt Delc. at ¶ 5. Munkelt continued to follow up periodically with O'Rourke and shortly before Petitioner's release from prison in Oregon, O'Rourke informed Munkelt that he would not dismiss the case, and intended to prosecute Petitioner. Munkelt Decl.at ¶ 4.
On March 17, 2004, Petitioner filed a motion to dismiss the charges, alleging that his right to a speedy trial guaranteed by the Sixth Amendment had been violated. Id. at 18-24. That motion, as well as two renewed motions filed thereafter, was denied by the Superior Court. Id. at 41, 132, 247. During this time period, Petitioner's counsel filed three motions to continue the trial, at least one of which was opposed by the prosecution. Id. at 51, 59, 90. Finally, on March 14, 2005, trial began. Id. at 247.
The jury found Petitioner guilty on three counts and, after rejecting Petitioner's motion for a new trial, the court sentenced Petitioner to an aggregate term of twelve years in state prison. Id. at 252, 374, 392, 401.
Petitioner appealed his conviction to the California Court of Appeal, Third District, reasserting his speedy trial claim as well as a claim for ineffective assistance of counsel, and other claims not pertinent to this habeas petition. See Lodged Doc. No. 5 (Appellant's Opening Brief). In July, 2006, the Court of Appeal, in a reasoned decision, affirmed Petitioner's conviction. Slip Op. Petitioner filed a petition for review in the California Supreme Court, which was denied on October 18, 2006. Lodged Doc. No. 9 (Order Denying Review). Petitioner did not seek a writ of certiorari from the United States Supreme Court.
In January, 2008, Petitioner filed a petition for habeas corpus in Nevada County Superior Court. Lodged Doc. No. 12 (California Superior Court Habeas Petition). Petitioner again raised his speedy trial and ineffective assistance of counsel claims, as well as several other grounds for relief not relevant to this petition, including a claim pursuant to Cunningham v. California, 549 U.S. 270 (2007). The court held a hearing on the matter and, ruling from the bench, denied all of Petitioner's claims except for his claim under Cunningham, for which the court reduced Petitioner's sentence from twelve years to ten. Lodged Doc. No. 10 (Writ of Habeas Corpus Transcript of Proceeding); Lodged Doc. No. 11 (Further Sentencing Proceeding (Partial Trial)). Petitioner then filed an original petition for habeas corpus in the California Court of Appeal, Third District. Lodged Doc. No. 14 (California Court of Appeal Habeas Petition and Denial Order). The court summarily denied the petition, as did the California Supreme Court. Id., Lodged Doc. No. 15 (California Supreme Court Petition and Denial Order).
One day after the California Supreme Court denied Petitioner relief, he filed the instant petition for writ of habeas corpus in United States District Court.
III. 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 only be granted for violations of the Constitution or laws of the United States. See 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). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007), citing Williams, 529 U.S. at 410. "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006), citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).
IV. TIMELINESS OF PETITION
Pursuant to AEDPA, a state prisoner who wishes to challenge his or her conviction in federal court is faced with a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations period begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The statute of limitations is tolled so long as the state prisoner has a pending "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." Id. § 2244(d)(2). In order for an application to be "properly filed," it must be timely: "When a post-conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005), quoting Carey v. Saffold, 536 U.S. 214, 226 (2002); see also Carey, 536 U.S. at 236 (Kennedy, J., dissenting) ("If the California court held that all of [the state ...