The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Aleksandr Radion, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a stipulated sentence of eleven years four months in prison. In the state case underlying this petition for habeas corpus, a jury convicted Petitioner on one count of driving under the influence of alcohol causing injury (Cal. Veh. Code § 23153(a)), one count of driving with a .08 percent or higher blood alcohol level causing injury (Cal. Veh. Code § 23153(b)), and one count of driving with a suspended license (Cal. Veh. Code § 14601.5(a)). The jury additionally found that Petitioner had inflicted great bodily injury in the commission of these offenses (Cal. Penal Code § 12002.7(a)). After the jury reached its verdicts, but before Petitioner was sentenced, Petitioner entered into a plea agreement in another case involving a robbery. The plea agreement in the unrelated robbery case encompassed sentencing for his convictions in this matter. Petitioner raises ten claims in this federal habeas petition; specifically: (1) Petitioner's trial counsel was ineffective for failing to make a motion to dismiss the charges at the preliminary hearing due to insufficient evidence ("Claim I"); (2) his trial counsel was ineffective for failing to object to the jury instructions with regard to reasonable doubt on the ground that it violated due process ("Claim II"); (3) his trial counsel was ineffective for failing to object to the jury instructions with regard to reasonable doubt on the ground that it violated the Ex Post Facto clause ("Claim III"); (4) his trial counsel was ineffective for failing to make a reasonable investigation with regard to the circumstances surrounding a statement made by the Petitioner and for failing to challenge the admission of Petitioner's statement as involuntary in violation of due process and the Vienna Convention ("Claim IV"); (5) his trial counsel was ineffective for failing to object to the prosecutor's statement in closing argument about Petitioner's refusal to testify on his own behalf ("Claim V"); (6) his trial counsel was ineffective for failing to object when the prosecutor "vouched" for the prosecution's witnesses during closing argument ("Claim VI"); (7) his trial counsel was ineffective for failing to object to the trial court's reading of the jury instructions without them being transcribed by the court reporter ("Claim VII"); (8) his trial counsel was ineffective for failing to cross-examine a witness to establish the driver of the other car involved in the crash had been drinking alcohol ("Claim VIII"); (9) the trial court acted in excess of its jurisdiction when it imposed a victim restitution fine without conducting a hearing ("Claim IX"); and, (10) his appellate counsel was ineffective for failing to raise any specific issues on direct appeal ("Claim X"). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND*fn1
The charges in this matter stem from an incident in which defendant, whose driver's license was suspended, drove his car through a red light and struck another car that was attempting to make a lawful left turn. Defendant fled on foot and was discovered hiding in a garage. He was transported to a hospital for treatment of injuries he sustained in the collision, at which time his blood was drawn to determine his sobriety. Defendant's blood alcohol concentration was determined to be .15 percent. As a result of the collision, the driver of the other car suffered a concussion, fractured ribs, a ruptured diaphragm, a ruptured kidney and a ruptured spleen that had to be removed.
On May 1, 2006, a Sacramento County jury convicted Petitioner in case number 05F06318 (the "DUI case") of the following four counts: (1) driving under the influence causing bodily injury (Cal. Veh. Code § 23153(a)); (2) driving with a blood alcohol above .08 causing bodily injury (Cal. Veh. Code § 23153(b)); (3) hit and run causing bodily injury (Cal. Veh. Code § 20001(a)); and, (4) driving with a suspended license (Cal. Veh. Code § 14601.5(a)). The jury further found an enhancement for personally inflicting great bodily injury as to counts 1, 2, and 3. Clerk's Tr. at 78-81. The next day, in separately-pending case number 05F07944 (the "robbery case"), Petitioner pled no contest to robbery (Cal. Penal Code § 211) with enhancements for use of a deadly weapon (Cal. Penal Code § 12022(b)(1)), inflicting great bodily injury (Cal. Penal Code § 12022.7(a)), and committing the offense while on bail (Cal. Penal Code § 12022.1).
Rep.'s Tr. at 315-16. In exchange, the remaining charges for assault with a deadly weapon (Cal. Penal Code § 245(a)(1)), second-degree burglary (Cal. Penal Code § 459), and other vehicle code infractions were all dismissed with a waiver pursuant to People v. Harvey, 25 Cal. 3d 754, 602 P.2d 396, 159 Cal. Rptr. 696 (1979) (allowing a court to base a victim restitution order on unfiled charges with the defendant's waiver). Clerk's Tr. at 75; Rep.'s Tr. at 317-18. As part of the plea agreement, Petitioner was ultimately sentenced, on both cases combined, to a stipulated aggregate term of eleven years and four months. Clerk's Tr. at 173; Rep.'s Tr. at 309-11; Lodged Doc. No. 4 (Corrected Abstract of Judgment).
Petitioner did not appeal the robbery case, but did appeal the DUI case. It is the DUI case that is the subject of this habeas corpus petition. Apparently believing the appeal was frivolous, Petitioner's court-appointed appellate counsel did not raise any specific issues in her appellate brief but summarized the state court proceedings and asked the appellate court to independently review the record. See Lodged Doc. No. 1 (Appellant's Opening Brief), at 9; People v. Wende,
25 Cal. 3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071 (1979) (establishing procedure for attorneys and lower courts when a defendant wishes to file an appeal that appellate counsel believes lacks merit). Though Petitioner's appellate counsel informed Petitioner of his right to file a supplemental brief raising any issues he believed deserved review, Petitioner did not file an additional brief with the Court of Appeal. Slip Op. at 3. After undertaking an independent review of the record, The Court of Appeal found no arguable error that would result in a disposition more favorable to Petitioner and affirmed the judgment. Id.
Petitioner then filed a petition for habeas corpus in Sacramento County Superior Court. See Lodged Doc. No. 5. In his petition, Petitioner raised all but one of the claims that he now raises in his federal habeas petition. In a reasoned decision which reached the merits of Petitioner's claims, the Superior Court denied Petitioner relief. Petitioner's petitions to the California Court of Appeal and the California Supreme Court were thereafter summarily denied. Lodged Doc. Nos. 6 & 8. In these petitions, Petitioner raised his additional claim of ineffective appellate counsel.
On December 2, 2008, Petitioner's federal petition for habeas corpus was filed in this court. Respondent was ordered to answer the petition, and admitted that Petitioner's claims were exhausted and timely. Resp't's Answer, at ¶ 3.
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. ANALYSIS OF PETITIONER'S CLAIMS 1. Claim I
In Claim I, Petitioner argues that his trial counsel was ineffective for failing to make a motion to dismiss the charges at the preliminary hearing due to insufficient evidence. As with the rest of Petitioner's claims except for Claim X, the last reasoned state court decision is the decision by the Sacramento Superior Court on Petitioner's petition for habeas corpus. See Lodged Doc. No. 6; Delgadillo, 527 F.3d at 925. The Superior Court set forth the appropriate standard for determining ineffective assistance of counsel claims and ruled on Petitioner's claim as follows:
The failure to move to dismiss an information under Penal Code section 995 may have been the result of a tactical decision. (People v. White (1981) 118 Cal.App.3d 767, 774.)
Petitioner argues that trial counsel should have filed a motion to dismiss pursuant to Penal Code section 995 on the grounds that there was no admissible evidence at the preliminary hearing regarding Petitioner's blood alcohol content. However, he presents no evidence that the decision not to file the motion was not a tactical decision. Therefore, he has not shown that trial counsel's failure was unreasonable. Nor has he shown that the failure resulted in prejudice. Even if trial counsel had successfully moved to dismiss, the prosecutor could have re-filed the case. (See Pen. Code § 1387.)
The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. See id.
Second, a petitioner must affirmatively prove prejudice. See id. at 693. 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. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Id. A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697). When analyzing a claim for ineffective assistance of counsel where a state court has issued a decision on the merits, a habeas court's ability to grant the writ is limited by two "highly deferential" standards. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011). "When § 2254(d) applies," as it does here, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Petitioner alleges that had his counsel made a motion to dismiss after the preliminary hearing the court would have had no option but to dismiss the charges because the only evidence that Petitioner was under the influence of alcohol was the double hearsay testimony of a detective regarding the results of Petitioner's blood test. Even assuming that this is true, Petitioner cannot establish that he was prejudiced by the failure to make the motion. First, Petitioner's counsel did object to statements he believed were double hearsay being admitted at the preliminary hearing. Clerk's Tr. at 32. The court sustained this motion, but still eventually let the testimonial evidence regarding Petitioner's blood alcohol level into evidence over Petitioner's counsel's objection. Id. at 37. As Petitioner's counsel had already made the objection that Petitioner urges would have made his motion to dismiss successful, yet the court admitted the evidence anyway, it is highly unlikely that the court would overrule its earlier decision and grant the motion to dismiss. Second, even if the court did dismiss the charges, the prosecutor was free to refile them. See Cal. Penal Code § 1387; see, e.g., Crockett v. Superior Court,14 Cal. 3d 433, 437-438, 121 Cal. Rptr. 457, 535 P.2d 321 (1975). After the charges being dismissed for failure to have the appropriate witness at the preliminary hearing, it is doubtful that the prosecution would make the same mistake again when the criminalist who reviewed the blood sample was readily available to testify about the level of alcohol in Petitioner's blood the night of the accident. The Superior Court reached a reasonable conclusion when it determined Petitioner could not show that he suffered prejudice as a result of his counsel's failure to make a motion to dismiss the charges at the end of the preliminary hearing. Petitioner is not entitled to relief on this claim.
In Claim II, Petitioner alleges that his trial counsel was deficient for failing to object to the jury instruction with regard to reasonable doubt because the instruction permitted the jury to find Petitioner guilty without the prosecution proving every element of the crime beyond a reasonable doubt. The instruction in question, CALCRIM No. 220, provides as follows:
A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove ...