The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
MEMORANDUM DECISION and ORDER
[Re: Motion at Docket No. 48]
Christopher James Ximenez, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2245. Ximenez is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Avenal State Prison.
Respondent has answered, and Ximenez has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Ximenez was convicted in April 2005 in the Sacramento County Superior Court of kidnaping, Cal. Penal Code § 207(a), assault with a deadly weapon, Cal. Penal Code § 245(a)(1), child endangerment, Cal. Penal Code § 273(a), and making criminal threats, Cal. Penal Code § 422. In a separate court trial, the trial court found that Ximenez had suffered a prior serious felony conviction, Cal. Penal Code §§ 667(b)-(i), 1170.12, with a prior prison term enhancement, Cal. Penal Code § 667.5(b). The trial court sentenced Ximenez to an aggregate, determinate prison term of twenty-eight years under California's "three-strike" law. The California Court of Appeal, Third Appellate District, affirmed Ximenez's conviction and sentence in an unpublished decision,*fn2 and the California Supreme Court denied review on July 9, 2008.
While his appeal was pending, in December 2007 Ximenez filed a petition for habeas relief in the California Court of Appeal, Third Appellate District, challenging his March 1996 conviction that served as the prior "strike" in imposing his sentence in April 2005. The Court of Appeal summarily denied his petition without opinion or citation to authority. Ximenez's subsequent petition for habeas relief in the California Supreme Court was summarily denied citing In re Robbins, 959 P.2d 311, 317-18 (Cal. 1998) and People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995), on June 25, 2008. Ximenez timely filed his Petition for relief in this Court on December 5, 2008.
After his appeal was decided, Ximenez again challenged his 1996 conviction in a habeas petition filed in the California Court of Appeal, Third Appellate District, which summarily denied his petition without opinion or citation to authority. Ximenez's subsequent petition for habeas relief in the Supreme Court was summarily denied citing In re Clark, 855 P.2d 729 (Cal. 1993) and In re Robbins, 959 P.2d 311, 317-18 (Cal. 1998), on April 22, 2009. As summarized by the California Court of Appeal, the facts underlying Ximenez's conviction are:
The incidents giving rise to [Ximenez's] convictions occurred over the course of one night in November 2003, one month after [Ximenez] and his wife, G.F., had a baby. [Ximenez] had previously threatened and abused G.F., and on this occasion, he began to physically push her. When she went to the telephone to call her mother, [Ximenez] told her she could not use the phone because he thought she was going to call the police. G.F. took the phone into the bathroom and closed the door, but [Ximenez] yanked the phone cord and broke it.
G.F. left the apartment by herself and drove around to "cool down." On her way home, she saw [Ximenez] walking outside in the freezing weather with their baby. She stopped, took the baby from [Ximenez], and then drove back to the apartment quickly, hoping to be able to lock [Ximenez] out. [Ximenez] arrived at the same time as G.F.
[Ximenez] and G.F. went into the bedroom, leaving the baby on the couch in the living room. An argument ensued. [Ximenez] picked up a pair of scissors and pushed G.F. on to the bed. He put a pillow over G.F.'s face and tried to smother her. At the same time, he stabbed the scissors into the pillow and the bedding, telling G.F. that he was going to "cut her face out," "cut her guts out," and "hand [G.F.] her intestines." [Ximenez] also threatened to kill G.F. and their infant son.
At some point, as [Ximenez] sat on top of G.F., G.F. asked if she could check on the baby, who was in the living room. [Ximenez] replied that the baby was already dead. [Ximenez] later allowed G.F. to go into the living room, but he forced her to crawl there.
While G.F. was holding the baby, [Ximenez] began to pack the baby's diaper bag. He then took the baby from G.F. and ordered G.F. to the car, threatening to kill the baby if she ran away. G.F. complied because of [Ximenez's] threats.
[Ximenez] "peeled out" of the parking lot and sped through streets, running several red lights. [Ximenez] got onto the freeway and drove at speeds of 90 to 100 miles per hour. G.F. described Ximenez's driving as "crazy" and "reckless." During the drive, [Ximenez] told G.F. that he was going to take her and the baby to the home of G.F.'s mother.
G.F., who was sitting in the back seat with the baby, pulled out one of the baby's extra diapers and wrote a message to her mother that said: "[Ximenez] is trying to kill us." She signed her name and wrote the time, 4:21 a.m., and added, "I love you."
They arrived at the home of G.F.'s mother at approximately 4:30 a .m. G.F. handed the baby to her mother and went into the kitchen with [Ximenez]. G.F.'s mother came into the kitchen, got the diaper bag and went into her bedroom. When she changed the baby, she saw the note that G.F. had written on the diaper. She went back to the kitchen, but [Ximenez] and G.F. were not there.
At some point during the half hour that [Ximenez] and G.F. were at the apartment, [Ximenez] told G.F. to get gas money from her brother. Her brother was asleep, but she woke him to ask for money and said something about being hurt or killed. G.F. got the money and [Ximenez] then pushed G.F. out of the apartment and ordered her back into the car. He still had the scissors with him, and G.F. complied because she was afraid that she or the baby would be hurt. She hoped that her mother would see the note she had written. [Ximenez] held on to G.F. as they walked to the car.
After driving for some time, [Ximenez] ordered G.F. to drive the car because he was tired. As G.F. drove onto the freeway on-ramp, [Ximenez] threw the scissors from the car window.
At about 9:00 a.m., [Ximenez] dropped G.F. back at her mother's apartment. He returned there around noon.
G.F.'s mother had called the police after finding G.F.'s note, and officers subsequently arrested [Ximenez].
G.F. told Officer Lindner what had happened, and took him to her apartment. The pillow and bedding had holes in them, and the phone cord had been forcibly pulled apart.
Officers found a pair of scissors in the embankment near the highway on-ramp.
On November 25 and December 3, 2003, G.F. confirmed her account with victim advocates, making few revisions to Officer Lindner's report. However, by the time of trial one year later, G.F. had recanted. She testified that the statement she had given the police was not true, that the case had been blown out of proportion, that she did not want to testify against [Ximenez] and that she loved him.*fn3
II. ISSUES PRESENTED/DEFENSES
In his Petition, Ximenez raises 14 enumerated grounds. Ximenez challenges his April 2005 conviction and sentence in ten of the enumerated grounds: (1) denial of the right to a public trial; (2) denial of the right to counsel of his choosing; (3) insufficiency of the evidence to support a conviction for child endangerment; (4) insufficiency of the evidence to support a conviction for kidnapping; (5) the trial court improperly admitted evidence of G.F.'s prior, consistent statements; (6) the trial court had a duty to sua sponte instruct the jury that accomplice testimony must be corroborated; (7) prosecutorial misconduct in making improper statements during the closing argument; (8) the trial court should have stayed the sentence for his criminal- threats conviction pursuant to § 654;*fn4 (12) the prior strike enhancement was based upon an invalid prior strike; and (13) ineffective assistance of trial and appellate counsel for failing to attack the validity of Ximenez's 1996 conviction. In the remaining grounds-(9), (10), (11), and (14)-Ximenez challenges his 1996 conviction.*fn5 Respondent contends that Ximenez's fifth and sixth grounds are unexhausted and that he is collaterally barred from attacking his March 1996 conviction (ninth, tenth, eleventh, and fourteenth grounds). Respondent raises no other affirmative defense.*fn6
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."*fn7 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."*fn8 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.*fn9
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.'"*fn10 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."*fn11 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.*fn12 "[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.'"*fn13 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.*fn14 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.*fn15
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn16
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn17 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn18 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn19
Under California's unique habeas procedure, a prisoner 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.*fn20
This is considered as the functional equivalent of the appeal process.*fn21 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.*fn22 This presumption applies to state-trial courts and appellate courts alike.*fn23
This Court granted Ximenez leave to submit evidence that he was not, in fact, represented by counsel in the proceedings leading to his 1996 conviction. Despite several extensions of time within which to comply, Ximenez has not done so. Respondent has submitted minutes from the trial court indicating that Ximenez was, in fact, represented by counsel at the time he entered his guilty plea and was sentenced.*fn24 This Court then entered an Order accepting Respondent's submission of the minutes, and submitted the matter for a decision. At Docket No. 48, Ximenez has requested reconsideration of that Order, requesting that this Court (1) order that the unredacted court tapes of the plea and sentencing proceedings in his 1996 conviction be produced, (2) appoint counsel to represent him in this proceeding, and (3) hold an evidentiary hearing on the issue whether he was represented by counsel.
At Docket No. 49 Ximenez has submitted documents that he contends show that he is somehow being maliciously denied copies of the 1996 proceedings.*fn25 As Exhibit B to Docket No. 49, Ximenez has attached what he contends are redacted documents provided to him by the court reporter. Included in Exhibit B are two copies of the transcript of the entry of his plea on March 21, 1996, certified by the court reporter.*fn26 This Court has reviewed those two transcripts, which are identical, and finds no evidence of redaction, whether by whiteout or otherwise.*fn27
There being no evidence before this Court that any transcript or other document relevant to the issue presented has been redacted or otherwise altered, there is no need to order that unredacted copies be provided.
Ordinarily, a federal habeas proceeding is decided on the complete state-court record and a federal evidentiary hearing is required only if the trier of fact in the state proceeding has not developed the relevant facts after a full hearing.*fn28 "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings."*fn29 In this case, Ximenez challenged the validity of his 1996 conviction in his two rounds of habeas petitions in the California Court of Appeal and California Supreme Court.
Ximenez did not seek relief in the Sacramento County Superior Court before resorting to the California appellate courts. Ximenez did not request an evidentiary hearing in the state-appellate courts. Thus, it cannot be said that the state courts precluded him from developing the factual basis for his claim.*fn30 It does not appear from the record that the California appellate courts made any independent evidentiary findings. As discussed further below, Ximenez has not identified any factual conflict that would require this Court to hold an evidentiary hearing to resolve or that would require this Court to review the unredacted transcripts of the proceedings leading to Ximenez's 1996 conviction. The request to compel production of the transcript of the plea and sentencing proceedings in the 1996 conviction and for an evidentiary hearing will be denied.*fn31 Appointment of Counsel.
There is no constitutional right to counsel in federal habeas proceedings.*fn32 Appointment of counsel is not required in a habeas corpus proceeding in the absence of an order granting discovery or an evidentiary hearing.*fn33 This Court may appoint counsel under the Criminal Justice Act in this case if the Court determines that the interests of justice so require.*fn34 This Court does not so determine. Ximenez's request for the appointment of counsel will be denied.
Having considered Ximenez's arguments, this Court will deny Ximenez's motion at Docket No. 48 in its entirety
Respondent contends that because Ximenez failed to present his fifth (improper admission of prior consistent statement) and sixth (failure to instruct on necessity for corroboration of accomplice testimony) grounds to the state courts, he has failed to exhaust his state-court remedies. This Court agrees. This Court may not consider claims that have not been fairly presented to the state courts.*fn35 Exhaustion of state remedies requires the petitioner to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.*fn36 A petitioner fairly presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim:
(1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.*fn37
In this circuit a three step procedure for mixed petitions has been adopted, allowing: (1) a petitioner to amend his petition to delete any unexhausted claims; (2) the court in its discretion to stay and hold in abeyance the amended, fully exhausted petition, providing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) once the claims have been exhausted in state court, the petitioner to return to federal court and amend his federal petition to include the newly-exhausted claims.*fn38 The three-step Kelly procedure survives Rhines,*fn39 and the "good cause" limitation does not apply.*fn40
In his Traverse, Ximenez requests that this Court stay and hold in abeyance his Petition while he exhausts his state-court remedies on his fifth and sixth grounds. Upon the request of the petitioner, this Court may stay a mixed habeas corpus petition and hold the entire petition-exhausted and unexhausted claims alike-in abeyance while the petitioner exhausts his unexhausted claims.*fn41 A stay and abeyance is available only in limited circumstances. First, there must be good cause for the petitioner's failure to exhaust his claims first in the state courts.*fn42 Second, even if good cause is shown, a district court would abuse its discretion if it were to grant a stay as to unexhausted claims that are plainly meritless.*fn43 In this case, Ximenez has failed to show good cause for his failure to exhaust his state-court remedies. More importantly, however, is that Ximenez's claims are meritless and a "stay and abey" would serve no purpose.
Ground 5: Improper Admission of Prior Consistent Statements
Ximenez contends that the trial court erred in allowing the prosecution to introduce statements made by G.F. to police that were consistent with her trial testimony. Ximenez argues, without elaboration or explanation, that the evidence was inadmissible under the "prior consistent statement" rule.*fn44 Although Ximenez presented this issue on appeal, he did so entirely upon ...