The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Leon Wilson Crockett, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Crockett is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the North Kern State Prison. Respondent has answered, and Crockett has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In October 2008 Crockett was convicted by a Shasta County jury of corporal injury to a former cohabitant, Cal. Penal Code § 273.5(a), kidnapping, Cal. Penal Code § 207(a), and assault with force likely to cause great bodily injury, Cal. Penal Code § 245(a)(1). The trial court found true the special allegations that Crockett had suffered three prior strikes, Cal. Penal Code § 1170.12, and had served four prison terms, Cal. Penal Code § 667.5(b). The Shasta County Superior Court sentenced Crockett to an aggregate, indeterminate prison term of twenty-nine years to life. The California Court of Appeal, Third District, affirmed Crockett's conviction and sentence in an unpublished decision,*fn2 and the California Supreme Court denied review on July 14, 2010. Crockett timely filed his Petition for relief in this Court on August 18, 2010.
The facts underlying Crockett's conviction, summarized by the California Court of Appeal:
In July 2008, [Crockett] and K.M. had been in an on-again, off-again dating relationship for four or five months. Around 7:00 p.m. on July 30, they visited the home of their friends R. and P. and P.'s 14-year-old son D. Throughout the evening, [Crockett] and K.M. were drinking beer.
About four or five hours after they arrived, [Crockett] was ready to go home and asked K.M. to go with him. She said "[n]o," and the two started arguing. [Crockett] then "got a little crazy": he pulled K.M. off the couch by her ankles, and she pleaded with him to let go. D. tried unsuccessfully to pull [Crockett] off K.M.
As R. was talking to the dispatcher, he saw [Crockett] dragging K.M. out the front door by her ankle and wrist, as she yelled for help. K.M. ended up "on her behind next to [R.'s] van." [Crockett] was still arguing with her, and D. and P. were "doing what they could to prevent it."
Police arrived three to five minutes after R. called 911. They ordered [Crockett] to sit on the curb, and eventually he complied. Officer Harry Bishop talked with K.M., who was shaking and crying. She smelled like alcohol, but she was not "noticeably" intoxicated, nor was she slurring her speech or unsteady on her feet. She told Bishop that [Crockett] had dragged her by her shorts and her hair out the front door. He then dragged her by her hair to the front yard. Her feet were off the ground and her legs were dragging on the floor. Officer Bishop saw "on the back of her right leg . . . near her right calf . . . an abrasion . . . about two inches in length" that "was red to pink in color," "[h]ad a little bit of loose skin around the fringes," and "appeared to be a fresh injury."
At trial, K.M. denied fighting with [Crockett] that night and said she did not remember her leg being injured. [Crockett] was still her "friend."*fn3
II. GROUNDS RAISED/DEFENSES
In his Petition Crockett raises six grounds: (1) insufficiency of the evidence to support his conviction of causing corporal injury; (2) prosecutorial misconduct; (3) a Faretta*fn4 error is structural and not susceptible to a harmless error analysis; (4) denial of right to counsel; (5) his sentence constitutes cruel and unusual punishment; and (6) ineffective assistance of counsel for failing to raise the cruel and unusual punishment claim. Respondent does not assert any affirmative defense.*fn5
Initially the Court notes that the body of the Petition simply states the basis for relief in purely conclusory terms without any factual support or legal argument. Crockett bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief.*fn6 The petition must specify all the grounds for relief available to the petitioner and the facts supporting each ground.*fn7 If it plainly appears on the face of the petition that petitioner is not entitled to relief, a district court must dismiss the petition.*fn8
This requirement survives the initial screening and if an answer has been ordered and filed, and the court may do so sua sponte.*fn9 As the Supreme Court has stated:
Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important . . . ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface:
"CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date." Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ed., Supp. V) (emphasis in original).
A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted." § 2243. Under Habeas Corpus Rule 4, if "it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court," the court must summarily dismiss the petition without ordering a responsive pleading. If the court orders the State to file an answer, that pleading must "address the allegations in the petition." Rule 5(b).*fn10
In this case, Crockett attached the Petition for Review filed in the California Supreme Court and repeated it verbatim in his Traverse. As it previously indicated,*fn11 the Court reviews the claims as presented in Crockett's Petition for Review attached to his Petition to determine the factual and legal bases for Crockett's grounds.
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."*fn12 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."*fn13 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.*fn14 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.'"*fn15 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."*fn16 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.*fn17 "[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.'"*fn18 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.*fn19 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.*fn20
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.*fn21
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn22 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.*fn23 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.*fn24
Ground 1: Insufficiency of Evidence
Crockett argues that the evidence was insufficient to support his conviction on the count that the victim suffered a traumatic injury within the meaning of Penal Code § 273.5.
Specifically, he points to the fact that the victim herself did not recall any injuries or how she got them, and that the officer testified that the only injury he saw on the victim appeared to be fresh.
According to Crockett, this was insufficient to support a reasonable jury's finding of guilt. The California Court of Appeal rejected Crockett's arguments, holding:
Sufficiency of the Evidence of Corporal Injury
Defendant contends there was insufficient evidence of corporal injury to a cohabitant because the People did not prove he caused K.M. to suffer a "traumatic condition." "'[T]raumatic condition'" is "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (Pen.Code, § 273.5, subd. (c); undesignated statutory references that follow are to the Penal Code.)
The gist of defendant's argument is that it was "just as likely that any mark on [K.M.'s] right leg, if it even occurred that night, was the result of her own stumbling or bumping. In any event, [Officer] Bishop could testify only that the mark on her right calf appeared to be a fresh injury."
This argument ignores the appropriate appellate standard of review of claims of sufficiency of the evidence. Although it is the duty of the jury to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, that must be convinced of the defendant's guilt beyond a reasonable doubt. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572.) The appellate court must accept reasonable inferences the jury might have drawn from the circumstantial evidence, and before a judgment can be set ...