The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Hosam Kaddoura, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Kaddoura is currently in the custody of the California Department of Corrections and Rehabilitation, in parole status. Respondent has answered, and Kaddoura has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Kaddoura was convicted in the Sacramento County Superior Court of two counts of driving under the influence of alcohol (Cal. Vehicle Code § 23152(a) (counts one and three)), two counts of driving with a blood-alcohol level of 0.08%, or more (Cal. Vehicle Code § 23152(b) (counts two and four)), misdemeanor hit-and-run (Cal. Vehicle Code § 20002(a) (count five)), driving with a suspended license (Cal. Vehicle Code § 14601.5(a) (count six)), resisting a peace officer (Cal. Penal Code § 148(a)(1) (count seven)), and he sustained allegations that he drove with a blood-alcohol level of 0.15%, or more. Kaddoura was on bail at the time of counts three through seven. The court siting without a jury found that Kaddoura had three prior driving under the influence convictions (Cal. Vehicle Code § 23152) within the previous ten years (Cal. Vehicle Code § 23550). On August 14, 2009, the trial court sentenced Kaddoura to a prison term of five years and eight months. The California Court of Appeal, Third Appellate District, affirmed Kaddoura's conviction and sentence in an unpublished decision,*fn2 and the California Supreme Court denied review on December 1, 2010.
In March 2010, while his appeal was still pending, Kaddoura filed a petition for habeas relief in the Sacramento County Superior Court, which denied his petition on June 24, 2010, in an unreported, reasoned decision, and denied Kaddoura's request for reconsideration in an unreported, reasoned decision on December 1, 2010. On August 23, 2010, Kaddoura filed a petition for habeas relief in the California Court of Appeal, which was summarily denied without opinion or citation to authority, and the California Supreme Court denied review on November 17, 2010. On December 23, 2010, Kaddoura filed a second petition for habeas relief in the California Court of Appeal, which was summarily denied, and the California Supreme Court denied review on April 13, 2011. Kaddoura timely filed his Petition for relief in this Court on May 3, 2011.
The facts underlying Kaddoura's conviction, as summarized by the California Court of Appeal:
Around midnight on December 14, 2007, [Kaddoura] was stopped on Fulton Avenue in Sacramento for driving 60 miles per hour in a 35-mile-per-hour zone. He smelled of alcohol, had slurred speech, was unsteady on his feet, and had red, watery eyes. [Kaddoura] refused to perform field sobriety tests. His blood-alcohol level tested at 0.34 percent. He was released on bail following his arrest for driving under the influence of alcohol and driving with a blood-alcohol level of 0.08 percent or more.
On February 2, 2008, [Kaddoura], driving on a suspended license and on bail for the December 14 offenses, rear-ended a truck driven by Jose Aguilar. Aguilar contacted [Kaddoura] and smelled alcohol on him; after [Kaddoura] drove off, Aguilar followed. Aguilar called the police and later pointed out [Kaddoura] to them. Officers contacted [Kaddoura], who appeared intoxicated, and arrested him. [Kaddoura] was uncooperative and spit on one of the officers. He had a blood-alcohol level of 0.22 percent.*fn3
II. GROUNDS RAISED/DEFENSES
In his Petition Kaddoura raises many grounds, which can be divided into three categories:
(1) sixteen enumerated errors by the trial judge; (2) twenty-one enumerated instances of claims that he received ineffective assistance of trial counsel; and (3) his appellate counsel was ineffective for failing to appeal from the denial of the motion for a new trial. Respondent contends that all of Kaddoura's claims are procedurally barred except his claim of ineffective assistance of counsel. Respondent raises no other affirmative defense.*fn4
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."*fn5 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."*fn6
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.*fn7
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.'"*fn8 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."*fn9 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.*fn10 "[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.'"*fn11 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.*fn12 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
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.*fn14
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn15 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.*fn16 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.*fn17
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.*fn18
This is considered as the functional equivalent of the appeal process.*fn19 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.*fn20 This presumption applies to state-trial courts and appellate courts alike.*fn21
Kaddoura's Petition to this Court (as did his petitions for state habeas relief), contains a number of allegations, most of which are merely conclusory in nature and unsupported by facts. The petition must specify all the grounds for relief available to the petitioner and the facts supporting each ground.*fn22 If it plainly appears on the face of the petition that the petitioner is not entitled to relief, a district court must dismiss the petition.*fn23 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:
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).*fn24
This Court may not consider claims that have not been fairly presented to the state courts.*fn25 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.*fn26 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.*fn27
In light of the foregoing principles, this Court declines to comb the record to find support for Kaddoura's claims. Instead, this Court will discuss Kaddoura's claims to the same extent as those claims were identified and addressed by the state courts.
To the extent that Kaddoura presented the claims he presents to this Court to the state courts, he did so in his petitions for state habeas relief.*fn28 With respect to his claims, other than his ineffective assistance of counsel claim and his claim that the trial judge should have recused herself ...