FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner, proceeds pro se with a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. At issue are his 2008 convictions in the Sacramento County Superior Court, case number 07F09616, for which he was sentenced to an aggregate determinate term of 34 years plus an additional indeterminate term of 65 years to life.
On the evening of October 6, 2007, petitioner fled in his vehicle from a California Highway Patrol (CHP) officer who had initiated a traffic stop of petitioner's van by activating the patrol car's lights and sirens. Reporter's Transcript ("RT") at 119-122. Alexandra Valdez, who was petitioner's girlfriend, was a passenger in the van. RT at 190-192, 202.
Petitioner led police on a chase through the streets of South Sacramento during which he passed cars on the shoulder, ran red lights and stop signs, drove on the wrong side of the road, and at one point, rammed his van in between two stopped cars to clear a path for his van. RT at 119-176. As CHP Officer Joseph Phipps' attempted a "pursuit intervention technique" in his patrol car, petitioner fired three gunshots out the driver's side window. RT at 137-139. Eventually, a spike strip was deployed causing the van to slow and then stop; police observed a white substance being thrown out the window. RT at 150-51. After a short foot pursuit, petitioner was arrested. RT at 302-307, 313-14.
A jury convicted petitioner on ten of eleven charged counts, including assault with a deadly weapon upon a peace officer with two accompanying firearm enhancements, discharging a firearm at an occupied motor vehicle, kidnapping, evading a peace officer, possession of methamphetamine while armed with a loaded operable firearm, transportation of methamphetamine, possession of a controlled substance, felon in possession of a firearm, carrying a weapon capable of being concealed, and failure to stop at the scene of an accident. The jury acquitted petitioner of attempted murder of a peace officer.
In a bifurcated proceeding, the jury found that petitioner had incurred three prior "strike" convictions within the meaning of sections 667(b)-(I) and 1170.12(a)-(h) of the California Penal Code and that he had served two prior prison terms within the meaning of section 667.5(b). The trial court sentenced him to state prison for an aggregate determinate term of 34 years, plus an indeterminate term of 65 years to life.
Petitioner appealed to the California Court of Appeal, Third Appellate District. The state appellate court reversed the conviction for possession of methamphetamine and modified the judgment to award him one additional day of actual presentence custody credit and one additional day of conduct credit. Lodged Documents ("LD") 1, 4. A petition for review to the California Supreme Court was denied. LD 5, 6. Petitioner sought habeas corpus relief in the California state courts where relief was likewise denied at all levels. LD 7-12. The parties agree that petitioner has exhausted state court remedies as to the grounds presented.
Petitioner presents the following grounds for relief: Ground One: The various fire-arm convictions stem from the same set of operative facts and the multiple punishments imposed violate the Double Jeopardy Clause;
Ground Two: Insufficient trial evidence supported the kidnapping charge, which accordingly should have been reduced to a lesser included offense of false imprisonment; Ground Three: The trial court erred in using his 1985 and 1987 previous burglary convictions as "strikes" in violation of his plea agreements;
Ground Four: Trial counsel rendered ineffective assistance;
Ground Five: The cumulative effect of errors at trial deprived him of his right to due process and a fair trial;
Ground Six: Appellate counsel rendered ineffective assistance; and Ground Seven: The trial court improperly admitted a police officer's lay opinion testimony.
STANDARDS FOR FEDERAL HABEAS CORPUS
Federal habeas corpus relief is not available for any claim decided on the merits in 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 the State court proceeding.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Under AEDPA, a state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ybarra v. McDaniel, 656 F.3d 984, 989 (9th Cir. 2011). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
Respondent contends that petitioner's grounds one, two, three and five are procedurally barred. Petitioner presented these grounds to the California state courts on habeas corpus, where the superior court held that they were procedurally barred, citing the rule of In re Dixon, 41 Cal.2d 756, 759 (1953). LD 8 at 1. California's Dixon rule "generally prohibits raising an issue in a post-appeal habeas corpus petition when that issue was not, but could have been raised on appeal." Fields v. Calderon, 125 F.3d 757, 762 (9th Cir. 1997); In re Dixon, 41 Cal.2d at 759. The state appellate court and state supreme court denied the same claims without comment, and it is presumed to have done so for the same reasons as the superior court. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground").
As a general rule, a federal habeas court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)); see also Walker v. Martin, 131 S.Ct. 1120, 1127 (2011). An exception to the general bar exists if the petitioner demonstrates either (1) cause for the default and actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.
For a state procedural rule to be independent, the state law basis for the decision must not be interwoven with federal law. Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000), cert. denied, 531 U.S. 918 (2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). To be adequate, it must be firmly established and regularly followed at the time of default. Coleman, 501 U.S. at 750 (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991); Valerio v. Crawford, 306 F.3d 742, 776 (9th Cir. 2002) ("In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner's purported default.").
California's Dixon rule became independent of federal law in 1998, when the California Supreme Court explicitly held that it would no longer consider whether an error alleged in a state habeas corpus petition constituted a federal constitutional violation when deciding whether claims are procedurally defaulted. In re Robbins, 18 Cal.4th 770, 811-12 (1998); see also Park v. California, 202 F.3d 1146, 1152-53 & n.4 (9th Cir. 2002); Protsman v. Pliler, 318 F.Supp.2d 1004, 1006-08 (S.D. Cal. 2004). The Ninth Circuit uses a burden-shifting analysis to determine adequacy. Bennett v. Mueller, 322 F.3d 573, 585-586 (9th Cir. 2003). Under this analysis, when the state pleads, as an affirmative defense, that a claim is procedurally barred, the burden shifts to the petitioner to challenge ...