The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Kenneth Ledbetter, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Ledbetter is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pleasant Valley State Prison. Respondent has answered and Ledbetter has replied. Ledbetter has requested an evidentiary hearing.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial in the Sacramento County Superior Court Ledbetter was convicted of first degree burglary (Cal. Penal Code § 459), robbery in concert (Cal. Penal Code §§ 211, 213(a)(1)(A)), being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)), and possession of methamphetamine (Cal. Health & Safety Code, § 11377(a)). The jury found true the special allegations that another person other than an accomplice was present in the residence during the commission of the burglary (Cal. Penal Code § 667.5(c)(21)), and that Ledbetter was a principal armed with a firearm when he committed the burglary and robbery (Cal. Penal Code § 12022(a)(1)).
In a separate court trial, the court found true the allegations that Ledbetter had two prior "strike" convictions (Cal. Penal Code §§ 667,(b)-(i), 1170.12.)). The trial court denied Ledbetter's motion to strike one of the "strike" priors. In December 2004 Ledbetter was sentenced to an indeterminate term of fifty-two years to life in state prison, plus eleven years. The California Court of Appeal affirmed Ledbetter's conviction and judgment in an unpublished decision,*fn1 and the California Supreme Court denied review on September 9, 2009. On December 17, 2009, Ledbetter filed a petition for habeas relief in the Sacramento County Superior Court, which was denied in a reasoned, unreported decision. The California Court of Appeal summarily denied Ledbetter's habeas petition without opinion or citation to authority, and the California Supreme Court also summarily denied Ledbetter's habeas petition on October 20, 2010. Ledbetter timely filed his Petition for relief in this Court on April 7, 2011.
The California Court of Appeal summarized the facts underlying Ledbetter's conviction:
On November 24, 2005, [Ledbetter] spent some time at the home of Anthony Ames, drinking and smoking marijuana. [Ledbetter] asked Ames if he would go with him somewhere, and Ames agreed. At approximately 2:00 p.m., [Ledbetter] and Ames arrived at the home of David Smith, an auto mechanic who had previously sold a Ford Explorer to [Ledbetter's] wife and, when it "quit running," agreed to exchange it for a Chevy Camaro. [Ledbetter] gave Ames a handgun and told him to grab a laptop.
Smith heard some noises at the front door. As he looked through the peephole, Ames broke down the door and rushed in with [Ledbetter]. [Ledbetter] and Ames surrounded Smith and asked him, "Where's the money, where's the safe?" Smith told them there was no safe. Ames hit Smith in the face with the gun, knocking Smith to the floor and rendering him unconscious. Ames ran out of the house with the laptop and jumped into the car. A minute or so later, [Ledbetter] got in the car. Ames handed him the laptop and they drove home.
By the time Smith regained consciousness, the police had arrived. Smith's computer and modem and other electronic items were missing. Although Smith was "badly" injured, having received wounds to his head and body, he refused medical treatment.
Within approximately 12 hours of the initial incident, [Ledbetter] asked Ames if he would accompany him back to Smith's house to retrieve the Camaro. Ames and [Ledbetter] returned to Smith's house. Smith was in bed, but went to the garage to meet them as soon as he was alerted they were there. [Ledbetter] and Ames led Smith to believe they had weapons and if he did not cooperate, "it was going to get worse." [Ledbetter] forced Smith to sign over the rights to the Camaro, telling Smith he "owed it to him." [Ledbetter] took the keys and he and Ames left, with [Ledbetter] driving the Camaro.
On December 6, 2005, California Highway Patrol Officer Helen Gomez noticed [Ledbetter] driving the Chevy Camaro without a seatbelt and pulled him over. When Gomez approached the Camaro, [Ledbetter] dropped his hands down underneath the seat and out of view. Gomez instructed [Ledbetter] to place his hands on the dash. He did so momentarily, then dropped his left hand back down out of sight. Gomez again instructed [Ledbetter] to place his hands on the dash. When Gomez asked [Ledbetter] for his license, registration and proof of insurance, [Ledbetter] told her the car belonged to his wife and he did not have a license. She ran the license plate and discovered the car was stolen and called for backup.
When backup arrived, [Ledbetter] was taken into custody. Officers searched the Camaro and found a loaded handgun under the driver's seat, and a box of ammunition and a shoulder holster in the car. Officers found a canister containing 2.9 grams of methamphetamine in the pocket of the jacket [Ledbetter] was wearing, and a pipe in the center console of the car.
Ames testified that he borrowed the Camaro at least once in December 2005, placing the gun under the seat in the car. When he returned the car to [Ledbetter], he forgot to retrieve the gun from under the seat.
When the Camaro was eventually returned to Smith, he found two cell phones inside, one of which had video images of [Ledbetter] and Ames.*fn2
II. GROUNDS RAISED/DEFENSES
Ledbetter raises seven grounds for relief: (1) that the application of his pre-1994 priors under California's three-strikes law is unconstitutional; (2) the trial court unfairly limited the defense's cross-examination of prosecution witnesses; (3) ineffective assistance of counsel; (4) denial of counsel of choice (Marsden motions*fn3 ); (5) ineffective assistance of appellate counsel; (6) the sentence imposed constitutes cruel and unusual punishment under the Eighth Amendment; and (7) ineffective assistance of trial counsel. Respondent contends that Ledbetter's first, second, and fourth grounds are procedurally barred.
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."*fn4 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."*fn5 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.*fn6 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.'"*fn7 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."*fn8 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.*fn9 "[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.'"*fn10
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.*fn11
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.*fn12
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.*fn13
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn14 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.*fn15 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.*fn16
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.*fn17
This is considered as the functional equivalent of the appeal process.*fn18 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.*fn19 This presumption applies to state-trial courts and appellate courts alike.*fn20
Ledbetter requests that this Court hold an evidentiary hearing with respect to his second ground, restriction on the cross-examination on the impeachment of two witnesses (the victim, David Smith and his co-defendant, Anthony Ames). The Supreme Court made clear in Pinholster that "review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."*fn21 "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."*fn22 "If the state-court decision 'identifies the correct governing legal principle' in effect at the time, a federal court must assess whether the decision 'unreasonably applies that principle to the facts of the prisoner's case.'"*fn23 As the Supreme Court noted, "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."*fn24 Although under Pinholster an evidentiary hearing in a federal habeas proceeding is not absolutely precluded, Pinholster also made clear that the discretion to grant a request for an evidentiary hearing is cabined by § 2254(e)(2),*fn25 which provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Ledbetter's request in this case does not meet that standard. Ledbetter has not identified which facts are in dispute or the evidence, documentary or testimonial, that he proposes to introduce. Accordingly, Ledbetter's request for an evidentiary hearing is DENIED.
As relevant to the claims raised in his Petition in this Court, in his
petition for habeas relief in the Sacramento County Superior Court,
Ledbetter raised the claims that the trial court improperly limited
his opportunity to impeach the victim and a witness (Ground 2), that
his Marsden motions were improperly denied (Ground 4), and that the
"Three-Strikes" law violates the Ex Post Facto Clause (Ground 1). The
Sacramento County Superior Court denied those claims on the basis that
Ledbetter could have raised them on direct appeal.*fn26
Respondent contends that, because the Sacramento County
Superior Court denied his petition as to those grounds on the basis
that they could have been raised on appeal citing Harris*fn27
and Dixon,*fn28 those claims are procedurally
barred. This Court agrees.*fn29 That being said,
because Ledbetter in his fifth ground contends that appellate counsel was ineffective for
failing to raise those claims on appeal, this Court must nonetheless
determine whether the omitted claims had merit.*fn30
When there is no reasoned state court decision denying the issues
presented to the state court, "it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication
or state-law procedural principles to the contrary."*fn31
"The presumption may be overcome when there is reason to
think that some other explanation for the state court's decision is
more likely."*fn32 In this case, however, it is clear
that the Sacramento County Superior Court declined to address
Ledbetter's claims entirely upon procedural grounds; therefore ...