FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on April 6, 2007 in the Shasta County Superior Court on charges of making criminal threats, assault with a deadly weapon, and stalking. He seeks federal habeas relief on the following grounds: (1) the trial court erred in denying him the right to present evidence at sentencing, (2) his sentence of seventy-eight years to life in state prison constitutes cruel and unusual punishment, (3) the trial court abused its discretion when it refused to strike one of his prior convictions at the time of sentencing, and (4) the trial court abused its discretion when it imposed consecutive sentences upon him. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for federal habeas corpus relief be denied.
In its partially published opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant James Daniel Haller appeals following his conviction on multiple counts of criminal threats (Pen. Code, § 422)*fn2 , stalking (§ 646.9, subd. (a)), and assault with a deadly weapon, a knife (§ 245, subd. (a)(1)). Defendant contends the trial court (1) erred in refusing to allow defendant to present evidence at the sentencing hearing, (2) abused its discretion in failing to strike one of two prior convictions, (3) abused its discretion in imposing consecutive sentences, and (4) imposed a cruel and/or unusual punishment under the state and federal Constitutions.
In the published portion of the opinion, we shall conclude defendant's sentence does not constitute cruel or unusual punishment. In the unpublished portion, we reject defendant's other contentions of error. We shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with (1) criminal threats (§ 422) against his ex-wife Jacqueline Runyon on June 25, 2004; (2) criminal threats against Runyon's husband Jerry Cole on June 25, 2004; (3) criminal threats against Runyon on June 26, 2004; (4) criminal threats against Cole on June 26, 2004; (5) assault on Cole with a deadly weapon (§ 245) on June 26, 2004; and (6) stalking (§ 646.9) Runyon between May 24, 2004, and June 28, 2004 by willfully, maliciously and repeatedly following her, harassing her, and making a credible threat with the intent that she be placed in reasonable fear for the safety of herself and her family. The information also alleged defendant had two prior serious felonies (§ 1170.12) -- a June 2004 conviction for criminal threats, and a February 2000 conviction for battery with serious bodily injury (§ 243, subd. (d)) -- and a prior prison term (§ 667.5, subd. (b)) for the 2000 conviction. The information also alleged, for sentence enhancement purposes under sections 1170.12 (three strikes law), 667.5 (same), and 646.9 (stalking after conviction for criminal threats or spousal abuse): A 2004 felony conviction for criminal threats (§ 422); a 2000 felony conviction for battery with serious bodily injury (§ 243, subd. (d)); and a prior prison term (§ 667.5) related to the 2000 conviction.
Evidence adduced at trial included the following:
Defendant had a history of domestic violence during his marriage to Runyon. In 1994, he punched her in the mouth, drawing blood and loosening her teeth (resulting in a misdemeanor spousal abuse conviction). In 1997, he threw an ashtray at her, hitting the back of her neck. In 1998, he punched her in the mouth (resulting in a misdemeanor spousal abuse conviction). When Runyon tried to leave defendant, he told her that if he could not have her, "nobody would." Runyon eventually divorced defendant. Despite a restraining order, defendant would not let go. In February 2003, he loitered outside Runyon's workplace. In March and May 2003, he went to her house and left when she called the police. In June 2003, Runyon was sleeping at the home of friends when she awoke to find defendant standing over her. Her son dragged him out of the house. Later, defendant drove by the house and said they "better have fire insurance." He eventually pled no contest to stalking and criminal threats and was placed on probation with credit for time served.
Meanwhile, Runyon met Cole in October 2003, moved in with him in November 2003, and later married him in November 2004.
In June 2004, defendant, freshly released from custody on the 2003 stalking, began leaving threatening phone messages for Runyon and Cole. Defendant called 40 to 50 times a day and threatened Cole with death, dismemberment, sodomy, and torture. On June 23, 2004, Runyon was in the yard hanging laundry when she heard defendant's voice say, "Oh, so that's where you're living." She ran inside without seeing defendant.
On June 25, 2004, defendant made multiple threatening phone calls. In one call, he said he was going to come over, rape Cole, "cut his thing off and stick it down his throat and make [Runyon] watch." Around 8:00 p.m., defendant appeared at Runyon's home with his teenage son Joshua and yelled, "Jerry, come out or I will kill you." Joshua broke a window with his fist. Defendant and Joshua left when the police were called. Runyon could not sleep that night because she was afraid defendant would break into her home. Cole sat on the couch all night, keeping guard. The next day, he had friends come to keep guard so he could sleep.
Defendant continued his threatening phone calls all day on June 26, 2004. The answering machine recorded the following call from defendant at 9:42 p.m.:
"Jackie and Jerry you know what? I am gonna come and stick that glass pipe right up your fuckin' hot ass and cut your nuts off and just your fuckin' asshole puckers up and shove 'em down her fuckin' throat Jerry . . . . [D]on't go to sleep, 'cause you know what? I'm comin' you mother fucker, I'm fuckin' comin'. Can you hear that Jackie? You fucked up. You burnt the bridge. You fuckin' bitch . . . . I'm gonna fuck your fuckin' world up, let's bring the mother fuckin', move in that substation, move in that mother fuckin' substation 'cause you know what Jerry? And you know what Jackie? And Jerry you know what? I think it would be best to kick her fuckin' ass out right now 'cause that's my fuckin' wife and I'm coming to fuckin' take her."
Defendant immediately called back and said simply, "Hell." Two minutes later, he called and said, "I'm gonna fuckin' fuck you guys' world up." One minute later, he called again and said, "Jerry Cole and Jackie Haller you fuckin' Jerry, you know it dude, Jackie you know what? You, you, you're, you're a chicken shit, you have no heart and it just floored me you loved me twenty-two fuckin' years and then you that, that shit you're in love with that mother fucker, I'm gonna take that glass pipe Jackie 'cause his asshole's quiverin' while I'm fuckin' him right in front of you."
Defendant called again and said he was coming over to kill them. Runyon called the police, Cole retrieved a shotgun from the bedroom, and Cole's brother-in-law (Mike) went outside with a baseball bat.
Defendant showed up, brandishing a knife with a 12--inch blade. Mike called out a warning that defendant had a knife. Cole did not hear what Mike said but came out the front door with the shotgun, saw defendant with a shiny object in his hand, and said, "Freeze motherfucker." Defendant did not answer but kept moving. Cole fired the gun once, hitting defendant in the groin. Defendant fell to the ground. From a sitting position, he tried to throw the knife, crawled to where it fell and tried to throw it again. Police recovered a knife at the scene.
Defendant testified in his own behalf. He did not deny the threatening phone calls but says he was intoxicated and does not remember specifics. He went to the victims' home to try to "smooth everything over" and "maybe try to reconcile and get back together with her." He denied bringing a knife. He recalled only exchanging words with a man, and seeing the flash of a gun.
Defendant" son Joshua, who did not live with his mother, testified about breaking the window. He was at a market with his father when he saw a boy riding a bicycle belonging to Joshua's brother (who lived with their mother). Joshua asked where the boy got the bike and thus learned where Joshua's mother and brother were living. Joshua told defendant to stay out of sight and tried to return the bike to his brother but was rebuffed by his brother and mother. Joshua was angry that they wanted nothing to do with him and therefore hit the window.
The defense presented an acquaintance of Cole's who testified that Cole bragged about contriving a self-defense situation to send his wife's ex-husband to prison for life. The acquaintance had had his own altercation with Cole.
The jury found defendant guilty on all counts. The trial court found true the allegations of prior convictions and prior prison term.
In sentencing defendant in June 2007, the trial court selected Count Five (assault with deadly weapon) as the principal term and imposed a sentence of 25 years to life in prison. The court imposed a consecutive sentence of 25 years to life for Count One (criminal threats to Runyon on June 25, 2004), and the same for Count Three (criminal threats to Runyon on June 26, 2004). Each of these three terms was enhanced by one year for the prior prison term (§ 667.5). On Counts Two and Four (criminal threats to Cole), the court imposed concurrent terms of 25 years to life, enhanced by one year for the prior prison term. Sentence on Count Six (stalking) was stayed pursuant to section 654. The court thus sentenced defendant to life in prison with possibility of parole, with a minimum of 78 years.
Defendant committed these offenses while on probation for the 2004 conviction for criminal threat against Runyon (case No. 03F3515). The court revoked probation and sentenced defendant to four years, eight months for the prior case, to be served consecutively to the sentence on the current case.
I. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 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.*fn3 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (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.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s 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." Harrington,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, 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." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 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 § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn4
In his first claim for relief petitioner asserts that the sentencing judge violated his right to due process in refusing to allow him to call witnesses and to speak on his own behalf at the time of his sentencing. (Doc. No. 1 (Pet.) at 4.) Specifically, petitioner argues:
Petitioner was denied right to call witnesses to mitigate at sentencing. Probation report was a complete fabrication and had the court allowed petitioner the right to allocation [sic] at sentencing this discrepancy surely would have been brought to light. Petitioner is entitled to a voice at sentencing, court denied this right to petitioner by denying witnesses.
The California Court of Appeal rejected petitioner's argument in this regard, reasoning as follows:
I. Evidence at Sentencing Hearing
Defendant contends the trial court erred in refusing to allow him to present evidence at the sentencing hearing. We see no grounds for reversal.
At the sentencing hearing, the trial court expressed its tentative decision to impose a total sentence of 78 years to life in prison. Defense counsel argued the sentence was too long and said:
"[Defense counsel]: . . . I have three very brief witnesses I'd like to call. [Defendant] and two of his relatives who would not be lengthy.
"THE COURT: I'll decline the request.
"[Defense counsel]: May I call ...