The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction for elder abuse (Cal. Penal Code § 368(b)(1)) and assault likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)), with the special allegations that the victim suffered great bodily injury (Cal. Penal Code § 368(b)(2)), and that defendant personally inflicted the injury (Cal. Penal Code § 12022.7(c). Petitioner is serving a sentence of eight years.
This action is proceeding on the original petition filed February 11, 2011, and the supplemental petition filed June 13, 2011. (Dkt. Nos. 1 and 31.) Petitioner raises the following claims: 1) ineffective assistance of counsel (two claims); 2) juror misconduct; 3) denial of counsel at probation hearing; 4) untimely "return" by the state; 5) judicial misconduct; 6) actual innocence; 7) unconstitutional sentence; and 8) suppressed evidence released to the jury.
In the original petition, petitioner raised grounds 1-5 set forth above. Petitioner also stated that ground 6, neither identified nor described, had not been presented to the California Supreme Court. On March 11, 2011, the undersigned ordered petitioner to file a short declaration stating whether he intended to proceed only on the five exhausted claims, or whether he intended to raise a sixth unexhausted claim.
On March 24, 2011, petitioner filed a letter stating the he intended to proceed with the five exhausted claims raised in the original petition. Accordingly, on March 31, 2011, the undersigned ordered respondent to file a response to the five exhausted claims contained in the petition.
In the answer to the original petition, filed May 31, 2011, respondent addresses claims 1-5. However, respondent also addresses a sixth claim. Respondent states that in this sixth claim, petitioner alleges that suppressed evidence was released to the jury. Respondent also states that this claim has been presented to the California Supreme Court. Because respondent represents that this claim six is exhausted, the undersigned herein addresses the merits of this claim. On June 27, 2012, respondent filed a supplemental answer addressing the claims alleging actual innocence and unconstitutional sentence, raised in the supplemental petition.
After carefully considering the record, the undersigned recommends that the petition be denied.
II. Standards for a Writ of Habeas Corpus
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 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
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. 28 U.S.C. § 2254(d).
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, 405-06 (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.'") (internal citations omitted). "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, 131 S. Ct. 770, 786 (2011).
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). If there is no reasoned decision, "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. That presumption may be overcome by a showing that "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, the federal court conducts an independent review of the record. "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 v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
Respondent's answer contains a "statement of facts." After independently reviewing the record, the undersigned finds this summary to be accurate and substantially adopts it below.
At around noon on March 30, 2007, petitioner and his mother, Patricia Gibson, aged seventy-six, had returned home from petitioner's appointment at the Veteran's Hospital. (Respondent's Lodged Document 1 at 63.) Petitioner was living with his mother at the time. (Id.) As Mrs. Gibson was parking the car, she rolled up the windows. (Id. at 64.) Petitioner's fingers were in one of the windows and got caught. (Id.) Petitioner began yelling at his mother. (Id.) She opened the window and released petitioner's fingers. (Id.) Petitioner ran into the house. (Id.)
As Mrs. Gibson walked toward the front door, she heard petitioner screaming. (Id. at 65.) She thought he was telling her not to come in. (Id. at 66.) When she got into the door frame, petitioner ran past her. (Id.) Petitioner pushed her as he ran past. (Id.) Mrs. Gibson fell down. (Id. at 66-67.)
A neighbor from across the street came outside and saw petitioner kicking Mrs. Gibson. (Id. at 119.) The neighbor testified that she saw Mrs. Gibson on the ground and it looked like petitioner was reaching down with his hand to help her get up. (Id. at 120.) Instead, petitioner kicked Mrs. Gibson. (Id.)
Petitioner denied the allegations and denied kicking his mother. (Id. at 173-88.) Petitioner admitted that in 2003, he was involved in an incident with his mother. In this incident, he pulled his mother against the couch, i.e., restrained her, during an argument regarding food. (Id. at 174-75.) Petitioner testified that she tried to make him eat a tuna fish sandwich, which he claimed he could not eat due to having colon cancer. (Id.) Petitioner admitted to pleading no contest to misdemeanor assault regarding that incident. (Id.)
VI. Discussion A. Alleged Ineffective Assistance of Counsel
Legal Standard The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 688. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.
In extraordinary cases, ineffective assistance of counsel claims are evaluated based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93 (2000), (citing Lockhart v. Fretwell, 506 U.S. 364 (1993)).
The Supreme Court has emphasized the importance of giving deference to trial counsel's decisions, especially in the AEDPA context:
In Strickland we said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689. Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a [petitioner] must overcome the "presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. See Williams, supra, at 411.*fn1 Rather, he must show that the [ ]Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002).
In his first claim of ineffective assistance of counsel, petitioner alleges that, "I told my trial attorney what happened before trial and he told me my story seemed unbelievable and to go with what he said instead." (Dkt. 1 at 4.) Petitioner offers no further briefing in support of this claim in either the petition or the reply to the answer.
In the answer, respondent alleges that this claim is not exhausted but may be addressed because it lacks merit. See 28 U.S.C. § 2254(b)(2) (court may deny a habeas corpus petition notwithstanding the failure to exhaust state court remedies). Because this claims lacks merit, the undersigned may address it regardless of whether it is exhausted.
As noted by respondent in the answer, petitioner has presented no factual allegations to support this claim. He has not specified what he told his attorney or what his attorney allegedly told him to say. "Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James ...