The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Isidro Pena Soto, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Soto is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Corcoran.
Respondent has answered, and Soto has replied. Soto has also requested an evidentiary hearing.
I. BACKGROUND/PRIOR PROCEEDINGS
Soto was convicted by a jury of second-degree murder (Cal. Penal Code § 187(a)), driving under the influence of alcohol causing injury (Cal. Vehicle Code § 23153(a)), driving while having a blood alcohol level in excess of 0.08 % causing injury (Cal. Vehicle Code § 23153(b)), possession of methamphetamine for sale (Cal. Health & Safety Code § 11378(a)), transportation of methamphetamine (Cal. Health & Safety Code § 11379(a)), and gross vehicular manslaughter while intoxicated (Cal. Penal Code § 191.5(a), (d)). The jury also found that in driving under the influence (§ 23153(a)) and driving with a blood alcohol level in excess of 0.08% (§ 23153(b)), Soto had inflicted great bodily injury (12022.7(a)), causing those two charges to become serious felonies (Cal. Penal Code § 1192.7(c)(8)). On September 4, 2008, the trial court sentenced Soto to a prison term of fifteen years to life on the second-degree murder conviction, plus a consecutive term of four years on the transportation of methamphetamine conviction. Sentences on all other charges were stayed (Cal. Penal Code § 654). The California Court of Appeal reversed Soto's conviction on the two driving under the influence charges (Cal. Penal Code §§ 2153(a), (b)) and affirmed on all other convictions and the sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on December 28, 2009.
On April 22, 2010, Soto filed a petition for habeas relief in the Solano County Superior Court, which was denied in an unreported, reasoned decision. The California Court of Appeal summarily denied Soto's petition for habeas relief without opinion or citation to authority, and the California Supreme Court denied review on January 12, 2011. Soto timely filed his Petition for relief in this Court on September 30, 2010. The fact underlying Soto's conviction, as recited by the California Court of Appeal:
Kent Boone drove over the crest of an incline on Highway 12 in Solano County around 6:15 a.m. on March 31, 2007, and was met head on by a Ford Expedition driven by [Soto]. Boone died at the scene from blunt force injuries suffered in the collision.
The accident was witnessed by Anthony Brazil, who testified that he was driving east on Highway 12, a two-lane road with solid double lines in the middle, when he noticed [Soto's] vehicle in his rear view mirror approaching rapidly and swerving back and forth between the lanes. Brazil slowed and moved to the shoulder of the road to avoid [Soto], who passed by at a speed Brazil estimated to be 85 to 90 miles per hour. As [Soto] went up an incline, he drifted over into the westbound lane and collided with Boone's vehicle, which emerged going in the other direction.
[Soto] exhibited signs of being under the influence of alcohol, but field sobriety tests could not be administered because his leg was trapped under the dashboard of the Expedition. [Soto] was extricated from the vehicle and flown to a hospital, where a sample of his blood was drawn sometime between 9:27 and 9:55 a.m. that morning. Prosecution analysis of the blood sample found an alcohol content of .10 percent; defense analysis found .09 percent. The prosecution's expert estimated that [Soto] had a blood-alcohol content of .154 at the time of the accident; [Soto's] expert estimated .16.
[Soto] had completed an 18-month alcohol abuse treatment program three months before the accident. Records showed that he never missed a class in the program. The program counselor, Herman Uquillas, testified that the main point of the treatment was to underscore the risks of driving under the influence. Uquillas said that he told [Soto] 26 times face-to-face and 12 times in classes about the risk to life created by drunk driving, and warned him that killing someone while driving under the influence could constitute murder. [Soto] signed a plea form in one of his prior drunk driving cases in which he acknowledged that "it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving, someone is killed, I can be charged with murder."
Uquillas testified that "when you are with alcohol in your body, your judgment goes away," and [Soto's] expert on the effects of alcohol, Kenton Wong, testified that alcohol drinkers have "'reduced inhibition'" and "may take risks that they wouldn't normally take . . . ." Wong said that it would not be unusual for someone waking up with a high blood-alcohol content to "not be able to accurately assess how intoxicated he is, to feel like he was fine to drive." Richard Bowden, the prosecution's blood-alcohol analyst, testified that a person driving under the influence of alcohol could be inclined to take more risks.
A highway patrol officer who inspected the Expedition for the prosecution found no pre-existing mechanical problems that could have caused the accident. Approximately two pounds of methamphetamine were found under the back seat.
The jury was instructed in accordance with CALCRIM No. 520 that [Soto] did not act with implied malice unless, "[a]t the time he acted, he knew his act was dangerous to human life," and "[h]e deliberately acted with conscious disregard for human life." In closing argument, [Soto's] counsel described him as "the poster boy . . . for gross vehicular manslaughter, not murder." Counsel argued that [Soto] was "too impaired" from intoxication "to understand the risks that he was creating . . . when he got into the car to drive." The prosecution argued that [Soto] "actually subjectively knew that his actions could kill somebody."*fn2
Soto raises three issues: (1) ineffective assistance of trial counsel (failure to conduct an adequate pretrial investigation and move to exclude the evidence of a blood test); (2) appellate counsel's failure to raise the issue of ineffective assistance of trial counsel and insufficiency of the evidence (blood test tainted) rendered appellate counsel's representation ineffective; and (3) because his blood was improperly drawn and the blood test was tainted, there was insufficient evidence to support the conviction. Respondent does not assert any affirmative defenses.
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."*fn3 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."*fn4 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.*fn5
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.'"*fn6 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."*fn7 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.*fn8 "[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.'"*fn9 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.*fn10 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.*fn11
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.*fn12
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn13 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.*fn14 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.*fn15
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.*fn16
This is considered as the functional equivalent of the appeal process.*fn17 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.*fn18 This presumption applies to state-trial courts and appellate courts alike.*fn19
Ordinarily, a federal habeas proceeding is decided on the complete state-court record and a federal evidentiary hearing is required only if the trier of fact in the state proceeding has not developed the relevant facts after a full hearing.*fn20 In his petition for habeas relief in the Solano County Superior Court, Robinson included just immediately below the space for the case number "[Evidentiary Hearing Requested]."*fn21 Robinson did the same in his habeas petition in the California Court of Appeal.*fn22 In his prayer for relief in the Solano County Superior Court Soto included the phrase "grant an Evidentiary Hearing to resolve any disputed facts," and in his petition to the California Court of Appeal the phrase "[g]rant an Evidentiary Hearing to resolve issues of Fact." In this Court, as was the case in the state courts, Soto does not identify what evidence or testimony is to be proffered at an evidentiary hearing. Nor did Soto identify any contested factual issue that required the California courts to hold an evidentiary hearing to resolve. Thus, it cannot be said on the record that the state courts precluded him from developing the factual basis for his claim.*fn23
Because Soto has not identified any factual conflict that would require this Court to hold an evidentiary hearing to resolve, his request for ...