The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Larry Robinson, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Robinson is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at Mule Creek State Prison. Respondent has answered, and Robinson has replied. In his Reply, Robinson requests an evidentiary hearing.
I. BACKGROUND/PRIOR PROCEEDINGS
Following his conviction by a jury of one count each of assault with a deadly weapon (Cal. Penal Code § 245(a)(1)) and of making criminal threats (Cal. Penal Code § 422), in June 2007 the Sacramento County Superior Court sentenced Robinson, a "three-strikes felon," to two concurrent terms of twenty-five years to life, with the possibility of parole, plus a determinate fifteen-year term on prior felony enhancements. The California Court of Appeal, Third Appellate District, reversed the findings on two of the strikes and remanded, giving the People the option to retry the strike allegations, and affirmed Robinson's conviction and sentence in all other respects in an unpublished decision.*fn2 The California Supreme Court denied review on March 11, 2009.
On remand the People elected not to retry Robinson on the two strikes, and the Sacramento County Superior Court re-sentenced Robinson to concurrent prison terms of twenty-five years to life, plus an additional five years for a prior serious felony. On May 3, 2010, the California Court of Appeal affirmed the sentence in an unpublished decision.*fn3 On April 17, 2010, Robinson, appearing pro se, filed a petition for habeas relief in the Sacramento County Superior Court, which denied his petition in an unreported, reasoned decision on May 12, 2010.
Robinson's subsequent pro se petition for habeas relief in the California Supreme Court was summarily denied without opinion or citation to authority on January 19, 2011.*fn4 Robinson timely filed his Petition for relief in this Court on May 29, 2010. This Court granted Robinson's request to stay these proceedings while he exhausted his unexhausted claims in the California State Courts.*fn5 The stay was lifted on March 25, 2011, and Respondent was ordered to file a response.*fn6
The factual basis for Robinson's conviction as recited in Robinson
On January 10, 2006, 14-year-old Nicholas J. and his 12-year-old younger brother, R.J., were living in a home with their mother, older sister Louise W., and other siblings, near Valley High School in Sacramento.
Around 7:00 p.m., the boys' mother said she saw someone in a car outside their house, and asked Nicholas and R.J. to check to see if anyone was there.
The two boys emerged from the house. R.J., the younger boy, was carrying a pole or a stick. As they approached the car, they saw defendant, whom they recognized, slumped over in the back seat of the car. He seemed to be drinking something. One of the boys threw a cup at the car. Defendant then tried to open the car door, but the boys pushed against it, trying to keep it shut. Defendant forced the door open. Nicholas tried to run away, but defendant grabbed him by the shirt from behind, ripping it. Defendant reached into his back pocket, pulled out a knife with a four- or five-inch-long blade and yelled, "I'll kill you motherfucker," or "I'll stab you motherfucker," and swung the knife at Nicholas twice, extending his right arm with a crossing motion.
R.J. hit defendant with the stick, causing him to let go of Nicholas. Both brothers then took off running down the street, with defendant in pursuit. He chased them into a school yard and cornered them in front of a locked gate. Defendant reached into his pants and yelled, "I have a gun." At this point, the boys' sister Louise arrived, wielding a hoe or long pole, and threatened to hit defendant with it. Defendant fled, still holding the knife and dropping a bottle along the way.
A patrol officer responding to a dispatch call spotted defendant jumping over a fence and apprehended him in the back yard of a house. He conducted a pat-down search of defendant and recovered a box-cutter knife with a concealed blade. A steak knife was also found in the front yard of the property.
Defendant testified that he was acquainted with Nicholas and R.J., since their mother is his brother's girlfriend. On the evening in question, he was waiting in a car outside their house because he wanted to talk to his girlfriend Edna, who had been staying there for a couple of days.
He heard the garage door open and the two boys came out, "throwing stuff" at the car. Defendant thought Nicholas had thrown a screwdriver and R.J. a bottle at the car. He tried to get out to see what was going on, but the boys were pushing the door shut. When defendant finally managed to get out, he noticed a knife on the ground. He picked it up and, holding it above his head, he said, "What's going on here? Why you all out here with knives?" He told the boys he was going to tell their mother they were attacking him and throwing knives. He then put the knife in his pocket.
Defendant acknowledged grabbing Nicholas and ripping his shirt, "to find out . . . what was going on." When he did so, R.J. hit him with a stick and defendant took off running. According to defendant, the boys chased him down the street, not the other way around. Both boys had "weapons" in their hands. They came after him, "swinging and throwing stuff at me." Defendant finally stopped running, because he was out of breath. Trying to "scam [his] way" out of the situation, he told them, "You all come up near me anymore, I'm going to pull out my gun and shoot you." He was unarmed, but said it to "scare them off." The boys' sister Louise then approached with a stick in her hands, telling him "you shoot my brother, I'll hit you with this stick." Louise struck him on the shoulder with the stick and defendant "tore off running again." He admitted jumping over a fence to elude a police officer because he had a bad "experience about 30 years ago" when the police knocked all his teeth out and broke his nose. He threw the knife away to avoid a conflict with the officer.*fn7
II. GROUNDS RAISED/DEFENSES
In his Petition Robinson raises eight grounds: (1) prosecutorial misconduct (misstatement of a fact); (2) the trial court improperly "stripped" him of the presumption of innocence; (3) insufficiency of the evidence to support the conviction of assault with a deadly weapon; (4) insufficiency of the evidence to support the conviction of criminal threat; (5) the trial court improperly instructed the jury on the elements of criminal threat; (6) use of false evidence to support his conviction; (7) prosecutorial misconduct in use of false evidence; and (8) ineffective assistance of counsel (failure to investigate an ambiguity in the police records). Respondent contends that Robinson's first and fifth grounds are procedurally barred. Respondent asserts no other affirmative defenses.*fn8
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."*fn9 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."*fn10 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.*fn11 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.'"*fn12 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."*fn13 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.*fn14 "[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.'"*fn15 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.*fn16 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.*fn17
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.*fn18
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn19 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.*fn20 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.*fn21
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.*fn22
This is considered as the functional equivalent of the appeal process.*fn23 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.*fn24 This presumption applies to state-trial courts and appellate courts alike.*fn25
Respondent contends that Robinson's first and fifth grounds are procedurally defaulted. Federal courts "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."*fn26 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn27 Procedural default does not preclude federal habeas review unless the last state court rendering judgment in a case, clearly and expressly states that its judgment rests on a state procedural bar.*fn28 "[I]n 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 the petitioner's purported default."*fn29 A discretionary state procedural rule can be firmly established and regularly followed, so as to bar federal habeas review, even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.*fn30
Ground 1: Prosecutorial Misconduct (Misstatement of the Facts) Robinson argues that the prosecutor committed misconduct during oral argument by arguing that Robinson was intoxicated at the time of the crime and that, after he was arrested, Robinson was housed at the detox unit. The California Court of Appeal rejected Robinson's arguments, holding:
I. Prosecutorial Misconduct
Nicholas testified that when he and his brother first saw [Robinson], he appeared to be "drinking something" while slumped in the back seat of the car. He also testified that as [Robinson] fled the school yard, he dropped a bottle, which "I think . . . was liquor." R.J. said he saw [Robinson] with a bottle containing "blue stuff" in it. Louise testified that when she confronted [Robinson], he had a knife in his back pocket and a beer bottle in his hand.
On cross-examination, the prosecutor asked [Robinson] if he had been drinking that evening. [Robinson] denied it. The prosecutor then asked [Robinson] if he, in fact, was "housed at detox" that night. [Robinson] answered "no." The prosecutor then offered to show [Robinson] the booking form describing where he was housed. [Robinson] declined, stating, "I know where I was housed at." The prosecutor repeated, "And isn't it true you were housed at detox?" whereupon [Robinson] replied, "Not for alcohol."
In her rebuttal argument, the prosecutor stated: "He [[Robinson]] sat up there and tried to make you guys believe that he is this great person, that he was just trying to talk some sense to these kids like why do you have the knife? Why are you doing this? . . . That's what he wants you to believe, that he was just acting as this very nice guy. . . . [¶] . . . [¶] And you know his story was all about making him look good. Think about the end of the line of questioning yesterday when I was talking to him about whether he was drunk and where he was housed in jail. He didn't want to tell you he had been drinking. He didn't want to tell you that he was drunk, and why not? Because it makes him look bad. How would you guys look at him if you had this drunk idiot swinging the knife at little kids when it's dark outside, threatening to kill them? You guys wouldn't think very highly of him at that point. So he tries to suppress that, tries to make it sound like, no, I was stone-cold sober. I don't even need to look at that. I know where they housed me. Wouldn't even look at the evidence that was confronting him because that made him look bad."
[Robinson] claims the prosecutor committed reversible misconduct in these remarks by telling the jury he was drunk that night when, in fact, there was no substantial evidence in the record to support this assertion.
The point is forfeited because, as [Robinson] acknowledges, there was no objection to the prosecutor's remarks or request for a curative admonition. (People v. Williams (1997) 16 Cal.4th 153, 220-221 (Williams); People v. Wash (1993) 6 Cal.4th 215, 265.)
We also find no misconduct. "'"It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom."'" (Williams, supra, 16 Cal.4th at p. 221, quoting People v. Wharton (1991) 53 Cal.3d 522, 567-568.) The observations of the prosecution witnesses enumerated above, coupled with [Robinson's] implied admission that he was housed at "detox" overnight, supported a reasonable inference that [Robinson] had been drinking to the point of inebriation. In a trial sharply focused on credibility, the prosecutor suggested that [Robinson] had lied about his drinking that night, and thus the jurors should be equally distrustful about his account of the incident in which he portrayed himself as an innocent victim. This was fair argument, not misconduct.
Because we find no misconduct, [Robinson's] derivative claims of ineffective assistance of counsel and error in denying his motion for new trial on that ground, are moot.*fn31
Under California law, the failure to object to prosecutorial misconduct waives the issue on appeal.*fn32 In his Traverse, except to argue that the procedural default was excused because of his counsel's ineffectiveness, Robinson does not address the procedural default question. In general, because the attorney is considered to be the defendant's agent, attorney negligence, oversight, or inadvertence is not cause sufficient to excuse a procedural default.*fn33
Although the ultimate burden of proving adequacy of a state procedural bar is on the Respondent, once Respondent has "adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner."*fn34
The petitioner may satisfy his burden "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule."*fn35 This, Robinson has failed to do. Accordingly, this Court agrees ...