The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Gregory Adonis Murphy, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Murphy is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Corcoran. Respondent has answered, and Murphy has replied. Murphy has also requested an evidentiary hearing.
I. BACKGROUND/PRIOR PROCEEDINGS
In May 2008 a Sacramento County Superior Court jury found Murphy guilty of assault with a deadly weapon by means of force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)), first-degree burglary (Cal. Penal Code § 459), and attempted first-degree robbery (Cal. Penal Code §§ 644/211). The jury also found true allegations that in the commission of these crimes, Murphy inflicted great bodily injury on his victim. With regard to the convictions for burglary and attempted robbery, the jury also found true that Murphy used a dangerous or deadly weapon. Murphy admitted a prior strike conviction, and the trial court found true allegations that defendant had previously been convicted of seven felonies and served a prior prison term. In June 2008 the trial court sentenced Murphy to an aggregate term of twenty-four years in state prison. The California Court of Appeal, Third Appellate District, affirmed Murphy's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on August 19, 2009. On June 13, 2010, Murphy filed a petition for habeas relief in the Sacramento County Superior Court, which was denied in a reasoned opinion on August 12, 2010. The California Court of Appeal, Third Appellate District, summarily denied Murphy's petition for habeas relief without opinion or citation to authority on September 16, 2010, and the California Supreme Court likewise summarily denied Murphy's habeas petition on May 18, 2011. Murphy timely filed his Petition for relief in this Court on May 22, 2011. Because they are not relevant to the issues presented in the Petition, the facts underlying Murphy's conviction are not recited here.
II. GROUNDS RAISED/DEFENSES
In his Petition Murphy raises seven grounds:*fn2 (1) ineffective assistance of trial counsel; (2) that he was denied due process in that he was shackled in view of the jury pool and the trial court impermissibly commented on the fact that he was denied bail; (3) denial of the right to present a complete defense; (4) that the prosecution knowingly used perjured testimony; (5) cumulative effect of trial errors; (6) that the trial court incorrectly denied his motion for a new trial; and (7) that the imposition of the maximum sentence violated Blakely/Cunningham,*fn3 and was disproportionately harsh. Respondent contends that Murphy procedurally defaulted on his second, third, fourth, and seventh grounds. Respondent raises no other affirmative defense.
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
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-court proceeding has not developed the relevant facts after a full hearing.*fn17 In this case, Murphy did not request an evidentiary hearing in the state court habeas proceedings. Thus, it cannot be said on the record that the state courts precluded him from developing the factual basis for his claims.*fn18 Nor does it appear from the record that the California courts made any independent evidentiary findings in the state court habeas proceeding, and review in this case is based upon the state-court record. Murphy has not identified any factual conflict that would require this Court to hold an evidentiary hearing to resolve. The request for an evidentiary hearing is, therefore, DENIED.
Murphy raised his second (shackling and bail comment), third (denial of right to present a complete defense), fourth (use of perjured testimony), and seventh (Eighth Amendment) claims in his petition for habeas relief in the California courts. The Sacramento County Superior Court denied relief on each of those grounds because they could have been raised on appeal citing In re Harris (1993) 5 Cal.4th 813, 828 [855 P.2d 391, 396] and Ex parte Dixon (1953) 41 Cal.2d 756, 759 [264 P.2d 513, 514]. Respondent argues that, because the Sacramento County Superior Court denied Murphy's second, third, fourth and seventh grounds in his state habeas petition citing Harris and Dixon, those claims are procedurally barred. As discussed further below, this Court agrees, except as to the seventh ground in part. 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."*fn19 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 . . . ."*fn20 "The state-law claim may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits."*fn21
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.*fn22 "[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."*fn23 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.*fn24
It is firmly established under California law that "habeas corpus will not lie as a substitute for appeal . . . nor as a second appeal."*fn25 Contentions that could have been raised during direct appeal, but were not, generally cannot be renewed in a habeas petition.*fn26 In Robbins, the California Supreme Court made clear that after the date of that decision, August 3, 1998, except where the petitioner was convicted or sentenced under an invalid statute, it would no longer consider federal law when reviewing state habeas claims for an exception to the state procedural default in Clark, Dixon, and Harris.*fn27 Thus, this Court agrees that Murphy's second, third, fourth grounds, and, in part, his seventh ground, are procedurally barred.*fn28
The Court agrees with Respondent that, because Murphy's claims were defaulted in state court on an adequate and independent state ground, they will not be considered in federal habeas proceedings unless Murphy can demonstrate cause for the default and actual prejudice, i.e., a miscarriage of justice.*fn29 To prove a fundamental miscarriage of justice, Murphy must show that a constitutional violation probably resulted in his conviction despite his actual innocence.*fn30
Although at the gateway stage the petitioner need not establish his innocence as an "absolute certainty," Murphy must demonstrate that more likely than not, no reasonable juror could find him guilty beyond a reasonable doubt.*fn31
If a petitioner has procedurally defaulted on a claim, a federal court may nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust the claim; and (2) prejudice from the purported constitutional violation; or (3) demonstrates that not hearing the claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S. Ct. 2546; Sawyer v. Whitley, 505 U.S. 333, 339--40, 112 S. Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the prejudice prong if he demonstrates "that the errors . . . worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L.Ed.2d 816 (1982)). A petitioner can demonstrate a fundamental miscarriage of justice by "establish[ing] that under the probative evidence he has a colorable claim of factual innocence." Sawyer, 505 U.S. at 339, 112 S. Ct. 2514 (quotation marks omitted).*fn32
Although Murphy discusses the procedural default defenses in his traverse, he does not make even a rudimentary attempt to show cause, i.e., some factor beyond his control prevented him from presenting his claim. To the extent that Murphy has attempted to show prejudice, his efforts fail.
Ground 2: Shackling/Comment on Bail In rejecting Murphy's argument, in addition to denying Murphy's claim on procedural grounds, the Sacramento County Superior Court held:
[Murphy] argues in conclusory fashion that he was denied due process because he appeared before the jury pool in shackles, and the court made a "false" remark to the jury pool about [Murphy] failing to make bail. [Murphy] contends that these circumstances prejudiced potential jurors.
Penal Code section 688 provides that a defendant may not be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. (Pen. Code § 688.) "A defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints." (People v. Wallace (2008) 44 Cal.4th 1032, 1050 (citing People v. Duran (1976) 16 Cal.3d 282).) However, even if a trial court abused its discretion in allowing a defendant to appear in shackles in the courtroom before a jury, a defendant must still show that he suffered prejudice. (Id.)
Assuming [Murphy] was restrained in front of the jury pool as [Murphy] alleges, he points to no evidence in the record that he suffered any adverse effects from the combined effect of such restraint and the court's remark about him not making bail. Similarly, even if [Murphy] had made bail, as he contends, [Murphy] has not shown that he was prejudiced by the court's remarks, as the court expressly admonished the jury not to consider his custody, and noted that it only mentioned this fact because [Murphy's] custody could cause some delays in the proceedings.
For purposes of this habeas corpus petition, this claim is denied because it should have been raised on appeal. (In re Harris, supra, 5 Cal.4th 813, 8828, In re Dixon, supra, 41 Cal.2d 756, 759.) Additionally, [Murphy] has not pleaded facts to indicate that the alleged error is "a clear and fundamental constitutional error that strikes at the heart of the trial process," and the claim does not fall within any of the exceptions to the Dixon bar. (In re Harris, 5 Cal.4th at 834, 836, 838-39, 841.)*fn33
Murphy presents the same arguments before this Court. Not only is Murphy procedurally barred from raising this issue, but he fails to point to anywhere in the record where it indicates that the jury pool viewed Murphy in shackles. Nor, does he point to anything in the record that supports his implicit contention that he was, in fact, out on bail. But, perhaps more telling, as the Sacramento Superior Court noted, Murphy has not even asserted any prejudice as a result of these alleged transgressions. Given that this Court will not presume error on the part of the state courts and that Murphy has the burden of proof by a preponderance of the evidence that a constitutional error occurred, not only is Murphy's second ground procedurally barred, but he is not entitled to relief on the merits in any event.
Ground 3: Denial of Right to Present a Defense Prior to trial, the trial court ruled that, with respect to Murphy's parole officer, she would be permitted to testify as to a telephone call from Murphy on the night of the crime that was preserved on her answering machine, limited to the fact that he sounded hysterical for the limited purpose of showing his state of mind, but not as to the content of the message. The parole officer would not, however, be permitted to testify as to how well Murphy was doing on parole, as that testimony was not relevant.*fn34 An investigating police officer was called as a witness by the defense. During direct examination, defense counsel asked the officer if he had spoken to Murphy that evening, to which an objection was made on the grounds of hearsay and sustained.*fn35 The Defense then rested.
Murphy argues that, without the parole officer's testimony, which gave the jury a look into his behavior while on parole, the prosecution was somehow permitted to infer his guilt by standing on his right not to testify. Murphy further argues that the refusal of the trial court to permit the investigating officer to testify that the officer had talked to Murphy that night coupled with the failure of defense counsel to introduce into evidence the police report showing that contact could have possibly exonerated him by showing that he was voluntarily in touch with the police that night. The flaw in Murphy's argument is that, although it might have had some relevance to Murphy's character, nothing in the excluded evidence even remotely touches upon a fact relevant to the issues of the case, i.e., whether or not Murphy assaulted the victim. Because the evidence was not relevant to any contested, material issue in the case, their exclusion could hardly have been prejudicial or, conversely, their inclusion could not have established factual innocence. Murphy is not entitled to relief under his third ground.
Ground 4: Use of Perjured Testimony
Pointing to alleged inconsistencies between various statements the victim made before trial and at trial, Murphy contends that the prosecution knowingly used false testimony. Even if this Court were to overlook the procedural default, Murphy would not prevail. "[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."*fn36 The essential elements of prosecutorial misconduct are that (1) the testimony is false or perjured, (2) the prosecutor knew that the testimony was false or perjured, and (3) the false testimony was material.*fn37 Here, all Murphy can point to are inconsistencies between statements before trial and during trial. This, standing alone, is simply insufficient to establish that the prosecutor knowingly used false or perjured testimony.*fn38 Murphy is not entitled to relief under his fourth ground. Ground 7: Blakely-Cunningham Violation/Disproportionate Sentence Murphy contends that he was sentenced to the upper term based upon facts not found to be true by the jury and that his sentence was disproportionate to other sentences for the same or similar conduct. In rejecting Murphy's argument, the Sacramento County Superior Court held: [Murphy] claims that the trial court increased his sentence on the basis of facts found by the trial judge and not the jury, and this sentence was "disproportionate to other sentences for the same conduct."
In response to Cunningham v. California (2007) 549 U.S. 270, the Legislature amended Penal Code section 1170(b), which requires a court to use its discretion in selecting "one of three authorized terms" for an offense and set forth its reasons for imposing the selected term. (Pen. Code § 1170(b).) A judge may use a fact admitted by the defendant to elevate a sentence above the statutory maximum authorized by a jury's verdict. (People v. Sandoval (2007) 41 Cal.4th 825, 836.) The right to a jury trial and proof beyond a reasonable doubt does not apply to the "aggravating fact of a prior conviction" or to the aggravating fact of a defendant being on parole at the time of the ...