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Steven Lawrence Garduno v. Mike D. Mcdonald

November 30, 2012

STEVEN LAWRENCE GARDUNO, PETITIONER,
v.
MIKE D. MCDONALD, WARDEN, HIGH DESERT STATE PRISON, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Steven Lawrence Garduno, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Garduno is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the High Desert State Prison. Respondent has answered, and Garduno has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Garduno was convicted by a Sacramento County jury of assault with a firearm (Cal. Penal Code § 245(a)(2)), committing the crime while personally armed with a firearm (Cal. Penal Code § 12022.5(a), (d)), and being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)). The jury also found true that Garduno had suffered two prior serious felony convictions (Cal. Penal Code § 667(a)-(I)) and two prior prison terms (Cal. Penal Code § 667.5(b)). In February 2009 the Sacramento County Superior Court sentenced Garduno under California's "three-strikes" law to an aggregate indeterminate prison term of forty-one years to life. The California Court of Appeal, Third Appellate District, affirmed Garduno's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on April 22, 2010. On August 16, 2010, Garduno filed a petition for habeas relief in the Sacramento County Superior Court, which was denied in an unreported, reasoned decision on September 28, 2010. Garduno then filed a petition for habeas relief in the California Court of Appeal on October 17, 2010, which was summarily denied without opinion or citation to authority on November 4, 2010, and the California Supreme Court denied review on January 19, 2011. Garduno timely filed his Petition for relief in this Court on February 13, 2011, and his Amended Petition on March 31, 2011.

The facts underpinning the crimes of which Garduno was convicted in this case are not germane to the issues raised in Garduno's Petition. Accordingly, they are not repeated here.

II. GROUNDS RAISED/AFFIRMATIVE DEFENSES

In his Amended Petition Garduno raises six grounds: (1) he received ineffective assistance of counsel in connection with his 1995 plea; (2) the evidence was insufficient to prove the that he made terrorist threats in 1995; (3) because trial counsel in this case failed to move to dismiss the 1995 conviction, he was ineffective; (4) the use of the 1995 conviction as a serious felony to enhance the sentence in this case violated the Sixth Amendment; (5) the 1995 conviction was a misdemeanor and its use to enhance the sentence violated the Sixth Amendment; and (6) in failing to challenge the 1995 conviction on appeal in this case, appellate counsel was ineffective. Respondent does not assert any affirmative defense.

III. STANDARD OF REVIEW

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."*fn2 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."*fn3 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.*fn4 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.'"*fn5 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."*fn6 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.*fn7 "[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.'"*fn8 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.*fn9 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.*fn10

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.*fn11

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn12 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.*fn13 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.*fn14

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.*fn15

This is considered as the functional equivalent of the appeal process.*fn16 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.*fn17 This ...


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