The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se and in forma pauperis on his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the undersigned recommends that the petition be DENIED and that a certificate of appealability not issue.
Petitioner was convicted by jury in 2006 of rape, lewd and lascivious acts with a child, battery, kidnaping, and related charges. II CT 494-500, 580, 618-21. In 2007, the trial court sentenced petitioner to a determinate term of 26 years and eight months, plus an indeterminate term of 75 years to life. III CT 618-21.
Petitioner was born in Russia in 1957, and emigrated to the United States in 1994.
III CT 604. At the time of his trial, petitioner did not speak, read, or write English. ECF No. 1 at 12. During the fourteen-day trial, four different Russian interpreters translated proceedings for petitioner. E.g., II CT 373 (interpreter Alex Fesenko); 379 (interpreter Edward Hairullin); 416 (interpreters Irena Kravt and Elena Tzukan).
On November 5, 2006, the first day of trial proceedings and before a jury was seated, petitioner through his counsel indicated that he may want to represent himself. I RT 2:4-8:13. At that time, the trial court specifically advised petitioner that if his motion to represent himself was granted, he would not receive any continuances in order to acquaint himself with the trial materials. I RT 4:3-9; 7:23-26. Counsel continued for the petitioner until November 28, 2006, when petitioner orally made a Faretta*fn1 motion to waive his right to counsel. I RT 128:20-28; 163:3-176:13. After a colloquy, the trial court provided petitioner with written notice of various advisements. II CT 403; I RT 166:10-167:6, 170:21-176:13. The written advisements stated, among other things, that petitioner's "[p]enalties for offense if found guilty are 49 years 45 years to life." II CT 403.
The trial judge told petitioner that he would not rule on petitioner's Faretta motion until the following day, and advised petitioner to review the written warnings with the court's interpreter. I RT 166:10-167:6. On November 29, 2006, the trial court determined that petitioner had reviewed the written warnings, and granted the motion. I RT 175:16-176:13. The trial court also appointed petitioner's former counsel as advisory counsel. I RT 176:7-179:28; 180:3-22 (court advises petitioner that court has appointed advisory counsel; petitioner responds, "That's a wonderful idea, thank you."); I RT 208:20-209:11. The court also appointed a Conflict Criminal Defender's Investigator for petitioner. I CT 402; I RT 209:12-20.
On December 5, 2006, after the jury had been selected and seated, the prosecutor made her opening statement, and began direct examination of the state's first witness. II CT 418-19. After petitioner began his cross-examination, he asked the court for a continuance in order to make himself familiar with documents concerning the witness. 2 RT 301:17-303:12. The trial judge denied the request, noting that petitioner had had access to the material for weeks, if not years, and that he had previously advised petitioner that the trial would be moving forward with witnesses beginning that day. Id. After the trial judge denied petitioner's request, petitioner continued and concluded his examination of the witness. 2 RT 304:19-305:21. A review of the transcripts reflects that petitioner did not recall the witness at any later time.
On December 13, 2006, the jury returned verdicts convicting petitioner as charged on all counts but one, Count 12 (felony domestic abuse). II CT 494-500. As to Count 12, petitioner was convicted of the misdemeanor lesser offense of simple battery upon his wife. II CT 498. The jury found true the multiple victim "One Strike" circumstance as to four of the counts. II CT 495-97.
On February 2, 2007, the trial court sentenced petitioner to a determinate term of twenty six years and eight months, and an indeterminate term of 75 years to life. III CT 618-21; 3 RT 700:17-704:7. The indeterminate term consisted of five consecutive terms of 15 years to life. III CT 620-21; 3 RT 700:17-701:16.
Petitioner appealed, claiming among other things that his Faretta waiver was invalid because the trial court had incorrectly advised him about his possible indeterminate term. See Lod. Doc. 1. The California Court of Appeal initially reversed the convictions on three counts, and affirmed the remainder. See ECF No. 1 at 32-55. On October 21, 2008, after rehearing, the Court of Appeal issued a decision striking one count of child abuse, and reversing a conviction for one count of attempted rape. See Lod. Doc. 10. The indeterminate portion of petitioner's sentence was accordingly reduced from 75 years to life, to 60 years to life. See ECF No. 25 at 8-9.
The Court of Appeal found petitioner's claim that his Faretta waiver was invalid to be without merit, both upon initial consideration and upon rehearing. See ECF No. 1 at 38-42; Lod. Doc. 10 at 7-11.
On January 14, 2009, the state Supreme Court denied review of the Court of Appeal's decision. Lod. Doc. 12.
On March 23, 2010, petitioner constructively filed the current petition, noting that all claims, other than that challenging his Faretta waiver, were not exhausted. ECF No. 1 at 5. Petitioner also sought a stay in order to exhaust his issues before the state court. ECF No. 1 at 5, 21-22. On November 16, 2010, the court granted petitioner a stay while he completed exhaustion of his state court remedies. ECF No. 12.
On December 20, 2010, petitioner filed a petition for writ of habeas corpus with the state Supreme Court, raising the following issues: (1) petitioner's Sixth and Fourteenth Amendment rights were violated because he did not knowingly and intelligently waive his right to counsel before his Faretta motion was granted; (2) petitioner's due process and fundamental fairness rights were violated when the trial court denied his request for a continuance; (3) petitioner received ineffective assistance of his trial counsel, his appellate counsel, and his trial translator; and (4) petitioner's conviction constitutes a "miscarriage of justice" and a "manifest injustice." Lod. Doc. 13.
On June 15, 2011, the state Supreme Court denied the exhaustion petition in an unexplained "postcard denial" order. Lod. Doc. 15.
On July 25, 2011, this court ordered that the stay be lifted and the petition served. ECF No. 17. On November 10, 2010, respondent filed his answer (ECF No. 25), and on January 11, 2012, petitioner filed his traverse (ECF No. 30).
Petitioner now raises the following claims:
(1) The trial court violated petitioner's Sixth and Fourteenth Amendment rights when it granted his Faretta motion, because petitioner did not make a knowing and intelligent waiver (ECF No. 1 at 13-16);
(2) The trial court violated petitioner's constitutional rights to due process and "fundamental fairness" when it denied petitioner's request for a continuance after granting petitioner's Faretta motion (ECF No. 1 at 16-18);
(3) Petitioner's Sixth Amendment rights were violated when he received ineffective assistance of his trial counsel, his appellate counsel, and his trial translators (ECF No. 1 at 18-20); and
(4) "Petitioner's conviction constitutes a 'miscarriage of justice' and 'manifest injustice'" (ECF No. 1 at 20-21).
In his introduction, petitioner claims that he is "actually and factually innocent" of the charged crimes, and that his convictions "stem from a long running domestic dispute, stemming from 'bad-blood' between Petitioner and the victims." ECF No. 1 at 12. However, petitioner does not provide any further information or argument in support of his assertion that he is actually innocent of the crimes for which he was convicted. Accordingly, the undersigned does not construe the innocence rhetoric in the introduction to the petition as stating a free-standing claim for relief.
Respondent does not dispute that the petition is timely, and concedes that petitioner has exhausted his state remedies. See ECF No. 25.
STANDARDS GOVERNING THE AVAILABILITY OF HABEAS RELIEF
A. Applicable Statutory Provisions
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
Section 2254(d) constitutes a "constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus." (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000). It does not, however, "imply abandonment or abdication of judicial review," or "by definition preclude relief." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).
The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 131 S. Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). ...