The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
I. BACKGROUND/PRIOR PROCEEDINGS
Presently before this Court is Robert James Menefee's Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254, filed pro se in February 2012.
On February 2, 2009, Menefee was convicted by a jury of corporal injury of a spouse (Cal. Pen. Code § 273.5(a)), making a criminal threat (Cal. Pen. Code § 422), violating a protective order (Cal. Penal Code § 273.6), and attempting to prevent and dissuade a victim/witness from making a report (Cal. Pen. Code § 136.1(b)(1)). On February 6, 2009, in a bifurcated trial, Menefee was found to have a prior serious felony conviction for first-degree burglary, subjecting him to the provisions of California Penal Code §§ 667(a), (b)-(I) (imposing a 5-year enhancement for each conviction for a serious felony where the defendant has previously been convicted of a serious felony), and § 1170.12 (California's Three Strikes law).
The trial court sentenced Menefee to state prison for the upper term of four years on his corporal injury on a spouse conviction, doubled to eight years based on his prior strike; a consecutive one-third of the middle term (eight months) for his criminal threat conviction, doubled to 16 months based on his prior strike; and a consecutive term of five years based on the § 667(a) enhancement. The trial court imposed 146 days of concurrent jail time for Menefee's two misdemeanor convictions.
Menefee is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Calipatria State Prison.
In his petition filed with this Court, Menefee reiterates the ten ineffective assistance of counsel claims which he raised on direct appeal, and which the California Court of Appeal denied in a reasoned decision. He claims trial counsel was ineffective for: (1) failing to procure a handwriting expert in time for trial; (2) failing to use California Evidence Code § 1417 in the absence of a handwriting expert, which would have allowed the jury to compare handwriting samples; (3) failing to listen to the tape recording between Ashley Rosales and Menefee prior to trial; (4) failing to realize medical records had been admitted into evidence and making inappropriate statements in closing argument; (5) eliciting testimony from Okimma Menefee that Menefee had been on parole; (6) continuing to question Okimma about Menefee's parole status; (7) cross-examining Okimma about Menefee's prior acts; (8) failing to assert the clergy/penitent privilege for Rose Woodward's testimony; (9) failing to object to the giving of an instruction relating to Menefee's absence at trial; and (10) failing to fully advise him of the potential sentencing consequences of his prior conviction.
Menefee brought these claims on direct appeal, and the California Court of Appeal denied all claims in a reasoned decision. The California Supreme Court denied Menefee's Petition for Review without comment. Menefee did not file a Petition for Writ of Habeas Corpus with any state court.
In his petition filed with this Court, Menefee argues that this Court should reverse his conviction and remand with an order directing that he be allowed the benefit of a plea bargain of which he claims he was not fully advised.
Respondent has answered, and Menefee has replied.
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," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
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." Williams, 529 U.S. at 412. 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. Early v. Packer, 537 U.S. 3, 10 (2002). 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.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted). In applying these standards in habeas review, this Court reviews this "last reasoned decision" by the state court. Robinson v. Ignacio, 360 F.3 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). 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. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Under Strickland v. Washington, to demonstrate ineffective assistance of counsel, Menefee must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. Menefee must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either one of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding: The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard. Id. (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
The Supreme Court, applying the "doubly deferential standard," has made clear that when adjudicating ineffective assistance of counsel claims in federal habeas proceedings, unlike the situation on direct review, the focus is not on whether counsel's performance fell below the Strickland standard. Rather, the focus is on whether the state-court decision holding that counsel was not ineffective constituted an "unreasonable application of federal law[,] [which] is different from an incorrect application of federal law." Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (emphasis in the original).
Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.
Menefee bears the burden of proving that counsel's trial strategy was deficient. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. "[He] bears the heavy burden of proving that counsel's assistance was neither reasonable nor the result of sound trial strategy." Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001). "In determining whether the defendant received effective assistance of counsel, 'we will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight,' but rather, will defer to counsel's sound trial strategy." Id. (quoting Strickland, 466 U.S. at 689). "Because advocacy is an art and not a science, and because the ...