United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for burglary and conspiracy to commit burglary. ECF No. 1 at 2. The petition alleges that trial counsel was ineffective for failing to seek to exclude petitioner's prior convictions. ECF No. 1 at 3. Respondent has answered, ECF No. 17, and petitioner has filed a traverse, ECF No. 21.
For the reasons that follow, the undersigned recommends that the petition be denied.
I. Factual Background
Petitioner was charged with first degree burglary, with an enhancement because another person other than an accomplice was present in the residence; conspiracy to commit burglary; and resisting or obstructing a peace officer. C.T. 81-83. The information also alleged five enhancements based on petitioner's prior prison terms. C.T. 83-84.
During motions in limine, defense counsel acknowledged that if petitioner chose to testify, he would be subject to impeachment with his prior convictions. 1 R.T. 10. Petitioner's record included misdemeanor and drug convictions from the early 1980's and mid-1990's, as well as five felony convictions between 2000 and 2008. 1 R.T. 10-12. One felony conviction was for petty theft with a prior. 1 R.T. 10; C.T. 161-162. The other four felony convictions were for burglary. 1 R.T. 11.
Defense counsel recognized that it would be "realistic to expect some of [petitioner's] prior convictions to be used for impeachment" purposes, but asked that the court not admit his entire record. 1. R.T. 10. He argued that use of petitioner's entire record would be cumulative and requested that the court limit impeachment to crimes of moral turpitude that occurred within the past ten years. 1 R.T. 10-11. The district attorney argued that the convictions showed a "complete lack of any time period where [petitioner] was not committing and being convicted" of crimes of moral turpitude. 1 R.T. 11-12. The trial court ruled that if petitioner chose to testify, the district attorney would be allowed to impeach him only with felonies committed between 2000 and 2008. 1. R.T. 12.
At trial, petitioner testified that he had been mad at the victim and told his friend to throw a flower pot through her window, 2 R.T. 326, but maintained that he did not burglarize her house and had no intent to do so, 1 R.T. 295. During direct examination, petitioner testified that he had been on probation for burglary, but never for residential burglary. 1 R.T. 282, 300. On cross, petitioner admitted that he had been convicted five times between 2000 and 2008,  and that four of those convictions were for burglary. 2 R.T. 307-308. When the district attorney asked petitioner if he committed burglaries every time he had been out of custody for the past 10 to 12 years, he answered in the affirmative. 2. R.T. 308. Defense counsel did not object or seek a limiting instruction with respect to this testimony.
On July 1, 2010, the jury found petitioner guilty on all counts. 2 R.T. 408-409. Following the jury trial, petitioner admitted the enhancement allegations based on his prior prison terms. 2 R.T. 414-415, 417. Petitioner was sentenced to an aggregate term of 11 years in state prison. 2 R.T. 436.
II. Direct Appeal
Petitioner timely appealed, and the California Court of Appeal for the Third Appellate District affirmed the conviction in an unpublished opinion dated August 11, 2011. Lodged Doc. No. 2. Petitioner did not appeal to the California Supreme Court on direct review. ECF No. 10 at 1-2; ECF No. 14 at 2.
III. State Habeas Proceedings
Petitioner filed a state habeas petition in the California Court of Appeal for the Third Appellate District, Lodged Doc. No. 3, which was summarily denied on December 22, 2011, Lodged Doc. No. 4. Petitioner later filed a habeas petition with the California Supreme Court, Lodged Doc. No. 5, which ...