United States District Court, C.D. California
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS
G. ROSENBERG United States Magistrate Judge
filed a petition for writ of habeas corpus. Respondent filed
an answer and Petitioner filed a reply. The matter was
taken under submission.
October 22, 2010, a San Luis Obispo County jury found
Petitioner guilty of seven counts of check forgery or
counterfeiting and found true that Petitioner had committed
felonies while on bail. (Lodged Document (“LD”)
17 at 158-61, 164-67.) Petitioner was sentenced to 10 years,
4 months in prison. (LD 17 at 284.)
7, 2012, the California Court of Appeal affirmed the judgment
with modifications as to restitution, fees, and conduct
credits. People v. Price, 2012 Cal.App. Unpub. LEXIS
3433 (May 7, 2012). On July 18, 2012, the California Supreme
Court denied review. People v. Price, 2012 Cal.
LEXIS 7034 (July 18, 2012).
January 3, 2013, the Superior Court denied a state habeas
petition. (LD 7.) On August 19, 2013, the California Court of
Appeal denied a habeas petition. (LD 9.) On February 11,
2014, the California Supreme Court denied a habeas petition.
California Court of Appeal set forth the following facts on
direct appeal. To the extent that an evaluation of
Petitioner's claims depends on an examination of the
record, the Court has made an independent evaluation of the
record specific to Petitioner's claims.
Deborah Love was executive director of the South County
Family Educational and Cultural Center (South County). Only
she was authorized to write checks on South County's
accounts. Love did not know Price and did not authorize any
checks payable to him. On November 30, 2009, Love was
notified that some South County checks had been stolen during
The Pocketbook Market had a check cashing service. On
December 18, 2009, the market cashed a South County check for
Price in the amount of $1, 080.57. Later that afternoon, an
employee of the market learned the check contained a
nonexistent address. On January 14, 2010, Price returned to
the market and tried to cash two more South County checks.
The employee took the checks, told Price they were forged,
and called the police. Price left the market.
The Carniceria La Meza Market also had a check cashing
service. In early January 2010, Price cashed four South
County checks at the market. The amounts ranged from $538.17
to $981.19. Market employees later learned the checks were
not good. On January 14, 2010, Price returned to the market
and tried to cash two more South County checks. He was told
to return the next day. When Price returned the next day, the
police arrested him. The police advised him of his rights
pursuant to Miranda v. Arizona (1966) 384 U.S. 436,
and Price agreed to talk. Price admitted to the police that
he received the checks from someone he should not have been
involved with, and that the checks were “criminal in
nature.” Price said, “if you keep up this type of
activity, eventually you will be arrested.” Price did
not want to talk further.
While out on bail, on June 21, 2010, Price deposited a check
at a Coast National Bank branch and received $300 in cash
back. The check was drawn on the account of Rovenstine
Roofing. A day later, the teller who deposited the check
learned it was fraudulent.
On June 22, 2010, Price deposited another check drawn on
Rovenstine Roofing's account at a different branch of
Coast National Bank. He received $747 in cash back. A bank
employee knew the owner of Rovenstine Roofing. She noticed
the signature on the check was not that of the owner. She
called the owner and verified that the check was fraudulent.
On the same day, Price attempted to deposit another
Rovenstine Roofing check at another branch of the same bank.
He wanted to receive the majority of the money in cash back.
A bank employee was aware of what had been happening at other
branches. A bank supervisor called the police and Price was
Michael Fleming was released from prison on May 15, 2010.
Shortly thereafter Price loaned Fleming $5, 000. About a
month later, Price told Fleming he needed the loan repaid.
Fleming gave Price three forged checks bearing the name
Rovenstine Roofing for $947.63 each. Fleming got the name
Rovenstine Roofing from the telephone book, but he told Price
he worked for the company. Fleming did not tell Price the
checks were forged. Price asked Fleming, “Are [the
checks] going to clear?” Fleming replied, “Yes,
they are going to clear. They have a correct account
Fleming testified the $5, 000 loan was not for an illegal
purpose. He and his wife have a daughter, and his wife was
pregnant with their son. They were living in a hotel. He
needed the loan to improve their living situation.
Price, 2012 Cal.App. Unpub. LEXIS 3433, at *1-*4.
federal court may not grant a petition for writ of habeas
corpus by a person in state custody with respect to any claim
that was adjudicated on the merits in state court unless it
(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.” 28 U.S.C. § 2254(d); Harrington
v. Richter, 562 U.S. 86, 100 (2011).
established Federal law' . . . is the governing legal
principle or principles set forth by the Supreme Court at the
time the state court rendered its decision.”
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003);
see Greene v. Fisher, 565 U.S. 34, 40 (2011)
(examining Supreme Court precedent as of the date of the last
state court decision on the merits of the claim). Clearly
established federal law includes only the holdings, as
opposed to the dicta, of Supreme Court decisions. White
v. Woodall, 134 S.Ct. 1697, 1702 (2014).
court's decision is “contrary to” clearly
established Federal law if (1) it applies a rule that
contradicts governing Supreme Court law; or (2) it
“‘confronts a set of facts . . . materially
indistinguishable'” from a decision of the Supreme
Court but reaches a different result. Early v.
Packer, 537 U.S. 3, 8 (2002) (per curiam) (citation
omitted). A state court's decision cannot be contrary to
clearly established Federal law if there is a “lack of
holdings from” the Supreme Court on a particular issue.
Carey v. Musladin, 549 U.S. 70, 77 (2006).
the “unreasonable application prong” of section
2254(d)(1), a federal court may grant habeas relief
“based on the application of a governing legal
principle to a set of facts different from those of the case
in which the principle was announced.”
Andrade, 538 U.S. at 76; see also Rompilla v.
Beard, 545 U.S. 374, 380 (2005) (“An
‘unreasonable application' occurs when a state
court identifies the correct governing legal principle from
this Court's decisions but unreasonably applies that
principle to the facts of petitioner's case.”)
(citation and some quotation marks omitted).
order for a federal court to find a state court's
application of [Supreme Court] precedent ‘unreasonable,
' the state court's decision must have been more than
incorrect or erroneous.” Wiggins v. Smith, 539
U.S. 510, 520 (2003). “The state court's
application must have been ‘objectively
unreasonable.'” Id. at 520-21 (citation
§ 2254(d), a habeas court must determine what arguments
or theories supported or, [in the case of an unexplained
denial on the merits], 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 [Supreme] Court.”
Richter, 562 U.S. at 102. “[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.” Id. at 103.
determinations by state courts are presumed correct absent
clear and convincing evidence to the contrary, §
2254(e)(1), and a decision adjudicated on the merits in a
state court and based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court
proceeding, § 2254(d)(2).” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
applying these standards, this court looks to the last
reasoned state court decision. Davis v. Grigas, 443
F.3d 1155, 1158 (9th Cir. 2006). To the extent no such
reasoned opinion exists, as when a state court rejected a
claim without explanation, this court must conduct an
independent review to determine whether the decisions were
contrary to, or involved an unreasonable application of,
“clearly established” Supreme Court precedent.
Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013);
Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011).
If the state court declined to decide a federal
constitutional claim on the merits, this court must consider
that claim under a de novo standard of review rather
than the more deferential “independent review” of
unexplained decisions on the merits. Cone v. Bell,
556 U.S. 449, 472 (2009); see also Lewis v. Mayle,
391 F.3d 989, 996 (9th Cir. 2004) (standard of de
novo review applicable to claim state court did not
reach on the merits).
ASSISTANCE OF COUNSEL
Petition contains five grounds based primarily on ineffective
assistance of counsel. Petitioner contends that his counsel
was ineffective for (1) making inflammatory remarks that
Petitioner received forged checks in exchange for drugs; (2)
calling Officer Lopez as a witness at trial; (3) failing to
call Petitioner to testify; (4) failing to interview a bank
manager and Roger Feldtmose; and (5) failing to object to
CALCRIM 3406. Petitioner alleges trial court error in
connection with subclaims (3) and (5).
succeed on a claim of ineffective assistance of counsel,
Petitioner must demonstrate that his attorney's
performance was deficient and that the deficiency prejudiced
the defense. Wiggins, 539 U.S. at 521;
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Petitioner bears the burden of establishing both components.
Williams v. Taylor, 529 U.S. 362, 390-91 (2000);
Smith v. Robbins, 528 U.S. 259, 285-86 (2000).
scrutiny of counsel's performance must be highly
deferential, ' and ‘a court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.'”
Knowles v. Mirzayance, 556 U.S. 111, 124 (2009)
(citation omitted). A petitioner “must overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial
strategy.'” Strickland, 466 U.S. at 689
(citation omitted). “‘The proper measure of
attorney performance remains simply reasonableness under
prevailing professional norms.'” Knowles,
466 U.S. at 124 (citation omitted). Strickland “calls
for an inquiry into the objective reasonableness of
counsel's performance, not counsel's subjective state
of mind.” Richter, 562 U.S. at 110.
establish prejudice, a petitioner must establish a
“reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. “In assessing prejudice under
Strickland, the question is not whether a court can
be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might
have been established if counsel acted differently. Instead,
Strickland asks whether it is ‘reasonably
likely' the result would have been different. This does
not require a showing that counsel's actions ‘more
likely than not altered the outcome, ' but the difference
between Strickland's prejudice standard and a
more-probable-than-not standard is slight and matters
‘only in the rarest case.' The likelihood of a
different result must be substantial, not just
conceivable.'” Richter, 562 U.S. at 112.
need not address both deficiency and prejudice if a
petitioner makes an insufficient showing on one.
Strickland, 466 U.S. at 697. “The question is
whether there is any reasonable argument that counsel
satisfied Strickland's deferential
standard.” Richter, 562 U.S. at 105.
GROUND ONE: Inflammatory Remarks
understand Petitioner's allegations in Ground One, one
first needs to ...