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Price v. Miller

United States District Court, C.D. California

February 22, 2017

AMY MILLER, Warden, Respondent.


          ALICIA G. ROSENBERG United States Magistrate Judge

         Petitioner filed a petition for writ of habeas corpus. Respondent filed an answer and Petitioner filed a reply.[1] The matter was taken under submission.



         On 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.)

         On May 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).

         On 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. (LD 11.)



         The 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.

         South County Checks

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 a burglary.
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.

         Rovenstine Roofing Checks

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 arrested.


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 number.”
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.



         A 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).

         “‘[C]learly 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).

         A state 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).

         Under 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).

         “In 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 omitted).

         “Under § 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.

         “Factual 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).

         In 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).



         The 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).[2]

         To 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).

         “‘Judicial 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.

         To 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.

         A court 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.

         A. GROUND ONE: Inflammatory Remarks

         To understand Petitioner's allegations in Ground One, one first needs to ...

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