United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is a California state prisoner proceeding pro se with an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The action proceeds on the petition filed on
March 18, 2016,  ECF No. 1, which challenges
petitioner's 2013 conviction for exhibiting lewd material
to a minor in violation of Cal. Penal Code § 288.2(a);
persuading a minor to model for matter containing sexual
material in violation of Cal. Penal Code § 311.4(c); and
twenty-eight counts of lewd acts with a child under age 14 in
violation of Cal. Penal Code § 288(a). Respondent has
answered, ECF No. 17, and petitioner has filed a traverse,
ECF No. 21.
Proceedings In the Trial Court
initially pled not guilty to the charges against him on June
7, 2013. Then, on October 10, 2013, petitioner entered a no
contest plea to all charges. He was sentenced to twenty-four
years and eight months on December 13, 2013.
timely appealed, and asked the California Court of Appeal,
pursuant to People v. Wende, 25 Cal.3d 436, to
review the record and determine whether there were any
arguable issues on appeal. On August 25, 2014, the court of
appeal issued a decision in which it found several sentencing
errors, but affirmed the judgment of conviction. Lodged Doc.
11, 2015, petitioner filed a petition for writ of habeas in
the Superior Court of Sacramento County. Lodged Doc. 5.
Therein, he argued that: (1) his trial counsel was
constitutionally ineffective by failing to conduct an
independent investigation and by giving him erroneous advice
which compelled him to plead no contest; (2) his appellate
counsel was ineffective by failing to raise the deficiencies
of his trial counsel on direct appeal; and (3) his Sixth
Amendment right to counsel was violated when police secretly
recorded a phone conversation between himself and the victim.
ECF No. 1 at 64-74. The superior court denied this petition in
a written decision on August 5, 2015. Lodged Doc. 6.
next filed a habeas petition in the California Court of
Appeal, which was summarily denied without citation on
October 9, 2015. Lodged Docs. 7 & 8. Petitioner then
filed a habeas petition in the California Supreme Court,
which was summarily denied on March 9, 2016. Lodged Docs.9
operation of the prison mailbox rule, the instant federal
petition was filed March 18, 2016. ECF No. 1. Respondent
answered on August 19, 2016. ECF No. 17. Petitioner's
traverse was docketed on October 18, 2016. ECF No. 21.
GOVERNING HABEAS RELIEF UNDER THE AEDPA
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;
(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.
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, 562 U.S. 86, 99
(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)). “The
presumption may be overcome when there is reason to think
some other explanation for the state court's decision is
more likely.” Id. at 785.
phrase “clearly established Federal law” in
§ 2254(d)(1) refers to the “governing legal
principle or principles” previously articulated by the
Supreme Court. Lockyer v. Andrade, 538 U.S. 63,
71-72 (2003). Only Supreme Court precedent may constitute
“clearly established Federal law, ” but courts
may look to circuit law “to ascertain
whether…the particular point in issue is clearly
established by Supreme Court precedent.” Marshall
v. Rodgers, 133 S.Ct. 1446, 1450 (2013).
court decision is “contrary to” clearly
established federal law if the decision “contradicts
the governing law set forth in [the Supreme Court's]
cases.” Williams v. Taylor, 529 U.S. 362, 405
(2000). A state court decision “unreasonably
applies” federal law “if the state court
identifies the correct rule from [the Supreme Court's]
cases but unreasonably applies it to the facts of the
particular state prisoner's case.” Id. at
407-08. It is not enough that the state court was ...