“[A] state court’s interpretation of state law, 15 including one announced on direct appeal of the challenged conviction, binds a federal 16 court sitting in habeas corpus.”
How later courts described this case
- “[A] state court’s interpretation of state law, 15 including one announced on direct appeal of the challenged conviction, binds a federal 16 court sitting in habeas corpus.”
- holding mere errors in the application of state law are not 14 cognizable on habeas corpus
- “the 27 / / / 28 / / / 1 finding of a fact that renders a petitioner ineligible for resentencing deprives him or her 2 of an opportunity to have the trial court make a discretionary determination as to whether 3 he or she should be resentenced”
- overruled on other grounds by Andrade, 538 U.S. at 75–76
Written by the judges who cited it.
The opinion
1
2
3
4
5
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7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 WILLIAM JOSEPH BAUMER, Case No.: 3:19-cv-0870-CAB-WVG
12 Petitioner,
ORDER DENYING OF PETITION
13 v. FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF
14 RALPH DIAZ, Warden,
APPEALABILITY
15 Respondent.
16
17
18 I. INTRODUCTION
19 Petitioner William Joseph Baumer (“Petitioner” or “Baumer”), a state prisoner
20 proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
21 § 2254, challenging his 2001 sentence stemming from his conviction in San Diego
22
Superior Court case number SF141219. (See Pet. at 1, ECF No. 1.)1 On January 3, 2001,
23 Petitioner was sentenced to 78-years-to-life in prison under California’s Three Strikes
24 Law after being convicted of two counts of battery on a nonconfined person, one count of
25 possession of a weapon or sharp instrument while confined in a penal institution, and one
26
27
1 Page numbers for docketed materials cited in this Report and Recommendation refer to
28
1 count of manufacturing a weapon while confined in a penal institution. (See Pet., ECF
2 No. 1 at 1–2; see also Lodgment No. 1, ECF No. 7-1 at 249–50.)
3 In 2012, California voters passed Proposition 36, California’s Three Strikes
4 Reform Act. Baumer sought resentencing pursuant to the new law. (See Lodgment No.
5 1, ECF No. 7-1 at 21–49.) In his Petition, he argues the state courts’ denial of his request
6 for resentencing violated his rights under the United States Constitution. (See generally,
7 Pet., ECF No. 1.) The Court has reviewed the Petition, the Answer and Memorandum of
8 Points and Authorities in Support of the Answer, the Traverse, the lodgments, and all the
9 supporting documents submitted by both parties. For the reasons discussed below, the
10 Petition is DENIED.
11 II. FACTUAL BACKGROUND
12 This Court gives deference to state court findings of fact and presumes them to be
13 correct; Petitioner may rebut the presumption of correctness, but only by clear and
14 convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley,
15 506 U.S. 20, 35–36 (1992) (holding findings of historical fact, including inferences
16 properly drawn from those facts, are entitled to statutory presumption of correctness).
17 The California Court of Appeal summarized the facts as to Baumer’s underlying
18 convictions as follows:
19 On February 6, 1999, a correctional officer at the Richard J. Donovan
correctional facility conducted a search of Baumer’s one-person cell. The
20
officer found hidden in Baumer’s mattress an inmate-manufactured, seven
21 and a half-inch hard plastic object that had been sharpened to a point. The
officer believed that the item was intended to be a stabbing instrument.
22
23 On the night of April 3, 1999, a correctional officer was conducting a
routine count of inmates. As the officer walked by Baumer’s cell, he noticed
24
Baumer using an incendiary device to heat a black object. The officer saw
25 Baumer scrape the heated object on the floor to fashion a sharp, pointed
object that could be used as a weapon. The officer opined that Baumer was
26
fashioning the object in this manner in order to use the object as a weapon.
27 The following morning, the officer told a correctional sergeant about what
he had observed Baumer doing the night before.
28
1 conducAtet da rao suenadr c8h: 0o0f aB.mau.m oenr A’sp creill l4. , Tah daitf foefrfeicnet rc foorurencdt iaonn aolb ojeffcitc, ewr rapped
2
in cellophane and hidden inside a bottle of hand lotion, that appeared to be
3 an “inmate-manufactured weapon.” The object was approximately five and
three-quarters inches long, and had been sharpened to a point at one end.
4
5 In the afternoon of June 8, 1999, a correctional officer was removing
Baumer’s handcuffs through a slot in the cell door. Baumer pulled his hands
6
away from the officer, pulling the handcuffs and the officer’s hands into the
7 slot. In the process of doing this, Baumer caused the officer to suffer cuts
and abrasions to one of his hands. Baumer refused to return the handcuffs to
8
the officer. Eventually a correctional lieutenant was called, and the
9 lieutenant was able to convince Baumer to return the handcuffs.
10
On June 11, 1999, while the same officer who had been injured by
11 Baumer’s pulling his hands and handcuffs through the cell slot was escorting
Baumer to the shower, Baumer verbally threatened the officer, telling him
12
that he would “kick [his] ass even with handcuffs on.” Baumer made verbal
13 threats the entire time as they walked to the shower area. After the officer
locked Baumer inside the shower area, Baumer turned around and spat in the
14
officer’s face.
15
The April 3 and 4, 1999 incidents led to the charges alleged in counts
16
3 and 4. The June 8 and June 11, 1999 incidents led to the charges alleged
17 in counts 1 and 2.
18
19 (Lodgment No. 6, ECF No. 7-7 at 3–5.)
20 III. PROCEDURAL HISTORY
21 On June 19, 2000, a jury found Baumer guilty of two counts of battery on a
22 nonconfined person by a prisoner (Cal. Penal Code § 4501.5 (counts one and two)). (See
23 Lodgment No. 1, ECF No. 7-1 at 1–2, 9.) The jury further found true the special
24 allegations that Petitioner had suffered three prison priors and two “strike” priors (Cal.
25 Penal Code §§ 667(b)–(i), 667.5(b)). (Lodgment No. 1, ECF No. 7-1 at 221–25.)
26 Baumer also pleaded guilty to possession of a weapon or sharp instrument while confined
27 in a penal institution (Cal. Penal Code § 4502(a) (count three)), and manufacturing a
28 weapon while confined in a penal institution (Cal. Penal Code § 4502(b) (count four)).
1 (Lodgment No. 1, ECF No. 7-1 at 51–52, 216–17.) On January 3, 2001, the trial court
2 sentenced Baumer to 78-years-to-life in prison, pursuant to California’s Three Strikes
3 Law.2 (Id. at 249–50.)
4 On November 6, 2012, California voters approved Proposition 36, also known as
5 the Three Strikes Reform Act of 2012 (“Act”). See Cal. Penal Code § 1170.126
6 (codifying Proposition 36). The Act changed the requirements for sentencing a third
7 strike offender to an indeterminate prison term of 25-years-to-life. Under the original
8 three strikes law, an offender with two or more prior strikes who was convicted of any
9 new felony was subject to an indeterminate life sentence. People v. Yearwood, 213 Cal.
10 App. 4th 161, 167 (Cal. Ct. App. 2013). The Act “diluted the three strikes law by
11 reserving the life sentence for cases where the current crime [was] a serious or violent
12 felony or the prosecution ha[d] pled and proved an enumerated disqualifying factor. In
13 all other cases, the recidivist [would] be sentenced as a second strike offender.” Id. at
14 167–68.
15 On August 17, 2015, Baumer filed a petition to have his sentence modified under
16 the Act. (See Lodgment No. 1, ECF No. 7-1 at 21–49.) The trial court denied the
17 petition on January 12, 2016, concluding that, as to counts one and two, Baumer was
18 ineligible for resentencing under the Act because doing so would pose an unreasonable
19 risk of danger to public safety. (See Supp. Lodgment, ECF No. 13-1 at 25–29.) As to
20 counts three and four, the court denied the petition because it found that during the
21 commission of those crimes, Baumer was armed with a deadly weapon. (Id. at 12–13.)
22 Baumer appealed to the California Court of Appeal. (See Lodgment No. 3, ECF
23 No. 7-4.) His court-appointed appellate attorney argued (1) the trial court abused its
24 discretion in denying resentencing in counts one and two, (2) the trial court applied the
25
26
2 The court sentenced Baumer to consecutive 25-years-to-life terms for counts one, two
27 and three, plus three one-year terms for the prison priors found to be true. As for count
four, the 25-years-to-life term was stayed pursuant to California Penal Code section 654.
28
1 incorrect standard for determining Petitioner posed an “unreasonable risk of danger,” (3)
2 he had a right to jury determination on the dangerousness finding, (4) the trial court erred
3 in denying resentencing on counts three and four, and (5) a jury was required to find him
4 ineligibile for resentencing on counts three and four beyond a reasonable doubt. (See id.
5 at 16–62.) On June 28, 2017, the appellate court affirmed the trial court’s order denying
6 Baumer’s petition for sentence modification. (See Lodgment No. 6, ECF No. 7-7.) On
7 July 28, 2017, Baumer filed a petition for review in the California Supreme Court.
8 (Lodgment No. 7, ECF No. 7-8.) The California Supreme Court denied the petition for
9 review on October 11, 2017, without comment or citation. (Lodgment No. 8, ECF No. 7-
10 9.)
11 On August 27, 2018, Baumer filed a petition for writ of habeas corpus in the San
12 Diego County Superior Court. (Lodgment No. 9, ECF No. 7-10.) The court denied the
13 petition in a reasoned decision on October 11, 2018. (Lodgment No. 10, ECF No. 7-11.)
14 Baumer then filed a petition for writ of habeas corpus in the California Court of Appeal
15 on October 24, 2018. (Lodgment No. 11, ECF No. 7-12.) Baumer raised four grounds
16 for relief: (1) he was deprived of due process when the trial court denied him
17 resentencing on the battery counts because there was insufficient evidence he posed an
18 unreasonable risk of danger to the public, (2) the court erred in denying resentencing on
19 counts three and four because the court failed to make a factual finding he was armed
20 with a deadly weapon, (3) trial counsel was ineffective in failing to investigate and
21 present evidence he presented a low risk to public safety if released, (4) appellate counsel
22 was ineffective for failing to raise the previous three claims on appeal. (Lodgment No.
23 11, ECF No. 7-12 at 7–48.) On November 2, 2018, the appellate court denied the petition
24 in a reasoned decision, concluding the claims were procedurally barred and without
25 merit. (Lodgment No. 12, ECF No. 7-13 at 2–5.) Baumer filed a habeas petition in the
26 California Supreme Court on November 26, 2018, raising the same four claims he raised
27 in his petition to the appellate court. (Lodgment No. 13, ECF No.
28 / / /
1 7-14 at 9–50.) On April 24, 2019, the court denied the petition without comment or
2 citation. (Lodgment No. 14, ECF No. 7-15.)
3 On May 8, 2019, Baumer, proceeding pro se, filed the instant Petition for writ of
4 habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1.) Respondent
5 filed an Answer and Memorandum of Points and Authorities on July 15, 2019. (ECF No.
6 6-1.) On September 11, 2019, Petitioner filed a Traverse. (ECF No. 15.)
7 IV. SCOPE OF REVIEW
8 Baumer’s Petition is governed by the provisions of the Antiterrorism and Effective
9 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997).
10 Under AEDPA, a habeas petition will not be granted unless the adjudication: (1) resulted
11 in a decision that was contrary to, or involved an unreasonable application of clearly
12 established federal law; or (2) resulted in a decision that was based on an unreasonable
13 determination of the facts in light of the evidence presented at the state court proceeding.
14 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002).
15 A federal court is not called upon to decide whether it agrees with the state court’s
16 determination; rather, the court applies an extraordinarily deferential review, inquiring
17 only whether the state court’s decision was objectively unreasonable. See Yarborough v.
18 Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In
19 order to grant relief under § 2254(d)(2), a federal court “must be convinced that an
20 appellate panel, applying the normal standards of appellate review, could not reasonably
21 conclude that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d
22 992, 1001 (9th Cir. 2004).
23 A federal habeas court may grant relief under the “contrary to” clause if the state
24 court applied a rule different from the governing law set forth in Supreme Court cases, or
25 if it decided a case differently than the Supreme Court on a set of materially
26 indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant
27 relief under the “unreasonable application” clause if the state court correctly identified
28 the governing legal principle from Supreme Court decisions but unreasonably applied
1 those decisions to the facts of a particular case. Id. Additionally, the “unreasonable
2 application” clause requires that the state court decision be more than incorrect or
3 erroneous; to warrant habeas relief, the state court’s application of clearly established
4 federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75
5 (2003). “[A] federal habeas court may not issue the writ simply because that court
6 concludes in its independent judgment that the relevant state-court decision applied
7 clearly established federal law erroneously or incorrectly. Rather, that application must
8 also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court’s
9 determination that a claim lacks merit precludes federal habeas relief so long as
10 ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
11 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541
12 U.S. 652, 664 (2004)).
13 Where there is no reasoned decision from the state’s highest court, the Court
14 “looks through” to the underlying appellate court decision and presumes it provides the
15 basis for the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S.
16 797, 805–06 (1991). If the dispositive state court order does not “furnish a basis for its
17 reasoning,” federal habeas courts must conduct an independent review of the record to
18 determine whether the state court’s decision is contrary to, or an unreasonable application
19 of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th
20 Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75–76); accord Himes v.
21 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite
22 Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at
23 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts
24 [Supreme Court precedent,]” the state court decision will not be “contrary to” clearly
25 established federal law. Id. Clearly established federal law, for purposes of § 2254(d),
26 means “the governing principle or principles set forth by the Supreme Court at the time
27 the state court renders its decision.” Andrade, 538 U.S. at 72.
28 / / /
1 V. DISCUSSION
2 Baumer raises four claims in his Petition: (1) his due process rights were violated
3 when the state court improperly denied his request for resentencing on counts one and
4 two without finding some evidence of danger to public safety, (2) his due process rights
5 were violated when the state court found him ineligible for resentencing on counts three
6 and four based on insufficient evidence he was armed with a deadly weapon at the time
7 of the offenses, (3) his counsel at resentencing was ineffective, in violation of his Sixth
8 Amendment rights and (4) appellate counsel was ineffective, in violation of his Sixth
9 Amendment rights. (See generally, Pet., ECF No. 1.) Respondent argues claims one
10 and two are procedurally barred and not cognizable on federal habeas. (Mem. P. & A.
11 Supp. Answer, ECF No. 6-1 at 9–14.) Further, Respondent argues all four claims fail on
12 the merits. (See id.)
13 A. Claim One: Unreasonable Risk of Danger
14 In ground one, Petitioner argues the state court’s denial of his motion to recall his
15 sentence as to counts one and two under Proposition 36 (Cal. Penal Code §1170.126)
16 violated his right to Due Process under the United States Constitution. (Pet., ECF No. 1
17 at 12.) Baumer contends the trial court’s conclusion that he was not entitled to
18 resentencing on counts one and two because he posed an “unreasonable risk of danger to
19 the public” was based on insufficient evidence. (Id. at 12–29; see also Traverse, ECF
20 No. 15 at 13–17.)
21 Baumer raised this claim in his petition for writ of habeas corpus to the California
22 Supreme Court and it was denied without comment or citation. (Lodgment Nos. 13, 14,
23 ECF Nos. 7-14, 7-15.) This Court therefore looks through to the last reasoned state court
24 opinion to address the claim. See Ylst, 501 U.S. at 805–06. Here, that is the California
25 Court of Appeal’s denial of Baumer’s habeas petition. In its decision, the appellate court
26 concluded that because Baumer could have raised the claim on direct appeal, but failed to
27 do so, it was procedurally barred under In re Dixon, 41 Cal.2d 756, 759 (1953).
28 (Lodgment No. 12, ECF No. 7-13 at 3.) The court further held Baumer failed to state a
1 prima facie case on the merits of the claim, noting that the resentencing court reviewed
2 Baumer’s history and “found the violence involved in the crimes and disciplinary
3 violations Baumer committed while in prison and the manipulativeness he displayed at
4 trial and in prison made him unreasonably dangerous to public safety.” (Id. at 3.)
5 Respondent argues the claim is procedurally defaulted because the state appellate
6 court found it barred under Dixon, 41 Cal.2d at 759. (See Mem. P. & A. Supp. Answer,
7 ECF No. 6-1 at 12–14.) Under the procedural default doctrine, federal courts “will not
8 review a question of federal law decided by a state court if the decision of that court rests
9 on a state law ground that is independent of the federal question and adequate to support
10 the judgment.” Coleman v. Thompson, 501 U.S. 722729; Park v. California, 202 F.3d
11 1146, 1151 (9th Cir. 2000); see also Johnson v. Montgomery, 899 F.3d 1052, 1060 (9th
12 Cir. 2018) (recognizing that California’s Dixon bar is an adequate and independent state
13 law ground to bar federal habeas review); Cook v. Kernan, — Fed. App’x —, 2020 WL
14 354623, *1 (9th Cir. Jan. 21, 2020) (stating “California’s Dixon bar has been upheld as an
15 adequate and independent procedural ground capable of barring federal habeas review”).
16 In his Traverse, Baumer acknowledges the claim was procedurally barred in state
17 court but contends he should be excused from any possible procedural default on federal
18 habeas because he suffered cause and prejudice due to ineffective assistance of appellate
19 counsel for failure to raise the claim on direct appeal. 3 (See Traverse, ECF No. 15 at 8,
20 16.) This Court need not determine whether Petitioner can establish cause and prejudice
21 to excuse the default. The Ninth Circuit has indicated that: “Procedural bar issues are not
22
23
3 Federal courts may still review procedurally defaulted claims if the petitioner
24
meets one of two exceptions: (1) a showing of adequate legal cause for the default and
25 prejudice arising from the default, or (2) a showing of a miscarriage of justice. See
Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750. For ineffective
26
assistance of counsel to constitute cause, the ineffective assistance claim must have been
27 presented as an independent claim to the state courts and Petitioner must establish that his
attorney was “constitutionally ineffective under the standard established in Strickland v.
28
1 infrequently more complex than the merits issues presented by the appeal, so it may well
2 make sense in some instances to proceed to the merits if the result will be the same.”
3 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (citing Lambrix v. Singletary,
4 520 U.S. 518, 525 (1997) (stating that where it is easier to resolve a petitioner’s claims on
5 the merits, the interests of judicial economy counsel against deciding the often more
6 complicated issue of procedural default)). Here, the Court finds the interests of judicial
7 economy support denying the claim on the merits without determining whether Petitioner
8 can overcome the procedural default.
9 It is clear Baumer is not entitled to relief on the merits. First, to the extent that
10 Petitioner seeks to challenge the state courts’ specific determination that he was ineligible
11 for Proposition 36 resentencing on counts one and two, that claim is not cognizable
12 because it turns solely on the interpretation of state law. See Estelle v. McGuire, 502
13 U.S. 62, 67–68 (1991) (holding mere errors in the application of state law are not
14 cognizable on habeas corpus). Generally, whether a state court properly construed or
15 applied state sentencing law is a question of state law not subject to federal habeas
16 review. See Miller v. Vasquez, 868 F.2d 1116, 1118–19 (9th Cir. 1989); Cacoperdo v.
17 Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (concluding a state court’s sentence
18 determination was “matter of state criminal procedure and is not within the purview of
19 federal habeas corpus”). As such, challenges to Proposition 36 resentencing
20 determinations generally not cognizable on federal habeas. See Mueck v. Anglea, 2019
21 WL 3564013, at *2 (E.D. Cal. Aug. 6, 2019) (finding a petitioner’s claim that his due
22 process rights were violated when the resentencing court found him ineligible for
23 Proposition 36 resentencing because he was an “unreasonable risk of danger to public
24 safety” was not cognizable); Cowan v. Gastelo, 2018 WL 4185423, *5 (S.D. Cal. Aug.
25 13, 2018) (“[T]o the extent that Petitioner seeks to challenge the state courts’ specific
26 determination that he was ineligible for resentencing under Proposition 36, that claim is
27 not cognizable in this case because it turns solely on the interpretation of state law.”);
28 / / /
1 Foster v. California, 2018 U.S. Dist. LEXIS 74653, at *8 (C.D. Cal. May 2, 2018) (“A
2 claim premised on either Proposition 36 or Proposition 47 is not cognizable on federal
3 habeas review.”).
4 And Baumer may not, as he attempts to do here, convert a state law claim into a
5 federal one simply by characterizing his claims as federal constitutional violations. See
6 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“[The petitioner] may not . . .
7 transform a state-law issue into a federal one merely by asserting a violation of due
8 process”); see also Adams v. Borders, 2016 WL 4523163, at *8 (C.D. Cal. July 29, 2016)
9 (“The fact that Petitioner may be attempting to characterize his claim concerning
10 resentencing under Proposition 47 as a federal constitutional claim is not sufficient to
11 render it cognizable.”) (internal citation omitted). Furthermore, even if such a claim were
12 cognizable on federal habeas, the Court would be bound by the state court’s
13 determination that Petitioner was ineligible for resentencing under California law. See
14 Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation of state law,
15 including one announced on direct appeal of the challenged conviction, binds a federal
16 court sitting in habeas corpus.”).
17 In his Petition, Baumer argues his due process rights were violated because
18 Proposition 36 created a “liberty interest in resentencing.” (See Pet., ECF No. 1 at 14.)
19 The Supreme Court has held that state law may guarantee a defendant certain procedural
20 rights at sentencing which may not be arbitrarily denied under due process. See Hicks v.
21 Oklahoma, 447 U.S. 343, 346 (1980) (defendant may not be arbitrarily denied state-
22 created liberty interest in sentencing procedure); Swarthout v. Cooke, 562 U.S. 216, 220
23 (2011); see also Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). However, Baumer
24 fails to show that a liberty interest was created by Proposition 36. The California
25 Supreme Court has expressly held that Proposition 36, by its terms, “does not create an
26 entitlement to resentencing.” People v. Perez, 4 Cal. 5th 1055, 1064 (Cal. 2018) (“the
27 / / /
28 / / /
1 finding of a fact that renders a petitioner ineligible for resentencing deprives him or her
2 of an opportunity to have the trial court make a discretionary determination as to whether
3 he or she should be resentenced”).
4 Lastly, Baumer has failed to show the state court’s denial of resentencing was “so
5 arbitrary or capricious as to constitute an independent due process . . . violation.” See
6 Richmond v. Lewis, 506 U.S. at 50 (holding that a state court’s application of state law
7 does not rise to the level of a federal due process violation unless it was so arbitrary or
8 capricious as to constitute an independent due process violation). Proposition 36
9 authorizes an inmate currently serving an indeterminate term under the original Three
10 Strikes law to petition the trial court for resentencing in light of the narrowed class of
11 third-strike felonies for which an indeterminate sentence can be imposed. Cal. Penal
12 Code § 1170.126(a), (b). “Upon receiving such a petition, the trial court ‘shall determine
13 whether the petitioner satisfies the criteria’ for resentencing eligibility” under the revised
14 Three Strikes law.” Perez, 4 Cal. 5th at 1062 (citing Cal. Penal Code § 1170.126(e), (f)).
15 Then, “[i]f the petitioner is found eligible for resentencing, he or she ‘shall be
16 resentenced pursuant to Proposition 36 unless the court, in its discretion, determines that
17 resentencing the petitioner would pose an unreasonable risk of danger to public safety.’”
18 Id. (citing Cal. Penal Code § 1170.126(f)). Section 1170.126(g) then provides factors the
19 court may consider in determining whether resentencing would pose an unreasonable risk
20 of danger to public safety. It identifies: (1) consideration of a “petitioners criminal
21 conviction history, including the types of crimes committed, the extent of injury to
22 victims, the length of prior prison commitments, and the remoteness of the crimes;” (2)
23 the petitioner’s disciplinary and rehabilitation records while in custody; and (3) any other
24 evidence relevant to determining “whether a new sentence would result in an
25 unreasonable risk of danger to public safety.” Cal. Penal Code § 1170.126(g)(1)–(3).
26 Here, the court reviewed Baumer’s criminal history, his prison disciplinary records
27 and evidence of his progress while incarcerated and concluded:
28 [F]aced with all of the information I have now, both the good as well
1 aesm tphhea psirsio orn h pisutobrliyc, sI abfeeltiye vbee chaeu’sse a In d uonnr’eta tshoinnakb hlee rwisoku tlod pmuabilnitca sina fheitsy . The
2
behavior on the outside because I saw what he was doing before and the
3 reason why he would do it again. [¶] He’s manipulative. . . . So the bottom
line is at this particular stage I believe he’s still currently a danger.
4
5
(Supp. Lodgment, ECF No. 13-1 at 27–28.) Thus, the court reviewed Baumer’s history
6
and relevant facts, as required under section 1170.126(g). Petitioner’s criminal and
7
prison history was extensive, despite being somewhat remote in time. As the
8
prosecution noted, Baumer had at least 20 disciplinary write-ups between 1998 and
9
2011, including 13 “serious rules violations,” also known as “CDC 115” violations.4
10
(See Supp. Lodgment, ECF No. 13-1 at 14–16; see also Lodgment No. 1, ECF No. 7-1
11
at 112–13, 150–84.) In light of this history, it was not arbitrary or capricious for the
12
trial court to find Petitioner posed an unreasonable risk of danger to public safety. See
13
Richmond, 506 U.S. at 50. Nor was the state court’s determination based on an
14
unreasonable determination of the facts in light of the state court record. See Miller-El
15
v. Cockrell, 537 U.S. 322, 340 (2003) (holding a petitioner may only establish a
16
decision was based on an unreasonable determination of the facts after rebutting the
17
presumption of correctness by clear and convincing evidence).
18
In sum, the Court concludes Baumer has failed to state a cognizable claim on
19
federal habeas. Estelle, 502 U.S. at 67–68. In addition, the state court’s denial of
20
Baumer’s petition for sentence modification under Proposition 36 was neither contrary
21
to, nor an unreasonable application of, clearly established law. See 28 U.S.C.
22
/ / /
23
/ / /
24
25
26
4 A “CDC 115” refers to a California Department of Corrections and Rehabilitation rules
27 violation report that documents misconduct that is believed to be a violation of law or is
not minor in nature. See In re Roderick 154 Cal. App. 4th 242, 249, fn. 3 (Cal. Ct. App.
28
1 § 2254(d)(1); Williams, 529 U.S. at 407–08. Nor was the state court’s denial of the
2 claim based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2);
3 Miller-El, 537 U.S. at 340. Claim one is therefore DENIED.
4 B. Claim Two: Deadly Weapon
5 In his second claim, Baumer argues the trial court erred in concluding he was
6 ineligible for resentencing on counts three and four, amounting to a due process violation.
7 Specifically, he contends the court erroneously found he was ineligible for resentencing
8 on counts three and four because he was armed with a deadly weapon during the
9 commission of those crimes. (Pet., ECF No. 1 at 30–33; see also Traverse, ECF No. 15
10 at 17–19.) Petitioner raised this claim in his habeas corpus petition filed in the
11 California Supreme Court. (Lodgment No. 13, ECF No. 7-14 at 33–36.) The petition
12 was denied without comment or citation. (See Lodgment No. 14, ECF No. 7-15.) As
13 such, this Court “looks through” that silent denial to the decision of the appellate court
14 denying Baumer’s petition for writ of habeas corpus. See Ylst, 501 U.S. at 805–06.
15 The appellate court found the claim was procedurally barred as untimely and for
16 failure to raise the claim on direct appeal. (Lodgment No. 12, CF No. 7-13 at 2–3.) The
17 court further concluded the claim was without merit, stating that by pleading guilty to the
18 manufacture and possession of the weapon while in prison, “Baumer obviously was
19 present with the weapon and had it available for the use both when he manufactured it
20 and when he possessed it, his no contest plea established beyond a reasonable doubt that
21 he was armed at those times and therefore was ineligible for resentencing under
22 Proposition 36.” (Id. at 5.)
23 Respondent argues the claim is procedurally defaulted. (See Mem. P. & A. Supp.
24 Answer, ECF No. 6-1 at 12–15.) As with ground one, Baumer contends any procedural
25 default should be excused because counsel was ineffective in failing to raise the claim in
26 state court. (See Traverse, ECF No. 15 at 8, 16.) As discussed above, however, this
27 Court need not decide the procedural default issue because the claim clearly fails on the
28 merits. See Lambrix, 520 U.S. at 525 (stating that where it is easier to resolve a
1 petitioner’s claims on the merits, the interests of judicial economy counsel against
2 deciding the often more complicated issue of procedural default).
3 Baumer’s challenge to the state courts’ determination that he was ineligible for re-
4 sentencing fails for the same reason as ground one—it involves only an alleged error in
5 the application of state law, specifically, an alleged misapplication of California Penal
6 Code section 1170.126. As discussed above, matters relating to state sentencing law
7 generally are not cognizable on federal habeas review. Estelle, 502 U.S. at 67–68 (“[I]t is
8 not the province of a federal habeas court to reexamine state-court decisions on state-law
9 grounds.”); Miller, 868 F.2d at 1118–19; Souch v. Schaivo, 289 F.3d 616, 622–23 (9th
10 Cir. 2002) (state prisoner’s challenge to trial court’s exercise of discretion under state
11 sentencing law fails to state federal habeas claim); see also, e.g., Jones v. Superior Court,
12 2016 WL 7638205, at *2 (C.D. Cal. Nov. 17, 2016) (petitioner’s contention that he was
13 entitled to resentencing under Proposition 36 was not cognizable as it challenged only a
14 state sentencing issue); Williams v. Valenzuela, 2018 WL 2059644, at *5 (C.D. Cal. Mar.
15 23, 2018).
16 Furthermore, even assuming the claim is cognizable, Baumer has failed to establish
17 the state court’s purported misapplication of the resentencing law was “so arbitrary or
18 capricious as to constitute an independent due process” violation. See Richmond, 506
19 U.S. at 50. Under Proposition 36, an already sentenced inmate whose third strike was a
20 nonserious, nonviolent felony and who otherwise satisfies the criteria for resentencing is
21 nonetheless ineligible for resentencing if his current sentence was imposed for an offense
22 during which he “was armed with a firearm or deadly weapon.” Perez, 4 Cal. 5th at 1062
23 (citing Cal. Penal Code §§ 1170.12(c)(2)(C)(iii) and 1170.126(e)(2)). Here, the state
24 court concluded that under California law, Baumer was not entitled to resentencing on
25 counts three (possession of a weapon of sharp instrument while confined in a penal
26 institution) and count four (manufacturing a weapon while confined in a penal institution)
27 because he was armed with a deadly weapon at the time. (Supp. Lodgment, ECF No. 13-
28 1 at 12–13.) This Court is bound by the state courts’ interpretation of California law.
1 See Bradshaw, 546 U.S. at 76 (stating that “a state court’s interpretation of state law,
2 including one announced on direct appeal of the challenged conviction, binds a federal
3 court sitting in habeas corpus”). Because Petitioner was ineligible to be resentenced
4 under Proposition 36, he has failed to show any error, let alone demonstrate that the state
5 court’s determination was “so arbitrary or capricious” as to violate due process. See
6 Richmond, 506 U.S. at 50; see also Perez v. Asuncion, 2017 WL 8160292, at *4–5 (C.D.
7 Cal. Nov. 17, 2017) (finding petitioner ineligible for resentencing under Proposition 36
8 based on finding that he was armed during his commission the offenses was not arbitrary
9 and capricious); Williams v. Valenzuela, 2018 WL 22059644, at *6 (C.D. Cal. Mar. 23,
10 2018); Jordan v. Rackley, 2017 WL 1652597, at *2 (C.D. Cal. Feb. 10, 2017).
11 Baumer appears to also argue that the state court’s decision was based on an
12 unreasonable determination of the facts in light of the state court record. At the
13 preliminary hearing on counts three and four, a correctional officer testified that he saw
14 Baumer manufacturing a weapon in his cell. He was seen heating plastic item, molding it
15 and scraping it on the floor before it cooled and hardened to a point so that it could be
16 used as a weapon. (Lodgment No. 1, ECF No. 7-1 at 127–29, 131–32.) The weapon
17 nearly 6 inches long was found in Baumer’s cell, which he occupied alone. (Id. at 133.)
18 The correctional officer testified that he considered the item to be a “deadly weapon.”
19 (Id. at 134.) Based on this testimony alone, the court’s determination that Baumer was
20 in possession of a deadly weapon at the time he committed counts three and four was not
21 based on an unreasonable determination of the facts, in light of the state court record. See
22 Miller-El, 537 U.S. at 340; see also Parke, 506 U.S. at 35–36 (holding findings of
23 historical fact, including inferences properly drawn from those facts, are entitled to
24 presumption of correctness).
25 Therefore, for the reasons discussed above, Baumer is not entitled to relief on
26 ground two because he has failed to state a cognizable claim on federal habeas.
27 Furthermore, even assuming he alleges a due process violation, the state court’s denial of
28 Alexandre’s due process claim was neither contrary to, nor an unreasonable application
1 of, clearly established law. See Williams, 529 U.S. at 412–13. Likewise, the decision
2 did not involve an “unreasonable determination of the facts in light of the evidence
3 presented in the state court proceedings.” See Miller-El, 537 U.S. at 340. Ground two is
4 therefore DENIED
5 C. Claims Three and Four: Ineffective Assistance of Counsel
6 In his third and fourth grounds for relief, Petitioner argues he received ineffective
7 assistance from his resentencing hearing counsel and his appellate counsel, respectively.
8 (Pet., ECF No. 1 at 33–39.) He argues that counsel at resentencing and on appeal both
9 failed to raise or adequately argue the above two claims. (Id.) He also argues appellate
10 counsel was ineffective in failing to raise a claim of ineffective assistance of resentencing
11 counsel on appeal. (See id.) Respondent argues both claims are without merit because
12 the state court’s denial was neither contrary to, nor an unreasonable application of,
13 clearly established law. (Mem. P. & A. Supp. Answer, ECF No. 6-1 at 15–19.)
14 1. State Court Decision
15 Baumer raised his claims of ineffective assistance of trial and appellate counsel in
16 his petition for writ of habeas corpus to the California Supreme Court. (Lodgment No.
17 13, ECF No. 7-14 at 37–45.) The court denied the petition without comment or citation.
18 (Lodgment No. 14, ECF No. 7-15.) Therefore, this Court looks through to the last
19 reasoned decision from the state courts, in this case that is the California Court of
20 Appeal’s denial of Baumer’s habeas petition. See Ylst, 501 U.S. at 805–06. In denying
21 relief, the appellate court rejected both of Petitioner’s claims, discussing them together as
22 follows:
23 Baumer’s claims of ineffective assistance of counsel fail to state a
prima facie case. To state a claim against trial counsel, Baumer must
24
identify an act or omission of counsel that was not the result of reasonable
25 professional judgment and must show a reasonable probability that, but for
that act or omission, the result of the resentencing hearing would have been
26
different. (Strickland v. Washington (1984) 466 U.S. 668, 690, 694
27 (Strickland); accord, People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To
state a claim against appellate counsel, Baumer must identify “Crucial
28
1 awshsiigchn mcoeunntss eolf ienrerxocru, swahbilcyh f aairlgeuda tbol ya smseigrth. t (hIanv ree r Sesmuiltthe d(1 i9n7 a0 r)e 3v eCrasal.l3”d a nd
2
192, 202.)
3
Trial counsel did not unreasonably and prejudicially fail to challenge
4
the evidence regarding the risk of danger resentencing Baumer would pose
5 to public safety. His current dangerousness was the primary issue in dispute
at the hearing on the Proposition 36 petition for resentencing. Counsel
6
argued that Baumer would not pose an unreasonable risk to public safety
7 because he had stayed out of trouble since 2002 and had maintained good
behavior after his transfer out of administrative segregation. In response to
8
counsel’s argument, the trial court acknowledged that Baumer had improved
9 himself considerably while in prison, but nevertheless found the violence
involved in the crimes and disciplinary violations Baumer committed while
10
in prison and the manipulativeness he displayed at trial and in prison made
11 resentencing him unreasonably dangerous to public safety. Given the trial
court’s stated concerns, although trial counsel could have bolstered her
12
argument that resentencing Baumer was not unreasonably dangerous had she
13 discovered and cited the CSRA that reduced his rated risk of recidivism
from moderate to low, her failure to do so does not “undermine confidence
14
in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) Nor was appellate
15 counsel ineffective for failing to mount a challenge to the sufficiency of the
evidence to support the trial court’s determination. A court’s discretionary
16
determination of dangerousness on a Proposition 36 resentencing petition
17 will be upheld if it is supported by substantial evidence. (People v. Frierson
(2017) 4 Cal. 5th 225, 239.) The trial court considered the relevant facts,
18
including Baumer’s criminal history, his disciplinary record and
19 rehabilitative accomplishments in prison, and his manipulative behavior at
trial and in prison. (Pen. Code, § 117.126, subd. (g).) Its conclusion from
20
those facts that resentencing Baumer would pose an unreasonable risk of
21 danger to public safety was not “so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367,
22
377.) Since a sufficiency of evidence challenge to the trial court’s
23 dangerousness determination had no “reasonable potential for success,”
appellate counsel did not perform deficiently by failing to make the
24
challenge.
25
Finally, any argument by either trial our appellate counsel that
26
Baumer was not ineligible for resentencing on the weapon manufacture and
27 possession convictions, because the evidence did not establish beyond a
reasonable doubt that he was armed with a deadly weapon when he
28
1 cpoetmitmiointteerd’s t hinoesleig cirbiimliteys ,f owro ruelsde nhtaevnec ibnege nu nfudteirl eP. r oTphoes Piteioonp l3e6 m buesyto pnrdo va e a
2
reasonable doubt. (People v. Frierson, supra, 4 Cal.5th at p. 230) “[A]
3 person is armed with a weapon for purposes of the Proposition 36 exception
if the evidence from the record of conviction establishes that he or she was
4
present with the weapon and had it available for use at any time he or she
5 had actual or constructive possession of it within the time period for which
the defendant was charged and convicted” (People v. Valdez (2017) 10
6
Cal.App.5th 1338, 1342.) By pleading no contest to the weapon-related
7 charges, Baumer effectively pleaded guilty (Pen. Code, § 1016) and
admitted he manufactured and possessed the weapon while in prison (id., §
8
4502, subds. (a), (b); People v. West (1970) 3 Cal.3d 595, 612). By the plea,
9 Baumer also conceded the People could prove beyond a reasonable doubt
that he manufactured and possessed the weapon while in prison. (People v.
10
Turner (1985) 171 Cal.App.3d 116, 125.) Since Baumer obviously was
11 present with the weapon and had it available for use both when he
manufactured it and when he possessed it, his no contest plea established
12
beyond a reasonable doubt that he was armed at those times and therefore
13 was ineligible for resentencing under Proposition 36. (Valdez, at p. 1342.)
Hence, neither trial nor appellate counsel was ineffective for failing to argue
14
ineligibility had not been established beyond a reasonable doubt. (People v.
15 McPeters (1992) 2 Cal.4th 1148, 1173 [“Defense counsel is not required to
advance unmeritorious arguments on the defendant’s behalf.”]; Redante v.
16
Yockelson (2003) 112 Cal.App.4th 1351, 1356 [“appellate counsel is no
17 responsible for filing an actual frivolous appeal no is he required to contrive
arguable issues”].)
18
19 (Lodgment No. 12, ECF No. 7-13 at 4–5 (emphasis in original).)
20 2. Clearly Established Law
21 Clearly established law for ineffective assistance of trial counsel and appellate
22 counsel comes from the Supreme Court’s decision in Strickland v. Washington, 466 U.S.
23 668 (1984). To establish ineffective assistance of counsel, a petitioner must first show
24 his attorney’s representation fell below an objective standard of reasonableness. Id. at
25 688. “This requires showing that counsel made errors so serious that counsel was not
26 functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at
27 687. Petitioner must also show he was prejudiced by counsel’s errors. Id. at 694.
28 Prejudice can be demonstrated by a showing that “there is a reasonable probability that,
1 but for counsel’s unprofessional errors, the result of the proceeding would have been
2 different. A reasonable probability is a probability sufficient to undermine confidence in
3 the outcome.” Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993). “The
4 likelihood of a different result must be substantial, not just conceivable.” Richter, 562
5 U.S. at 112 (citing Strickland, 466 U.S. at 693).
6 The Court need not address both the deficiency prong and the prejudice prong if
7 the defendant fails to make a sufficient showing of either one. Id. at 697. There is a
8 “strong presumption that counsel’s conduct falls within a wide range of reasonable
9 professional assistance.” Id. at 686–87. “Surmounting Strickland’s high bar is never an
10 easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Representation is
11 constitutionally ineffective only if it ‘so undermined the proper functioning of the
12 adversarial process’ that the defendant was denied a fair trial.” Strickland, 466 U.S. at
13 687.
14 It is clearly established that standard for evaluating claims of ineffective assistance
15 of appellate counsel is the same as enunciated in Strickland. Smith v. Robbins, 528 U.S.
16 259, 285 (2000) (citing Smith v. Murray, 477 U.S. 527, 535–36 (1986)). Specifically, a
17 petitioner must show appellate counsel “unreasonably failed to discover nonfrivolous
18 issues and to file a merits brief raising them.” Smith, 528 U.S. at 285. To establish
19 prejudice, Petitioner must demonstrate that she would have prevailed on appeal absent
20 appellate counsel’s errors. Smith, 528 U.S. at 285.
21 The Ninth Circuit has observed that:
22 [Strickland’s] two prongs partially overlap when evaluating the
performance of appellate counsel. In many instances, appellate counsel will
23
fail to raise an issue because she foresees little or no likelihood of success on
24 that issue; indeed, the weeding out of weaker issues is widely recognized as
one of the hallmarks of effective appellate advocacy. . . . Appellate counsel
25
will therefore frequently remain above an objective standard of competence
26 (prong one) and have caused her client no prejudice (prong two) for the
same reason – because she declined to raise a weak issue.
27
28 Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). An indigent defendant “does not
1 have a constitutional right to compel appointed counsel to press nonfrivolous points
2 requested by the client, if counsel, as a matter of professional judgment, decides not to
3 present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983).
4 Under the standards of both 28 U.S.C. § 2254(d) and Strickland, judicial review is
5 “highly deferential and when the two apply in tandem, review is doubly so.” Richter, 562
6 U.S. at 105 (internal quotation marks and citations omitted). As a result, “the question
7 [under § 2254(d)] is not whether counsel’s actions were reasonable. The question is
8 whether there is any reasonable argument that counsel satisfied Strickland’s deferential
9 standard.” Id. The Strickland prejudice analysis is complete in itself and there is no need
10 for an additional harmless error review under Brecht, 507 U.S. at 637. See Musladin v.
11 Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (“[W]here a habeas petition governed by
12 AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466
13 U.S. 668 (1984), we apply Strickland’s prejudice standard and do not engage in a
14 separate analysis applying the Brecht standard.”); Avila v. Galaza, 297 F.3d 911, 918 n.7
15 (9th Cir. 2002).
16 3. Ineffective Assistance of Counsel at Resentencing (Claim Three)
17 Petitioner argues defense counsel at his resentencing hearing was ineffective as to
18 counts one and two because she failed to present evidence of his low risk to public safety.
19 (See Pet., ECF No. 1 at 33–37.) He further contends counsel failed to argue he was
20 eligible for resentencing on counts three and four because the weapon he possessed as to
21 those counts was not “a per se deadly weapon.” (Id. at 35.) As noted above, the state
22 appellate court denied the claims, concluding Baumer failed to establish prejudice under
23 Strickland. (See Lodgment No. 12, ECF No. 7-13 at 4.)
24 The state court’s denial of the claim was neither contrary to, nor an unreasonable
25 application of clearly established law. First, defense counsel argued at length that
26 Baumer qualified for resentencing on counts one and two. She asserted that, while
27 Baumer did have numerous disciplinary violations while incarcerated, in recent years he
28 had been an exemplary prisoner. Counsel specifically argued that Baumer did not present
1 an “unreasonable risk of danger to the public.” (See Supp. Lodgment, ECF No. 13-1 at
2 16–24.) She pointed to his good behavior in prison in recent years, along with his
3 success in educational programs he participated in while incarcerated. (Id. at 18–21.)
4 Baumer argues that counsel was ineffective because she failed to present the trial
5 court with a 2015 “Classification Committee Chrono” indicating his “California Static
6 Risk Assessment” score was low. (See Pet., ECF No. 1, Ex. R at 173.) As the state
7 appellate court found, however, even assuming arguendo that Baumer could meet
8 Strickland’s “highly deferential” standard and establish counsel’s failure to present the
9 report was unreasonable, Baumer cannot establish prejudice. See Richter, 562 U.S. at
10 105. The trial court reviewed Baumer’s extensive history, including reports showing his
11 improved behavior in prison, and nonetheless found the violence involved in his
12 commitment crimes, the numerous disciplinary violations Baumer previously committed
13 and his manipulativeness in prison made resentencing him unreasonably dangerous to
14 public safety. (See Supp. Lodgment, ECF No. 13-1 at 26–29.) Given the trial court’s
15 stated reasons for denying resentencing, the appellate court’s conclusion that counsel’s
16 failure to present the report did not “undermine confidence in the outcome” was not
17 objectively unreasonable. Strickland, 466 U.S. at 694.
18 Likewise, Baumer has failed to show ineffective assistance of counsel as to
19 resentencing on counts three and four. As the state court noted, defense counsel argued
20 at the hearing that Baumer was eligible for resentencing on those counts despite his
21 alleged possession of a deadly weapon, but acknowledged that under current California
22 law, her argument was futile. (See Supp. Lodgment, ECF No. 13-1 at 10–11.) Further,
23 as the appellate court concluded, Baumer was categorically ineligible for resentencing on
24 counts three and four because he possessed a deadly weapon at the time. See Perez, 4
25 Cal. 5th at 1062 (citing Cal. Penal Code §§ 1170.12(c)(2)(C)(iii) and 1170.126(e)(2)).
26 Because any additional argument by defense counsel would have been futile, her
27 performance was neither unreasonable or prejudicial. See Strickland, 466 U.S. at 687,
28 see also James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994).
1 Therefore, the state court’s denial of Baumer’s claims of ineffective assistance of
2 trial counsel was neither contrary to, nor an unreasonable application of, clearly
3 established law. See Williams, 423 U.S. at 412–13. In addition, the state court’s
4 adjudication did not involve an “unreasonable determination of the facts in light of the
5 evidence presented in the state court proceedings,” because Petitioner has not
6 demonstrated that the state court’s factual findings were objectively unreasonable. See
7 Miller-El, 537 U.S. at 340. Petitioner’s claims of ineffective assistance of counsel at his
8 resentencing hearing are therefore DENIED.
9 4. Ineffective Assistance of Counsel on Appeal (Claim Four)
10 Finally, Baumer argues appellate counsel was ineffective for failing to adequately
11 argue on appeal that he was entitled to resentencing one counts one and two because he
12 was a low risk of danger to the public, he was not ineligible for resentencing on counts
13 three and four, and that counsel at his resentencing was ineffective. (See Pet., ECF No. 1
14 at 38–39.) As discussed above in sections V(A)–(B), Petitioner’s claims he was entitled
15 to resentencing on any count are without merit. Appellate counsel’s declination to argue
16 meritless issues on appeal does not amount to ineffective assistance of appellate counsel.
17 See Miller, 882 F.3d at 1434. Further, as the Court has explained in section V(C)(3) of
18 this Order, Petitioner has not demonstrated that he received ineffective assistance from
19 trial counsel. For that reason, Petitioner cannot show that he was prejudiced by appellate
20 counsel’s failure to present claims of ineffective assistance of trial counsel on appeal.
21 See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001). Therefore, the state court’s
22 denial of Petitioner’s claims of ineffective assistance of appellate counsel was neither
23 contrary to, nor an unreasonable application of, clearly established law. See Williams,
24 423 U.S. at 412–13. Nor was it based on an “unreasonable determination of the facts in
25 light of the evidence presented in the state court proceedings.” See Miller-El, 537 U.S. at
26 340. Claim four is therefore DENIED.
27 / / /
28 / / /
1 || VI. CERTIFICATE OF APPEALABILITY
2 Under AEDPA, a state prisoner seeking to appeal a district court’s denial of a
3 || habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A).
4 || The district court may issue a certificate of appealability if the petitioner has made a
5 || substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
6 || satisfy this standard, a petitioner must show that “reasonable jurists would find the
7 || district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
8 || McDaniel, 529 U.S. 473, 484 (2000).
9 The federal rules governing habeas cases brought by state prisoners require a
10 || district court that issues an order denying a habeas petition to either grant or deny a
11 || certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a). The Ninth
12 || Circuit has noted that the standard for granting a certificate of appealability is “relatively
13 low.” Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). A petitioner “need
14 || not show that he should prevail on the merits,” Lambright v. Stewart, 220 F.3d 1022,
15 |} 1025 (9th Cir. 2000), but may be entitled to a certificate when the “questions are
16 adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S.
17 || 880, 893 n. 4 (1983) (superseded on other grounds by 28 U.S.C. § 2253(c)(2)). Here,
18 || Baumer has failed to make “a substantial showing of the denial of a constitutional right,”
19 || and reasonable jurists would not find debatable this Court’s assessment of his claims.
20 || See Slack, 529 U.S. at 484. Accordingly, a certificate of appealability DENIED.
21 || CONCLUSION
22 Based on the foregoing, the Court DENIES the petition for writ of habeas corpus
23 ||and DENIES a certificate of appealability.
24 || IT IS SO ORDERED.
25 Dated: March 16, 2020 i
26
Hon. Cathy Ann Bencivengo
27 United States District Judge
28