Opinion

Moore v. CHRONES

687 F. Supp. 2d 1005
2010 U.S. Dist. LEXIS 3334
2010 WL 291774

Court: District Court, C.D. California
Filed: Jan 14, 2010
Status: Published
Author: Gutierrez
On the bench: Philip S. Gutierrez
Cited by: 18 cases
Authority: More cited than 69.2%

stating that merely placing a Fourteenth Amendment label on an alleged state law sentencing violation is insufficient to state a cognizable federal constitutional claim

How later courts described this case

stating that merely placing a Fourteenth Amendment label on an alleged state law sentencing violation is insufficient to state a cognizable federal constitutional claim
“A challenge to a state court’s application of state 12 sentencing laws does not create a federal question cognizable in federal habeas 13 review.”
“A challenge to a state court’s application of state sentencing 12 laws does not create a federal question cognizable in federal habeas review.”
“A challenge to a state court’s application of state sentencing 6 laws does not create a federal question cognizable in federal habeas review.”

Written by the judges who cited it.

The opinion

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

PHILIP S. GUTIERREZ, District Judge.

Pursuant to 28 U.S.C. § 636 , the Court has reviewed the First Amended Petition and related documents filed by Petitioner, all of the records herein, the Report and Recommendation of United States Magistrate Judge (“Report”), and the following documents filed by Petitioner on December 10, 2009: Objections to the Report and related Request to “Take Judicial” Notice of Lodging of Memorandum of Points and Authorities (collectively, the “Objections”); Motion Asking the Benefit of Liberal Construction; Application for Leave to Exceed the 25 Page Limitment

[sic

] ...

;

Notice of Hearing on Motion for Summary Judgment by Petitioner, Motion for Summary Judgment by Petitioner, and Affidavit of Petitioner Larry B. Moore in Support of Motion for Summary Judgment (collectively, the “Summary Judgment Motion”); and Notice to “Take Judicial” Notice of Lodging of Documents in Support of Petitioner’s Objection to United States Magistrate Judge[’]s Report and Recommendation[] and to His Motion for Summary Judgment (“Notice”). The Court has conducted a

de novo

review of those matters to which objections to the Report have been made.

The Court has reviewed the Summary Judgment Motion and related Notice. By the Summary Judgment Motion, Petitioner seeks summary judgment on several claims alleged in the First Amended Petition, as well as with respect to a host of additional claims that are not alleged in the First Amended Petition. The Summary Judgment Motion does not comply with Local Rule 56-1 and, thus, is procedurally improper. Moreover, Petitioner’s attempt to raise numerous, and apparently unexhausted new claims, long after briefing has been completed, and through a summary judgment motion rather than through a 28 U.S.C. § 2254 habeas petition, is improper.

A district court has discretion, but is not required, to consider evidence or claims presented for the first time in Objections to a Magistrate Judge’s Report and Recommendation.

See Brown v. Roe,

279 F.3d 742, 744-45 (9th Cir.2002);

United States v. Howell,

231 F.3d 615, 621-22 (9th Cir.2000). To the extent the Summary Judgment Motion raises additional claims that are not alleged in the First Amended Petition, the Court exei’dses its discretion to decline to consider Petitioner’s belatedly-raised claims. However, to the extent the Summary Judgment Motion raises arguments pertinent to the habeas claims alleged in the First Amended Petition and considered in the Report, the Court deems such arguments to constitute objections to the Report and has considered such arguments in conjunction with its consideration of Petitioner’s Objections to the Report. Accordingly, the Summary

*1017

Judgment Motion is deemed to be DENIED as to both the claims alleged in the First Amended Petition and the newly-raised claims.

Having completed its review of the filings and records in this case, the Court accepts and adopts the Report and the findings of fact, conclusions of law, and recommendations therein. Accordingly, IT IS ORDERED that: (1) the First Amended Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on the parties.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MARGARET A. NAGLE, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

Petitioner, a California state prisoner, filed a habeas petition, pursuant to 28 U.S.C. § 2254 , on December 30, 2003. On January 7, 2004, the Court dismissed the petition with leave to amend, because it failed to allege any grounds for relief. Petitioner thereafter filed a First Amended Petition (“Petition”), which set forth 30 claims. During the course of this action, Petitioner also filed four volumes of exhibits entitled “Notice to Take ‘Judicial’ Notice of Lodging of Documents” (hereafter, “Pet. Lodg.”).

Respondent moved to dismiss the Petition on the grounds that one claim was not cognizable and several other claims were unexhausted (“MTD”); Respondent also lodged pertinent portions of the state record (“Lodg.”). On February 24, 2005, the United States District Judge to whom this case formerly was

assigned

granted the MTD, in part, and denied the MTD, in part, and amended the Petition by dismissing Grounds Twenty-Four, Twenty-Five, Twenty-Seven through Twenty-Nine, four unexhausted subclaims of Ground Fifteen,

and six unexhausted subclaims of Ground Twenty-Two.

(See

Order of February 24, 2005, and underlying Report and Recommendation of October 25, 2004, at 15-16 and 18-19.)

Subsequently, Respondent filed a Return to the Petition and lodged additional portions of the state record (“Supp. Lodg.”). Petitioner thereafter filed a two-volume Traverse.

*1018

Briefing is complete, and the matter is submitted and ready for decision. For the reasons set forth below, the Court recommends that the Petition be denied on the merits and dismissed with prejudice.

PRIOR PROCEEDINGS

On September 1, 2000, a Los Angeles Superior Court jury convicted Petitioner of one felony count of petty theft with a prior theft-related conviction (CaLPenal Code § 666) and one felony count of possession of a controlled substance,

ie.,

heroin ( Cal. Health & Safety Code § 11350 (a)). (Supp. Lodg. No. 1, Clerk’s Transcript (“CT”) 156A-66.) In bifurcated proceedings, the trial court found “true” sentencing allegations that Petitioner had sustained two prior “strike” convictions within the meaning of California’s Three Strikes Law (CaLPenal Code §§ 667(b)-®) and 1170.12(a)-(d), and had served seven prior prison terms (CaLPenal Code § 667.5). (CT 296-99; Supp. Lodg. No. 4, Reporter’s Transcript (“2RT”) 54-55, 71-74.) After reducing the “wobbler” petty theft count to a misdemeanor and striking the seven prior prison term one-year sentence enhancements, the trial court sentenced Petitioner for a total term of 25 years to life on the principal count of possession of heroin, concurrent to a six-month term for the petty theft count. (CT 300-02; 2RT 101-05.)

Petitioner appealed. (Lodg. Nos. 2-4.) The California Court of Appeal affirmed Petitioner’s conviction and sentence by a reasoned opinion issued on September 12, 2002, 2002 WL 31029143 . (Lodg. No. 5.) On November 20, 2002, the California Supreme Court summarily denied Petitioner’s petition for review. (Lodg. Nos. 6-7.)

While his appeal was pending, Petitioner filed numerous requests for post-conviction relief in the trial court and the California Court of Appeal, including motions to vacate judgment, for resentencing, and to stay his sentence, as well as petitions for writs of habeas corpus, qua warranta, prohibition, and mandate. All were denied. (Lodg. Nos. 8-13, 15-25.) He also filed three habeas petitions in the California Supreme Court during the pendency of his appeal, and all were denied on procedural grounds.

(See

Lodg. Nos. 28-33.)

Following the conclusion of his appeal, Petitioner filed two further habeas petitions in the California Supreme Court. Both petitions were denied on a procedural ground. (Lodg. Nos. 34-38; Supp. Lodg. Nos. 6-8.)

SUMMARY OF THE EVIDENCE AT TRIAL

The Court has reviewed the record in this case, as well as the California Court of Appeal’s summary of the evidence in its opinion on direct appeal. The state court’s summary is consistent with the Court’s own review of the record. Thus, the Court has quoted it below to provide an initial factual overview, and additional relevant portions of the trial record will be discussed as needed in connection with the Court’s analysis of Petitioner’s claims.

*1019

Ronnie Chong is a general contractor. He collects scrap brass from Ms jobs and saves it in a box in his backyard for future recycling. He keeps a pair of old gloves on top of the box for handling the brass. At 11:20 a.m. on February 26, 1999, Chong heard someone in his backyard. When he came out of Ms house to investigate, he saw [Petitioner] pushing a shopping cart into his front yard; all of Chong’s brass was in [Petitioner’s] shopping cart. [Petitioner] also had the gloves. Chong confronted [Petitioner], asking, ‘Where are you going with my stuff?” [Petitioner] replied, “This is mine,” and kept moving. Chong grabbed the shopping cart with both hands to prevent [Petitioner] from taking the brass. [Petitioner] took a brass faucet spout from the shopping cart and swung it at Chong’s wrist, barely missing him. Chong released the shopping cart, but kicked it over, spilling some of the brass onto the ground. [Petitioner] righted the shopping cart, which still contained some of Chong’s brass, and ran away. Chong gave chase. [Petitioner] threw some pieces of brass at Chong as he ran; they did not hit Chong. [Petitioner] eventually escaped by jumping over a gate. [Petitioner] was forced to abandon the shopping cart, and Chong recovered his brass from it. However, [Petitioner] retained the gloves.

Three days later, [Petitioner] crossed the street in front of Chong’s car. Chong recognized [Petitioner] and telephoned the police. [Petitioner] was pushing another shopping cart containing brass. Chong recognized his gloves in the shopping cart.

Police arrested [Petitioner], Before he was advised of the charges, [Petitioner] spontaneously told police, “I wasn’t in nobody’s backyard.” [Petitioner] was searched. In the pocket of a jacket found in the shopping cart, police discovered eight balloons holding .66 grams of a substance containing heroin, as well as a small bindle holding .15 grams of a substance containing heroin.

The sole defense witness was [Petitioner’s] mother, who testified that she gave [Petitioner] the gloves found in his possession. In argument to the jury, [Petitioner’s] attorney asserted [Petitioner] was in the business of collecting useful items from other people’s trash, and [Petitioner] may have found the jacket unaware of the heroin hidden in the pocket.

(Lodg. No. 5 at 3-4.)

PETITIONER’S HABEAS CLAIMS

Ground One:

Trial counsel provided ineffective assistance by failing to move to sever the theft and drug counts, in violation of the Sixth Amendment.

(Petition

*1020

at 5.)

Ground Two:

The trial court erred by instructing the jury pursuant to California Jury Instruction, Criminal (“CALJIC”) No. 17.41.1, because the instruction “nullified” juror deliberations, in violation of Petitioner’s rights to due process and a fair trial, as well as unspecified “rights” of the jurors. (Petition at 5.)

Ground Three:

The trial court erred by failing to exercise its discretion to strike one of Petitioner’s two prior “strike” convictions, in violation of the Fourth Amendment. (Petition at 6.)

Ground Four:

Petitioner’s Three Strikes sentence constitutes cruel and unusual punishment, in violation of the Eighth Amendment. (Petition at 6.)

Ground Five:

Petitioner’s trial counsel was ineffective for advising Petitioner to admit the prior conviction allegations, in violation of the Sixth Amendment. (Attachment to Petition (“Petition Att.”) at 4.)

Ground Six:

The prosecutor was es-topped from alleging that Petitioner’s prior convictions were “strikes” under the Three Strikes Law, because by doing so, the prosecutor relitigated the validity of those prior convictions. (Petition Att. at 4-5.)

Ground Seven:

As shown by newly discovered evidence, Petitioner was denied a fair trial, because the prosecutor suppressed certain evidence (including police reports, logs, and similar documents), in violation of the Fourth, Fifth, and Sixth Amendments. (Petition Att. at 5.)

Ground Eight:

Because, at the probable cause hearing conducted within 48 hours of Petitioner’s arrest, a “neutral magistrate” found that probable cause did not exist to support detaining Petitioner on Counts 2 and 3 (petty theft with a prior theft conviction, and possession of heroin for sale), the prosecutor’s amendment of those counts and their assertion against Petitioner at trial violated due process and the Fourth Amendment. (Petition Att. at 5.)

Ground Nine:

Petitioner was entitled to be sentenced pursuant to the prosecution’s first plea offer — notwithstanding Petitioner’s rejection of all plea offers made and his decision to proceed to both a court and then a jury trial on the charges against him — and the failure to sentence him pursuant to the terms of that initial plea offer violated the Fourth and Sixth Amendments. (Petition Att. at 5.)

Ground Ten:

There was insufficient evidence to support the trial court’s “true” finding with respect to the prior convictions allegations, in violation of the Fifth and Eighth Amendments. (Petition Att. at 5-6.)

Ground Eleven:

California’s Three Strikes Law is unconstitutional, because the law is set forth in two separate statutes, one derived from enactment by the state legislature and one derived from enactment by a later voter initiative, in violation of the Fourteenth Amendment. (Petition Att. at 6.)

Ground Twelve:

California’s Three Strikes Law violates the Ex Post Facto Clause. (Petition Att. at 6.)

Ground Thirteen:

Petitioner could not be sentenced pursuant to the Three Strikes Law, because he was serving an unconstitutional parole term at the time he was arrested for the instant offenses. Thus, his prior conviction could not serve as a “strike.” (Petition Att. at 6-7;

see also

Traverse at 80-83.)

Ground Fourteen:

Petitioner is not procedurally barred from directly challenging

*1021

the legality of his prior “strike” convictions. (Petition Att. at 7.)

Ground Fifteen:

The prosecutor committed misconduct, in violation of the Fourth, Fifth, and Sixth Amendment, by: (1) amending Counts 2 and 3 (the petty theft with a prior theft conviction and possession of heroin for sale counts) in the Information and Amended Information despite the “neutral magistrate’s” determination that probable cause did not support detaining Petitioner for further proceedings on those counts (as set forth in present Ground Eight); (2) suppressing discovery of complete and/or additional police reports; (3) failing to provide timely discovery of the tape of a 911 call; (4) amending the prior conviction allegations to add a second “strike” conviction, in retaliation for Petitioner’s refusal of a plea offer; and (5) falsifying a document regarding the transcript of the 911 call to imply to the jury that it was an “official document.” (Petition Att. at 7-8.)

Ground Sixteen:

The arbitrary and inconsistent manner in which the Three Strikes Law is applied violates due process. (Petition Att. at 8.)

Ground Seventeen:

The prosecution failed to allege properly the statutory provisions underlying the Three Strikes Law in the Amended Information, therefore precluding application of the Three Strikes Law to Petitioner. His sentence, thus, violates the Fourth, Fifth, Sixth, and Eighth Amendments. (Petition Att. at 8.)

Ground Eighteen:

Because Petitioner’s 1995 prior “strike” conviction was itself a “void” judgment, the trial court could not utilize it to impose a Three Strikes sentence. (Petition Att. at 8.) In addition, at the sentencing hearing, the trial court erred when imposing sentence on the principal count (Count 3) by referring to the statute for the originally-charged offense of possession for sale of which Petitioner was acquitted ( Cal. Health & Safety Code § 11351 ), instead of the lesser included offense of possession of which the jury found him guilty ( Cal. Health & Safety Code § 11350 (a)).

(Id.)

Ground Nineteen:

Petitioner’s custodian, the California Department of Corrections and Rehabilitation (“CDCR”), has failed to accord to Petitioner “credits of 50%” in connection with his Three Strikes sentence, in conflict with the term of custody credits actually prescribed by the trial court’s sentencing order and/or state law requirements governing the CDCR’s calculation of goodtime/worktime credits and in violation of the Fourth and Sixth Amendments. (Petition Att. at 9;

see also

Traverse at 103-06.)

Ground Twenty:

Petitioner’s appellate counsel provided ineffective assistance in several respects, in violation of the Sixth Amendment. (Petition Att. at 9.)

Ground Twenty-One:

Petitioner’s trial judge acted in excess of his jurisdiction by ruling on a number of Petitioner’s post-conviction applications for relief, and engaged in an unauthorized ex parte communication with the California Court of Appeal. (Petition Att. at 9.)

Ground Twenty-Two:

Petitioner’s trial counsel provided ineffective assistance by failing to obtain all discovery, prepare more, and adequately research caselaw and procedure, in violation of the Fourth and Sixth Amendments. (Petition Att. at 10.)

Ground Twenty-Three:

Petitioner had a Fourteenth Amendment right to be sentenced to a probationary term and drug treatment, as called for by state law set forth in “Proposition 36,” rather than pursuant to the Three Strikes Law. (Petition Att. at 10.)

Ground Twenty-Six:

In violation of

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), the prosecu

*1022

tion suppressed discovery of the gloves found in Petitioner’s possession at the time of his arrest, which the victim had identified as his own, as well as police photographs of those gloves and “contraband.” (Petition Att. at 11.)

Ground Thirty:

The trial judge violated the Fourth, Fifth, and Sixth Amendments when he: (1) “impeached” the jury’s verdict by imposing a six-month (and concurrent) term on the petty theft with a prior count; (2) acted vindictively in sentencing Petitioner due to Petitioner’s rejection of a plea offer; and (3) improperly sentenced Petitioner based on his Count 3 conviction, because the charged crime had not been presented to the jury. (Petition Att. at 12;

see also

Traverse at 126-28.)

STANDARD OF REVIEW

The Petition is governed by 28 U.S.C. § 2254 , as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under Section 2254(d), a federal court may not grant a writ of habeas corpus on behalf of a person in state custody “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; 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).

Grounds One Through Four:

Petitioner raised Grounds One through Four on direct appeal, and the California Court of Appeal denied them, on their respective merits, in a written, reasoned decision. (Lodg. No. 5.) When the claims were then raised in a petition for review, the California Supreme Court denied relief summarily. (Lodg. No. 7.) The state high court’s “silent” denial is considered to be “on the merits.”

See Hunter v. Aispuro,

982 F.2d 344, 347-48 (9th Cir.1992). In addition, that “silent” denial is deemed to rest on the last reasoned decision on this claim, namely, the grounds articulated by the California Court of Appeal in its decision on the merits.

See Ylst v. Nunnemaker,

501 U.S. 797, 803-06 , 111 S.Ct. 2590, 2594-96 , 115 L.Ed.2d 706 (1991);

see also

Lodg. No. 5 at 3-4.) The jury found Petitioner: not guilty of the robbery count; guilty of the petty theft with a prior count; and, with respect to the drug count, not guilty of the charge of possession for sale of a controlled substance (heroin) but guilty of the lesser included offense of possession of heroin. (CT 156A-66.)

In Ground One, Petitioner contends that trial counsel should have moved to sever the drug count from the theft counts pursuant to California Penal Code § 954. Petitioner argues that severance was appropriate under Section 954, and a motion to sever would have been granted, because the drug and theft counts were not sufficiently factually and legally related to support joinder. Petitioner asserts that it is reasonably probable a different result would have occurred at trial had the counts been so severed, because,

inter alia:

the evidence connected to each count was highly prejudicial to the other; it was prejudicial for the jury to learn that Petitioner had been charged with committing a theft crime only a few days before his drug arrest; and by its nature, the petty theft with a prior theft conviction charge necessarily required the jury to learn that Petitioner had suffered a prior theft conviction, a fact that could have been kept from a jury determining the drug count alone in a separate trial. (See Lodg. No. 2 at 15-20 — Petitioner’s arguments on state appeal.)

a. The

State Court Decision

The California Court of Appeal rejected Petitioner’s claim based on

Strickland

and state law, as well as the relevant state standards governing severance motions under California Penal Code § 954. (Lodg. No. 5 at 4-8.) At the start of its analysis, the state appellate court observed that Petitioner’s “argument that a motion to sever would have been granted appears to be well taken,” noting:

Possession for sale of heroin is not a different statement of robbery or petty theft with a prior, nor is a drug offense of the same class as a theft offense. The possession offense occurred three days after the theft offenses, and the only connection between the two was discovery of the heroin at the time of [Petitioner’s] arrest for robbery. This is insufficient to support joinder.

(Id.

at 5-6).

The California Court of Appeal observed, however, that “the fact that a severance motion would have been granted does not establish ineffective assistance of counsel” (Lodg. No. 5 at 6), given the requirements that both

Strickland

prongs be established. With respect to the deficient performance prong, the state appellate court noted:

Counsel’s sole argument as to the unknowing possession of the heroin was

*1028

that [Petitioner] obtained the jacket by rooting through someone’s trash and was unaware of the drugs in the jacket pocket. This argument depended upon the evidence relating to the theft offenses, that is, [the victim’s] testimony that [Petitioner] took the brass from his backyard recyclable box. Without this testimony, counsel would have had no basis for suggesting [Petitioner’s] possession of the heroin was unknowing.

(Id.

at 6-7.) The state appellate court acknowledged that Petitioner “could have testified, but not without his substantial criminal record being disclosed to the jury.”

(Id.

at 7 n. 1.) “Therefore, there could have been a rational tactical purpose for counsel’s decision to try the counts together.”

(Id.

at 7.)

With respect to the prejudice prong, the California Court of Appeal concluded that Petitioner had “failed to meet his burden of showing that, but for counsel’s failure to sever the counts, he would have received a more favorable result,” finding that:

[Petitioner] was acquitted on the two more serious counts of robbery and possession for sale of heroin, and convicted only of petty theft with a prior and possession of heroin. Had these counts been tried separately, it is not reasonably probable he would have obtained an even more favorable verdict. Considered independently, the evidence of petty theft was overwhelming. [The victim] positively identified [Petitioner] as the man who had taken his scrap brass, [Petitioner] was arrested with [the victim’s] gloves in his possession, and [Petitioner’s] volunteered statement to police that he was not in anyone’s backyard reflected his consciousness of guilt. Had the jury not been aware that [Petitioner] possessed heroin at the time of his arrest, the evidence of petty theft would have remained just as overwhelming, and the result would have been the same.

(See People v. Breault

(1990) 223 Cal.App.3d 125, 134 [ 273 Cal.Rptr. 110 ] [charges of possession of drugs are not inherently inflammatory].) Similarly, the evidence of possession of heroin, considered separately, was likewise overwhelming. The heroin was indisputably discovered in the pocket of a jacket in [Petitioner’s] sole possession. Had the jury not known of [Petitioner’s] theft of [the victim’s] brass, the evidence of [Petitioner’s] possession of the heroin would have been just as strong. Indeed, in the absence of the evidence relating to [Petitioner’s] collection of items from other people’s trash, [Petitioner] would have lacked the basis for his argument that his possession of the heroin was unknowing. While it is true the jury would not have been aware of [Petitioner’s] prior theft-related felony conviction had the counts been severed, the jury was instructed at great length not to consider that offense with respect to any charge other than petty theft with a prior. Such an admonition is sufficient to allay any prejudice which may have arisen from the fact of the prior conviction.

(People v. Garcia

(1986) 183 Cal. App.3d 335, 346-347 [ 228 Cal.Rptr. 87 ].) Indeed, the jury’s verdict establishes the lack of any prejudice.

(Lodg. No. 5 at 7-8.)

The California Court of Appeal concluded that, because Petitioner had failed to establish either

Strickland

prong, he had not shown ineffective assistance of counsel in violation of the Sixth Amendment. (Lodg. No. 5 at 8.)

The State Court Decision Is Entitled To Deference.

Under Section 2254(d)(1), which governs Ground One:

The question “is not whether a federal court believes the state court’s determination” under the

Strickland

standard “was incorrect but whether that

*1029

determination was unreasonable — -a substantially higher threshold.” ... And, because the

Strickland

standard is. a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.

See Yarborough v. Alvarado,

541 U.S. 652, 664 , 124 S.Ct. 2140 , 158 L.Ed.2d 938 (2004) (“[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations”).

Mirzayance,

129 S.Ct. at 1420 (citation omitted). In this case, “[ujnder the doubly deferential judicial review that applies to a

Strickland

claim evaluated under the § 2254(d)(1) standard”

(id.),

Petitioner is not entitled to federal habeas relief, because the state court’s finding that Petitioner was not prejudiced within the meaning of

Strickland

was not objectively unreasonable.

In the first instance here, there was minimal risk of confusing the jury or causing the jury to consider the commission of either theft crime as evidence of Petitioner’s guilt of the separate drug offense, given that the theft and drug crimes themselves were distinct and committed on different occasions. In addition, the jury was instructed: separately regarding each count and allegation; that each count constituted a distinct crime and required a separate verdict; and as the state appellate court noted, that evidence Petitioner had a prior theft conviction was admitted for a limited purpose only. (CT 106, 126-36, 139-40, 143.) Moreover, Petitioner’s defenses to each charge were consistent with and tended to support each other. As to both charges, his trial counsel argued that: Petitioner was in the business of collecting useful items from other people’s trash; the manner in which the victim’s recyclable metal was stored on the property (partially in a large trash can in the backyard of a multi-unit apartment building) reasonably indicated that the metal had been discarded and was available for Petitioner’s collection, and thus, Petitioner was not guilty of theft; and because Petitioner was in the business of collecting discarded items, he found the jacket in issue and was unaware of the heroin hidden in its pocket.

(See, e.g.,

Supp. Lodg. No. 3, Reporter’s Transcript (“1RT”) 246-56.)

In addition, and as the state court observed, the fact that the jury acquitted Petitioner of the more serious robbery and possession of heroin for sale counts dispels any suggestion that joinder of the theft and drug counts “inflamed” or confused the jury, or otherwise prejudiced Petitioner. Significantly, Petitioner was convicted on lesser offenses as to

both

the theft and drug charges. “[T]he failure of the jury to convict on all counts is the best evidence of the jury’s ability to compartmentalize the evidence.”

Park v. California,

202 F.3d 1146, 1150 (9th Cir.2000) (finding that, “because the jury did not convict on all counts it presumably was able to compartmentalize the evidence”; and further observing that to demonstrate prejudice based on the consolidation of counts at trial, a petitioner “must show that the jury was actually inflamed”). Significantly, in the initial court trial,

the trial court found Petition

*1030

er guilty on all counts, including the more serious robbery count. (Supp. Lodg. No. 2, Reporter’s Transcript (“RT”) 910-11.) By marked contrast, Petitioner’s jury did not, an indication that the jury was not inflamed or confused by the consolidation of the charges.

In addition, as to the guilty verdicts reached on the lesser charges, the state appellate court determined that “overwhelming” evidence established Petitioner’s guilt of the crimes of both petty theft with a prior and possession of heroin, a factual finding and determination of state law to which this Court defers.

See

28 U.S.C. § 2254 (e)(1);

Bradshaw v. Richey,

546 U.S. 74, 76 , 126 S.Ct. 602, 604 , 163 L.Ed.2d 407 (2005) (per curiam);

Hicks v. Feiock,

485 U.S. 624 , 630 & n. 3, 108 S.Ct. 1423 , 1428

n. 3, 99 L.Ed.2d 721 (1988);

Wainwright v. Goode,

464 U.S. 78, 84 , 104 S.Ct. 378, 382 , 78 L.Ed.2d 187 (1983). Against this “overwhelming” evidence, which established that Petitioner had committed each crime of which he was convicted, Petitioner does not establish that a different result would have obtained had the charges been considered in separate trials.

Thus, even if the charges should have been severed under state law, as the California Court of Appeal found, it was reasonable for the state appellate court to conclude further that it was not reasonably probable that a different outcome would have ensued had counsel sought severance.

As a result, no Sixth Amendment violation has been shown, and the state court’s rejection of Ground One was not objectively -unreasonable. Accordingly,

*1031

Ground One cannot warrant habeas relief. 28 U.S.C. § 2254 (d)(1).

Ground Five: Advising Petitioner To Admit A Prior Theft Conviction In Connection With Petty Theft With A Prior Count

Petitioner contends that his trial counsel was ineffective for advising Petitioner to admit that he had suffered a prior theft conviction for the purpose of the pending Count 2/petty theft with a prior theft conviction charge. (Petition Att. at 4.) Petitioner asserts that each of the

seven

prior theft convictions alleged in the Amended Information for purposes of Count 2 was “untrue,” notwithstanding the fact that, during trial, he admitted the truth of these prior conviction allegations.

(See

1RT 7-12.) He contends that the trial court later found four of these prior conviction allegations to be “untrue,” and the prosecutor later dismissed the seven prior conviction allegations. (Petition Att. at 4.)

The Amended Information alleged that, for purposes of Count 2 (petty theft with a prior), Petitioner had suffered seven prior theft-related convictions, which were listed as Case Nos. C35640, A586109, A765138, A095522, A371625, A960737, and A979309 (the “Count 2 Priors”). (CT 14.) The Amended Information also alleged that Petitioner had sustained two different prior convictions that constituted serious or violent felony “strikes,” which were listed as Case Nos. BA104285 and BA127836 (the “Prior Strikes”). (CT 15.) In addition, the Amended Information alleged that Petitioner had sustained 11 prior convictions that resulted in the service of a prison term pursuant to California Penal Code § 667.5(b), which provides for sentence enhancement based on prior prison terms and the commission of additional crimes within five years of release; those 11 convictions consisted of the Count 2 Priors, one of the Prior Strikes, and three additional prior convictions.

(Id.)

Before jury selection commenced, the trial court explained to Petitioner that, with respect to the Count 2 petty theft with a prior charge: the jury would hear evidence about the “the facts concerning the petty theft, and then they would hear about all the various prior convictions”; or alternatively, Petitioner could “shield the jury from hearing about each individual prior conviction involving theft by stipulating that it is a theft-related felony for the purpose of that count.” (1RT 8-9.) After conferring with his counsel and receiving counsel’s advice to enter into such a stipulation, Petitioner agreed to do so. (1RT 8-10.) Petitioner was then advised of his rights by the trial court, Petitioner waived those rights, and he then admitted the truth of the allegations regarding the Count 2 Priors “for the purpose of Count 2 only.” (1RT 8-12.) The trial court expressly noted that none of the Count 2 Priors to which Petitioner admitted were alleged to be “strikes.” (1RT 12.)

When the jury panel was called, the trial court generally described the allegations of the Amended Information to the prospective jurors and stated that, with respect to the Count 2 petty theft with a prior charge, “it’s been stipulated and agreed that there is a prior theft-related conviction involved.” (1RT 18-19.) After the close of the prosecution’s case, in front of the jury, the parties stipulated that prior to the date of the charged petty theft, Petitioner had suffered a theft-related conviction at the felony level and for which he served a prison term. (1RT 156.) The trial court then instructed the jurors orally that: the stipulation did not constitute any admission of guilt as to the three counts charged; the jurors should not consider the stipulation as bearing on Petitioner’s guilt; the stipulation was entered into by the parties simply as a matter of evidentiary convenience; and Petitioner was only “stipulating and agreeing that he suffered

*1032

this prior conviction.” (1RT 156-58.) During the subsequent jury instruction, the trial court instructed the jurors with CALJIC No. 2.09, which reiterated the limited purpose of the stipulation, including that the jurors could not consider it as bearing on the issue of Petitioner’s guilt or innocence of the charges before them. (CT 106; 1RT 193-94.)

At the outset, Petitioner’s assertions about the supposedly “untrue” nature of the Count 2 Priors are unavailing. Even if his sworn admission of the truth of the Count 2 Priors could be overlooked, which is unlikely,

Petitioner has provided no reason to believe that the allegations would not have been found true had this element been submitted to the jury for its determination. Petitioner’s assertion that the trial court found four of the Count 2 Priors “to be untrue” and the prosecution dismissed them as “untrue,” which is notably lacking in citation to the record (Petition Att. at 4), is itself false, as the record reflects no such finding and dismissal. Petitioner may be relying on, but mischaracterizing, the bifurcated proceeding regarding the Section 667.5(b) sentence enhancement allegations, in which the trial judge found that the Section 667.5(b) allegations regarding 11 prior convictions supported a finding that Petitioner had sustained seven

separate

prior prison terms within the meaning of Section 667.5(b).

The trial court not only did not find any of the Count 2 Priors to be factually untrue, but also expressly noted the truth of many of the prior conviction allegations. (2RT 71-73;

see also

2RT 57.) Significantly, in the prior court trial, the trial court determined that the evidence, including as to prior convictions, was sufficient to show that Petitioner was guilty beyond a reasonable doubt of petty theft with a prior conviction.

Second, as the trial court took pains to advise Petitioner, the stipulation that Petitioner had sustained “a prior theft-related conviction” prevented the jury from hearing about the details of

each

of Petitioner’s seven prior theft convictions, and the trial court both admonished and instructed the jury regarding the limited effect of the stipulation.

As the

*1033

California Court of Appeal concluded in its review of whether Petitioner was prejudiced by a joint trial of the theft and drug counts, the jury’s acquittal of Petitioner on the robbery and possession of heroin for sale, the court’s limiting instruction, and the “overwhelming evidence” on the counts of which Petitioner was convicted, together, show that Petitioner did not suffer prejudice from the jury learning that he had suffered a prior theft conviction. Indeed, as the state appellate court noted, despite knowing that Petitioner had suffered a prior theft conviction, Petitioner’s jury acquitted Petitioner of second degree robbery.

Petitioner has not established either deficient performance or prejudice in connection with Petitioner’s stipulation to the truth of the Count 2 Priors allegations. Accordingly, no ineffective assistance of counsel has been shown, and Ground Five fails and must be denied.

Ground Twenty-Two: Failure To Obtain “All” Discovery, Prepare More, And Adequately Research Caselaw And Procedure.

Petitioner contends that trial counsel provided ineffective assistance by failing to obtain “all” discovery, prepare more, and adequately research caselaw and procedure. (Petition Att. at 10.) Although not so stated in the Petition, it appears that Petitioner contends that both the attorney who represented him at the initial court trial (Mark Bledstein) and his subsequent counsel retained to represent him at the jury trial in issue (Ms. Vargas) failed him in these respects.

(See

Traverse at 109-12.)

Petitioner’s allegations are wholly conclusory and lacking in factual support. Indeed, Ground Twenty-Two of the Petition is bereft of a single factual allegation. The Traverse makes three vague factual references; however, they are inadequate to establish either deficient performance or prejudice.

*1034

The record shows that both defense counsel believed that “all” discovery had been provided.

{See

1RT 4; RT A6.) The only “discovery” Petitioner identifies as allegedly omitted is the “newly discovered evidence” that is the subject of Ground Twenty-Six. As discussed

infra,

however, the Court has concluded that such “newly discovered evidence” was not material, and its omission from Petitioner’s trial was of no effect. Hence, Petitioner cannot have suffered prejudice, within the meaning of

Strickland ,

by reason of either or both of his attorney’s alleged failure to obtain such items through the criminal discovery process.

Petitioner also fails to identify any further preparation or research that counsel should have conducted, other than to complain, as he does in other Grounds of the Petition, that the prosecutor acted wrongfully in amending the Information to include the petty theft with a prior and possession for sale counts. However, as discussed

infra,

that contention is without merit, and thus, neither deficient performance nor prejudice can be found based on the failure of either attorney to raise it, whether due to lack of preparation/research or any other reason. Although Petitioner further complains in his Traverse that his attorneys allegedly failed to interview and subpoena potential alibi and exonerating witnesses, that subclaim of Ground Twenty-Two was dismissed by the District Judge as unexhausted and, thus, cannot serve as a basis for relief. Given Petitioner’s failure to identify any such alleged witnesses, his allegation would fail even if it actually were an extant claim in this case.

See, e.g., Alcala v. Woodford,

334 F.3d 862 , 872-73

n. 3 (9th Cir.2003) (indicating that, in order to succeed on a claim of ineffective assistance of counsel based upon a failure to call witnesses, a habeas petitioner must not only identify the witnesses in question but also must describe specifically the testimony those witnesses would have given, as well as explain how that testimony might have altered the outcome of the trial).

Petitioner, in his twenty-second claim, simply does not identify any area of alleged deficient performance by either of his trial attorneys. Significantly, Petitioner does not address the critical question of why any purported failing by Mr. Bled-stein (his attorney in the initial court trial) matters, given that the court trial verdict was set aside for reasons other than ineffective assistance of counsel, and Petitioner received a second trial by jury.

In any event, because Petitioner’s allegations

*1035

are too vague, eonclusory, and lacking in factual support to establish ineffectiveness by either of his trial counsel, Ground Twenty-Two must be denied.

See, e.g., Dows v. Wood,

211 F.3d 480, 486-87 (9th Cir.2000) (factually unfounded claim alleging ineffective assistance of counsel presents no basis for federal habeas relief);

Jones v. Gomez,

66 F.3d 199, 204-05 (9th Cir.1995) (vague speculation or mere conclusions unsupported by record not sufficient to state claim; “eonclusory suggestions that ... trial and appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation”).

Appellate Counsel

In Ground Twenty, Petitioner contends that his appellate counsel provided ineffective assistance. Although Petitioner asserts that he “presented many colorable issue to appeals counsel” that counsel failed to raise on direct review, Petitioner identifies only two such issues in the Petition. (Petition Att. at 9.) First, Petitioner asserts that his appellate counsel should have raised a claim that one of Petitioner’s “strike” convictions (the 1995 conviction for residential burglary under California Penal Code § 459) was a “void” judgment. Second, Petitioner complains that his appellate counsel raised only one claim predicated on the asserted ineffective assistance of trial counsel

(ie.,

the claim now alleged as Ground One), and he apparently contends that appellate counsel also should have raised the substance of Grounds Five and Twenty-Two on appeal.

Petitioner’s unexplicated assertion that there were “many colorable issues” Petitioner presented to appellate counsel that should have been raised on appeal is too vague and eonclusory to warrant habeas relief.

Jones v. Gomez,

66 F.3d at 204-05 .

With respect to the assertion that appellate counsel should have raised a claim based on the “void” nature of Petitioner’s 1995 “strike” conviction, as discussed

infra

in connection with Petitioner’s Ground Eighteen attack on the validity of his 1995 “strike” conviction, Petitioner’s arguments about why his 1995 conviction is “void” and purportedly could not serve as a “strike” are merit-less. Neither deficient performance nor prejudice can be found when an appellate attorney fails to raise a claim on appeal that lacks merit.

See, e.g., Wildman,

261 F.3d at 840-42 ;

Miller,

882 F.2d at 1434 .

With respect to Petitioner’s claim that appellate counsel should have raised on appeal the ineffective assistance of trial counsel claims alleged in the instant Petition as Grounds Five and Twenty Two, the Court has found, as set forth above, that there was no ineffective assistance of trial counsel in connection with these claims. The Court can find no Sixth Amendment

*1036

violation arising from appellate counsel’s failure to raise these additional ineffective assistance of trial counsel claims, because it is plain that Petitioner has not established any constitutional error based on these claims, for the reasons discussed earlier.

Accordingly, Petitioner cannot establish that his appellate counsel’s failure to raise the above-noted additional issues on appeal constituted deficient performance or that he suffered prejudice as a result of counsel’s omissions.

See Morrison v. Estelle,

981 F.2d 425, 429 (9th Cir.1992) (appellate counsel’s failure to raise an issue on appeal does not constitute ineffective assistance if no constitutional violation has been shown, and thus, counsel had no reasonable likelihood of success in arguing the issue);

see also

Cal.Penal Code § 859b.) An Information alleging Counts 1, 2, and 3 was filed on May 4, 1999, and Petitioner pleaded not guilty. (CT 9-12, 18-19.)

Thus, even if Petitioner’s factual allegations are accepted, he has not shown that any state law error occurred based on the prosecution’s re-filing of Counts 2 and 3, and the prosecution of those counts in Petitioner’s criminal proceeding. More critically, Petitioner has not shown any federal constitutional error arising from these events. Accordingly, Ground Eight presents no basis for federal habeas relief and must be denied.

IV.

Petitioner’s Sentencing Claims Do Not Warrant Federal Habeas Relief.

By Grounds Three, Four, Six, Nine, Twelve through Fourteen, Sixteen through Nineteen, and Twenty-Three, Petitioner directs numerous challenges to the validity and duration of his sentence, and those challenges focus almost entirely on the Three Strikes aspect of his sentence.

(See

Petition at 6; Petition Att. at 4-10.)

The Trial Court’s Failure To Strike A Prior “Strike” Conviction

In Ground Three, Petitioner contends that the trial court erred by declining to exercise its discretion to strike one of Petitioner’s two prior “strike” convictions.

Petitioner raised this same claim of state law sentencing error in his direct appeal in the state courts, which rejected the claim on its merits.

(See

Lodg. No. 2 at 30-43; Lodg. No. 5 at 8-12; Lodg. No. 6 at 9-11; Lodg. No. 7 at 1.)

*1040

In the state courts, Petitioner argued that the trial judge declined to strike one of Petitioner’s prior “strikes” based on the trial judge’s incorrect conclusion that he did not have the discretion to do so. (Lodg. No. 2 at 30-43.) Petitioner relied on the trial judge’s statement that, “although [the judge] has looked hard and carefully, [the judge] cannot, without abuse of discretion, strike either one of the strikes.” (2RT 101.)

The California Court of Appeal rejected Petitioner’s argument. (Lodg. No. 5 at 8-12.) The state appellate court engaged in a lengthy and detailed review of the sentencing proceedings in this case and found that Petitioner’s contention that the trial court misunderstood the scope of its discretion to be meritless, stating:

The trial court’s [cited] statement was clearly an exercise of discretion, an application of the law to the facts as they had been presented at the sentencing hearing. The trial court clearly understood the scope of its discretion, distinguishing precedent, and seeking further information on factors necessary for the proper scope of its discretion. The trial court effectively concluded that it could find no reasons to support the striking of a prior.

“Our review of the trial judge’s remarks reflects that he was aware of his limited discretion to strike strikes. The court did not neglect its own findings, as defendant asserts. Instead, after considering ‘the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects,’ the [trial] court could find no reason for concluding that defendant fell outside the spirit of the three strikes statute.”

(People v. Zichwic

(2001) 94 Cal.App.4th 944, 960-961 [ 114 Cal.Rptr.2d 733 ].) We find no abuse of discretion in the trial court’s refusal to strike one of defendant’s prior serious felony convictions.

(Id.

at p. 961, 114 Cal.Rptr.2d 733 .)

(Id.

at 12)

Federal habeas relief is available only if a petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a);

see also

Traverse at 93-94.)

As discussed above, the evidence was sufficient to support the trial court’s “true” finding on the 1995 “strike” allegation, and thus, Petitioner’s Ground Ten sufficiency of the evidence argument is meritless. As also discussed above, Petitioner properly was subjected to an enhanced sentence pursuant to the Three Strikes Law, and no state law sentencing error has occurred. As previously noted, a challenge to a state court’s application of state sentencing laws does not create a federal question cognizable in federal habeas review.

See Lewis,

497 U.S. at 780 , 110 S.Ct. at 3102 . To state a cognizable federal habeas claim based on a claimed state sentencing error, a petitioner must show not only sentencing error but also that the error was “so arbitrary or capricious as to constitute an independent due process” violation.

Richmond,

506 U.S. at 50 , 113 S.Ct. at 536 .

As there was no state sentencing error, there can be no due process violation. Petitioner’s mere complaint that the prosecutor should have exercised her charging discretion in a more liberal manner, as other prosecutors may have done in later cases, does not establish a due process violation. The Supreme Court has made clear that prosecutors possess wide discretion in deciding “whether or not to prosecute, and what charges to bring or file .... ”

Wayte v. United States,

470 U.S. 598, 607 , 105 S.Ct. 1524, 1530 , 84 L.Ed.2d 547 (1985). The prosecutor’s mere exercise of “ ‘some selectivity in enforcement is not in itself a federal constitutional violation’ so long as ‘the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ”

Bordenkircher v. Hayes,

434 U.S. 357, 364 , 98 S.Ct. 663, 668 , 54 L.Ed.2d 604 (1978) (quoting

Oyler v. Boles,

368 U.S. 448, 456 , 82 S.Ct. 501, 505 , 7 L.Ed.2d 446 (1962)). Petitioner does not allege any such “unjustifiable standard.” Rather, he merely complains that he did not receive the benefit of a “new policy” promulgated after his conviction. This does not constitute a federal constitutional violation.

Accordingly, Ground Sixteen should be denied.

The Alleged Improper Calculation Of Petitioner’s Conduct Credits

In Ground Nineteen, Petitioner contends that his custodian, the CDCR, has failed to calculate his conduct credits properly in connection with his Three Strikes sentence, in purported conflict with the term of custody actually prescribed by the trial court at sentencing and/or state law requirements concerning the CDCR’s calculation of such credits. More specifically, Petitioner contends that: although the trial court allegedly ordered that his Three Strikes sentence be served at “50 per cent,” the abstract of judgment failed to acknowledge this sentencing order; and because Petitioner’s convictions are for non-violent felonies, he is entitled to receive goodtime/worktime credits applied against his sentence.

(See

Petition Att. at 9; Traverse, at 103-06.)

*1055

Petitioner’s contentions fail for two reasons. First, the California Supreme Court has made clear that the Three Strikes Law does not authorize the award of prison conduct credits against a Three Strikes indeterminate term, and “[i]n the absence of authorization for use against indeterminate terms, ... prison conduct credits are simply unavailable.”

In re

Cerrera, 24 Cal.4th 1073, 1078-79 , 103 Cal.Rptr.2d 762, 765 , 16 P.3d 176 (2001). In Cerrera, the state high court expressly found that prison conduct credits may not be awarded against a Three Strikes indeterminate term, and it rejected the argument that such credits may be awarded against the minimum term portion of such a sentence.

Id.

at 1080-82 , 103 Cal.Rptr.2d at 766-68 , 16 P.3d 176 . Hence, California law bars Petitioner’s argument.

Second, contrary to Petitioner’s assertion, the CDCR has credited Petitioner with the custody and conduct credits found by the trial court. At sentencing, the trial court imposed a six-month sentence for Count 2, to run concurrently with the indeterminate, Three Strikes sentence imposed for Count 3. The trial court found that Petitioner was entitled to receive 1,129 days of credit, based on 813 days of custody credits and 406 days of goodtime/worktime credits. (RT 102-04; CT 301.) The abstract of judgment, in fact, reflects this credits finding. (CT 316.) While these credits ultimately may not result in a net reduction of the days served pursuant to Petitioner’s indeterminate sentence, the CDCR did appropriately credit them to Petitioner.

There has been no state law or other error in connection with the credits due Petitioner. Ground Nineteen, thus, provides no basis for federal habeas relief.

Petitioner’s Alleged Entitlement To Be Sentenced In Accordance With Rejected Plea Offer(s)

In Ground Nine, Petitioner contends that, in lieu of his Three Strikes sentence, he was entitled to receive the sentence first suggested by a prosecutor in an early plea offer, notwithstanding that Petitioner rejected not only that plea offer but also subsequent plea offers and, instead, opted to proceed to both a court and then a jury trial on the charges against him. (Petition Att. at 5; Traverse at 72-74;

see also

Petition Att. at 5.)

*1057

Petitioner’s Ground Nine argument, thus, rests on the same contention previously rejected by this Court in connection with Ground Ten, namely, Petitioner’s contention that the evidence was insufficient to find that he was a Third-Striker, because the trial court did not review the February 16, 1995 plea hearing transcript before finding the 1995 and 1996 convictions to constitute “strikes.” For the reasons stated above, this contention is meritless, because the February 16, 1995 transcript does not have any effect on the substantial evidence establishing that Petitioner sustained the 1995 and 1996 convictions and they constituted valid convictions.

Moreover, Petitioner substantially mischaracterizes the March 4, 2001 hearing. The transcript, fairly read, shows that the trial judge discussed at some length the possibility that Petitioner faced a lengthy sentence based on his numerous prior convictions, and then simply noted that, absent

any

sentence enhancement based on his prior “strikes” and prison terms, Petitioner faced “at a minimum” the low term of 16 months on each of the two counts of conviction, for a total of 32 months. (2RT 30-37.) It was Petitioner’s counsel who urged the trial court to review the plea hearing transcript for the 1995 conviction alleged as the first “strike”; the trial court simply responded, “If you want me to take a look at the plea transcript ..., you want to order it and have it, I will give you the time to do it, and I will look at it.” (2RT 34-35.)

Plea agreements are construed under ordinary rules of contract interpretation.

See, e.g., Brown v. Poole,

337 F.3d 1155, 1159 (9th Cir.2003). A criminal defendant has a due process right to enforce the terms of a plea agreement into which he and the prosecutor entered.

See Santobello v. New York,

404 U.S. 257, 261-62 , 92 S.Ct. 495, 498-99 , 30 L.Ed.2d 427 (1971). But in this case, Petitioner did not enter into any plea agreement. Instead, he rejected each of the prosecutor’s plea offers. Those rejections terminated the plea offers, which then ceased to exist.

See, e.g., Beverly Way Associates v. Bar-ham,

226 Cal.App.3d 49, 55 , 276 Cal.Rptr. 240, 244 (1990) (“It is hornbook [law] that an unequivocal rejection by an offeree, communicated to the offeror, terminates the offer; even if the offeror does no further act, the offeree cannot later purport to accept the offer and thereby create enforceable contractual rights against the offeror.”). Petitioner had no right, contractual or constitutional, to be sentenced in accordance with plea offers he had rejected.

To the extent that Petitioner’s fleeting reference in his Traverse (at 74) to the impropriety of punishing a defendant for exercising a constitutional right could be construed as a claim of judicial vindictiveness for Petitioner’s exercise of his right to proceed to trial, Petitioner still does not establish a basis to overturn his sentence. Punishing a criminal defendant with a harsher sentence simply for exercising his constitutional rights violates due process.

See, e.g., United States v. Goodwin,

457 U.S. 368, 372 , 102 S.Ct. 2485, 2488 , 73 L.Ed.2d 74 (1982);

Bordenkircher,

434 U.S. at 363 , 98 S.Ct. at 668 . However, unless an increased sentence, following rejection of a plea offer, is rendered in circumstances that create a “reasonable likelihood” of vindictiveness on the part of the sentencing judge, the burden is on the defendant to prove actual vindictiveness.

Alabama v. Smith,

490 U.S. 794, 799-800 , 109 S.Ct. 2201, 2205 , 104 L.Ed.2d 865 (1989). When nothing in the record suggests that a trial judge acted with improper motivation and imposed a particular sentence in retaliation for a defendant’s choice to reject a plea offer and proceed to

*1058

trial, impermissible punishment cannot be found.

See United States v. Vasquez-Landaver,

527 F.3d 798, 805-06 (9th Cir.2008).

Petitioner has not alleged any circumstances, much less adduced any evidence, indicating or giving rise to an inference that the trial court’s imposition of a Three Strikes sentence was vindictive and imposed as punishment for Petitioner’s failure to accept a plea offer. The Court has read the record very carefully and concludes that only the opposite conclusion (ie., a lack of vindictiveness) can be drawn.

The record makes plain that: the trial judge endeavored to give Petitioner ample time to consider the plea offer and apprised Petitioner of the risks he faced if he rejected that offer (1RT 47-52); the trial judge repeatedly noted that he was “happy” to conduct a jury trial, if that was what Petitioner wanted

(see id.

at 51, noting “it’s not like I get out of the work” when a plea offer is rejected and the case proceeds to trial); the trial judge carefully considered, and struggled with, the issue of whether Petitioner should receive a Three Strikes sentence, including the issue of whether any of Petitioner’s strikes should be stricken (2RT 1-10, 14-21, 23-39, 51-69, 74-101;

see also

2RT 30, reflecting that the trial judge noted, “This is a very, very difficult case for me,” and 2RT 59, reflecting that the trial court noted, “I would consider a reasonable second strike sentence as well”). Ultimately, after having “looked hard and carefully,” the trial judge concluded that, based on the records before him, it would be an abuse of discretion to strike either of the two “strikes,” and thus, he was required to impose a Three Strikes sentence.

(2RT 101-102.) Moreover, although the trial court could have imposed two 25 years to life sentences

(ie.,

for a total of 50 years to life), coupled with seven one-year enhancements based on prior prison terms, the trial court exercised discretion to: reduce the Count 2 charge to a misdemeanor, thereby precluding application of a Three Strikes sentence based on that conviction; and struck the seven prior prison term enhancements found true, despite “the court [having] spent considerable time on” wrestling with the evidence of those prior terms. (2RT 101-02.)

As the Ninth Circuit has observed:

When a defendant voluntarily chooses to reject or withdraw from a plea bargain, he retains no right to the rejected sentence. Having rejected the offer of a lesser sentence, he assumes the risk of receiving a harsher sentence. If defendants could demand the same sentence after standing trial that was offered in exchange for a guilty plea, all incentives to plead guilty would disappear. Defendants would lose nothing by going to trial.... The reality of plea bargaining is that “[o]nce the defendant elects to go to trial, all bets are off.” ...

United States v. Carter,

804 F.2d 508, 513 (9th Cir.1986) (citation omitted).

This is a case in which there simply is nothing to show that the trial court was vindictive and desired to punish Petitioner for exercising his constitutional right to proceed to trial. The mere fact that the sentence Petitioner ultimately received was substantially longer than that set forth in plea offers in no way establishes vindictiveness or any punishment of Petitioner for exercising his constitutional right to a trial. Under the controlling precedent, the mere fact that Petitioner received a longer sentence following trial is not enough to establish a due process violation.

See Smith,

490 U.S. at 800 n. 3,

*1059

109 S.Ct. at 2205 n. 3 (due process is not offended by all possibilities of increased punishment, but only by those that pose a realistic likelihood of vindictiveness);

see also

RT 317, counsel’s indication at the court trial that he might call the parole officer to testify about statements the victim made about the gloves.) As to Categories (1) and (2), the documents that came into existence

after

Petitioner’s conviction and were generated by Petitioner himself and by LAPD Custodians of Records and LAPD Internal Affairs personnel in responding to Petitioner’s post-conviction subpoena efforts and misconduct complaints, these post-conviction documents—generated outside of and following the criminal investigation and prosecution of Petitioner—do not fall within the scope of the prosecutor’s disclosure duty in connection with Petitioner’s earlier criminal proceeding.

With respect to Category (4), the 911 tape, Petitioner does not assert that the prosecutor failed to produce the tape; rather, he asserts that the prosecution’s disclosure of the tape was untimely. Petitioner, however, provides no support for his assertion that the 911 tape was disclosed belatedly, and there is no evidence of any untimely disclosure of that tape. At a hearing at the start of Petitioner’s

*1062

jury trial, in which the trial court and the parties discussed the form of the transcript of the 911 tape to be used, Petitioner’s counsel at no time indicated that there had been a delay in the production of the tape itself or of the proposed transcription. (ART 1-6.) Thus, to the extent it is premised on a purported untimely production of the 911 tape, Petitioner’s Ground Fifteen subclaim fails factually. The claim fails legally as well, for he has not alleged, much less shown, any prejudice suffered even if turnover of the 911 tape was delayed.

“Brady

does not necessarily require that the prosecution turn over exculpatory material

before

trial. To escape the

Brady

sanction, disclosure must be made at a time when [the] disclosure would be of value to the accused.”

United States v. Aichele,

941 F.2d 761, 764 (9th Cir.1991) (citation and internal punctuation omitted; emphasis in original);

see also United States v. Gamez-Orduño,

235 F.3d 453, 461 (9th Cir.2000) (the due process violation “may be cured, however, by belated disclosure of evidence, so long as the disclosure occurs at a time when disclosure would be of value to the accused”; citation and internal punctuation omitted). The test is whether “the

lateness

of the disclosure so prejudiced [the defendant’s] preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.”

United States v. Miller,

529 F.2d 1125, 1128 (9th Cir.1976) (emphasis in original). Due process requires only that disclosure be made in sufficient time to permit the defendant to make effective use of the evidence disclosed.

LaMere v. Risley,

827 F.2d 622, 625 (9th Cir.1987). When a defendant has the opportunity at trial to use information that was disclosed belatedly, even if that information should have been disclosed earlier, there is no prejudice within the meaning of the

Brady

standard.

Aichele,

941 F.2d at 764 . Here, plainly, Petitioner’s counsel possessed the 911 tape prior to the commencement of the jury trial, and she had the opportunity to make meaningful use of it, even if,

arguendo,

its turnover was delayed.

With respect to Category (3),

i.e.,

LAPD reports regarding the criminal arrest and investigation, there is no competent showing that these documents were suppressed. Prior to the court trial, Petitioner’s counsel stated that discovery was completed. (RT A6.) 99 Prior to the jury trial, Petitioner’s counsel stated that she had “all the discovery.” (1RT 4.) At both the court and jury trials, Petitioner’s counsel referred to the police reports and their substance in examining the victim and arresting officers.

(See

RT 7-9, 307-08; ART 53-56; 1RT 98-99, 127-29.) Even if his counsel did not have all of the ancillary police records to which Petitioner now points, Petitioner nonetheless has not satisfied the

Brady

suppression requirement.

“ ‘[W]here the defendant is aware

*1063

of the essential facts enabling him to take advantage of any exculpatory evidence, the Government does not commit a

Brady

violation by not bringing the evidence to the attention of the defense.’ ”

Raley,

470 F.3d at 804 (citation omitted). If counsel had believed she needed back-up LAPD records in addition to the police reports she possessed, then defense counsel could have sought such documents by discovery and/or subpoena directly to the police during trial proceedings, as Petitioner did himself post-trial.

Id.

(finding no

Brady

violation when the petitioner “possessed the salient facts regarding the existence of the records that he claims were withheld” by the prosecution, and therefore, petitioner’s “counsel could have sought the documents through discovery”);

see also

RT 904-05, Ms. Moore’s court trial testimony.)

During the jury instruction conference, Petitioner’s counsel asked for an instruction regarding the missing photograph. (1RT 176.) The prosecutor objected, noting there was doubt that the photograph ever existed. (1RT 178-79.) The trial judge concluded that a Polaroid was taken but no longer existed, but he repeatedly stated that the situation was one of “inadvertance,” rather than suppression, noting: “I don’t fault the district attorney in any way on this matter”; and “I wanted the record to be clear. I don’t find that there is any shenanigan going on here or that there is anything that’s been withheld.” (1RT 180.) The trial court thereafter instructed the jury with a modified version of CALJIC No. 2.28, which advised the jury,

inter alia:

of the parties’ discovery obligations; that the prosecution lost or was unable to produce a Polaroid photograph of a pair of gloves; that the prosecution’s failure to produce the photograph “was without justification”; and that the weight and significance of any loss or inability to locate the photograph was a matter for the jury’s consideration. (CT 114-15; 1RT 199-200.)

Given the evidence of record, it is unclear to the Court that the alleged Polaroid photograph taken at the time of arrest of the gloves and/or the controlled substances actually existed. However, as the state court rendered a factual finding that a Polaroid photograph of the gloves existed, which has not been effectively rebutted, the Court will assume that such a Polaroid did exist and could not be located. 28 U.S.C. § 2254 (e)(1). Significantly, the state court also rendered a factual finding that there had been no suppression of the photograph or other misfeasance by the prosecutor, characterizing the photograph as simply lost through someone else’s inadvertance. The record shows that the prosecutor did attempt to obtain any photographs that existed of the items found when Petitioner was arrested, but her efforts were for naught. The Court, thus, is not persuaded that the requisite element of suppression can be found here; at a minimum, reasonable minds might differ on that conclusion. In any event, Petitioner has not established that the photograph was material within the meaning of

Brady .

The evidentiary purpose of the gloves themselves pertained to the victim’s

identification

of Petitioner with respect to the theft counts, rather than the possession of heroin count.

(See, e.g.,

RT 5, 303-04; 1RT 101-02; ART 18-20, 25-26.) At trial, the prosecutor argued that the theft was of the recyclable metal, and

not

of the gloves the victim testified were missing from his backyard and found in Petitioner’s possession when he was arrested.

(See, e.g.,

1RT 234-38, 241, 258-61.) Thus, the victim’s identification of the gloves only tended to provide ancillary support for the victim’s testimony.

But, gloves

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or no gloves, the victim repeatedly identified Petitioner as the man who had stolen the metal recyclable items from the victim’s backyard-an identification that was based on the victim’s observations of Petitioner entirely independent of the gloves.

(See, e.g.,

5, 303-04; 1RT 101-02;

ART 18-20, 24-26, 41-42.) Moreover, the victim’s certain identification of Petitioner was effectively confirmed by Petitioner himself. When Petitioner was arrested, he made the unprompted statement, “I wasn’t in nobody’s backyard,” even though the police had not yet explained why he was being arrested or even mentioned that the crime in issue involved anyone’s “yard.” (1RT 116-17, 120.) Hence, even if the victim was mistaken about the gloves found in Petitioner’s possession when he was arrested, and it could have been shown that the gloves found actually belonged to Petitioner rather than the victim,

there is no reason to believe it reasonably probable that the result of Petitioner’s trial would have been different. The absence of the gloves themselves and/or any photograph of them does not undermine confidence in the jury’s finding that Petitioner was the man identified by the victim. Thus, Petitioner does not establish the materiality of either the gloves themselves or any photographs of them.

With respect to any purported police photograph(s) of the controlled substance found by the arresting officers, Petitioner has not established the element of materiality, or even of impeachment

(or

exculpatory) value in the first instance, for any such photograph(s). At the jury trial, photographs taken by Criminalist Ghattas of the drug container found in the jacket in Petitioner’s possession, its contents (including individually wrapped balloons and a tinfoil packet containing what appeared to be narcotics), and an evidence booking envelope for the items themselves were produced, along with testimony by Criminalist Ghattas and Officer Bright regarding those items recovered from Petitioner’s person.

(See

1RT 120-28, 143-54.) The testimony at the jury trial established where the items were found, the chain of custody when the items themselves were booked into evidence, as well as the results obtained by chemical testing of the substances in the container, with such testing establishing that one of the substances was heroin and indicating its weight.

(Id.)

No evidence was adduced to contradict what was recovered from Petitioner and where it was recovered (from the pocket of a jacket in Petitioner’s possession). Petitioner does not explain what evidence of value to the defense any photograph of these drug items taken at the arrest site would have provided. Rather, he relies only on rank speculation that any photograph possibly taken by an investigating officer might have shown something different than what was reflected in the crimi

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nalist’s photographs, the police reports themselves, and the trial testimony. Petitioner has not established, nor does the record otherwise indicate, the materiality of any such alleged photograph.

For the foregoing reasons, Petitioner has not established a

Brady

violation based on the allegations of Ground Twenty-Six. Accordingly, the Court should deny Grounds Seven, Twenty-Six, and the subject subclaims of Ground Fifteen.

“Barred” Counts And The Transcript Of The 911 Call

In a further Ground Fifteen subclaim, Petitioner contends that the prosecutor committed misconduct by: (1) alleging the petty theft with a prior and possession of heroin for sale counts in the Information and Amended Information, even though she was purportedly barred from doing so by the “neutral magistrate’s” determination that probable cause did not support detaining Petitioner for further proceedings on those counts; and (2) falsifying a document regarding the transcript of a 911 call to imply to the jury that it was an “official document.” (Petition Att. at 7-8.)

Habeas relief based on prosecutorial misconduct will be granted only when the misconduct “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ”

Darden v. Wainwright,

477 U.S. 168, 181 , 106 S.Ct. 2464, 2471 , 91 L.Ed.2d 144 (1986) (quoting

Donnelly v. DeChristoforo,

416 U.S. 637, 643 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974));