# Moore v. CHRONES

> District Court, C.D. California · January 14, 2010 · 687 F. Supp. 2d 1005

URL: https://www.frixlaw.com/law-library/cases/2523751

## Case

- **Full name:** Larry B. MOORE, Petitioner, v. Lee Ann CHRONES, Warden, Respondent
- **Court:** District Court, C.D. California
- **Decided:** January 14, 2010
- **Citations:** 687 F. Supp. 2d 1005; 2010 U.S. Dist. LEXIS 3334; 2010 WL 291774
- **Precedential status:** Published
- **Opinion:** Opinion by Gutierrez
- **Judges:** Philip S. Gutierrez
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2523751

## How later opinions describe it (automated extraction)

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

## Opinion text

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
] ...
1
;
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
1
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,
2
and six unexhausted subclaims of Ground Twenty-Two.
3
(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.
4
*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.
5
(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, e.g., Delgadillo v. Woodford,
527 F.3d 919, 925 (9th Cir.2008);
Medley v. Runnels,
506 F.3d 857, 862 (9th Cir.2007)
(en banc), cert. denied,
— U.S. -, 128 S.Ct. 1878 , 170 L.Ed.2d 754 (2008). Accordingly, to the extent that Grounds One through Four present cognizable claims (as discussed further below), they are governed by the Section 2254(d) standard of review, specifically, Section 2254(d)(1).
6
See Lambert v. Blodgett,
393 F.3d 943, 966-69 (9th Cir.2004) (Section 2254(d) applies when the state court has denied a claim based on its substance, rather than on the basis of a procedural or other rule precluding state court review of the merits).
“Clearly established Federal law,” for purposes of Section 2254(d)(1) review, “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Williams v. Taylor,
529 U.S. 362, 412 , 120 S.Ct. 1495, 1523 , 146 L.Ed.2d 389 (2000);
see also Carey v. Musladin,
549 U.S. 70, 74 , 127 S.Ct. 649, 653 , 166 L.Ed.2d 482 (2006);
Lockyer v. Andrade,
538 U.S. 63, 71 , 123 S.Ct. 1166, 1172 , 155 L.Ed.2d 144 (2003);
Stokes v. Schriro,
465 F.3d 397, 401-02 (9th Cir. 2006) (this statutory language “refers to Supreme Court precedent at the time of
*1023
the last-reasoned state court decision”). Section 2254(d)(1) “plainly restricts the source of clearly established law to the Supreme Court’s jurisprudence.”
Lambert,
393 F.3d at 974 ;
see also Plumlee v. Masto,
512 F.3d 1204, 1210 (9th Cir.2008)
(ien
banc) (“What matters are the holdings of the Supreme Court, not the holdings of lower federal courts.”),
cert. denied,
— U.S. --, 128 S.Ct. 2885 , 171 L.Ed.2d 822 (2008). However, although “[o]nly Supreme Court precedents are binding on state courts under AEDPA,” Ninth Circuit “precedents may be pertinent to the extent that they illuminate the meaning and application of Supreme Court precedents.”
Campbell v. Rice,
408 F.3d 1166, 1170 (9th Cir.2005)
(en banc)-, see also Mendez v. Knowles,
556 F.3d 757, 767 (9th Cir.2009).
Under the first prong of Section 2254(d)(1), a state court decision is “contrary to” federal law if the state court applies a rule that contradicts the governing law as stated by the Supreme Court or reaches a different conclusion than that reached by the high court on materially indistinguishable facts.
Price v. Vincent,
538 U.S. 634, 640 , 123 S.Ct. 1848, 1853 , 155 L.Ed.2d 877 (2003). This includes “use of the wrong legal rule or framework.”
Frantz v. Hazey,
533 F.3d 724, 734 (9th Cir.2008)
(en
banc).
The second prong of Section 2254(d)(1) is met when a state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies it to the facts of the petitioner’s case.
Williams,
529 U.S. at 412-13 , 120 S.Ct. at 1523 . The “unreasonable application” inquiry is an objective one, and the standard is not satisfied simply by showing error or incorrect application of the governing federal law.
Andrade,
538 U.S. at 75 , 123 S.Ct. at 1174 ;
Woodford v. Visciotti
537 U.S. 19, 25 , 123 S.Ct. 357, 360 , 154 L.Ed.2d 279 (2002)
(per
curiam);
Williams,
529 U.S. at 409 , 120 S.Ct. at 1521 . “The question under AED-PA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.”
Schriro v. Landrigan,
550 U.S. 465, 473 , 127 S.Ct. 1933, 1939 , 167 L.Ed.2d 836 (2007).
“[I]n the absence of a Supreme Court decision that ‘squarely addresses the issue’ in the case before the state court ..., or establishes a general principle that ‘clearly extends’ to the case,” it cannot be said that clearly established federal law exists for purposes of Section 2254(d), and a federal court must defer to the state court decision.
Moses,
555 F.3d at 760
(citing Wright v. Van Patten,
552 U.S. 120 , 128 S.Ct. 743, 746 , 169 L.Ed.2d 583 (2008)
(per curiam)-, Musladin,
549 U.S. at 76 , 127 S.Ct. at 654 ; and
Panetti v. Quarterman,
551 U.S. 930 , 127 S.Ct. 2842, 2858 , 168 L.Ed.2d 662 (2007));
see also Knowles v. Mirzayance,
— U.S. -, 129 S.Ct. 1411, 1419 , 173 L.Ed.2d 251 (2009) (noting that under ample Supreme Court precedent, it is not an unreasonable application of clearly established federal law “for a state court to decline to apply a specific legal rule that has not been squarely established by” the Supreme Court);
Holley v. Yarborough,
568 F.3d 1091, 1097-98 (9th Cir.2009) (“[circuit precedent may not serve to create established federal law on an issue the Supreme Court has not yet addressed,” and “[w]hen there is no clearly established federal law on an issue, a state court cannot be said to have unreasonably applied the law as to that issue”). If, however, the Supreme Court’s decisions “do provide a ‘controlling legal standard’ ... that is applicable to the claims raised by a habeas petitioner without ‘tailoring or modification’ of the standard ..., the question is then whether the application of that standard was objectively unreasonable,
*1024
even if the facts of the case at issue are not identical to the Supreme Court precedent.”
Moses,
555 F.3d at 754 (citations omitted).
Accordingly, the Court will look to the California Court of Appeal’s decision on direct appeal as a starting point in its analysis of Grounds One through Four.
Grounds Five Through Twenty-Three, Twenty-Six, And Thirty:
The AEDPA’s deferential standard of review set forth in Section 2254(d) applies only to a “claim that was adjudicated on the merits in state court proceedings.” Petitioner raised the claims alleged in Grounds Five through Twenty-Three, Twenty-Six, and Thirty in habeas petitions filed at various state court levels. When raised in habeas petitions filed with the California Supreme Court, the state high court denied relief, citing California cases that reflect procedural bases for the denial of the claims.
7
{See
Lodg. Nos. 28-36.)
The state high court’s denial of these 21 claims was not a decision on the merits of these claims.
8
Accordingly, because Grounds Five through Twenty-Three, Twenty-Six, and Thirty were not denied on their merits, the Section 2254(d) standard of review does not apply to them.
*1025
See Nulph v. Cook,
333 F.3d 1052, 1056 (9th Cir.2003);
Pirtle v. Morgan,
313 F.3d 1160, 1167-68 (9th Cir.2002). When “there is no state court decision on [the merits of the constitutional violation alleged] to which to accord deference,” “we must review it de novo.”
Id.
at 1167 ;
see also Lewis v. Mayle,
391 F.3d 989, 996 (9th Cir.2004);
Nulph,
333 F.3d at 1057 .
9
DISCUSSION
I.
Petitioner’s Ineffective Assistance of Trial and Appellate Counsel Claims Do Not Warrant Federal Habeas Relief.
Grounds One, Five, Twenty, and Twenty-Two (as amended) rest on allegations that both Petitioner’s trial and appellate counsel provided ineffective assistance.
10
(Petition at 5 and Petition Attachment at 4, 9-10.) The Sixth Amendment guarantees the effective assistance of counsel, both at trial and on appeal.
See Strickland v. Washington,
466 U.S. 668, 686 , 104 S.Ct. 2052, 2063 , 80 L.Ed.2d 674 (1984);
see also Smith v. Robbins,
528 U.S. 259, 285-86 , 120 S.Ct. 746, 764-65 , 145 L.Ed.2d 756 (2000). To establish ineffective assistance by his trial counsel, Petitioner must demonstrate both that: (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced his defense.
Strickland, 466
U.S. at 688-93, 104 S.Ct. at 2064-68 ;
see also Mirzayance,
129 S.Ct. at 1420
(“Strickland
requires a defendant to establish deficient performance and prejudice”);
Yarborough v. Gentry,
540 U.S. 1, 5 , 124 S.Ct. 1, 4 , 157 L.Ed.2d 1 (2003)
(per
curiam) (the Sixth Amendment right “is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense”). As both prongs of the
Strickland
test must be satisfied to establish a constitutional violation, failure to satisfy either prong requires that an ineffective assistance claim be denied.
See Strickland,
466 U.S. at 697 , 104 S.Ct. at 2069 (no need to address deficiency of performance if prejudice is examined first and found lacking);
Rios v. Rocha,
299 F.3d 796, 805 (9th Cir.2002) (“[fjailure to satisfy either prong of the
Strickland
test obviates the need to consider the other”);
Siripongs v. Calderon,
133 F.3d 732, 737 (9th Cir.1998) (no need to address prejudice when petitioner cannot establish deficient performance).
*1026
The first prong of the
Strickland
test— deficient performance — requires a showing that, in the light of all the circumstances, counsel’s performance was “outside the wide range of professionally competent assistance.”
Strickland,
466 U.S. at 690 , 104 S.Ct. at 2066 . Judicial scrutiny of counsel’s performance “must be highly deferential,” and this Court must guard against the distorting effects of hindsight and evaluate the challenged conduct from counsel’s perspective at the time in issue.
Id.
at 689 , 104 S.Ct. at 2065 ;
see also Mirzayance,
129 S.Ct. at 1420 (“ ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms’ ”;
quoting Strickland
);
Gentry,
540 U.S. at 8 , 124 S.Ct. at 6 (noting that even inadvertent, as opposed to tactical, attorney omissions do not automatically guarantee habeas relief, because “[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight”);
Wiggins v. Smith,
539 U.S. 510, 523 , 123 S.Ct. 2527, 2536 , 156 L.Ed.2d 471 (2003) (the first
Strickland
prong is a “context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time’ ”). A habeas reviewing court can “ ‘neither second-guess counsel’s decisions, nor apply the fabled twenty-twenty vision of hindsight’ ... but rather, will defer to counsel’s sound trial strategy.”
Murtishaw v. Woodford,
255 F.3d 926, 939 (9th Cir.2001)
(citing Strickland).
Due to the difficulties inherent in making this evaluation, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland,
466 U.S. at 689 , 104 S.Ct. at 2065 . A habeas petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”
Id. (internal quotation and citation
omitted);
see also Matylinsky v. Budge,
577 F.3d 1083, 1091 (9th Cir.2009) (the petitioner “bears the burden of proving that [counsel’s] trial strategy was deficient”);
Murtishaw,
255 F.3d at 939 (the petitioner “bears the heavy burden of proving that counsel’s assistance was neither reasonable nor the result of sound trial strategy”).
The second prong of the
Strickland
test — prejudice—requires a showing of a “reasonable probability that, but for counsel’s unprofessional errors, the result of the [trial] would have been different.”
Strickland,
466 U.S. at 694 , 104 S.Ct. at 2068 . A reasonable probability is a probability “sufficient to undermine confidence in the outcome.”
Id.; see also Visciotti,
537 U.S. at 22 , 123 S.Ct. at 359 .
With respect to Petitioner’s claim that appellate counsel provided ineffective assistance, the analytical framework of
Strickland
also governs.
Pollard v. White,
119 F.3d 1430, 1435 (9th Cir.1997);
Miller v. Keeney,
882 F.2d 1428, 1433 (9th Cir. 1989). As the Ninth Circuit has explained, the two
Strickland
prongs often will overlap in the appellate context:
In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the .hallmarks of effective appellate advocacy.... For these reasons, a lawyer who throws in every arguable point — “just in case” — is likely to serve her client less effectively than one who concentrates solely on the strong arguments. Appellate counsel will therefore frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same reason — because she declined to raise a weak issue.
Miller,
882 F.2d at 1434 .
In making the Sixth Amendment assessment in the context of an omitted claim on appeal, the Court must decide
*1027
whether the claim would have resulted in a “reasonable probability of reversal.”
Miller,
882 F.2d at 1434 ;
see also Wildman v. Johnson,
261 F.3d 832, 840-42 (9th Cir. 2001) (appellate counsel’s failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal);
Jones v. Smith,
231 F.3d 1227 , 1239 n. 8 (9th Cir.2000) (same).
A.
Trial Counsel
1.
Ground One: Failure To Seek Severance Of Theft-Related And Drug-Related Counts
The Amended Information in this case charged Petitioner with two theft-related counts (second degree robbery and petty theft with a prior theft-related conviction), both of which arose from events that took place on February 26, 1999, and one drug-related count (possession of heroin for sale), which stemmed from narcotics found on March 1, 1999, when Petitioner was taken into custody based on the theft offenses. (CT 13-17;
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.)
b.
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.
11
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,
12
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.
13
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).
2.
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,
14
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).
15
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.
16
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.
17
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.
3.
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.
18
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”).
B.
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.
19
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 Boag v. Raines,
769 F.2d 1341, 1344 (9th Cir.1985) (failure to raise meritless argument on appeal does not constitute ineffective assistance of counsel). Ground Twenty, therefore, must be denied.
II.
Petitioner’s Claim Of Instructional Error Does Not Warrant Federal Habeas Relief.
In Ground Two, Petitioner contends that the trial court erred by instructing the jury with CALJIC No. 17.41.1,
20
because the instruction “nullified the jury,” in violation of his rights to due process and a fair trial, as well as “jurors
[sic
] rights.” (Petition at 5.) On direct review, the California Court of Appeal rejected Ground Two, finding both that the claim had “no merit,” and any error in giving CALJIC No. 17.41.1 “was not prejudicial under any standard of reversible error.”
21
(Lodg. No. 5 at 8 (citations omitted).) The California Supreme Court rejected the claim summarily. (Lodg. No. 7.)
A claim of instructional error does not raise a cognizable federal claim
*1037
unless the error “so infected the entire trial that the resulting conviction violates due process.”
Estelle v. McGuire,
502 U.S. 62, 71-72 , 112 S.Ct. 475, 481-82 , 116 L.Ed.2d 385 (1991);
Henderson v. Kibbe,
431 U.S. 145, 154 , 97 S.Ct. 1730, 1736-37 , 52 L.Ed.2d 203 (1977);
Cupp v. Naughten,
414 U.S. 141, 146-47 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973). In determining whether a constitutional violation has occurred, the claimed instructional error must be viewed in the light of all the instructions given and the trial record, taken as a whole.
See Estelle,
502 U.S. at 72 , 112 S.Ct. at 482 ;
Cupp,
414 U.S. at 146-47 , 94 S.Ct. at 400 .
22
In
Brewer v. Hall,
378 F.3d 952 (9th Cir.2004), the Ninth Circuit held that a habeas claim raising essentially the same contentions made by Petitioner in this case did not warrant relief under the standard of review set forth in 28 U.S.C. § 2254 (d)(1). As the Ninth Circuit found, “no Supreme Court case establishes that an instruction such as CALJIC No. 17.41.1 violates an existing constitutional right.”
Id.
at 956 . The Ninth Circuit concluded, moreover, that existing Supreme Court precedent compels the rejection of a claim based on CALJIC No. 17.41.1, given the Supreme Court’s statements that: the right to a representative jury does not include the right to be tried by jurors who have indicated an inability to follow the law and the instructions given them
(citing Lockett v. Ohio,
438 U.S. 586, 596-97 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978)); jurors are bound to follow the law as stated by the trial court
(citing Sparf v. United States,
156 U.S. 51, 72-73 , 15 S.Ct. 273 , 39 L.Ed. 343 (1895)); and there is no constitutional violation in removing jurors who are unwilling or unable to follow the trial court’s instructions
(citing Morgan v. Illinois,
504 U.S. 719, 730 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992)).
Id.
The Ninth Circuit noted further that “[t]he California Supreme Court’s decision [in
Engelman
] to eliminate CALJIC 17.41.1 from the California courts’ repertoire — as wise as that decision may have been — does not make it a clearly established unconstitutional instruction.”
Id.
at 957.
As in
Brewer ,
Petitioner has failed to cite any Supreme Court authority clearly establishing that the trial court’s use of CALJIC No. 17.41.1 amounted to federal constitutional error, and the clearly established precedent compels the opposite conclusion. Even construed favorably to Petitioner, his claim that the trial court erred in providing CALJIC No. 17.41.1 rests on an unsettled legal proposition, and as a result, Section 2254(d)(1) precludes federal habeas relief.
See, e.g., Mirzayance,
129 S.Ct. at 1419 ;
Van Patten,
128 S.Ct. at 746 ;
Musladin,
549 U.S. at 76 , 127 S.Ct. at 654 ;
Holley,
568 F.3d at 1097-98 ;
Moses,
555 F.3d at 760. Accordingly, Ground Two must be denied.
III.
Petitioner’s Claim Of Charging Error Does Not Warrant Federal Habeas Relief.
In Ground Eight, Petitioner alleges that he was initially charged in a felony complaint with three counts — second degree robbery (Count 1), petty theft with a prior theft conviction (Count 2), and possession of heroin for sale (Count 3)
(see
Pet. Lodg., Vol. 3, Ex. Q-17) — -but that at a 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 for further proceedings on Counts 2 and 3. Petitioner contends that, as a result of that initial probable cause determination, the proseeu
*1038
tor was forever barred from pursuing Counts 2 and 3 and, thus, acted improperly in filing an Information and Amended Information containing those two counts. Petitioner further contends that the assertion of Counts 2 and 3 against him violated the Fourth Amendment and due process. (Petition Att. at 5.)
Petitioner was arrested on March 1, 1999. The record does not contain any documentation from Petitioner’s state criminal proceedings prior to April 20, 1999. Thus, Petitioner’s assertion that, on March 3, 1999, a magistrate dismissed Counts 2 and 3 lacks record support. However, for purposes of argument, the Court will assume that this alleged event occurred. Petitioner, however, does not cite any state law establishing that such a dismissal would forever bar the re-allegation of these counts in a subsequent information under which a defendant is later arraigned
23
and does not establish any error of federal constitutional dimension.
Contrary to Petitioner’s assertions, even if the magistrate dismissed Counts 2 and 3 at a probable cause hearing shortly after Petitioner’s arrest, California law plainly allowed the prosecutor to reinstate those two charges.
It has long been the rule in [California] that a magistrate’s dismissal of criminal charges following a preliminary examination does not bar the People from either refiling the same charges before another magistrate or seeking an indictment based upon those charges.... [T]he magistrate lacks the power to make a finding regarding the guilt or innocence of the accused, for the magistrate’s authority is limited to determining whether sufficient or probable cause exists to hold the defendant for trial. Accordingly, as the magistrate has no power to make a determination on the merits of the case before him, there is no room for the application of the doctrines of res judicata or collateral estoppel.
It is, of course, the rule in [California] that the magistrate’s order dismissing a felony complaint is not a bar to another prosecution for the same offense, either by filing a subsequent complaint ... or by seeking a grand jury indictment. Even a dismissal in the superior court following an order setting aside an information or indictment is no bar to a future prosecution for the same offense ....
... [California] cases have upheld subsequent prosecutions following dismissals ordered for such reasons as insufficiency of the evidence ..., lack of probable cause to commit ..., delay in prosecution ..., failure to exclude unauthorized persons from the courtroom ..., and furtherance of justice....
People v. Uhlemann,
9 Cal.3d 662, 664, 665-66 , 108 Cal.Rptr. 657, 658-59 , 511 P.2d 609 (1973) (citations omitted);
see also People v. Wallace,
33 Cal.4th 738, 749 , 16 Cal.Rptr.3d 96, 103 , 93 P.3d 1037 (2004) (“[w]hen a magistrate declines to hold a defendant to answer on the ground that the evidence at the preliminary hearing did not establish probable cause to believe the defendant committed the charged offense, the ruling does not bar future prosecution”; and “[t]he prosecution may file another complaint charging the same offense or may file an information charging the same offense in the trial court”); Cal.Penal Code §§ 871, 871.5, 1009. A “dismissal at a preliminary hearing has no preclusive effect under California law,” “an
*1039
initial dismissal for lack of probable cause is never a binding determination on the lack of probable cause,” and a dismissed action can be re-filed.
De Anda v. City of Long Beach,
7 F.3d 1418 , 1422 & n. 6 (9th Cir.1993).
Because the proceeding before a magistrate to determine sufficient cause “is not a trial, ... if the magistrate forms a personal opinion regarding the guilt or innocence of the accused, that opinion is of no legal significance whatever in view of the limited nature of the proceedings.”
Uhlemann,
9 Cal.3d at 667 , 108 Cal.Rptr. at 660 , 511 P.2d 609 . Even if the magistrate dismissed Counts 2 and 3 shortly after Petitioner’s arrest, the prosecutor was entitled to re-file the charges in a new complaint. The record indicates that the prosecutor did so prior to the scheduled preliminary hearing.
24
(See
CT 4.) At the scheduled preliminary hearing, Petitioner waived his right to a preliminary hearing, and he was ordered to appear for arraignment. (CT 1-6;
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.)
A.
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.
25
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.)
26
*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 Estelle,
502 U.S. at 67-68 , 112 S.Ct. at 480 . 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 v. Jeffers,
497 U.S. 764, 780 , 110 S.Ct. 3092, 3102 , 111 L.Ed.2d 606 (1990);
see also Campbell v. Blodgett,
997 F.2d 512, 522 (9th Cir.1992) (“[a]s the Supreme Court has stated time and again, federal habeas corpus relief does not lie for errors of state law”);
Miller v. Vasquez,
868 F.2d 1116, 1118-19 (9th Cir.1989). “[A] state court’s interpretation of its [sentencing] statute does not raise a federal question.”
Sturm v. California Adult Authority,
395 F.2d 446, 448 (9th Cir.1967). Petitioner’s claim in Ground Three involves solely the interpretation and application of state sentencing law, and thus, it does not present a basis for federal habeas relief.
27
See,
*1041
e.g., Cacoperdo,
37 F.3d at 506 (petitioner’s claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas);
Hendricks v. Zenon,
993 F.2d 664, 674 (9th Cir.1993) (defendant’s claim that state court was required to merge his convictions was not cognizable);
Watts v. Bonneville,
879 F.2d 685, 687 (9th Cir.1989) (petitioner’s claim that the trial court violated state law provision in sentencing him was not cognizable).
To state a cognizable federal habeas claim based on a claimed state sentencing error, a petitioner must show that an alleged state sentencing error was “so arbitrary or capricious as to constitute an independent due process” violation.
Richmond v. Lewis,
506 U.S. 40, 50 , 113 S.Ct. 528, 536 , 121 L.Ed.2d 411 (1992). Here, however, no state law error has been shown, as Petitioner’s sentence was within the limits “authorized by state law,” and as the state courts found, the trial court committed no error in the exercise of its discretion by declining to strike any of Petitioner’s priors. This Court must defer to the state courts’ interpretation and application of California law concerning the propriety of Petitioner’s sentence under California law.
See Wainwright,
464 U.S. at 84 , 104 S.Ct. at 382 ;
Missouri v. Hunter,
459 U.S. 359, 368 , 103 S.Ct. 673, 679 , 74 L.Ed.2d 535 (1983). As the state courts resolved this state law issue against Petitioner, this federal court may not disrupt that ruling.
See Bradshaw,
546 U.S. at 76 , 126 S.Ct. at 604 ;
Hicks,
485 U.S. at 630 & n. 3, 108 S.Ct. at 1428
&
n. 3;
Mullaney v. Wilbur,
421 U.S. 684, 691 , 95 S.Ct. 1881, 1886 , 44 L.Ed.2d 508 (1975) (“state courts are the ultimate expositors of state law”).
Ground Three presents no viable basis for federal habeas relief and the state court’s rejection of the claim is entitled to deference. Accordingly, the third claim must be denied.
B.
Cruel And Unusual Punishment
In Ground Four, Petitioner contends that his Three Strikes sentence constitutes cruel and unusual punishment under the Eighth Amendment. (Petition at 6.) Petitioner, sentenced as a recidivist under the provisions of California’s Three Strikes Law, received a term of 25 years to life with the possibility of parole based on his principal felony commitment offense of possession of heroin and his two prior “strike” convictions for residential burglary and attempted residential burglary.
28
(CT 300-02; RT 101-05.)
On direct review, the California Court of Appeal rejected Petitioner’s claim that his sentence violated the Eighth Amendment, citing,
inter alia, Harmelin v. Michigan,
501 U.S. 957 , 111 S.Ct. 2680 , 115 L.Ed.2d 836 (1991),
Solem v. Helm,
463 U.S. 277 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983), and
Rummel v. Estelle,
445 U.S. 263 , 100 S.Ct. 1133 , 63 L.Ed.2d 382 (1980). (Lodg. No. 5 at 13-15 and notes 2-3.) The state appellate court found that, under then existing
*1042
clearly established federal law, a finding that a sentence is not grossly disproportionate is sufficient to foreclose finding an Eighth Amendment violation.
(Id.
at 13 n. 2.) The state appellate court noted Petitioner’s 20-year criminal history, which encompassed seven separate prison terms.
(Id.
at 14.) The California Court of Appeal then concluded that Petitioner’s recidivist sentence was not grossly disproportionate, because: Petitioner “continued to reoffend”; and in the present case, he had been sentenced to life in prison “not for his current possession of heroin,” but “because he is a serious career criminal who has demonstrated repeatedly that he has no intention of abiding by the laws of this State.”
(Id.)
“The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle ‘that’ applies to noncapital sentences.’ ”
Ewing v. California,
538 U.S. 11, 20 , 123 S.Ct. 1179, 1185 , 155 L.Ed.2d 108 (2003) (quoting
Harmelin,
501 U.S. at 996-97 , 111 S.Ct. at 2702 (Kennedy, J., concurring));
see also Solem,
463 U.S. at 290 , 103 S.Ct. at 3009 (under the Eighth Amendment, a criminal sentence must be proportionate to the crime for which the defendant has been convicted). But “[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate to the crime.’ ”
Ewing,
538 U.S. at 23 , 123 S.Ct. at 1187 (citation omitted);
see also Andrade,
538 U.S. at 72 , 123 S.Ct. at 1173 .
In the cases cited by the California Court of
Appeal
— Solem,
Harmelin,
and
Rummel
— the Supreme Court struggled to define the contours of the Eighth Amendment’s prohibition against cruel and unusual punishment in the context of recidivist and non-recidivist proportionality challenges to non-capital sentences.
See Rummel,
445 U.S. at 264
et seq.,
100 S.Ct. at 1134
et seq.; Solem,
463 U.S. at 279, 282, 284-303 , 103 S.Ct. at 3004, 3006-17 ;
Harmelin,
501 U.S. at 961 , 111 S.Ct. at 2684 . Together, the three cases reflected a significant degree of uncertainty as to whether, and to what extent, disproportionality might render a sentence in breach of the federal constitutional prohibition against cruel and unusual punishment.
29
That uncertainty alone would render it difficult, if not impossible, to find the Section 2254(d) (1) standard met here.
See Mirzayance,
129 S.Ct. at 1419 ;
Musladin,
549 U.S. at 76 , 127 S.Ct. at 654 . In any event, that uncertainty was addressed and substantially resolved by the Supreme Court’s decisions in
Andrade
and
Ewing ,
two concurrently-issued decisions that rejected Eighth Amendment disproportionality challenges to sentences imposed under California’s Three Strikes law.
See Andrade,
538 U.S. at 66-70 , 123 S.Ct. at 1170-72 ;
Ewing,
538 U.S. at 29-31 , 123 S.Ct. at 1189-90 . These 2003 decisions, in
*1043
particular
Andrade ,
make it clear that the California Court of Appeal’s adjudication of Petitioner’s claim is entitled to deference.
Andrade ,
like this case, involved federal habeas review pursuant to Section 2254(d)(1). Andrade was convicted of two felony counts of petty theft with a prior theft conviction, based on the theft of videotapes having a total approximate value of $150.
See
538 U.S. at 66-68, 123 S.Ct. at 1169-71. Under the Three Strikes Law, Andrade, who, like Petitioner, had a prior criminal history of theft, burglary, and drug convictions, was sentenced to state prison for an aggregate term of 50 years to life.
30
See id.
Applying AEDPA standards, the Supreme Court held that the California courts’ decision upholding this Three Strikes sentence against an Eighth Amendment challenge was neither contrary to nor an unreasonable application of clearly established Supreme Court law.
Id.
at 73-77, 123 S.Ct. at 1173-75.
The Supreme Court acknowledged that its prior decisions in this area had “not established a clear or consistent path for courts to follow.”
Andrade,
538 U.S. at 72 , 123 S.Ct. at 1173 . For purposes of review under Section 2254(d)(1), it is “clearly established” only that the Eighth Amendment contains a “gross disproportionality principle” that is “applicable to sentences for terms of years.”
Id.
However, the “precise contours” of the “gross disproportionality principle” are unclear, and the principle applies only in the “exceedingly rare” and “extreme” case.
Id.
Because the California courts considering Andrade’s sentence did not apply a rule contradicting this limited principle, and because the facts at issue were “not materially indistinguishable” from those at issue in
Rummel
and
Solem ,
the Supreme Court concluded that the state court’s adjudication of Andrade’s Eighth Amendment claim was not contrary to clearly established Supreme Court law.
Id.
at 71-75, 123 S.Ct. at 1172-75. In addition, because the governing legal principle itself affords broad discretion to legislatures to fashion sentencing provisions within the imprecise contours of proportionality, the Supreme Court concluded that it was not objectively unreasonable for the state courts to apply the principle to uphold Andrade’s sentence.
Id.
at 76-77, 123 S.Ct. at 1175.
The Supreme Court’s decision in
Andrade
dictates the result here. Petitioner’s disproportionality claim — that his Three Strikes sentence of 25 years to life is disproportionate to his conviction on the principal felony count of possession of heroin — is not materially different from that considered and rejected in
Andrade .
Andrade’s Three Strikes sentence of 50 years to life (two consecutive Three Strikes sentences) following conviction for two felony counts of petty theft with a prior was found by the Supreme Court not to be disproportionate to the offense or cruel and unusual punishment in violation of the Eighth Amendment. It follows that Petitioner’s sentence also is not constitutionally defective.
Indeed, as noted earlier, Petitioner was convicted of an additional felony count (petty theft with a prior theft conviction) and was eligible for an
additional
Three Strikes term,
i.e.,
for a term of 50 years to life. Unlike the state trial court in
Andrade ,
which imposed two consecu
*1044
tive Three Strikes sentences for a total term of 50 years to life, the trial court exercised its discretion to reduce Petitioner’s “wobbler” petty theft conviction to a misdemeanor to avoid sentencing Petitioner to a
second
Three Strikes sentence and, moreover, struck seven one-year prior prison term enhancements. Nor can Petitioner’s extensive criminal history — which included the residential burglary and attempted residential burglary convictions supporting the “strike” allegations in this case, as well as convictions for additional burglary, drug, forgery, grand theft auto, possession of a loaded weapon, and other offenses
(see, e.g.,
CT 13-17, 221-88; RT 101-05; Probation Report, filed under seal, at 5-6) — be considered less significant than Andrade’s record of prior theft, burglary, and drug-related convictions.
See Andrade,
538 U.S. at 68-70 , 123 S.Ct. at 1170-72 .
31
When, as here, a defendant is sentenced under the provisions of recidivism legislation, such as California’s Three Strikes and other habitual offender laws, the Supreme Court has made clear that the Eighth Amendment’s “gross disproportionality principle” calls for an evaluation which “placets] on the scales not only [a defendant’s] current felony, but also his ... history of felony recidivism.”
Ewing,
538 U.S. at 27-30 , 123 S.Ct. at 1188-90 .
Given the deferential standards governing the review of this claim, the Court cannot conclude that the California Court of Appeal’s adjudication and rejection of Petitioner’s Eighth Amendment claim-considering both the same recidivist statute and Supreme Court decisions reviewed by the Supreme Court in
Andrade
and
Ewing ,
and reaching the same conclusion that a finding of gross disproportionality was not warranted in view of the circumstances of this case — was contrary to or an unreasonable application of clearly established federal law.
32
Accord Nunes v. Ramirez-
*1045
Palmer,
485 F.3d 432, 439 (9th Cir.),
cert. denied,
552 U.S. 962 , 128 S.Ct. 404 , 169 L.Ed.2d 283 (2007) (noting that the petitioner’s “career as a criminal has been longer, more prolific, and more violent, than the petitioner’s in
[Andrade
]”; the petitioner was charged “with one count of the same underlying offense as the petitioner in
[Andrade
], petty theft with a prior conviction”; and the petitioner’s 25 years to life sentence “was less harsh than the sentence of the petitioner in
[Andrade
], who received two consecutive sentences of twenty-five years to life”; and concluding, “[i]n light of this comparison,” “that the California Court of Appeal was not objectively unreasonable when it determined that [the petitioner’s] sentence did not offend the Constitution”) (citations omitted).
Petitioner’s sentence undoubtedly is lengthy, but under the clearly established federal law, that sentence cannot be vacated by this federal habeas court pursuant to Section 2254. The state court’s rejection of Petitioner’s Eighth Amendment challenge to his sentence comports with Supreme Court precedent and, thus, is entitled to deference under Section 2254(d)(1). Accordingly, Ground Four must be denied.
C.
The Purportedly ‘Void” Nature Of The Prior “Strike” Convictions
Grounds Ten, Fourteen, and Eighteen rest on Petitioner’s contention that neither of his prior “strike” convictions properly qualified as a “strike.” In brief, Petitioner’s contentions underlying these claims are that: his 1995 “strike” conviction is a “void” judgment, because the transcript of a post-plea sentencing hearing for that conviction contains what is either a typographical error or misstatement by the sentencing judge in connection with a reference to the statutory section number designating the crime of conviction; his 1996 “strike” conviction was “invalidate[d]” as a result of its purported “reliance” on the “void” 1995 prior “strike” conviction; and therefore, he was not eligible to receive any form of a Three Strikes/recidivist sentence.
By Ground Ten, Petitioner complains that the evidence of his 1995 prior conviction was insufficient to establish its status as a “strike,” because the trial court failed to examine the transcript of Petitioner’s 1995 plea hearing, which purportedly would have established that the 1995 “strike” conviction was “void.” By Ground Fourteen, Petitioner contends that he is not procedurally barred from challenging the validity of his 1995 and 1996 prior convictions. By Ground Eighteen, Petitioner asserts that both his 1995 conviction and his present Count 3 sentence are “void,” because in both instances, the trial judge misspoke at sentencing when noting the specific code section for the underlying offense. (Petition Att. at 5-8.) Each of these claims is without merit.
As a threshold matter, Petitioner’s attempt to challenge the constitutional validity of his 1995 and 1996 “strike” convictions necessarily fails, because it is barred by
Lackawanna County District Attorney v. Coss,
532 U.S. 394 , 121 S.Ct. 1567 , 149 L.Ed.2d 608 (2001). In
Lackawanna,
the Supreme Court held that “once a state conviction is no longer open to direct or collateral attack in its own right ... the conviction may be regarded as presumptively valid.” 532 U.S. at 403 , 121 S.Ct. at 1574 . If such a conviction is later used to enhance a criminal sentence, the enhanced sentence cannot be challenged in federal habeas proceedings “on the ground that the prior conviction was unconstitutionally obtained.”
Id.
at 404 , 121 S.Ct. at 1574 . The only explicit exception to the
Lackawanna
bar is for
“Gideon”
claims,
33
which
*1046
require a total denial of the right to counsel.
See id.
34
As the record shows that Petitioner elected to represent himself, in
pro per,
in connection with his 1995 prior conviction and was represented by counsel in connection with his 1996 conviction
(see
Lodg. No. 40, Exs. A, F, and G; Lodg. Nos. 42-43),
35
this exception to
Lackawanna
is inapplicable. Ground Fourteen, thus, necessarily fails, because it is barred.
36
With respect to Ground Eighteen, Petitioner’s principal contention is that the 1995 “strike” conviction in Case No. BA104285 is “void,” because although Petitioner was expressly convicted of a violation of California Penal Code § 459 pursuant to a guilty plea
(see
Lodg. No. 43), the sentencing transcript reflects that the trial judge referenced “Penal Code Section 449” when sentencing Petitioner (Petitioner’s Lodg., Vol. 1, Ex. N at 12). Petitioner has cited no state law, much less any federal constitutional law,
37
indicating that a misstatement or mis-transcription regarding a statutory reference at a sentencing hearing renders an otherwise valid conviction “void.”
When Petitioner pleaded guilty in February 1995, he was expressly advised that he was pleading guilty to a violation of California Penal Code § 459,
i.e.,
to having committed residential burglary, and the trial judge found Petitioner guilty of a violation of “Penal Code Section 459 as alleged in Count 1 of the Information.” (Lodg. No. 43, February 16, 1995 plea hearing transcript at 9, 10.) The abstract of judgment states that Petitioner was convicted of a violation of Penal Code Section 459, for first degree burglary, on February 16, 1995. (Lodg. No. 43, abstract of judgment.) Petitioner’s contention that his 1995 conviction was “entered” pursuant to a “void statute”' — namely, “Section 449” (Traverse at 95) — is factually incorrect. The reference to “Section 449” in the transcript of the March 13, 1995 sentencing
*1047
hearing (whether typographical error or a misstatement by the sentencing judge) simply is irrelevant to the validity of-Petitioner’s February 16, 1995 conviction. For the same reason, Petitioner’s attendant assertion in Ground Eighteen — that, because his 1995 conviction purportedly “is invalid due to imposing a void statute,” his 1996 conviction also is “void” due to the 1996 trial court’s reliance “on that invalid [1995] case,” thereby “mak[ing] the judgment and sentence in the 1996 case also invalid” (Traverse at 99) — is equally baseless.
Petitioner’s further argument in Ground Eighteen — that his present Count 3 sentence is void, because the sentencing judge erroneously referenced Section 11351 of the California Health & Safety Code, rather than Section 11350(a) — also fails. Petitioner was charged in Count 3 with the offense of possession of heroin for sale ( Cal. Health & Safety Code § 11351 ); the jury acquitted him of that greater charge and found him guilty of the lesser included offense of possession of heroin ( Cal. Health & Safety Code § 11350 (a)). (CT 160-61, 165; 1RT 281.) At the subsequent sentencing hearing, although the trial court initially referenced “11351” when imposing sentence (2RT 102), the trial court subsequently corrected itself during the same hearing and noted that sentence was being imposed on Count 3 for the “lesser of the 11351” offense originally charged (2RT 104). The abstract of judgment correctly reflected that Petitioner’s Count 3 sentence was imposed for a violation of California Health & Safety Code § 11350(a). (CT 315.) Thus, sentence actually was imposed pursuant to Section 11350(a) and
not
Section 11351. As is the case with his assertion regarding his purportedly “void” 1995 conviction, Petitioner does not establish that under state law, much less under federal constitutional law, the state judge’s initial reference to the wrong statutory provision would render Petitioner’s present sentence, which is correctly reflected in the abstract of judgment, void. Petitioner’s assertion that he “was never sentence[d]” for the crime of which he was found guilty by Count 3 (Petition Att. at 8) is patently frivolous. Ground Eighteen, thus, necessarily fails.
The same defects that render Ground Eighteen meritless also doom Ground Ten. By his tenth claim, Petitioner argues that the evidence to support the trial court’s “true” findings regarding the 1995 and 1996 Prior Strikes was insufficient, because the trial court lacked a copy of the transcript for the February 1995 plea hearing. Petitioner apparently contends that: (1) had the trial court viewed this transcript, it would have concluded that Petitioner’s 1995 conviction was “void,” because of the mistaken reference to “Section 449” at the March 1995 sentencing hearing; and (2) the fact of his 1995 prior conviction could not be established without the plea hearing transcript.
38
At the bifurcated court trial on the prior conviction allegations, Haesook Bang, a forensic print specialist for the Los Angeles Police Department, testified that she rolled Petitioner’s fingerprints and compared them with the fingerprint cards for both the 1995 conviction (Case No. BA104285) and the 1996 conviction (Case No. BA127836). (2RT 42-46.) She was “100 percent confident” that Petitioner’s fingerprints matched those of the person who
*1048
sustained the 1995 and 1996 convictions. (2RT 46.) The prosecution also presented Petitioner’s Section 969b packet (CT 221-88; 2RT 50-53), which contained evidence pertaining to Petitioner’s prior convictions. In addition, Petitioner’s counsel filed copies of the plea hearing transcript for the 1996 conviction and the sentencing hearing transcript for the 1995 conviction. (CT 186-96.) The trial court found all of this evidence sufficient to support a “true” finding as to the allegations regarding the 1995 and 1996 Prior Strikes.
The Supreme Court announced the federal standard for determining the sufficiency of the evidence to support a conviction in
Jackson v. Virginia,
443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Under
Jackson,
“[a] petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”
Juan H. v. Allen,
408 F.3d 1262, 1274 (9th Cir. 2005). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution,
any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson,
443 U.S. at 319 , 99 S.Ct. at 2789 (further observing that
“all of the evidence
is to be considered in the light most favorable to the prosecution”) (emphasis in original);
see also Wright v. West,
505 U.S. 277, 284 , 112 S.Ct. 2482, 2485-86 , 120 L.Ed.2d 225 (1992). “Put another way, the dispositive question under
Jackson
is ‘whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ ”
Chein v. Shumsky,
373 F.3d 978, 982-83 (9th Cir.2004)
(en
banc) (quoting
Jackson).
When the factual record supports conflicting inferences, the federal court must presume- — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution.
Jackson,
443 U.S. at 326 , 99 S.Ct. at 2793 ;
see also Wright,
505 U.S. at 296 , 112 S.Ct. at 2492-93 (reiterating this presumption and the deference owed).
“Jackson
cautions reviewing courts to consider the evidence ‘in the light most favorable to the prosecution.’ ”
Bruce v. Terhune,
376 F.3d 950, 957 (9th Cir.2004) (quoting Jackson).
Petitioner has not identified any respect in which the evidence was insufficient to establish that, in fact, he sustained the 1995 and 1996 Prior Strikes. The record before the trial court was ample, under the
Jackson
standard, to prove beyond a reasonable doubt that Petitioner had sustained these two prior convictions. The Court has examined the transcript of the February 1995 plea hearing (see Lodg. No. 43), and there is
nothing
in that transcript that casts doubt on the factual finding that Petitioner did sustain the 1995 conviction in Case No. BA104285, much less anything that casts doubt on the validity of that conviction or Petitioner’s subsequent 1996 conviction.
39
Petitioner’s apparent conten
*1049
tion that the transcript would have proved that he did not sustain a valid conviction for a violation of California Penal Code § 459 is meritless, for the reasons outlined above. Petitioner’s belated contention (in his Traverse at 75) — that the February 1995 transcript would have established that the 1995 conviction was not a “serious” felony — is equally frivolous, given that, in connection with the 1995 conviction, the trial court judge found Petitioner guilty of “residential burglary, first degree, serious felony” (Lodg. No. 43, plea hearing transcript at 9), and a conviction for first degree burglary necessarily constitutes a “serious” felony for purposes of the Three Strike Law.
See
California Penal Code § 1192.7(c)(18).
Accordingly, for all the reasons set forth above, the Court should deny Grounds Ten, Fourteen, and Eighteen.
D.
The Alleged Unconstitutionality Of The Three Strikes Law
As A
Result Of Being Set Forth In Two Separate Statutes
In Ground Eleven, Petitioner contends that it is unconstitutional for California to sentence defendants pursuant to a “strike” law that is set forth in two separate statutes, namely, one derived from enactment by the state legislature (Cal.Penal Code § 667(b)-(i)) and one derived from enactment by a later voter initiative (CaLPenal Code § 1170.12(a)-(d)). (Petition Att. at 6.) Petitioner’s argument is garbled and unclear, but he appears to contend that: the two Three Strikes enactments conflict and cannot be reconciled with each other; under California law, a later statutory enactment must repeal an earlier one; and if his prior “strike” convictions were valid, he could be sentenced only under the later initiative version of the Three Strikes Law. However, Petitioner does not identify any actual conflict between the two provisions, nor does he identify any different sentence he would have received had he been sentenced only under the later enactment. (Traverse at 77-79.)
Petitioner’s argument that the subsequent voter initiative superseded the legislative enactment rests on statutory construction principles under California law and, at most, raises a question of state law. This state law question is not cognizable on federal habeas review.
See Estelle,
502 U.S. at 67-68 , 112 S.Ct. at 480 . Moreover, the current state of California law negates Petitioner’s contention, because the California Supreme Court has declined to decide whether the later “initiative statute superseded the legislative statute.”
Romero,
13 Cal.4th at 505 n. 2, 53 Cal.Rptr.2d at 792 n. 2, 917 P.2d 628 ;
see also People v. Acosta,
29 Cal.4th 105, 121-22 , 124 Cal.Rptr.2d 435, 448-49 , 52 P.3d 624 (2002) (observing that, in California, “[a]ll presumptions are against a repeal by implication” and “[a]bsent an express declaration of legislative intent, we will find an implied repeal only when no rational basis exists to harmonize the two potentially conflicting statutes, and the statutes are irreconcilable, clearly repugnant, and so inconsistent that they cannot operate concurrently”; and finding that
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the voters’ intent in passing the initiative version of the Three Strikes Law was to “ ‘strengthen’ ” and preserve the legislative version of the Three Strikes Law).
Even if, somehow, Ground Eleven could be liberally construed to state a claim of constitutional dimension (and the Court is not sure how it could be so construed), Petitioner’s allegations do not establish any basis for federal habeas relief.
The Three Strikes law consists of two, nearly identical statutory schemes designed to increase the prison terms of repeat felons. The earlier provision, which the Legislature enacted, was codified as [California Penal Code] section 667, subdivisions (b) through (I). The later provision, which the voters adopted through the initiative process, was codified as [California Penal Code] section 1170.12.
Romero,
13 Cal.4th at 504 , 53 Cal.Rptr.2d at 791 , 917 P.2d 628 . Under operation of
either
statute, a convicted defendant’s qualifying prior convictions may be utilized as “strikes” under the Three Strikes Law when the defendant has been convicted of “a” current felony, whether or not the current felony is classified as “serious” or “violent.”
See
Cal.Penal Code §§ 667(b)-(i), 1170.12(a)-(d);
Ewing,
538 U.S. at 15-17 , 123 S.Ct. at 1182-83 ;
Andrade,
538 U.S. at 67-68 , 123 S.Ct. at 1170-71 . Thus, Petitioner’s assertions — that the statute passed by the California Legislature was superceded and/or that there is a purported, if unidentified, conflict between the two enactments — raise no constitutional concern, because under either enactment, Petitioner was eligible to be sentenced as a Three Strikes defendant due to the trial court’s finding that both the 1995 and 1996 convictions constitute “strikes.” Put otherwise, Petitioner was eligible to receive a Three Strikes sentence, and his allegations (including that he was entitled to sentencing under the later initiative version alone), even if true, have no bearing on the sentence he received. He would have received the same even had he been sentenced pursuant only to the later initiative enactment.
Ground Eleven does not state any claim of constitutional magnitude. Accordingly, the Court should deny Petitioner’s eleventh claim.
E.
The Alleged After-The-Fact Increase In Punishment For Petitioner’s Prior “Strike” Convictions And The Estoppel And Ex Post Facto Principles Purportedly Applicable Here
Grounds Six and Twelve raise related contentions regarding the legitimacy of enhancing Petitioner’s sentence based on his Prior Strikes. (Petition Att. at 4-6.) In Ground Six, Petitioner appears to contend that the nature of the plea agreements underlying the Prior Strikes convictions estopped the prosecutor from alleging that those 1995 and 1996 convictions were serious felonies and constituted “strikes.” Petitioner characterizes the alleged error as a violation of due process and equal protection arising from the prosecution’s ability to “relitigate [the 1995 and 1996] prior plea agreements” by “questioning] there [sic] validity to improve it’s [sic] position.” (Petition Att. at 4-5.) Petitioner asserts in Ground Twelve that his Three Strikes sentence violates the Ex Post Facto Clause, because the Three Strikes Law was enacted to increase punishment “beyond that when the crime was committed.” (Petition Att. at 6.)
Ground Twelve fails under well-established law. The Supreme Court has “repeatedly upheld recidivism statutes ‘against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal
*1051
protection, and privileges and immunities.’ ”
Parke v. Raley,
506 U.S. 20, 27 , 113 S.Ct. 517, 522 , 121 L.Ed.2d 391 (1992) (citations omitted). The use of the 1995 and 1996 convictions to enhance Petitioner’s current sentence under the Three Strikes Law did not alter or increase his punishment for the 1995 and 1996 convictions, because this enhancement was not punishment for the prior offenses but, rather, is a “recidivist” penalty for the current conviction.
See, e.g., Monge v. California,
524 U.S. 721, 728 , 118 S.Ct. 2246, 2250 , 141 L.Ed.2d 615 (1998);
see also Witte v. United States,
515 U.S. 389, 400 , 115 S.Ct. 2199, 2206 , 132 L.Ed.2d 351 (1995) (citations omitted) (a sentence under a recidivist statute does not constitute an additional punishment or change to the original penalty for an earlier crime or crimes but, instead, “ ‘a stiffened penalty for the latest crime’ ”);
Nichols v. United States,
511 U.S. 738, 747 , 114 S.Ct. 1921, 1927 , 128 L.Ed.2d 745 (1994) (“Enhancement statutes, whether in the nature of criminal history provisions such as those provided in the [federal] Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction”).
Further, the Supreme Court has held that recidivist statutes do not raise any ex post facto concern if those statutes were in effect when the latest offense was committed.
See Weaver v. Graham,
450 U.S. 24, 30 , 101 S.Ct. 960, 965 , 67 L.Ed.2d 17 (1981).
40
The key to the ex post facto inquiry is the timing of the
present
offense, not the timing of the earlier offenses utilized as priors for enhancement purposes.
See United States v. Arzate-Nunez,
18 F.3d 730, 734 (9th Cir.1994) (“For purposes of analyzing repeat offender statutes and statutes increasing penalties for future offenses based on past crimes, the relevant ‘offense’ is the current one, not the predicate crime”).
41
Petitioner committed his present offenses in 1999, well
after
the 1994 effective dates of both provisions of the Three Strikes Law. (CT 13-17; Lodg. No. 5 at 3-4;
Romero,
13 Cal.4th at 505 , 53 Cal.Rptr.2d at 791 , 917 P.2d 628 ; CaLPenal Code § 667 (eff. Mar. 7, 1994) and § 1170.12 (approved Nov. 8, 1994, and eff. Nov. 9, 1994.) Because the Three Strikes Law was “on the books” well before Petitioner committed his present offenses, he had fair warning of the consequences of his crimes, including the possibility that any qualifying earlier prior convictions might serve to enhance a conviction for any current offense. Accordingly, Petitioner’s ex post facto argument set forth in Ground Twelve is meritless.
Petitioner’s Ground Six allegations are equally unavailing. Petitioner’s assertion that the prosecutor sought to relitigate the plea agreements underlying the Prior Strikes and questioned their validity is
*1052
noticeably lacking in any citation to the record and is baseless. There is nothing in the record to support this assertion.
(See
2RT 1-105, the record of the various sentencing proceedings.) Petitioner’s assertion that the prosecutor failed to plead these two strike allegations properly is equally baseless. The Information filed on May 14, 1999, alleged that the 1995 conviction was a serious felony within the meaning of California Penal Code §§ 1170.12(a)-(d) and 667(b)-(i), and the Amended Information filed on July 27, 1999, alleged that both the 1995 conviction and the 1996 conviction were serious felonies within the meaning of California Penal Code §§ 1170.12(a)-(d) and 667(b)-®. (CT 11, 15.)
To the extent that Petitioner is arguing in Ground Six that the nature of the pleas in connection with the 1995 and 1996 convictions somehow barred their use for enhancement purposes in a
later
case, his contention is without factual or legal support. Petitioner does not allege (nor does the record before the Court indicate) that, at the times his two earlier “strike” convictions were sustained, the prosecutor or the trial court expressly represented to him that the prior convictions (pursuant to plea agreements) would
not
be used to enhance his sentence should he suffer a future felony conviction. In fact, he was told just the opposite. In the 1995 case, before Petitioner entered his plea, the prosecutor expressly advised Petitioner that, “[bjecause this is [a] serious felony, which is first degree burglary, this conviction[] will later enhance any sentence you receive on other felonies.” (Lodg. No. 43, plea hearing transcript at 7). Prior to taking Petitioner’s plea in the 1996 case, the trial court expressly advised Petitioner that one consequence of his plea to the charged offense was that it was “priorable,” explaining to Petitioner this “means that if you are convicted of a felony in the future your plea today can be used as another prior to deny you probation and to increase your punishment.” (CT 193.) There is simply nothing about the 1995 and 1996 convictions that precluded the prosecutor from alleging, and the trial court from finding, them to be “strikes.”
For all the reasons set forth above, the vague and unsupported assertions of Grounds Six and Twelve fail to implicate any constitutional concerns. Accordingly, both claims should be denied.
F.
Petitioner’s Parole Status And/Or The Purported Failure To Allege The Relevant Statute In The Information As Precluding Application Of The Three Strikes Law
By Grounds Thirteen and Seventeen, Petitioner asserts that the prosecutor was barred from pursuing a Three Strikes sentence enhancement for two reasons. (Petition Att. at 6-8.)
In Ground Thirteen, Petitioner alleges that, at the time of his present offenses, he was on parole pursuant to his 1995 conviction, and he repeats his allegation that the 1995 conviction was “void” due to the reference to “Section 449” in the 1995 sentencing hearing. He also complains that he “was violated on probation and illegally sent to prison in 1996.” (Petition Att. at 6.) Petitioner does not explain, however, why these alleged events render the Three Strikes Law inapplicable to him. Petitioner cites no authority for his contention
42
that a recidivist who commits an additional crime while he is on parole for a prior conviction is immunized from application of recidivist sentencing provisions such as the Three Strikes Law.
*1053
The Court certainly knows of no such authority. Indeed, as Respondent aptly notes, a recidivist who is on parole at the time he commits additional crimes would appear to be the very type of person to whom the Three Strikes Law was intended to apply. In his Traverse, Petitioner also complains at length about an allegedly unconstitutional parole term imposed pursuant to a 1994 conviction in Case No. BA074988. (Traverse at 80-83, Ex. AA-6.) While Petitioner attacks the validity of the parole imposed pursuant to his 1994 conviction, he does not explain why any purported issues surrounding his earlier parole status are of any concern here, particularly in view of the
Lackawanna
bar and its preclusion of Petitioner’s apparent attack on this 1994 conviction. While Petitioner attempts to somehow tie the alleged invalidity of his 1994 conviction parole term to the availability of his 1995 and 1996 convictions to serve as “strikes,” his garbled assertions not only are unclear, but raise no constitutional issues. Petitioner’s allusion to California Penal Code § 667.5(g) is meaningless, as that enhancement provision is irrelevant to Petitioner’s Three Strikes sentence.
43
Ground Thirteen, in short, establishes no basis upon which the Court can find that Petitioner was exempt from application of the Three Strikes Law based on his 1995 and 1996 convictions.
Petitioner’s Ground Seventeen allegations are equally irrelevant. Petitioner’s complaint that the Amended Information failed to include references to California Penal Code §§ 667(e)(2)(A) and 1170.12(c)(2)(A) is frivolous. As noted earlier, the Amended Information alleged that the 1995 and 1996 convictions were serious felonies within the meaning of California Penal Code §§ 667(b)-(i) and 1170.12(a)-(d). (CT 15.) These allegations, thus, encompassed references to subpart (e) of Section 667 and subpart (c) of Section 1170.12. There is no requirement under California law that the prosecutor have
further
alleged additional references to particular subparts of the statutory provisions actually cited.
44
Grounds Thirteen and Seventeen are factually and legally baseless. These two claims, therefore, should be denied.
G.
The Allegedly Arbitrary And Inconsistent Manner In Which The Three Strikes Law Is Applied
In Ground Sixteen, Petitioner contends that the Three Strikes Law is applied in an
*1054
arbitrary and inconsistent manner, in violation of due process. In his Petition, he alleges that a “New Policy” of the Los Angeles District Attorney’s Office, which omits convictions pursuant to California Health & Safety Code § 11350(a) from Three Strikes consideration, should have been applied to him. In his Traverse, he alleges that the reason why his Three Strikes sentence was arbitrary and capricious is the same as that set forth in Ground Ten,
to wit,
the trial court’s failure to examine the plea hearing transcript for the 1995 conviction meant that the evidence was insufficient to establish the truth of the 1995 conviction “strike” allegation. (Petition Att. at 8;
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.
H.
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.)
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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.
I.
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, e.g.,
RT A6, 911-12; 1RT 48.)
The record before the Court reflects the following events with respect to what plea terms the prosecutor may have offered Petitioner during the course of this criminal action. As noted earlier, Petitioner initially waived his right to a jury and agreed to a court trial. (RT A2-A7; CT 22.) Just after Petitioner’s jury waiver and before the commencement of the court trial, on July 23, 1999, the prosecutor indicated that there had been a plea offer of “[s]ix year low term times two on the robbery count,” which Petitioner rejected without making a counter-offer. (RT A6.) At that time, only one prior “strike” conviction was alleged in the Information (CT 11), thereby raising the potential for doubling whatever Petitioner’s sentence might be,
i.e.,
as a second “strike” sentence. Thus, the prosecutor offered a plea deal of a second strike sentence of 12 years, with robbery as the principal term, which Petitioner flatly rejected.
As noted earlier, during the court trial, the prosecutor unsuccessfully sought to pursue a second “strike” allegation, which would have raised Petitioner’s potential exposure to one or more Three Strikes sentences of 25-years-to life. (RT 316, 909-12.) The trial court noted that, had the action become a third strike case rather than a second strike case, Petitioner “could
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get, goodness, something in the mid to high 30’s to life.” (RT 911.) Petitioner’s counsel at the time noted that he had “communicated much lower offers to [Petitioner] prior to the jury waiver.”
(Id.)
The trial court asked, “[w]as there a 4 year offer in this case?” (RT 911-12.) Counsel responded,
“I know
there was a 6. I am not sure about 4.”
45
(RT 912.) With reference to “a 6,” it is unclear whether counsel was referring to the above-described plea offer by the prosecutor (a six-year term potentially doubled as a second strike to a 12-year term) or to a different offer of six years. In any event, the record indicates that Petitioner rejected all prosecution plea offers made prior to and/or during the court trial.
After the court trial verdict was set aside at Petitioner’s request, and following jury selection, the trial court noted that the prosecution had made a plea offer, which was pending, and observed that, even if Petitioner was not convicted on the robbery and petty theft charges and convicted only of the heroin charge, he faced a lengthy sentence:
Now, I have to tell you, if you fall on this heroin thing, with the strike priors and the number of other convictions you have here, there is a high likelihood — I am not promising you anything, because I don’t know the facts. I don’t know enough about your background, and your attorney has not had a chance to argue on your behalf as to the appropriate sentence in this matter, but there is a high likelihood that you’d get 25 to life.
(1RT 47-48.) The prosecutor then described the plea offer as “nine with the strike or thirteen without a strike.” (1RT 48.) The trial court explained to Petitioner what such alternate sentences would mean in terms of time served, and reiterated that “with the amount of prior convictions” Petitioner had, “it does not look good” and a 25 years to life sentence was likely. (1RT 48-51.) Petitioner was given the weekend to consider the offer. (1RT 50-52.) When the trial judge reminded Petitioner of the plea offer on the following Monday and asked if Petitioner wanted “to explore any of that” or bring the jury in to start trial, Petitioner responded, “Your Honor, you can bring the jury in.” (1RT 90.)
The basis for Petitioner’s contention that he was entitled to be sentenced in accordance with the prosecution’s initial four-year plea offer is unclear. Petitioner appears to contend that: at a March 5, 2001 post-conviction hearing, the trial judge purportedly was “leaning towards” imposing a sentence of 16 months each on Counts 2 and 3, for a total of 32 months, but wanted to review the February 16, 2005 plea hearing transcript for the 1995 conviction before deciding on a sentence; none of the evidence before the trial judge as of that date was sufficient to warrant imposition of a Three Strikes sentence; because the trial judge lacked the February 16, 2005 plea hearing transcript, it was improper to impose a Three Strikes sent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2523751. Public record. Not legal advice.