GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner, Nathaniel Pope, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of thirty-two years to life following his 2006 conviction in the Sacramento County Superior Court for attempted murder with a penalty enhancement for personally and intentionally discharging a firearm causing great bodily injury. Here, Petitioner challenges the constitutionality of his convictions.
Petitioner presents multiple grounds for relief. Specifically, his claims are as follow:
Petitioner's second, sixth, and seventh claims all present allegations that he received ineffective assistance of counsel and, therefore, they will be addressed together. Likewise, Petitioner's claims three and five, both alleging that the prosecutor committed misconduct at trial, will be addressed together. Petitioner's remaining claims will be addressed individually. Based on a thorough review of the record and applicable law, it is recommended that both of Petitioner's claims be denied.
The relevant facts of petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follows:
People v. Pope, 2008 WL 4358683 at *1-*2.
Following a jury trial, Petitioner was convicted of attempted murder. In addition, the jury found true a penalty enhancement for personally and intentionally discharging a firearm and causing great bodily injury. Petitioner was sentenced to a term of thirty-two years to life imprisonment with the possibility of parole.
Petitioner timely appealed his conviction to the California Court of Appeal, Third Appellate District on the grounds that the trial court improperly responded to jury inquiries during deliberations, claim one in his federal habeas corpus petition. The court affirmed his convictions with a reasoned opinion on September 24, 2008. He then petitioned the California Supreme Court for review of the appellate court's decision. The court denied review without comment on December 23, 2008. Petitioner next sought habeas corpus relief in the California Superior Court on claims two through seven, as identified in his federal habeas corpus petition. The court denied his petition with a reasoned opinion on November 25, 2009. He then filed a habeas corpus petition raising identical claims in the California Supreme Court. The court denied his petition without comment on October 12, 2010. This federal petition for writ of habeas corpus was filed on November 9, 2010. Respondent filed its answer on April 18, 2011 and Petitioner filed his traverse on September 6, 2011.
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011).
Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), `an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).
Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating 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.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) — i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002). Specifically, the petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, supra, 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S.Ct. 362, 366 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Finally, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. James v. Ryan, ___ F.3d ___, 2012 WL 639292 *18-19 (9th Cir. 2012).
Petitioner claims that the trial court violated his Sixth and Fourteenth Amendment rights to due process and a fair trial by improperly responding to jury inquiries during deliberations. It appears that Petitioner's claim focuses primarily on three questions asked by the jury on December 6, 2006 at 4:20 p.m., December 7, 2006 at 3:00 p.m., and December 11, 2006 at 11:40 a.m. The questions concerned California law as it relates to different types of self-defense. Petitioner alleges that the trial court's answers to those questions were "grossly inadequate and misleading." Furthermore, Petitioner argues that the trial court's response to the jury's third questions, which recommended that they refer to CALJIC 200, was "surprisingly vague." Instead, Petitioner contends that the trial court should have referred the jury to review CALJIC 505 and CALJIC 604, the modified pattern jury instructions already given on self-defense and imperfect self-defense. According to Petitioner, the jury inquiries indicated that the jurors were confused about how much significance to assign to his state of mind in assessing his claim of self-defense. The California Court of Appeal, Third Appellate District, considered and rejected Petitioner's claim on direct appeal, explaining as follows:
People v. Pope, 2008 WL 4358683 at *2-*5 (emphases in original).
There is no specific federal constitutional right to have jury re-instructed on issues of law to which the initial instructions were given, and were correct when given. Weeks v. Angelone, 528 U.S. 235 (2000), is on point factually and the holding of that case applies with equal force to this case.
Weeks, 528 U.S. at 234.
See also Waddington v. Sarasaud, 555 U.S. 179, 191 (2009).
Weeks also based its holding that the jury asked no further questions regarding the re-instruction of the judge.
Under the circumstances in this case, Petitioner cannot demonstrate that the trial court's responses to the jury's inquiries violated the Weeks holding, or that the appellate court was unreasonable in upholding the trial court's. Aside from the mere fact that the jury asked several questions, all of which were answered by the trial court, Petitioner offers no real basis for inferring that the jury misinterpreted the law or misapplied the instructions given in his case. Nor does he offer any support for his assertion that the jury remained confused after the trial court responded to its questions. Petitioner does not contend that the jury instructions given at his trial were somehow incomplete, erroneous, or otherwise defective. Indeed, a review of the record demonstrates that the jury was fully and accurately instructed with respect to all counts facing Petitioner, and jurors are presumed to follow the court's instructions. Kansas v. Marsh, 548 U.S. 163, 179 (2006).
Following initial deliberations and a single ballot, the jury claimed to be deadlocked. The trial court responded by encouraging the jury to engage in additional deliberations and to submit any further questions that would assist its ability to make a decision. The jury did not seek any further clarification after its initial questions prior to reaching its verdict. Just as a jury is presumed to follow its instructions, "a jury is presumed to understand a judge's answer to its question," and a jury's silence following a judge's answer may be presumed to signify that the jury had nothing further to ask. Weeks v. Angelone, 528 U.S. at 234. Accordingly, the state court's rejecting Petitioner's claim was not contrary to or an unreasonable application of clearly established federal law. Petitioner is not entitled to federal habeas corpus relief on this claim.
Petitioner claims that two acts of prosecutorial misconduct rendered his trial fundamentally unfair. A prosecutor's error or misconduct does not, per se, violate a criminal defendant's constitutional rights. See Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (citing Darden v. Wainwright, 477 U.S. 168, 181 (1986) (for the purposes of federal habeas corpus review, the standard of due process applies to claims of prosecutorial misconduct); Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987)). On habeas corpus review, allegations of prosecutorial misconduct merit relief "only if the misconduct rises to the level of a due process violation-not merely because [the reviewing court] might disapprove of the prosecutor's behavior." Towery v. Schiriro, 641 F.3d 300, 306 (9th Cir. 2010) Moreover, prosecutors are afforded reasonably wide latitude in fashioning closing arguments, United States v. Birges, 723 F.2d 666, 671-672 (9th Cir. 1984), and are free to argue "reasonable inferences from the evidence." United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989). "[P]rosecutors may strike `hard blows,' based upon the testimony and its inferences, although they may not, of course, employ argument which could fairly be characterized as foul or unfair." United States v. Gorostiza, 468 F.2d 915, 916 (9th Cir. 1972).
The question to be resolved is whether the alleged prosecutorial misconduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In order to determine whether misconduct occurred, it is necessary to examine the entire proceedings and place the prosecutor's conduct in context. Greer v. Miller, 483 U.S. 756, 765-766 (1987). Factors to be considered in determining whether habeas corpus relief is warranted include whether the prosecutor manipulated or misstated the evidence; whether her comments implicated other specific rights of the accused; whether the objectionable content was invited or provoked by defense counsel's argument; whether the trial court admonished the jurors; and the weight of evidence against the defendant. Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. 637, 643 (1974). "[T]he Darden standard is a very general one, leaving courts `more leeway ... in reaching outcomes in case-by-case determinations,' (Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004))." Parker v. Matthews, ___ S.Ct. ___, 2012 WL 2076341 *6 (2012). Thus, even where a prosecutor's argument, questions or behavior is found to be improper, relief is limited to cases in which a petitioner can establish that the misconduct resulted in actual, substantial prejudice. In AEDPA cases, only tests enunciated by the Supreme Court may be utilized to determine whether prejudicial error occurred. Id.
Petitioner claims that the prosecutor improperly informed the jurors during her closing argument that they could infer Petitioner intended to kill the victim from the act of arriving at the Florin Mall, where he knew a fight would be taking place, with a gun in his pocket, or the act of drawing a gun from his pocket during the confrontation with the victim. According to Petitioner, the prosecutor's argument constituted an improper misrepresentation of the facts because no evidence in the record demonstrated that Petitioner knowingly showed up at the "scene of a fight." Petitioner argues that he suffered prejudice as a result of the alleged error because he otherwise would not have been convicted for the crime of attempted murder.
On collateral review, the Sacramento County Superior Court considered and rejected Petitioner's claim that the prosecutor's statements were improper, explaining as follows:
Lodged Doc. 6 at 1-2.
For these reasons the claim is denied.
The state court's rejection of the Petitioner's claim is not contrary to or an unreasonable application of clearly established federal law, nor is it an unreasonable determination of the facts in light of the evidence presented at trial. In this case, examining the trial record as a whole, the prosecutor's closing argument did not manipulate or misstate the record evidence. During closing argument, the prosecutor explained the concept of intent to kill to the jury as follows:
RT at 403-404.
The state court resolution was not unreasonable. Petitioner is not entitled to federal habeas corpus relief on this claim.
Petitioner claims that the prosecutor violated his right to a fair trial and due process of law by referring to him as a gang member during closing argument when gang charges had not been pled or proven. Although Petitioner admits that evidence was introduced at trial that both he and the victim used gang-related language during the confrontation in the Florin Mall parking lot, he argues that the use of such language is insufficient to establish that he was, in fact, a gang member. Accordingly, Petitioner contends that the prosecutor misled the jurors to believe that he was a gang member, improperly impairing their judgment as a jury.
The Sacramento County Superior Court considered and rejected this claim on collateral review, explaining as follows:
Lodged Doc. 6 at 2.
Once again, Petitioner has failed to demonstrate that counsel's statements rendered his trial fundamentally unfair. The gang-related evidence presented at trial was properly summarized by the state Superior Court, as set forth above, and the prosecutor's argument constituted a permitted inference based on that evidence. Accordingly, Petitioner is not entitled to federal habeas corpus relief on this prosecutorial misconduct claim.
Petitioner claims that the trial court violated his federal right to due process of law at sentencing when it failed, pursuant to California's determinate sentencing law ("DSL"), to place on the record the aggravating factors relied upon in support of the firearm penalty enhancement imposed pursuant to section 12022.53(d) of the California Penal Code. As a result, Petitioner argues that the court improperly increased his penalty beyond the maximum permissible sentence for attempted murder itself. The California Superior Court considered and rejected Petitioner's claim on collateral review, explaining as follows:
Lodged Doc. 6 at 2.
For most California criminal offenses, three terms of imprisonment are specified: a low term, a middle term, and an upper term. Subsequent to Petitioner's sentencing, the United States Supreme Court determined that the middle term of imprisonment is the maximum term that may be imposed on the basis of the jury's verdict alone. Cunningham v. California, 549 U.S. 270 (2007). Thus, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, the middle term of imprisonment is "the `statutory maximum' . . . sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303-304 (2004) (emphasis in original). "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The Ninth Circuit Court of Appeals has held that the rule announced in Cunningham must be applied retroactively on collateral review. Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008).
In the present case, Petitioner stands convicted of attempted murder, in violation of sections 664 and 187 of the California Penal Code, which carries a punishment of either five, seven, or nine years imprisonment. Based on the jury's verdict, trial court sentenced Petitioner to the middle term of seven years for this offense. CT at 243. In addition, the jury found true the special allegation that Petitioner intentionally and personally discharged a firearm, causing great bodily injury to the victim, pursuant to section 12022.53(d) of the California Penal Code, thus subjecting Petitioner to a penalty enhancement of twenty-five years to life, to be served consecutively to any other term of imprisonment imposed. Fatal to Petitioner's current claim is that his sentence was not based on a judicial selection of an upper term out of three possible terms, as in Apprendi, Blakeley, or Cunningham. As properly explained by state court on collateral review, there was no reason for the trial court to make any additional findings or to specify any aggravating circumstances on the record. Petitioner's imposed sentence complies with federal constitutional requirements, as set forth above, because it was based solely on the facts reflected in the jury's verdict.
Petitioner additionally appears to complain that the consecutive sentence of twenty-five years to life imposed by the trial court pursuant to the section 12022.53(d) firearm penalty enhancement somehow violated federal law because it was greater than the statutory maximum penalty for the crime of attempted murder. This claim is beyond the scope of federal habeas corpus review. See Cacoperdo v. Desmothenes, 37 F.3d 504, 507 (9th Cir. 1994) ("The decision to impose sentences concurrently or consecutively is not within the purview of federal habeas corpus."). Accord Souch v. Shaivo, 289 F.3d 504, 507 (9th Cir. 2002) ("Because the trial court actually had absolute discretion to impose either consecutive or concurrent sentences[,] . . . neither an alleged abuse of discretion by the trial court in choosing consecutive sentences, nor the trial court's alleged failure to list reasons for imposing consecutive sentences, can form the basis for federal habeas relief." (emphasis in original)). See also Oregon v. Ice, 555 U.S. 160 (2009) (no Apprendi error if a judge determines to impose consecutive sentences in lieu of the jury). While it may seem odd that an "enhancement" penalty is greater than the principal sentence, when viewed as a whole, a life sentence for attempted murder by use of a gun does not rise to the level of an Eighth Amendment violation. See Harmelin v. Michigan, 501 U.S. 957 (1991). Nor is it unusual that attempts to commit a crime are punished with penalties that are the same in part or in whole. See e.g., 18 U.S.C. § 351(a) and (c): murder of a U.S. official and attempted murder can both be punished with life imprisonment.
To the extent that Petitioner alleges that the trial court violated his due process rights by improperly applying state sentencing law to his case, his claim is not cognizable for federal habeas corpus relief. A petitioner cannot "transform a state-law issue into a federal one merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997). Absent fundamental unfairness, federal habeas corpus relief is not available for a state court's misapplication of its own sentencing laws. Estelle v. McGuire, 502 U.S. 62, 67 (1991); Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002); Christian v. Rhode, 41 F.3d 461, 468 (9th Cir. 1989); Miller v. Vasquez, 868 F.2d 1116, 1118-1119 (9th Cir. 1989). Petitioner has not demonstrated that the state court applied California's sentencing laws in a way that resulted in fundamental unfairness in his case.
Petitioner is not entitled to federal habeas corpus relief on this claim.
Petitioner claims that he was denied the effective assistance of trial counsel in two ways. Specifically, he contends that counsel (a) improperly advised him that he should not testify in his own defense, and (b) failed to enter an objection when the prosecutor informed the jury during closing argument that it could infer from Petitioner's actions that he intended to kill the victim.
The Sixth Amendment to the United States Constitution guarantees to a criminal defendant the effective assistance of counsel. A showing of ineffective assistance of counsel has two components. See Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must demonstrate that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. In assessing an ineffective assistance of counsel claim, "[t]here is a strong presumption that counsel's performance falls within the `wide range of professional assistance,'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689), and that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). As the United States Supreme Court recently emphasized in Harrington v. Richter, 131 S.Ct. 770, 788 (2011): "The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Id. (internal quotations and citations omitted). The determination to be made, therefore, is not whether counsel acted reasonably, but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The second factor required for a showing of ineffective assistance of counsel is actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. See also Williams v. Taylor, 529 U.S. 362, 391-92 (2000); Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). Importantly, on collateral review, a court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697).
Petitioner claims that trial counsel improperly advised him not to testify at trial on the grounds that his testimony would hurt and weaken his case and his claim of self-defense. He alleges that he would have testified that he did not load his gun to go to the scene of the fight, that he was not called for backup, and that he did not intend to kill the victim, thus rebutting the prosecutor's arguments to the contrary. The Sacramento County Superior Court considered and rejected Petitioner's claim on collateral review, explaining as follows:
Lodged Doc 6 at 1.
A tactical decision exercised by counsel deserves deference when counsel makes an informed decision based on strategic trial considerations and the decision appears reasonable under the circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). On the other hand, "it cannot be permissible trial strategy, regardless of the merits or otherwise, for counsel to override the ultimate decision of a defendant to testify contrary to his advice." United States v. Mullins, 315 F.3d 449, 453 (9th Cir. 2002). This is so because "a defendant in a criminal case has the right to take the witness stand and testify in his or her own defense." Rock v. Arkansas, 483 U.S. 44, 49 (1987). The defendant may, however, waive this right, either explicitly or implicitly. See United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999). Such a waiver may be inferred from a defendant's failure to testify at trial or to notify the trial court of his desire to testify. See id. at 1094-1095. "Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to testify," but he "can reject his attorney's tactical decision by insisting on testifying, speaking to the court, or discharging his lawyer." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993).
Here, petitioner has failed to demonstrate that counsel rendered prejudicially ineffective assistance by advising him to waive his right to testify on his own behalf. For the reasons set forth by the state court on collateral review, counsel made a reasonable tactical decision to advise petitioner not to testify. Moreover, the record does not indicate that Petitioner ever expressed to the trial court that he intended or desired to testify over counsel's objections or advice. While Petitioner may now wish, with the benefit of hindsight, that he had testified at trial, the record reflects that both trial counsel and the court informed Petitioner of his right to testify, and that Petitioner explicitly waived that right. RT at 382-383. Because there is a reasonable argument that counsel was not ineffective, that is the end of the question under AEDPA. Petitioner is not entitled to federal habeas corpus relief on this claim.
Petitioner next claims that trial counsel was ineffective for failing to object to misconduct committed by the prosecutor. More specifically, petitioner complains that the prosecutor improperly informed the jury during closing argument that intent to kill could be inferred from the fact that Petitioner showed up at the scene of the fight with a gun in his pocket or from the fact that he pulled the gun from his pocket during the confrontation in the Florin Mall Parking lot.
The substance of Petitioner's underlying prosecutorial misconduct claim has already been discussed and rejected above. Because the prosecutor's argument was not improper, trial counsel's failure to object on that ground cannot constitute prejudicially ineffective assistance. By the same reasoning, Petitioner cannot demonstrate that he has suffered any prejudice as a result of trial counsel's failure to enter the proposed objection.
Petitioner is not entitled to federal habeas corpus relief on this claim.
Petitioner claims that appellate counsel rendered prejudicially ineffective assistance by failing to raise his claims two, three, four, five, and six on direct appeal.
The Strickland standards set forth above apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). In this case, Petitioner "must first show that his counsel was objectively unreasonable. . . in failing to find arguable issues for appeal — that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them." Smith v. Robbins, 528 U.S. 259, 285 (2000) (internal citation omitted). Petitioner then has the burden of demonstrating that he has suffered prejudice, or "a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal." Id. (citing Strickland, 466 U.S. at 694). Of course, the same double AEDPA filter applies to appellate ineffective assistance claim, i.e., can any reasonable argument be made that appellate counsel was not ineffective.
Petitioner's ineffective assistance of appellate counsel claim must fail. The merits underlying petitioner's claims two, three, four, five, and six have already been discussed thoroughly and rejected, above. Appellate counsel does not have a constitutional obligation to raise every non-frivolous issue requested by the client. Jones v. Barnes, 463 U.S. 745, 751 (1983). Often, appellate counsel may properly omit issues if counsel reasonably foresees little or no likelihood of success on that issue. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) ("Counsel also not required to have a tactical reason — above and beyond a reasonable appraisal of a claim's dismal prospects for success — for recommending that a weak claim be dropped altogether."). The "weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy." Miller, 882, F.2d at 1434. See also Jones, 463 U.S. at 751 ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue, if possible, or at most on a few key issues."). Because the claims are without merit, appellate counsel's decision not to raise them on appeal cannot fall outside the bounds of reasonably competent professional assistance. For the same reasons that the claims are without merit, Petitioner also cannot demonstrate that counsel's decision not to raise them on appeal caused him to suffer any prejudice because there is no likelihood that the claims would have been successful on appeal.
Petitioner is not entitled to federal habeas corpus relief on his ineffective assistance of appellate counsel claim.
For all of the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.
Accordingly, IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Any reply to the objections shall be filed and served within seven days after service of the objections.
(3) The prosecutor committed misconduct during her closing argument when she informed jurors that they could infer intent from the pulling of a handgun.
(4) The trial court violated his right to due process of law during sentencing by failing to put the aggravating factors on the record.
(5) The prosecutor violated his right to due process of law by misleading the jurors to believe that his case was gang related.
(6) Trial counsel rendered prejudicially ineffective assistance by failing to enter an objection when the prosecutor informed the jury during her closing argument that they could infer Petitioner's actions that he intended to kill the victim.
