FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEAL

SHEILA K. OBERTO, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on July 9, 2010, and transferred to this Court on July 20, 2010. Respondent filed an answer with supporting documentation on April 13, 2011, and Petitioner filed a traverse on August 22, 2011, and November 1, 2012.

I. Jurisdiction

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. ___, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights. The challenged judgment was rendered by the Superior Court of the State of California, County of Kern (KCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).

Respondent filed an answer on behalf of Respondent Gary Swarthout, Warden of the California State Prison at Solano, California (SOL), where Petitioner has been incarcerated during the course of this proceeding. Petitioner has thus named as a respondent a person who has custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, this Court has jurisdiction over the subject matter of this action and over the person of Respondent Swarthout.

II. Procedural Summary

At a jury trial in the KCSC, Petitioner was found guilty of having inflicted corporal injury upon the mother of his child in violation of Cal. Pen. Code § 273.5(a) and having personally inflicted great bodily injury under circumstances involving domestic violence in the commission of the corporal injury in violation of Cal. Pen. Code § 12022.7(e). The trial court found that Petitioner had suffered a prior serious and violent felony conviction for first degree robbery in violation of Cal. Pen. Code §§ 667(a) through (i) and 1170.12 (a) through (e) and had served a prior prison term within the meaning of Cal. Pen. Code § 667.5(b). Petitioner was sentenced to nineteen years in prison. (Ans., Ex. A, doc. 21-1, 3.)

Petitioner appealed the judgment, which was affirmed by the Court of Appeal of the State of California, Fifth Appellate District (CCA) on January 28, 2009. (Ans., Ex. A, doc. 21-1.)

On April 15, 2009, the California Supreme Court (CSC) summarily denied Petitioner's petition for review without a statement of reasoning or authority. (Ans., Ex. B, doc. 21-2.)

III. Factual Summary

In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). The following statement of facts is taken from the unpublished opinion of the CCA in People v. Marlon Vincent Adams, case number F054378, filed on January 28, 2009:

(Ans., Ex. A, doc. 21-1, 3-4.)

IV. Standard of Decision and Scope of Review

Title 28 U.S.C. § 2254 provides in pertinent part:

Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002).

A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but applies it to a new set of facts in an objectively unreasonable manner, or 2) extends or fails to extend a clearly established legal principle to a new context in an objectively unreasonable manner. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407.

An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410. A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id. To obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S.Ct. at 1398. Habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, ___ U.S. ___, 132 S.Ct. 1195, 1199 (2012).

In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review. . . is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400.

Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. A state court decision on the merits based on a factual determination will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceedings. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A state has adjudicated a claim on the merits within the meaning of § 2254(d) when it decides the petitioner's right to relief on the basis of the substance of the constitutional claim raised, rather than denying the claim because of a procedural or other rule precluding state court review of the merits. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).

Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, where the California Supreme Court denies a habeas petition without citation or comment, a district court will "look through" the unexplained decision of that state court to the last reasoned decision of a lower court as the relevant state-court determination. Ylst v. Nunnemaker, 501 U.S. at 803-04; Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004). A petitioner has the burden to overcome or rebut the presumption by strong evidence that the presumption, as applied, is wrong. Ylst, 501 U.S. at 804.

This Court will look through the unexplained decision of the CSC to the decision of the CCA, which was the last reasoned decision addressing Petitioner's claims.

V. Admission of Prior Acts of Domestic Violence

Petitioner argues that the admission of prior acts of domestic violence for the jury to consider to show a propensity to commit the charged offense, and thus to consider in the determination of guilt, was an abuse of discretion and violated his right to a fundamentally fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment.

A. The State Court Decision

The pertinent portion of the decision of the CCA is as follows:

(Doc. 21-1, 4-8.)

B. Analysis

Petitioner argues that the state court abused its discretion under Cal. Evid. Code §§ 1109 and 352 which permit the introduction of evidence of character in the form of prior acts of domestic violence to prove conduct on a specified occasion. Petitioner's claim is not cognizable in this proceeding.

Federal habeas relief is available to state prisoners only to correct violations of the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a). Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). The Court accepts a state court's interpretation of state law. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). In a habeas corpus proceeding, this Court is bound by the California Supreme Court's interpretation of California law unless it is determined that the interpretation is untenable or a veiled attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).

Here, there is no indication that the state court's interpretation of state law was untenable or part of an attempt to avoid review of federal questions. Thus, even if incorrect, the state court ruling cannot serve as a basis for federal habeas relief unless federal constitutional rights are affected. Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990), cert. denied, 498 U.S. 1091, 111 S.Ct. 974 (1991); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).

The Supreme Court has not yet clearly ruled that the admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of a writ of habeas corpus. Estelle v. McGuire, 502 U.S. at 75 n.5 (declining to opine regarding whether a state law would violate the Due Process Clause if it permitted use of prior crimes evidence to show propensity to commit a charged crime). Absent such clearly established federal law, it cannot be concluded that a state court's evidentiary ruling was contrary to, or an unreasonable application of, Supreme Court precedent under 28 U.SC. § 2254(d)()1). Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citing Carey v. Musladin, 549 U.S. 70, 77 (2006)); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008), cert. den., Larson v. Belleque, 555 U.S. 871 (2008) (denying a due process claim concerning the admission of prior crimes evidence because the Supreme Court had expressly reserved decision on the question of whether propensity evidence could ever violate due process, and thus the state court did not unreasonably apply clearly established federal law in determining that prior crimes evidence did not violate due process); Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006), cert. den., ___ U.S. ___, 127 S.Ct. 1834 (2007) (denying a due process claim concerning the admission of past violent actions as propensity evidence in a second degree murder case for want of a "clearly established" rule from the Supreme Court); Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008), cert. den., 555 U.S. 1117 (2009) (finding no unreasonable application of clearly established Supreme Court precedent regarding either propensity evidence or general due process principles where in a case of rape, kidnapping, and assault against the Petitioner's other family members, the state court admitted evidence that the defendant had committed uncharged sexual assaults of his daughter).

Petitioner asserts that decisions of the Supreme Court determine that due process is violated when evidence of other crimes resulting in a conviction is used without a limiting instruction that the evidence cannot be considered as evidence of guilt on the charged offense. However, Petitioner's case citations do not support his position.

In Spencer v. Texas, 385 U.S. 554 (1967) the Court held it was not a violation of due process for a state to enforce its habitual criminal statutes by alleging prior convictions in the indictment, introducing proof of past convictions, and instructing the jury not to consider the priors in assessing guilt or innocence under the current indictment — even where there was some possibility of collateral prejudice to the defendant. In Estelle v. McGuire, 502 U.S. 62 (1991), the Court held that no due process violation occurred where the state court admitted evidence of prior injuries to a child in a trial of a father accused of killing the child. The state court instructed the jury that the prior injury evidence could be considered for the limited purposes of determining if it tended to show a clear connection between the other two offenses and charged crime so that it might logically be concluded that if the defendant committed the prior offenses, he also committed the charged offense. The Court reasoned that the evidence was probative of the intent element of second degree murder and was not reasonably interpreted as propensity evidence in light of the instructions. However, as previously noted, the Court expressly reserved decision on the issue of whether a state law would violate the Due Process Clause if it permitted prior crimes evidence to show propensity to commit a charged crime. Estelle, 502 U.S. at 75 n.5.

Petitioner cites McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993). However, the McKinney case did not address evidence of other, similar acts of domestic violence as in the present case, but rather evidence that the defendant possessed knives several months before the murder; was proud of his knife collection; and occasionally strapped a knife to his body and used a knife to scratch the words "Death is His" on the door to his closet. The charged murder was committed with a knife, but no murder weapon was ever identified. The court held that the knife evidence was not relevant to any element of the prosecution's case, and the extensive questioning regarding this character evidence rendered the trial fundamentally unfair.

In contrast, the present case involved evidence of acts of violence that were very similar to the conduct constituting the charged offense. The evidence was particularly probative of intent in light of the factual issue concerning whether the Petitioner's actions in causing the victim to fall were purposeful or accidental. The evidence was relevant, and given the strong evidence of Petitioner's guilt, it could reasonably be concluded that the evidence did not have an adverse effect or influence in the jury's verdict. Thus, the present case may be distinguished from McKinney based on both the relevance of the evidence and the reduced possibility of prejudice. Cf., Correll v. Stewart, 137 F.3d 1404, 1416-17 (9th Cir. 1998).

A state court's procedural or evidentiary ruling may be subject to federal habeas review if it violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by admitting evidence so arbitrary or prejudicial that its admission rendered the trial fundamentally unfair and violated fundamental conceptions of justice. Perry v. New Hampshire, ___ U.S. ___, 132 S.Ct. 716, 723 (2012); Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998); Jammal v. Van de Kamp, 926 F.2d at 919-20. Here, as noted by the CCA, evidence of Petitioner's prior acts of violence against the victim was relevant because it tended to establish his propensity to commit abusive acts against the victim. Further, it tended to rebut an inference of accident. Likewise, evidence of Petitioner's commission of similar acts against another female partner tended to establish the Petitioner's propensity to treat intimate partners aggressively. The prior acts were particularly probative because as conduct precipitated by arguments arising after the Petitioner was asked to leave, they were similar to the criminal acts charged in the present case. Because the charged offense involved the relatively gruesome circumstance of a severed fingertip, the prior bad acts were not necessarily more shocking than the charged crime. There was no indication that the witnesses who testified to the previous misconduct confused the jurors or consumed undue time. The state court weighed appropriate factors to ensure that no undue prejudice would result from admission of the evidence.

Petitioner asserts that the victim characterized the charged offense as an accident. However, the victim actually testified she was not sure whether the Petitioner pushed her or fell on her in his intoxicated state. (LD 2, 6 RT 613.) A social worker interviewed both Petitioner and the victim soon after the crime in connection with concern for violence in the presence of a child. The social worker testified that both Petitioner and the victim informed her that Petitioner pulled the victim's hair and pushed her, which caused her finger to become stuck in the door. (Id. at 630-31, 640.) A law enforcement officer also testified that the victim reported that the Petitioner pulled her hair and tried to assault her; she ran from him and tried to escape out the back door, but he pushed her with both hands. (Id. at 661-665.) The victim's sister testified that while in the hospital after the attack, the victim told her that Petitioner had pushed her, and her finger had been caught in the door. (Id., 7 RT 720-23.) Thus, the jury was presented with multiple sources of evidence that strongly tended to show that the Petitioner had pushed the victim.

Petitioner complains that the prosecutor's argument emphasized that the jury could find by a preponderance of evidence that the prior domestic episodes did occur, and the prosecutor then argued that if Petitioner committed the prior offenses, Petitioner probably committed the present offenses. Although the prosecutor emphasized that the burden of proof was only a preponderance with respect to the sub-issue of whether Petitioner committed the prior domestic violence, the prosecutor also reminded the jury that proof of the commission of the charged offenses was beyond a reasonable doubt. (Id. at 789-91, 794-95.) Further, the jury was instructed on the presumption of innocence and the burden of proof. (Id. at 763-64.) As to Petitioner's prior acts of domestic violence against the victim and Mary Murphy, the jury was instructed that it could consider the other acts of violence only if the People proved that Petitioner in fact committed the uncharged domestic violence by a preponderance of the evidence. If the jury decided that Petitioner committed the uncharged domestic violence, it might, but was not required to, conclude from that evidence that Petitioner was disposed or inclined to commit domestic violence and was thus likely to commit and did commit the charged offense. However, a finding that Petitioner committed the uncharged domestic violence was not sufficient by itself to prove guilt of the corporal injury charge or any lesser included offense, and the People were still required to prove each element of every charge beyond a reasonable doubt. Further, the jury was not to consider the evidence for any other purpose. (Id. at 777-78.) Thus, it does not appear likely that there was a misunderstanding regarding the respective burdens of proof.

In sum, under the totality of the circumstances, the introduction of the prior crimes evidence did not deprive Petitioner of a fundamentally fair trial. Thus, the state court's decision was not contrary to, or an unreasonable application of, clearly established federal law. Accordingly, it will be recommended that Petitioner's due process claim concerning the introduction of evidence of prior conduct be denied.

VI. Error in Instruction on Natural and Probable Consequences

Petitioner argues that his right to a fair trial was violated by the trial court's instruction with CALCRIM 840 concerning the concept of natural and probable consequences. He contends the instruction permitted the jury to convict him of committing spousal battery in violation of Cal. Pen. Code § 273.5(a) by indirectly inflicting corporal injury upon the victim, whereas state law requires that the corporal injury result from the direct application of force by the perpetrator upon the victim.

A. The State Court's Decision

The decision of the CCA on this issue was as follows:

(Doc. 21-1, 8-9.)

B. Analysis

When a conviction is challenged in a proceeding pursuant to 28 U.S.C. § 2254 based on jury instruction error, two clearly established legal principles govern a district court's review.

First, the United States Supreme Court has held that a challenge to a jury instruction based solely on an error under state law does not state a claim cognizable in federal habeas corpus proceedings. Estelle v. McGuire, 502 U.S. at 71-72. A claim that an instruction was deficient in comparison to a state model or that a trial judge incorrectly interpreted or applied state law governing jury instructions does not entitle one to relief under § 2254, which requires violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3).

Secondly, the only basis for federal collateral relief for instructional error is that the infirm instruction or the lack of instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle, 502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see, Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (noting that it must be established not merely that the instruction is undesirable, erroneous or even "universally condemned," but that it violated some right guaranteed to the defendant by the Fourteenth Amendment).

The instruction may not be judged in artificial isolation; it must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. In reviewing an ambiguous instruction, it must be determined whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. Estelle, 502 U.S. at 72-73 (reaffirming the standard as stated in Boyde v. California, 494 U.S. 370, 380 (1990)). The Court in Estelle emphasized that the Court had defined the category of infractions that violate fundamental fairness very narrowly, and that beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. Id. at 72-73.

Moreover, even if there is instructional error, a petitioner is generally not entitled to habeas relief unless the error is prejudicial. The Supreme Court has held that harmless error analysis applies to instructional errors as long as the error at issue does not categorically vitiate all the jury's findings. Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) (citing Neder v. United States, 527 U.S. 1, 11 (1999) (quoting in turn Sullivan v. Louisiana, 508 U.S. 275 (1993) concerning erroneous reasonable doubt instructions as constituting structural error)).

In Hedgpeth v. Pulido, the Court noted its previous decisions that various forms of instructional error were trial errors subject to harmless error analysis, including errors of omitting or misstating an element of the offense or erroneously shifting the burden of proof as to an element. Hedgpeth, 555 U.S. 60-61. To determine whether a petitioner pursuant to § 2254 suffered prejudice from such an instructional error, a federal court must determine whether a petitioner suffered actual prejudice by assessing whether, in light of the record as a whole, the error had a substantial and injurious effect or influence in determining the jury's verdict. Hedgpeth, 555 U.S. at 62; Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

Here, the jury was instructed pursuant to CALCRIM 840 as follows:

(LD 1, 1 CT 180-81; LD 2, 7 RT 770.)

Thus, the jury instruction expressly required that for a traumatic condition to be the result of an injury, the condition must be the natural and probable consequence of the injury and a direct and substantial factor in causing the condition. Therefore, there was no reasonable likelihood that the jury applied the challenged instruction in a way that permitted it to find guilt even if the traumatic condition resulted only indirectly from the injury.

Even assuming the jury applied the instruction incorrectly, the state court's decision was not contrary to, or an unreasonable application of, clearly established federal law because the state court reasonably concluded the error was harmless. Multiple sources testified to Petitioner's admissions that he pushed the victim in a manner that caused her to fall into the door and sever her fingertip. There was no evidence to suggest that it was not reasonably likely that pushing the victim into the door or doorway would result in injury from forceful and unplanned contact with the surrounding structure. There was no evidence that any other force or actor intervened after Petitioner pushed the victim.

In sum, there was no evidence that Petitioner's act was not the direct cause of the victim's traumatic condition. In light of the evidence in the case, the instruction did not render the trial fundamentally unfair. The state court's conclusion that the instruction did not have a substantial and injurious effect or influence in determining the jury's verdict was objectively reasonable.

Thus, the state court's decision was not contrary to, or an unreasonable application of, clearly established federal law within the meaning of § 2254(d)(1). Accordingly, it will be recommended that Petitioner's due process claim concerning CALCRIM 840 be denied.

VII. Error in Instruction on Great Bodily Injury

Petitioner argues that the trial court violated his right to due process of law by failing to instruct the jury that Petitioner personally inflicted great bodily injury.

A. The State Court's Decision

The pertinent portion of the CCA's decision on this issue is as follows:

The trial court instructed as follows:

(Doc. 21-1, 9-12.)

B. Analysis

Omission of an instruction on an element of an offense violates the Sixth Amendment right to jury trial and due process, but it is a trial error subject to harmless error analysis. Neder v. United States, 527 U.S. at 19. Such an error is harmless unless it had a substantial and injurious effect or influence in determining the jury's verdict. California v. Roy, 519 U.S. 2, 4-6 (1996) (remanding for a determination of whether a failure to instruct the jury that liability for aiding and abetting required an intent or purpose to aid the confederate's crime was harmless); Brecht v. Abrahamson, 507 U.S. at 638. Where a judge in a habeas proceeding is in grave doubt as to the harmlessness of the error, the petitioner must prevail. California v. Roy, 519 U.S. at 5.

Here, it was objectively reasonable for the state court to conclude that the instructional error was harmless beyond a reasonable doubt. With respect to the issue of the identity of the actor who pushed the victim, uncontroverted evidence established that while Petitioner was in the presence of the victim, he pushed the victim and caused her to fall and sever her fingertip. There was no evidence that any person or agent other than Petitioner caused, or could have caused, the victim to fall and sever her fingertip. Under these circumstances, there is no question that the omission of the element of personal infliction did not have a substantial or injurious effect or influence on the jury's verdict.

Petitioner contends that because the jury took seven hours to deliberate, requested re-reading of the testimony of the victim and an emergency physician, and requested a definition of great bodily injury, the omission of the instruction on personal infliction was not harmless. However, these questions logically point to jurors' uncertainty or lack of decision on the issue of whether or not the bodily injury suffered by the victim was "great" bodily injury, and not the issue of the identity of the person causing the injury. Accordingly, it will be recommended that Petitioner's claim concerning the failure to instruct on personal infliction of great bodily injury be denied.

VIII. Insufficiency of the Evidence of the Prior Robbery Conviction

Petitioner argues that the evidence that he suffered a prior robbery conviction was insufficient because there was an error in the California Law Enforcement Telecommunications System (CLETS) rap sheet that was used to prove that Petitioner had sustained the prior conviction. Although the error did not concern the robbery conviction at issue, but rather a burglary conviction in 1997, Petitioner nevertheless contends that because there was one error in the rap sheet, the entire document was unreliable.

A. The State Court's Decision

The pertinent part of the decision of the CCA is as follows:

(Doc. 21-1, 12-14.)

B. Analysis

Respondent argues that Petitioner's insufficiency of the evidence claim is procedurally barred. Respondent raises not only Petitioner's procedural default in failing to object to the reliability of the report, but also Petitioner's asserted failure to exhaust his claim in the state courts due to failure to identify the claim as a federal claim.

The doctrine of procedural default is a specific application of the more general doctrine of independent state grounds. It provides that when state court decision on a claim rests on a prisoner's violation of either a state procedural rule that bars adjudication of the case on the merits or a state substantive rule that is dispositive of the case, and the state law ground is independent of the federal question and adequate to support the judgment such that direct review in the United States Supreme Court would be barred, the prisoner may not raise the claim in federal habeas absent a showing of cause and prejudice or that a failure to consider the claim will result in a fundamental miscarriage of justice. Walker v. Martin, ___ U.S. ___, 131 S.Ct. 1120, 1127 (2011); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003); Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). The doctrine applies regardless of whether the default occurred at trial, on appeal, or on state collateral review. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

Where a state court discusses a state procedural bar as a separate basis for its decision, but in an alternative holding, discusses the merits of the federal claim, the court has clearly and expressly stated its reliance on a procedural ground, and the procedural bar applies. Bennett v. Mueller, 322 F.3d at 580; Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (citing Coleman v. Thompson, 501 U.S. 722 and Harris v. Reed, 489 U.S. at 264 n.10). However, a federal court can bypass a procedural bar issue in the interests of judicial economy and where otherwise barred claims are clearly not meritorious. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002); see, Lambrix v. Singletary, 520 U.S. 518, 525 (1997). Likewise, as Respondent states, a court may reach the merits of a claim even in the absence of exhaustion where it is clear that the claim is not colorable. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"); Granberry v. Greer, 481 U.S. 129, 134-35 (1987); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Here, the merits of the claim were addressed by the state court and it would be expeditious to consider the claim on the merits.

To determine whether a conviction violates the constitutional guarantees of due process of law because of insufficient evidence, a federal court ruling on a petition for writ of habeas corpus must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 20-21 (1979); Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).

All evidence must be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319; Jones, 114 F.3d at 1008. It is the trier of fact's responsibility to resolve conflicting testimony, weigh evidence, and draw reasonable inferences from the facts; thus, it must be assumed that the trier resolved all conflicts in a manner that supports the verdict. Jackson v. Virginia, 443 U.S. at 319; Jones, 114 F.3d at 1008. The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but rather whether the jury could reasonably arrive at its verdict. United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). Circumstantial evidence and the inferences reasonably drawn therefrom can be sufficient to prove any fact and to sustain a conviction, although mere suspicion or speculation does not rise to the level of sufficient evidence. United States v. Lennick, 18 F.3d 814, 820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990); see, Jones v. Wood, 207 F.3d at 563. The court must base its determination of the sufficiency of the evidence on a review of the record. Jackson at 324.

The Jackson standard must be applied with reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101. However, the minimum amount of evidence that the Due Process Clause requires to prove an offense is purely a matter of federal law. Coleman v. Johnson, ___ U.S. ___, 132 S.Ct. 2060, 2064 (2012) (per curiam). For example, under Jackson, juries have broad discretion to decide what inferences to draw and are required only to draw reasonable inferences from basic facts to ultimate facts. Id.

Further, under the AEDPA, federal courts must apply the standards of Jackson with an additional layer of deference. Coleman v. Johnson, 132 S.Ct.at 2062; Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). This Court thus asks whether the state court decision being reviewed reflected an objectively unreasonable application of the Jackson standards to the facts of the case. Coleman v. Johnson, 132 S.Ct. at 2062; Juan H. v. Allen, 408 F.3d at 1275. The determination of the state court of last review on a question of the sufficiency of the evidence is entitled to considerable deference under 28 U.S.C. § 2254(d). Coleman v. Johnson, 132 S.Ct. at 2065.

Here, the state court concluded that the CLETS rap sheet was admissible under state law. This finding binds this Court in this proceeding pursuant to 28 U.S.C. § 2254. A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting on habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005).

Here, the state court articulated the proper legal standard regarding sufficiency of the evidence. It appears that there was an error in the rap sheet with respect to another prior conviction. Thus, a rational trier of fact may have concluded that the rap sheet did not establish that Petitioner suffered the prior conviction. However, the evidence must be considered in the light most favorable to the prosecution. As the state court noted, there was no showing that Petitioner had not suffered the robbery conviction or that the document was erroneous with respect to the robbery conviction. A rational trier of fact could have found that Petitioner suffered the prior robbery conviction beyond a reasonable doubt.

Therefore, the state court's conclusion that Petitioner's robbery conviction had been established by sufficient evidence was an objectively reasonable application of the Jackson standard. Petitioner has not shown that the state court's decision was contrary to, or an unreasonable application of, clearly established federal law within the meaning of § 2254(d)(1). Accordingly, it will be recommended that Petitioner's claim concerning the sufficiency of the evidence to support the finding that Petitioner suffered the prior robbery conviction be denied.

IX. Sixth Amendment Violation at Sentencing

Petitioner argues that his sentence to an upper term based on his numerous prior convictions, unsatisfactory performance on probation and parole, and repeated choices of vulnerable victims violated his Sixth and Fourteenth Amendment right to a jury trial as set forth in Cunningham v. California, 549 U.S. 270 (2007) because he was sentenced to an upper term based on facts not found true by a jury. Petitioner contends that he committed his offense in 2006, whereas California's determinate sentencing law was not amended until after Petitioner's offense to make imposition of the upper term discretionary with the sentencing court and permissible without a factual finding of an aggravating factor. (Pet., doc. 1, 7, 46-48.) Petitioner challenges the retroactive application.

A. The State Court's Decision

The pertinent portion of the decision of the CCA on this issue was as follows:

(Doc. 21-1, 14.)

B. Analysis

A criminal defendant is protected against the retroactive application of a judicial construction of a criminal statute that is unexpected and indefensible by reference to the law which has been expressed prior to the pertinent criminal conduct. Bouie v. City of Columbia, 378 U.S. 347, 350-54 (1964). In Bouie, a state court had construed a statute, the terms of which prohibited entering on another's land with notice that entry was prohibited, to include remaining on the land after a request to depart. The Supreme Court condemned the state court's construction because it offended the demand of the Due Process Clause that a criminal statute give fair warning of the conduct that it makes criminal such that a person of ordinary intelligence is given fair notice that his or her contemplated conduct is forbidden by the statute. Id. at 352-53. A criminal statute may not either forbid or require the commission of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Id. The Court also reasoned that because judicial construction of a criminal statute is generally not revealed until the decision of a state court is rendered, the construction is applied after a defendant engages in the conduct sought to be punished as criminal; thus, judicial construction operates analogously with an ex post facto law because it criminalizes an otherwise innocent action done before the construction or increases punishment for such conduct.

Here, the challenged judicial construction pertains to modifications of the procedures used by California's sentencing courts. In the year following the commission of Petitioner's offense, the Supreme Court held in Cunningham v. California, 549 U.S. 270, 288-94 (2007), that a defendant's rights to trial by jury and proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments were violated by California's determinate sentencing law (DSL), which authorized the sentencing judge, as distinct from the jury, to find facts other than the fact of a prior conviction that would expose a defendant to an upper term instead of the presumptively applicable middle term, which the Court considered to be the statutory maximum. California's DSL thus ran afoul of the requirement of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that any fact other than a prior conviction that is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by a defendant or proved to a jury beyond a reasonable doubt.

Subsequently, the California legislature amended the DSL to allow a sentencing court, in its discretion, without the need for any finding of fact, to impose a lower, middle, or upper term as the court determines best serves the interests of justice. See, Cal. Pen. Code § 1170(b), Cal. Stats. 2007, ch. 3.

In People v. Sandoval, 41 Cal.4th 825, 843-44 (2007), the California Supreme Court decided that a revised sentencing process consistent with the state legislature's 2007 amendments of the DSL could be applied to defendants who committed their crimes before the effective date of the DSL amendments. The court determined that the remedy for any Sixth and Fourteenth Amendment error under Cunningham v. California was remand for the trial court to exercise broad discretion to impose the lower, middle, or upper term consistent with the post-Cunningham amendments of the DSL. The court thus judicially reformed the sentencing law. Id. The court noted that judicial modification of a sentencing procedure was governed by due process concepts of notice, foreseeability, and the right to fair warning, and it considered whether sentencing someone whose crime predated the amendment would violate a defendant' right to protection against ex post facto judicial constructions embodied in due process of law. The court concluded that there was no violation based on the absence of any indication of a likelihood of an increase in sentence length or an expansion of judicial discretion — particularly in a case where the offender had initially been sentenced to the upper term. People v. Sandoval, 41 Cal.4th at 853-56. The court concluded that defendants were put on notice that they could receive the upper term by the original version of the sentencing statutes, and thus they did not suffer a denial of due process. People v. Sandoval, 41 Cal.4th at 856-58.

In Chioino v. Kernan, 581 F.3d 1182, 1185-86 (9th Cir. 2009), where a defendant's state sentence was imposed in violation of the Sixth and Fourteenth Amendments because of judicial fact finding, the remedy of remanding the case for resentencing under the Sandoval procedure did not raise any ex post facto concerns. In Butler v. Curry, 528 F.3d 624, 652 n.20 (9th Cir. 2008), the court considered whether applying California's judicially reformed sentencing law to one who committed his crime before the judicial modification occurred violated the ex post facto principles contained in the Due Process Clause of the Fourteenth Amendment. The Ninth Circuit determined that the question was controlled by United States v. Dupas, 419 F.3d 916, 921 (9th Cir. 2005), in which the court decided that retroactive application of the analogous remedial decision in United States v. Booker, 543 U.S. 220 (2005) did not violate the ex post facto principles of fair warning incorporated in the Due Process Clause because there had been fair notice as to the potential sentence.2

If application of Sandoval's judicially created rule of discretionary sentencing to defendants whose crimes predated the judicial construction does not violate ex post facto principles embodied in the Due Process Clause, then application of the same rule enacted by the state legislature would not violate those principles. The Court concludes that Chioino forecloses Petitioner's due process claims concerning retroactive application. Thus, the state court's decision in the present case was not contrary to, or an unreasonable application of, clearly established federal law within the meaning of 28 U.S.C. § 2254(d)(1). Accordingly, it will be recommended that Petitioner's claim concerning the retroactive application of amended sentencing procedures be denied.

In sum, Petitioner has failed to show that the state court's decision on any of his claims was contrary to, or an unreasonable application of, clearly established federal law within the meaning of § 2254(d)(1). Therefore, it will be recommended that the petition for writ of habeas corpus be denied.

X. Evidence for Evidentiary Hearing

Petitioner asks this this Court to consider a letter from the victim of the charged offenses in connection with an evidentiary hearing in this Court. (Trav., doc. 27, 3; pet., doc. 1, 19-22.)

The decision to grant an evidentiary hearing is generally a matter left to the sound discretion of the district courts. 28 U.S.C. § 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). To obtain an evidentiary hearing in federal court under the AEDPA, a petitioner must allege a colorable claim by alleging disputed facts which, if proved, would entitle him to relief. Schriro v. Landrigan, 550 U.S. at 474.

The determination of entitlement to relief is, in turn, is limited by 28 U.S.C. § 2254(d)(1), which requires that to obtain relief with respect to a claim adjudicated on the merits in state court, the adjudication must result in a decision that was either contrary to, or an unreasonable application of, clearly established federal law. Schriro v. Landrigan, 550 U.S. at 474. In analyzing a claim pursuant to § 2254(d)(1), a federal court is limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 131 S.Ct. at 1398.

Thus, when a state court record precludes habeas relief under the limitations set forth in § 2254(d), a district court is not required to hold an evidentiary hearing. Cullen v. Pinholster, 131 S.Ct. at 1399 (citing Schriro v. Landrigan, 550 U.S. at 474). An evidentiary hearing may be granted with respect to a claim adjudicated on the merits in state court where the petitioner satisfies § 2254(d)(1), or where § 2254(d)(1) does not apply, such as where the claim was not adjudicated on the merits in state court. Cullen v. Pinholster, 131 S.Ct. at 1398, 1400-01.

Here, Petitioner has not shown that the state court decision on his claims was contrary to, or an unreasonable application of clearly established federal law within the meaning of 28 U.S.C. § 2254(d)(1). Thus, this Court will not grant an evidentiary hearing.

Further, reference to the petition for review filed in the California Supreme Court (LD 7) shows that the letter from the victim, which was dated January 25, 2009, was not presented to the CSC for review. Accordingly, in the course of its review of petition, the Court has not considered the letter from the victim.

XI. Certificate of Appealability

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether: (1) the petition states a valid claim of the denial of a constitutional right, or (2) the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. An applicant must show more than an absence of frivolity or the existence of mere good faith; however, an applicant need not show the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338. A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Thus, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, it will be recommended that the Court decline to issue a certificate of appealability.

XII. Recommendations

In accordance with the foregoing analysis, it is RECOMMENDED that:

These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, 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." Replies to the objections shall be served and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.