FINDINGS AND RECOMMENDATIONS

CAROLYN K. DELANEY, Magistrate Judge.

Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on January 4, 2008 in the Sacramento County Superior Court on charges of first degree murder committed in the commission of a robbery, with an enhancement for personal discharge of a firearm causing great bodily injury or death. He seeks federal habeas relief on the following grounds: (1) the trial court violated his right to a public trial; (2) his trial counsel rendered ineffective assistance in failing to object more aggressively to the trial court's failure to open the courtroom to more spectators, failing to move to sever petitioner's trial from the trial of one of his co-defendants, and failing to object to the admission of inflammatory evidence at trial; and (3) his sentence of life without parole plus 25 years-to-life constitutes cruel and unusual punishment in light of the fact that he was a juvenile when the crime was committed.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

PROCEDURAL AND FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

(Doc. 17-1 (hereinafter Opinion) at 1-11.)

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Greene v. Fisher, ___ U.S. ___, ___, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "Circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ___ U.S. ___, ___, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Marrhews, ___ U.S. ___, ___, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverted in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77.

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'"). "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." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 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." Richter, 562 U.S. at 103.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "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." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "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, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims

A. Right to a Public Trial

Petitioner's first claim for federal habeas relief is that the trial judge violated his right to a public trial when he refused to allow more of petitioner's family members and friends to attend the trial, even though there were empty seats in the courtroom. (Doc. No. 8 (hereinafter Pet.) at 5. Petitioner raised this claim for the first time on direct appeal. The California Court of Appeal explained the background to the claim as follows:

(Opinion at 11-12.)

Petitioner states that a number of his friends and family members were unable to attend the trial, or as much of the trial as they wished to attend, because of the trial court's ruling limiting the available seats to two per defendant. (Pet. at 16.) He explains that several of his supporters tried to enter the courtroom during the trial proceedings but were turned away by the bailiff because of an ostensible lack of available seating. (Id.) He also notes that the trial court did not justify the need for a buffer zone of seats, or even explain what or whom those seats were for, and he observes that there were empty seats in the courtroom during the course of the trial. (Doc. No. 26 (Traverse) at 6.) Petitioner argues,

Pet. at 18. Petitioner points out that no federal case holds that "a trial court may block off rows of seats in the courtroom upon a defendant's objection without stating a justification for the closure, thereby preventing interested friends and family members from attending a criminal defendant's trial." (Traverse at 9-10.) Petitioner informs that court that "more than 25 people" wanted to attend his trial. (Pet. at 5). He also notes that "no seats were made available for the press or general public." (Traverse at 6.)

The California Court of Appeal rejected these arguments, reasoning as follows:

(Opinion at 11-16.)

Petitioner raised his public trial claim again in a later petition for writ of habeas corpus filed in the California Superior Court. (Resp't's Lod. Doc. 9.) Attached to that petition were four declarations from petitioner's friends and family members, who stated that they wanted to attend petitioner's trial but were prevented from entering the courtroom by the bailiff. (Id., Exs. B — E.) Specifically, petitioner's half-sister declared that although "a large group" of petitioner's friends and family wanted to attend the trial, they were told by the bailiff that "the courtroom could only accommodate two people per defendant." (Id., Ex. B.) The bailiff informed the group that it was up to them to reach an agreement as to which two persons would be allowed to attend. (Id.) The declarant and petitioner's father were chosen by the group to attend the trial. (Id.) When the declarant was in the courtroom, she noticed that the two front rows of seats were empty, but were "blocked off so that no one could sit in them." (Id.) At times, she noticed that "people who seemed to be attorneys or investigators were permitted to enter the courtroom and sit in the rows that were blocked off to members of the public." (Id.) She was told that one or two of the back rows were reserved for friends and family of the victim, but she noticed that those seats were frequently empty. (Id.) On several occasions when members of petitioner's support group approached the courtroom, she observed the bailiff turning them away. (Id.)

In another declaration, petitioner's step-mother states that because of the two-person-per-family limit she was only able to attend the sentencing proceedings, even though she wanted to attend the entire trial. (Id., Ex. C.) On several occasions when she "entered the vestibule of Department 61," the bailiff approached her and told her she could not come in. (Id.)

In another declaration, a friend of petitioner's states that she heard the bailiff tell petitioner's friends and supporters that "there was not enough room for everyone, and that only the immediate family members could attend the trial." (Id., Ex. D.) She stated that "some mornings" when the courtroom opened she would get up and start walking into the courtroom but the bailiff turned her away. (Id.) She was "allowed to attend only two sessions of the trial," even though she wanted to attend more. (Id.) She declares that while sitting in the hallway, she observed the bailiff preventing people from entering the courtroom. (Id.)

Another friend of petitioner's declares that she was only allowed to attend several segments of the trial, including the day that petitioner testified. (Id., Ex. E.) The rest of the time she sat outside in the hallway. (Id.) She was also told by the bailiff that there was not enough seating in the courtroom for all of the persons who wished to attend. (Id.) She observed other people being turned away by the bailiff when they approached the courtroom. (Id.)

Notwithstanding these additional declarations filed by petitioner in support of his habeas petition, the California Superior Court denied petitioner's claim that the trial court violated his right to a public trial, both on procedural grounds and on the merits. In its decision on the merits of petitioner's claim, the Superior Court reasoned as follows:

(Resp't's Lod. Doc. 9 at consecutive pgs. 2-3.)

Both petitioner and respondent agree that the decision of the California Superior Court on petitioner's claim of a denial of the right to a public trial is the operative decision for purposes of AEDPA review of this claim. (Doc. No. 37 at 34; Doc. No. 38 at 23 & n.7.) The prior decision of the California Court of Appeal is also instructive in this regard because the Superior Court relied heavily on that decision in reaching its own determination. See Taylor v. Maddox, 366 F.3d 992, 999 n.5 (9th Cir. 2004) ("We analyze the court of appeal's decision as the relevant state-court determination because the state supreme court denied Taylor's petition for review without citation or comment . . . However, because the court of appeal adopted the reasoning of the trial court, we also discuss the trial court's decision.").

Petitioner argues that the Superior Court's decision is based on an unreasonable determination of the facts of this case to the extent that it suggests petitioner's friends and family members were admitted to the courtroom if space allowed. (Traverse at 6-7.) He argues that, on the contrary, the record establishes that there "was at all times additional seating available in the courtroom, but that petitioner's friends and family were not permitted to sit in these seats." (Id. at 7.) Petitioner further argues that the Superior Court's decision is an unreasonable application of clearly established federal law because "no United States Supreme Court precedent supports the view that a trial court may, without justification, limit to two the number of a defendant's family members who may attend a trial when there are additional empty seats available in the courtroom." (Id. at 9.) Petitioner argues he is entitled to de novo review of this claim "because the superior court's order, to the extent it suggests that a trial court may block off rows of seats in a small courtroom without any stated reason and thereby prevent all but two of a defendant's friends and family members from attending his trial, is an unreasonable application of clearly established federal law." (Id. at 10.)

In a supplemental brief, petitioner adds that the Superior Court's decision was an unreasonable application of federal law because the Superior Court denied a claim that petitioner never presented: whether petitioner's right to a fair trial was violated by the trial court's failure to allow an "unlimited" number of his friends and relatives to attend the trial. (Doc. No. 37 at 34-36, 38.) Petitioner asserts that the Superior Court failed to address his actual claim: that his trial was not open "to the public" in a general sense. (Doc. No. 37 at 34-36, 38.) He argues that simply because two members of his family were allowed to attend the trial does not establish that his trial was "open to the public," nor did that fact "vindicate all the concerns underlying the `public trial' guarantee." (Id. at 35-36.) Petitioner also argues that the trial court should have allowed additional members of the public to sit in the empty seats in the courtroom. (Id. at 37.) He claims, "the record is undisputed that there were numerous empty seats that were reserved as an unexplained "buffer" zone that could have been used by members of the public, who repeatedly attempted unsuccessfully to attend [petitioner's] trial." (Id. at 38.)

The Sixth Amendment to the Constitution establishes that a criminal defendant has a right to a public trial, by an impartial jury. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . ."). "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions." Waller v. Georgia, 467 U.S. 39, 46 (1984) (quotations omitted). "The public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concurring). The Court of Appeals for the Ninth Circuit has observed that "[t]he public and whatever press have any interest, including newspapers, freelance writers, bloggers and anyone else, ought generally to be able to see what is going on in courtrooms, including sentencing hearings." United States v. Biagon, 510 F.3d 844, 850 (9th Cir. 2007) (Kleinfeld, J., concurring).

One court has observed that "the precise contours of an accused's Sixth Amendment right to a public trial . . . are ill-defined." United States v. Flanders, 845 F.Supp.2d 1298, 1301 (S.D. Fla. 2012). However, the right to a public trial entitles a criminal defendant "at the very least . . . to have his friends, relatives and counsel present, no matter with what offense he may be charged." United States v. Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012) (quoting In re Oliver, 333 U.S. 257, 272 (1948)). Indeed, the exclusion of a defendant's relatives "implicates Sixth Amendment values more directly than the exclusion of the general public." Id. at 1232.

"[T]he denial of a defendant's Sixth Amendment right to a public trial requires some affirmative act by the trial court meant to exclude persons from the courtroom." United States v. Shryock, 342 F.3d 948, 974 (9th Cir. 2003) (quoting United States v. Al Smadi, 15 F.3d 153, 155 (10th Cir. 1994)). Thus, a defendant's right to a public trial "is only implicated by a closure of a courtroom." Id. Closure can be justified only by an overriding interest, "such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller, 467 U.S. at 46. Where a trial court closes the courtroom, it must comply with the following four requirements:

Id. at 48 (citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984)). See also Presley v. Georgia, 558 U.S. 209 (2010) (closure of courtroom to lone member of the public who tried to attend jury selection violated right to public trial where trial court did not "consider all reasonable alternatives to the closure"); United States v. Withers, 638 F.3d 1055, 1063 (9th Cir. 2011) ("A district court violates a defendant's right to a public trial when it totally closes the courtroom to the public, for a non-trivial duration, without first complying with the four requirements established by the Supreme Court's Press-Enterprise and Waller decisions").

The Waller framework, described above, applies only to "total" closures of the courtroom — i.e., where "all persons other than witnesses, court personnel, the parties and their lawyers [a]re excluded for the duration of the hearing." Rivera, 682 F.3d at 1236. In cases of "partial closure" of the courtroom; i.e., where courtroom access is restricted but some members of the public are permitted to attend, some Circuit courts, including the Ninth Circuit, have held that a "substantial" interest, rather than a "compelling" interest, will justify the closure. See e.g., United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir. 1989) (no violation of defendant's right to a public trial where trial court excluded defendants' family members during one witness's testimony, because partial closure was justified to protect young victim of sex crimes from trauma and embarrassment); Bucci v. United States, 662 F.3d 18, 24 & n.3 (1st Cir. 2011) (citing cases). However, the United States Supreme Court has not adopted this standard, or even addressed "partial closures" of a courtroom.5

The United States Supreme Court has observed that the First Amendment rights of the public and press to attend a criminal trial are not "absolute."

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18 (1980). That being said, the instances where courtroom closure will be warranted are "rare" and "the balance of interests must be struck with special care." Waller, 467 U.S. at 45. The Supreme Court has made it clear that there is a "presumption of openness." Press-Enterprise, 464 U.S. at 510.

A violation of the right to a public trial is a structural error that is not subject to harmless-error review. See, e.g., Johnson v. United States, 520 U.S. 461, 468-69 (1997); Waller, 467 U.S. at 49-50. This is because "the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance." Waller, 467 U.S. at 49 & n.9.

This court concludes that petitioner is not entitled to habeas relief under AEDPA review on his claim that the trial court violated his right to a public trial when it limited the available seating for his family and friends. Here, unlike the situation in Waller, Richmond Newspapers, Inc., and Press-Enterprise Co., petitioner's courtroom was never completely closed to the public, either permanently or for a limited time. The cases cited by petitioner in support of this claim which involve total courtroom closures are not dispositive. See State of Rhode Island v. Torres, 844 A.2d 155 (R.I. 2004) (petitioner's right to a public trial violated where trial judge excluded all members of family, and possibly the only members of the public who sought access to the trial, from jury voir dire where empty seats were left vacant); Watters v. State of Maryland, 612 A.2d 1288 (Md. 1992) (petitioner's right to a public trial violated where trial court excluded members of defendant's family as well as the press and public from voir dire and jury selection where empty seats were left vacant). In this case, the trial court imposed a limit on the number of spectators who could be present on behalf of each defendant, rather than imposing a total closure of the courtroom to a certain segment of the public. Petitioner himself characterizes the trial court's actions as a "partial" closure. (Pet. at 18.)

No United States Supreme Court case holds that a defendant's right to a public trial is violated by less than a total closure of the courtroom. See Sherlock, 962 F.2d at 1356 ("Waller addressed total closure of a suppression hearing and does not necessarily govern partial closures") (italics in original); Garcia v. Bertsch, 470 F.3d 748, 754 (8th Cir. 2006) (same). Because there is no controlling United States Supreme Court case addressing partial closures of a courtroom, which is what the trial judge imposed in this case, this court cannot find that the California courts' rejection of petitioner's public trial claim was contrary to or an unreasonable application of clearly established federal law. Although the Ninth Circuit has imposed requirements for ordering a partial trial closure, circuit precedent may not be used "to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced." Marshall v. Rodgers, ___ U.S. ___, 133 S.Ct. 1446, 1450 (2013). See also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) ("this Court has held on numerous occasions that 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 this Court."); Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court regarding the [issue in dispute,] . . . the state court's decision was not contrary to or an unreasonable application of clearly established federal law"); 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."); Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009) ("In the absence of a Supreme Court decision that `squarely addresses the issue' in the case before the state court, . . . or establishes an applicable general principle that `clearly extends' to the case before us to the extent required by the Supreme Court in its recent decisions . . ., we cannot conclude that a state court's adjudication of that issue resulted in a decision contrary to, or an unreasonable application of, clearly established Supreme Court precedent."); Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) ("If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law.") (citation omitted). Because there was no "closure" of the courtroom, as that term is defined in the United States Supreme Court cases addressing this issue, petitioner's claim based on a denial of his Sixth Amendment right to a public trial must be denied. See Garcia, 470 F.3d at 752-54 ("The Supreme Court has not spoken on the partial closure issue, and the Court's closest case, Waller, is distinguishable on its facts. Our belief that the issue may have been decided differently in our court or in another circuit court is not grounds for granting habeas relief."); Angiano v. Scribner, 366 Fed.Appx. 726 (9th Cir. 2010) (habeas relief on claim of violation of right to public trial denied because "[t]he Circuits are split as to the applicability of the four-part test in Waller to `partial closures' and "on federal habeas review, relief is not available based on conflicting interpretations of circuit precedent."); Wells v. Hartley, No. CV 07-1406 CAS (FMO), 2011 WL 7111822, *12 (C.D.Cal. Dec.19, 2011) ("[T]he Supreme Court has never addressed the situation that occurred here, i.e., a partial closure of portions of petitioner's preliminary hearing . . . Accordingly, the California Court of Appeal's rejection of [the Sixth Amendment claim] cannot be contrary to, or an unreasonable application of, clearly established federal law." (internal citations omitted)); Alarcia v. Remington, No. SA CV 10-447-PSG (SH), 2010 WL 3766337, *8 (C.D.Cal. Sept. 10, 2010) ("Since there is no controlling United States Supreme Court case for partial closures, the Court is unable to find that the California courts' rejection of petitioner's claim was contrary to or involved an unreasonable application of clearly established law, as determined by the United States Supreme Court;" Young v. Dickhaut, No. 10-10820-DPW, 2012 WL 3638824, *9 (D.Mass. Aug. 22, 2012) ("Young contends that the state court's ruling was contrary to, and involved an unreasonable application of, Waller. However, Waller concerned the complete closure of a courtroom and not the exclusion of individual spectators. . . . Because there is no clearly established federal law with respect to partial closures, I cannot find that the state court's ruling warrants habeas relief under AEDPA"); Patton v. United States, No. CR 2-93, CV 10-19, 2010 WL 3191887, *3 (W.D.Pa. Aug. 11, 2010) ("Thus, it is important to note that courts remain split regarding how and whether courts are required to justify or consider alternatives to such closures).

Petitioner argues that the Waller test should be expanded to include circumstances involving partial closures of a courtroom. He explains, "[w]hile the Supreme Court has never applied the Waller factors in the context of a partial closure of the courtroom, Waller's second and fourth mandates logically apply in the context of members of the public, particularly a defendant's friends and family members, being prevented from occupying empty seats in the courtroom." (Traverse at 9.) Petitioner further argues, "it is objectively unreasonable not to extend Waller's second and fourth requirements — necessity and findings adequate to support the closure — to the context in which members of the public are prevented from attending a trial because entire rows of seats in a courtroom are blocked off as a "buffer." (Id.) While petitioner's argument may have merit, this court will not extend the reasoning of Waller in this context where the United States Supreme Court has not yet done so. See Young, 2012 WL 3638824, *10 (declining to extend the Waller rule to partial courtroom closures in the context of AEDPA review of petitioner's claim).

As set forth above, petitioner also argues that he is entitled to de novo review of this claim. Specifically, he argues that the Superior Court's decision is based on an unreasonable determination of the facts of this case to the extent that it suggests petitioner's friends and family members were admitted to the courtroom if space allowed. (Traverse at 6-7.) Petitioner points out that there were always empty seats in the courtroom, even while his supporters were sitting out in the hall, unable to enter. (Id.) This court disagrees that petitioner's claim should be decided under de novo review because of this suggestion by the Superior Court. Regardless of whether overflow spectators were admitted to the courtroom to fill empty seats, the operative fact with respect to the Superior Court's opinion is that there was no "closure" of the courtroom because some of petitioner's supporters were allowed to attend the trial at all times. The Superior Court's decision on petitioner's public trial claim was not "based on" an unreasonable determination of the facts because whether or not spectators were allowed to fill empty seats as they became available was irrelevant to the Superior Court's pivotal conclusion that there was no "closure" of the courtroom. See 28 U.S.C. § 2254(d)(2). The Superior Court's decision denying petitioner's Sixth Amendment claim on the grounds that the courtroom was not closed to the public is, therefore, not based on an unreasonable determination of the facts of this case.

Petitioner also argues that he is entitled to de novo review of this case because the Superior Court's decision is an unreasonable application of clearly established federal law. Specifically, he contends that "no United States Supreme Court precedent supports the view that a trial court may, without justification, limit to two the number of a defendant's family members who may attend a trial when there are additional empty seats available in the courtroom." (Id. at 9.) This court disagrees that petitioner is entitled to de novo review of his public trial claim on this basis. For the reasons explained above, the state courts' conclusion that petitioner's right to a public trial was not violated by the partial closure at issue here is not based on an unreasonable application of clearly established United States Supreme Court precedent, as required by 28 U.S.C. § 2254(d)(1). Accordingly, review of this claim is appropriate under AEDPA.

For all of the foregoing reasons, petitioner is not entitled to federal habeas relief on his claim that the trial court violated his right to a public trial.

B. Ineffective Assistance of Counsel

Petitioner raises three claims of ineffective assistance of trial counsel. After setting forth the applicable legal principles, the court will evaluate these claims in turn below.

1. Applicable Law

The clearly established federal law for ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Strickland, 466 U.S. at 687.

A reviewing court is required to make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669; see Richter, 131 S.Ct. at 789. Reviewing courts must also "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. This presumption of reasonableness means that the court must "give the attorneys the benefit of the doubt," and must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (internal quotation marks and alterations omitted).

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." Strickland, 466 U.S. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 111. A reviewing 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." Strickland, 466 U.S. at 697.

Under AEDPA, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Richter, 562 U.S. at 101. "[B]ecause 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." Knowles, 556 U.S. at 123.

2. Failure to Object More Forcefully to Partial Closure of Courtroom

Petitioner claims that his trial counsel rendered ineffective assistance in failing to "set forth any additional facts in support of his objection to the partial closure of the courtroom during the trial." (Pet. at 7.) He argues, "if [trial counsel] was aware of such facts, there was no valid tactical reason for failing to put them on the record, both to obtain a favorable ruling and to preserve the issue for appeal." (Id.)

Petitioner raised this claim for the first time in his petition for writ of habeas corpus filed in the California Superior Court. (Resp't's Lod. Doc. 9.) The Superior Court denied the claim, reasoning in pertinent part as follows:

Id.

In his claim as presented in the petition before this court, petitioner does not specify what additional facts his trial counsel should have presented to the trial court in support of an objection to the partial closure of the courtroom. His vague allegation that his trial counsel should have presented additional unspecified "facts" to the extent he was "aware of such facts," is too conclusory to demonstrate entitlement to relief. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) ("`[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief'") (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)).

Assuming arguendo that petitioner is referring to evidence that his friends and family members were actually being denied access to the courtroom during the trial, petitioner has failed to demonstrate prejudice. All of the defense counsel objected to the partial closure of the courtroom and advised the trial judge that there were many more people who wished to attend the trial than there were seats available in the courtroom. The trial judge specifically acknowledged that there would be some people who would not be allowed to attend the trial. He stated that he was unwilling to continue the trial date, and he specifically noted that all of the other courtrooms to which petitioner's trial might have been moved were not then available. (Reporter's Transcript on Appeal (RT) at 28.) Because the trial judge already knew that some of the defendants' supporters would not be able to attend the trial but was still unwilling to change the location of the courtroom or grant a continuance, any further argument by petitioner's trial counsel regarding the people that wished to attend the trial but couldn't, would not have resulted in a different ruling on counsel's objection to the partial closure of the courtroom. The trial judge's ruling limiting the available seats already took into account that a number of interested people would be prevented from entering the courtroom. Accordingly, because petitioner has failed to demonstrate prejudice, he is not entitled to federal habeas relief on this claim.

3. Failure to Move for Severance

In his next claim for relief, petitioner argues that his trial counsel rendered ineffective assistance in failing to seek severance of his trial from that of co-defendant Minor. (Pet. at 7.) Petitioner notes that it was clear from his and Minor's pretrial statements that they each blamed the other for the shooting, and he argues that his trial counsel "should have realized that Minor's and petitioner's mutually antagonistic defenses furnished meritorious grounds for severance." (Id.) Petitioner also provides evidence that his appellate counsel asked his trial counsel in writing why he failed to request severance, but trial counsel failed to respond to appellate counsel's letter. (Id.) Petitioner argues that this makes it "clear that trial counsel did not have a valid tactical basis for failing to move for severance." (Id.) Petitioner also asserts that "there is a reasonable probability that the trial court would have granted a motion to sever." (Id. at 21.)

Petitioner raised this claim on appeal. The California Court of Appeal rejected petitioner's arguments, reasoning as follows:

(Opinion at 16-19.)6

Petitioner denies that the evidence against him was "overwhelming." Rather, he argues that the totality of the evidence supported his explanation for the presence of blood on his body and clothes. (Traverse at 17-18.) He also notes that the jury deliberated for two and a half days, indicating that "the case was close." (Id. at 18.) He argues that, for these reasons, his trial counsel's failure to request severance was prejudicial. (Id. at 17-18.)

There is "no clearly established federal law requiring severance of criminal trials in state court even when the defendants assert mutually antagonistic defenses." Runningeagle v. Ryan, 686 F.3d 758, 774 (9th Cir. 2012) (rejecting ineffective assistance of counsel claim premised on counsel's failure to join co-defendant's motion to sever). The United States Supreme Court has explicitly rejected a per se rule requiring severance where two defendants present mutually antagonistic defenses. Zafiro v. United States, 506 U.S. 534, 538-39 (1993). Similarly, the Ninth Circuit has concluded that there is no "constitutional standard binding on the states and requiring severance in cases where defendants present mutually antagonistic defenses." Collins v. Runnels, 603 F.3d 1127, 1131 (9th Cir. 2010). Because there is no clearly established federal law requiring severance of criminal trials in state court even when the defendants assert mutually antagonistic defenses, the state courts' decision that trial counsel was not deficient in failing to make a motion to sever is not an unreasonable application of the standard established in Strickland. Runningeagle, 686 F.3d at 774.

In any event, as explained by the California Court of Appeal, it appears that petitioner's trial counsel may have had a tactical reason for failing to request a trial severance. Specifically, he may have decided not to request severance because he intended to use the weaknesses in Minor's defense to bolster the credibility of his own version of the events. As noted above, this court must give petitioner's trial counsel "the benefit of the doubt," and must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as [he] did." Pinholster, 563 U.S. at 196 (quoting Strickland, 466 U.S. at 692). The state appellate court's determination that trial counsel's decision not to request a trial severance was a reasonable tactical decision is not contrary to or an objectively unreasonable application of Strickland. See Strickland, 466 U.S. at 690 (reasonable tactical decisions by trial counsel are "virtually unchallengeable."). Accordingly, petitioner is not entitled to relief on this claim.

4. Failure to Object to the Admission of Evidence

In his next ground for relief, petitioner argues that his trial counsel rendered ineffective assistance in failing to object to several questions asked of him on cross-examination. (Pet. at 19-26.) In the last reasoned decision on this claim, the California Court of Appeal provided the following factual summary:

(Opinion at 19-20.)

The California Court of Appeal rejected petitioner's claim that his trial counsel rendered ineffective assistance in failing to object to these cross-examination questions. The court reasoned as follows.

(Id. at 20-21.)

This court agrees with the California Court of Appeal that any error by petitioner's trial counsel in failing to object to the prosecutor's cross-examination questions about the three photographs was harmless. Petitioner had a reasonable explanation for all of the photographs, and the prosecutor introduced no substantive evidence of any kind to support his insinuation that petitioner sold crack cocaine or illegal drugs to children. Further, given the extent and nature of the evidence against petitioner, there is no "reasonable probability" that, but for counsel's failure to object to this line of questioning, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The decision of the California Court of Appeal on this claim of ineffective assistance of trial counsel is not contrary to or an unreasonable application of federal law. Accordingly, petitioner is not entitled to habeas relief.

C. Cruel and Unusual Punishment

In his last ground for relief, petitioner claims that his sentence of life without the possibility of parole for a crime that he committed when he was a juvenile violates the Eighth Amendment prohibition on cruel and unusual punishment. (Pet. at 8.) Petitioner notes that he had "no history of violence and no prior felony convictions or adjudications." (Id.) He also argues that the trial court improperly refused to consider his age or individual circumstances and background when imposing his sentence. (Id.)

1. State Court Opinion

In the last reasoned decision on this claim, the California Court of Appeal denied habeas relief, reasoning as follows:

(Opinion at 21-31.)

2. Applicable Law

The United States Supreme Court has held that the Eighth Amendment includes a "narrow proportionality principle" that applies to terms of imprisonment. See Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (Kennedy, J., concurring). See also Taylor v. Lewis, 460 F.3d 1093, 1097 (9th Cir. 2006). However, successful challenges in federal court to the proportionality of particular sentences are "exceedingly rare." Solem v. Helm, 463 U.S. 277, 289-90 (1983). See also Ramirez v. Castro, 365 F.3d 755, 775 (9th Cir. 2004). "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring) (citing Solem v. Helm). In assessing the compliance of a non-capital sentence with the proportionality principle, a reviewing court must consider "objective factors" to the extent possible. Solem, 463 U.S. at 290. Foremost among these factors are the severity of the penalty imposed and the gravity of the offense. "Comparisons among offenses can be made in light of, among other things, the harm caused or threatened to the victim or society, the culpability of the offender, and the absolute magnitude of the crime." Taylor, 460 F.3d at 1098.9

The United States Supreme Court has issued several opinions on the subject of lengthy sentences imposed on juvenile defendants. In Thompson v. Oklahoma, 487 U.S. 815, 823 (1988), the Supreme Court held that the Eighth and Fourteenth Amendments prohibited the execution of a fifteen year-old defendant convicted of first degree murder. In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court held that the Eighth and Fourteenth Amendments prohibited the execution of defendants under the age of eighteen. In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court held that the Eighth Amendment prohibits the imposition of a sentence of life without parole on a juvenile offender who did not commit homicide. In Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), the Supreme Court held that a mandatory sentence of life without the possibility of parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishment. The Court in Miller explained that "[m]andatory life without [the possibility of] parole for a juvenile precludes consideration" of the defendant's "chronological age and its hallmark features," the defendant's "family and home environment," the "circumstances of the [underlying] homicide offense," the fact that the offender "might have been charged and convicted of a lesser offense if not for incompetencies associated with youth," and "the possibility of rehabilitation." Id. at 2468. The Court stated that the Eighth Amendment requires "a judge or jury . . . to consider [such] mitigating circumstances before imposing the harshest penalty possible for juveniles." Id. at 2475. The Miller decision applies retroactively to cases on collateral review. Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016).10

In Montgomery, the United States Supreme Court clarified that the Miller decision "held that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile's special circumstances in light of the principles and purposes of juvenile sentencing." Montgomery, 136 S.Ct. at 725. In that case, the petitioner's sentence of life without parole for a murder he committed when he was 17 years old was "automatic upon the jury's verdict." Id. at 726. Accordingly, Montgomery "had no opportunity to present mitigation evidence to justify a less severe sentence." Id. As noted by the Supreme Court, "that evidence might have included Montgomery's young age at the time of the crime; expert testimony regarding his limited capacity for foresight, self-discipline, and judgment; and his potential for rehabilitation." Id. The Supreme Court observed that "Miller required that sentencing courts consider a child's `diminished culpability and heightened capacity for change' before condemning him or her to die in prison." Id. The decision in Miller also established that "a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect `irreparable corruption.'" Id. Thus, "Miller requires that before sentencing a juvenile to life without parole, the sentencing judge take into account `how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.'" Id. at 733. Miller "requires a sentencer to consider a juvenile offender's youth and attendant characteristics before determining that life without parole is a proportionate sentence." Id.

3. The Parties' Arguments/Supplemental Briefing

Petitioner argues that the Miller decision, while not strictly on point because it involved a mandatory, and not a discretionary, sentence of life without parole for juveniles, at least "undermines the constitutionality" of sentences imposed under Cal. Penal Code § 190.5(b). Petitioner reasons that because § 190.5(b) contains a presumption that a sentence of life without parole should be imposed on a defendant between the ages of 16 and 18 who commits first degree special circumstance murder, it contains sufficient mandatory aspects to fall within the reasoning of Miller. (Traverse at 10.) Petitioner notes that § 190.5(b) does not require the prosecutor to make any showing at all to justify a sentence of life without parole for juvenile defendants because that sentence is presumed to be the appropriate sentence. (Id.) He contends that this presumption contained in § 190.5(b) is contrary to pronouncements in Miller that a sentencing court must consider the individual characteristics of the defendant before sentencing a juvenile to life without the possibility of parole. (Id.)

In his supplemental brief, petitioner notes that Miller holds a sentence of life without parole for juveniles should be "rare" and "uncommon" rather than "presumptive." (Doc. No. 37 at 28.) He argues that instead of requiring an individualized showing of aggravating circumstances to warrant a sentence of life without parole, Cal. Penal Code 190.5(b) is "generally mandatory." (Id. at 30.) He argues that the mandatory nature of the statute "is no more constitutionally tolerable than the mandatory LWOP statues struck down in Miller." (Id.) Finally, petitioner argues that California's statutory scheme, which allows a sentencing court to look at the aggravating and mitigating factors applicable to adult sentencing, runs counter to the holding in Miller, which indicates that youth oriented characteristics should be considered. (Id.)

Petitioner also claims that the California Court of Appeal unreasonably approved the trial court's failure to consider his young age as a factor in mitigation. (Id. at 15.) He argues that the sentencing judge's conclusion that the California legislature had already taken a minor's young age into account in establishing "presumptive" sentences of life without parole under Cal. Penal Code §190.5(b) "absolv[ed] judges from following the mandate of Roper and other cases establishing the constitutional requirement that sentencing courts consider the age and lower moral culpability of minors before punishing them as severely as adults." (Id. at 17.) Petitioner contends that his personal circumstances, including his "youth, immaturity, undeveloped character and transitory personality traits," warranted a lesser sentence and made a sentence of life without parole "disproportionate." (Id. at 15-16.) In short, petitioner argues that the California Court of Appeal's conclusion that a sentence of life without parole was not disproportionate to petitioner's culpability was clearly erroneous and objectively unreasonable because the trial court did not consider petitioner's individual circumstances, as mandated by Roper and Miller.

Respondent, on the other hand, argues that: (1) petitioner is not entitled to habeas relief under AEDPA review on his Eighth Amendment claim because no controlling United States Supreme Court precedent prohibits the imposition of an LWOP sentence for a murder committed by a juvenile; (2) the sentencing court was not required to consider age as a mitigating factor but, in any event, it did; and (3) even if Miller is applicable to this case, AEDPA would still bar petitioner's claim because Miller proscribed only a mandatory sentence of life without parole for juveniles and the California statute allows a trial court to impose a lesser sentence than life without parole. (Doc. No. 38 at 1-17.)

Respondent also argues that Roper is not controlling because it concerned the death penalty and not a sentence of life without parole. (Id.) He further argues that, in any event, statements in Miller to the effect that a sentencing court should only "rarely" consider sentencing juveniles to LWOP are "merely dicta" and therefore not controlling for purposes of AEDPA. (Id. at 16.) See Williams, 529 U.S. at 412 (controlling authority for purposes of AEDPA "refers to the holdings, as opposed to the dicta, of this Court's decisions").

4. Analysis

Petitioner's Eighth Amendment claim must be rejected for several reasons. First, petitioner's sentence does not fall within the type of "exceedingly rare" circumstance that would support a finding that his sentence violates the Eighth Amendment. Petitioner's sentence is without question an onerous penalty. However, petitioner and his co-defendant were convicted of the crime of first degree special circumstance murder. A sentence of life without parole for first degree special circumstance murder is not grossly disproportionate. Bell v. Uribe, 748 F.3d 857 (9th Cir. 2014) (sentence of life without parole properly imposed on juvenile defendant who committed first degree special circumstance murder). Because petitioner does not raise an inference of gross disproportionality, this court need not compare petitioner's sentence to the sentences of other defendants in other jurisdictions. This is not a case where "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Solem, 463 U.S. at 1004-05.

Second, petitioner's sentence does not directly violate any of the United States Supreme Court decisions, cited above, addressing imposition of punishment on juvenile criminal defendants. Petitioner was not sentenced to death, as were the juvenile defendants in Thompson and Roper, and he committed a homicide, unlike the defendant in Graham.

Petitioner argues that his sentence violates the holding in Miller that a mandatory sentence of life without parole may not be imposed on a juvenile defendant. In Miller, the sentencing statute under review imposed a mandatory sentence of life without parole and "preclude[d] a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at 2467. On the contrary in this case, although Cal. Penal Code § 190.5 arguably creates a presumption that a judge will sentence a juvenile defendant to life without the possibility of parole if he commits first degree special circumstance murder, the statute also allows the trial court, in its discretion, to impose a lesser sentence of twenty-five years to life.11 In Bell, the Court of Appeals for the Ninth Circuit held that a sentence of life without the possibility of parole imposed under Cal. Penal Code 190.5(b) on a juvenile defendant did not violate the decision in Miller because § 190.5(b) affords discretion to the sentencing judge to impose a sentence of 25 years to life, and the court in that case imposed sentence after an individualized assessment of the juvenile defendant and her offense. 748 F.3d at 869. The Ninth Circuit concluded that "the California sentencing statute is not a mandatory one subject to the rule announced in Miller. Id. at 869, n.6.12

As set forth above, petitioner argues that the sentencing court failed to take his individual characteristics, including his age, into account when imposing sentence, in violation of the Roper decision. The California Court of Appeal found that the sentencing court did consider petitioner's individual circumstances. As described by the state appellate court:

(Opinion at 24.) The Court of Appeal also noted that the sentencing judge read and considered the probation reports pertaining to each defendant and "considered the personal characteristics of the defendants." (Id. at 31.)

These findings by the state appellate court are not based on an unreasonable determination of the facts of this case. (See RT at 1287-1324.) It is true that the sentencing judge did not consider all of the factors related to youthful offenders described in Miller, such as a child's "diminished culpability and heightened capacity for change." Miller, 132 S.Ct. At 2469. However, at the sentencing proceedings, petitioner's trial counsel argued to the court that recent cases, including cases issued by United States Supreme Court, had observed that juveniles were entitled to different considerations than adults when making sentencing decisions. (Id. at 1296-99.) The court stated it understood that "the comments [petitioner's counsel] made regarding the death penalty being precluded for those who are under the age of 18 is [sic] also constructed [sic] in determining whether the appropriate sentence in this case is life without possibility of parole or a 25 year to life sentence." (Id. at 1309.) The sentencing judge took several individual factors into consideration when imposing peititoner's sentence, as set forth in Cal. Penal Code § 190.3, including "defendant's character, background, history" and "mental condition." With regard to petitioner's age, the sentencing judge stated, "[w]e are dealing with people who are 16 or 17 years old, so I am going to find that age in this case is not a factor mitigating punishment any further than to preclude the death penalty." (Id. at 1314.) At another point during the proceedings, the judge noted that "had this offense taken place seven months later than it did, Mr. Bunn would have been an adult." (Id. at 1312.) It therefore appears that the trial judge did not neglect to consider petitioner's age in imposing punishment but concluded that, under the circumstances, his age did not warrant a lesser sentence than life without parole.

It is true that the sentencing court did not specifically mention other mitigating factors related to the unique circumstances of juveniles, as suggested in the Roper and Miller decisions, when imposing sentence on petitioner. However, this court does not find that fact dispositive of petitioner's Eighth Amendment claim under the circumstances of this case. Because, as in Bell, "the sentencing judge did consider both mitigating and aggravating factors under a sentencing scheme that affords discretion and leniency, there is no violation of Miller." Bell, 748 F.3d at *11. In Bell, the Ninth Circuit also specifically found that Cal. Penal Code § 190.5(b) was not a "mandatory" sentencing statute subject to the rule announced in Miller. This court is bound to follow the decision in Bell. See United States v. Gonzalez-Zotelo, 556 F.3d 736, 740-41 (9th Cir.2009) ("The district court, like this panel, was bound to follow the reasoning of [prior Ninth Circuit precedent] unless it had been effectively overruled or was clearly irreconcilable with a case from the relevant court of last resort." (internal quotation marks and brackets omitted)); Ramos v. Wipson, No. CV 13-03717-FMO (VBK), 2014 WL 3130036, at **14-15 (June 4, 2014) (rejecting petitioner's argument that his sentence of life without parole under Cal. Penal Code § 190.5 violated the Eighth Amendment because "this claim is squarely foreclosed by the Ninth Circuit's recent decision in Bell v. Uribe, and because the sentencing judge heard argument from the parties on whether he should impose a sentence of 25 years-to-life or a sentence of life without parole and made his decision only after considering those arguments).

In order to prevail on his Eighth Amendment claim, petitioner must demonstrate that the state court decisions rejecting the claim constitute an objectively unreasonable application of United States Supreme Court authority. For the foregoing reasons, petitioner has failed to make this showing. Even though petitioner was a juvenile at the time he committed his crimes, the decision of the state courts that the Eighth Amendment does not prohibit his sentence of life without parole for first degree special circumstance murder under a state sentencing statute that does not impose a mandatory sentence of life without parole is not contrary to or an unreasonable application of the United States Supreme Court cases cited above. Accordingly, petitioner is not entitled to relief on this claim.

CONCLUSION

For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.

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)(1). Within fourteen 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." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).