Opinion
No. C 02-5088 VRW (PR)
December 19, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was charged by information in the Superior Court of the State of California in and for the County of Santa Clara with five counts of lewd and lascivious conduct with a child under the age of 14. On October 23, 2000, he pleaded no contest to two of the counts in return for the dismissal of the other three. Petitioner was sentenced to the midterm of six years for each of the two counts to be served concurrently for a total term of six years in state prison.
Petitioner did not appeal. However, on October 22, 2001, petitioner began collaterally attacking his sentence in the state courts. On October 2, 2002, the Supreme Court of California denied his final state petition for a writ of habeas corpus.
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on February 7, 2003, the court found that the petition, when liberally construed, stated colorable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.
FACTUAL BACKGROUND
Petitioner and co-defendant Anthony Lorenzo Nelson rented a room for three girls who had run away from their group home. The 13 year-old victim was intoxicated and petitioner and Nelson orally copulated and sodomized her. They also had her orally copulate them.
DISCUSSION
A. Standard of Review
A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[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." Id at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412;Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Claims
Petitioner raises three claims for relief under § 2254: (1) the trial court erred in calculating his pre-sentence credits in violation of due process; (2) ineffective assistance of counsel at sentencing; and (3) insufficient evidence to support the sentence imposed.
1. Pre-sentence credits
Petitioner claims that the state trial court erred in calculating his pre-sentence credits when it limited them to 15 percent of the actual period of pre-sentence confinement pursuant to California Penal Code section 2933.1. Petitioner argues that he is entitled to one third of the actual period of pre-sentence confinement pursuant to California Penal Code section 4019, and that the court's misapplication of section 2933.1 and miscalculation of his pre-sentence credits amounted to a denial of due process.
A claim of state sentencing error does not raise a federal constitutional question for federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 783 (1990). Petitioner's claim that he was denied pre-sentence credits in violation of section 2933.16/4019 may not be reviewed by this court. See, e.g., Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir 1989) (alleged violation of section 654 is state law claim not cognizable in federal habeas under § 2254). And his assertion of denial of due process will not automatically "transform a state law issue into a federal one. . . ." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir 1996). In the sentencing context, a state violates a criminal defendant's due process right to fundamental fairness only if arbitrarily deprives the defendant of a state law entitlement. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980).
California Penal Code section 2933.1 limits pre-sentence credits to "15 percent of the actual period of confinement" for any person convicted of a felony offense specified in subdivision (c) of section 667.5. See Cal Penal Code § 2933.1. Subdivision (c) of section 667.5 in turn includes lewd and lascivious conduct with a child under 14 years of age. See id § 667.5(c)(6). Moreover, section 2933.1 makes clear that its 15 percent limitation applies "[n]otwithstanding Section 4019 or any other provision of law." Id. § 2933. 1(e). Under these circumstances, the state courts' rejection of petitioner's claim, and implicit determination that he is subject to section 2933.1's 15 percent limitation, cannot be said to be arbitrary. See Hicks, 447 U.S. at 346. Nor can the state courts' rejection of the claim be said to be objectively unreasonable. See Williams v. Taylor, 529 U.S. 362, 409 (2000). Petitioner is not entitled to federal habeas relief on his pre-sentence credits error claim. See 28 U.S.C. § 2254(d).
2. Ineffective assistance of counsel
Petitioner claims that he received ineffective assistance of counsel at sentencing because counsel failed to point out to the trial court that he was entitled to pre-sentence credits under section 4019, and because counsel did not prevent the court from imposing a sentence that was greater than that imposed on his co-defendant, in violation of equal protection.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Petitioner is not entitled to federal habeas relief on his first ineffectiveness claim because, as discussed above, the trial court properly computed his pre-sentence credits pursuant to section 2933.1. Counsel was not constitutionally deficient for not raising a meritless argument, i.e., that petitioner was entitled to more credits under section 4019. And, for essentially the same reason, it cannot be said that had counsel argued that petitioner was entitled to pre-sentence credits under section 4019, it is reasonably probable that the court would have agreed and awarded petitioner more pre-sentence time credits than he received. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir 1999) (to show prejudice under Strickland from failure to file a motion, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him).
Petitioner is not entitled to federal habeas relief on his second ineffectiveness claim either. First, counsel was not constitutionally deficient for not arguing that petitioner's six-year sentence violated equal protection because petitioner's co-defendant received a lesser, three-year sentence. It is well-established that the Equal Protection Clause does not require that a defendant receive a term no greater than his co-defendant even if both were convicted of the same crimes. SeeHoward v. Fleming, 191 U.S. 126, 134-35 (1903); see also 21A Am Jur 2d Crim Law § 943 (discussing limitations of qual protection on sentencing and citing cases). And even if counsel should have argued for sentencing parity, as petitioner claims, it cannot be said that there is a reasonable probability that petitioner's sentence would have been different. See Strickland, 466 U.S. at 694. The record shows that the trial court sentenced petitioner in accordance with the probation department's sentencing report, which noted petitioner's co-defendant's low-term, three-year sentence but nonetheless recommended a mid-term, six-year sentence for petitioner because, among other things, petitioner had "numerous" prior convictions. See Probation Officer's Report at 1-10 (Pet Ex B). Petitioner has not "affirmatively prove[n] prejudice."Strickland, 466 U.S. at 693.
Petitioner is not entitled to federal habeas relief on his ineffective assistance of counsel claims because the state courts' rejection of the claims was not contrary to, or an unreasonable application of, theStrickland standard. See 28 U.S.C. § 2254(d).
3. Sufficiency of the evidence to support sentence
Petitioner claims that there is insufficient evidence to support a sentence that is greater than that imposed on his co-defendant. The claim amounts to no more than a claim that the state court abused its sentencing discretion and is without merit.
State sentencing courts must be accorded wide latitude in their decisions as to punishment. See Walker v. Endell, 850 F.2d 470, 476 (9th Cir 1987). A federal court generally will not review a state sentence that, as is the case here, is within statutory limits. See id.
In view of the detailed probation officer's sentencing report relied upon by the sentencing court, it cannot be said that the sentence imposed is arbitrary or even subject to review on federal habeas. Cf Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (in sentencing context, state violates criminal defendant's due process right only if it arbitrarily deprives defendant of state law entitlement).
Petitioner is not entitled to federal habeas relief on his sentencing insufficiency of the evidence claim because the state courts' rejection of the claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.