Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on May 20, 2015. Respondent filed an Answer on June 18, 2015. Petitioner filed a Traverse on July 17, 2015.
BACKGROUND
An Amended Information charged Petitioner with possession of cocaine for sale in an amount exceeding four kilograms, possession of an assault weapon and possession of a firearm by a felon (Clerk's Transcript, Respondent's Lodgment 1, pp. 128-30). The Amended Information further alleged: (1) Petitioner had suffered two prior drug convictions qualifying as enhancements within the meaning of California Health and Safety Code section 11370.2(a): (a) a 1994 conviction for "transportation, sale, giving away, etc., " of controlled substances (Cal. Health & Safety Code § 11352); and (b) a 1992 conviction for possession of cocaine base for sale (Cal. Health & Safety Code § 11351.5); and (2) Petitioner had suffered two prior convictions qualifying as strikes under California's Three Strikes Law: (a) a 1986 conviction for shooting at an occupied vehicle or dwelling (Cal. Penal Code § 246); and (b) a 1992 conviction for robbery (Cal. Penal Code § 211) (Respondent's Lodgment 1, pp. 128-29).
The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code section 667(b)-(i) (eff. March 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code section 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996) (discussing same). The State charged Petitioner under both versions (Respondent's Lodgment 1, pp. 129-30).
A jury found Petitioner guilty of the charged crimes (Reporter's Transcript, Respondent's Lodgment 5, pp. 487-89; Respondent's Lodgment 1, pp. 277-80). Prior to sentencing, Petitioner filed a pro per motion to strike the enhancement allegations and the prior strike allegations (Respondent's Lodgment 1, pp. 310-24). Petitioner argued, inter alia, that Petitioner's guilty pleas in the prior cases assertedly were unknowing and involuntary under the principles set forth in Boykin v. Alabama, 395 U.S. 238 (1969) and In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969), cert. denied, 398 U.S. 911 (1970), overruled in part, People v. Howard, 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (1992), cert. denied, 506 U.S. 942 (1992) ("Boykin/Tahl"). The court denied the motion without holding an evidentiary hearing (Respondent's Lodgment 5, p. 521; Reporter's Augmented Transcript on Appeal, Respondent's Lodgment 6, pp. 7-13; Respondent's Lodgment 1, pp. 307-09). The court found true one of the enhancement allegations (i.e., that Petitioner had suffered the 1994 conviction), and also found true both of the strike allegations (Respondent's Lodgment 5, pp. 514-15; Respondent's Lodgment 1, pp. 288-89). Petitioner received a sentence of thirty-three years to life (Respondent's Lodgment 5, pp. 546-47; Respondent's Lodgment 1, pp. 307-09).
Under Boykin/Tahl, a conviction may be unconstitutional if the defendant pled guilty without waiving: (1) the right to a jury trial; (2) the right to confront adverse witnesses; and (3) the privilege against self-incrimination. Boykin, 395 U.S. at 243; Tahl, 1 Cal.3d at 132.
The California Court of Appeal affirmed the conviction but reversed the sentence and directed the trial court to hold "a hearing on whether defendant was properly advised of his Boykin/Tahl rights, intelligently waived those rights, and was prejudiced thereby..." (Respondent's Lodgment 11; see People v. Brown, 2013 WL 1849731, at *4 (Cal.App. May 3, 2013)). The trial court thereafter held an evidentiary hearing, but again rejected Petitioner's Boykin/Tahl challenges and resentenced Petitioner to a term of thirty-three years to life (Respondent's Lodgment 15, pp. 40-47).
The Court of Appeal affirmed (Respondent's Lodgment 17; see People v. Brown, 2014 WL 1328398 (Cal.App. Apr. 3, 2014)). The California Supreme Court summarily denied Petitioner's petition for review and also summarily denied Petitioner's subsequent habeas corpus petition (Respondent's Lodgment 19; Docket in Brown (Darren Eugene) on H.C., California Supreme Court Case No. S224414, available online at appellatecases.courtinfo.ca.gov/search (last visited July 7, 2015) (noting April 22, 2015 denial)).
Although Respondent listed the California Supreme Court docket from Petitioner's habeas corpus proceedings as item number 21 in the Notice of Lodging filed on June 18, 2015, that docket was not among the documents lodged by Respondent.
PETITIONER'S CONTENTIONS
Petitioner contends that his counsel rendered ineffective assistance, by allegedly:
1. Failing to investigate the 1994 conviction and to discover that Petitioner assertedly never changed his plea to guilty in the 1994 case; and
2. Failing to investigate the 1986 conviction and to discover that the court in that case allegedly failed to advise Petitioner of his constitutional rights, and that Petitioner supposedly had pled guilty to a lesser charge in the 1986 case;
3. Failing to consult with Petitioner and to challenge the prosecution's documentary evidence; and
4. Failing to file a notice of appeal.
See Petition, p. 5 and attached pages.
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id . "As 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." Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
LEGAL STANDARDS GOVERNING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight...." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 562 U.S. at 101. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "reasonably likely'" that the result would have been different. Id . (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id. at 112.
Petitioner raised his claims of ineffective assistance of counsel in his habeas petition filed in the California Supreme Court, which that court denied summarily. See Respondent's Lodgment 20; Docket in Brown (Darren Eugene) on H.C., California Supreme Court Case No. S224414. Therefore, this Court must determine what arguments or theories could have supported the California Supreme Court's decision and ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior United States Supreme Court decision. Cullen v. Pinholster, 131 S.Ct. at 1403.
DISCUSSION
I. Petitioner Has Failed to Demonstrate That Counsel Provided Ineffective Assistance with Respect to the 1994 Conviction.
Petitioner alleges that his counsel was ineffective for failing to investigate Petitioner's 1994 conviction. Petitioner alleges that counsel should have discovered Petitioner assertedly never "in person and orally" changed his plea to guilty in that case. See Petition, Ground One and pages attached thereto.
Although the Petition generally faults Petitioner's counsel, Petitioner does not appear to challenge counsel's performance other than in connection with the Boykin/Tahl issues. In any event, if Petitioner is challenging his counsel's performance in connection with other issues, Petitioner plainly has failed to demonstrate any unreasonable performance or any prejudice resulting therefrom.
As indicated above, after the Court of Appeal's initial reversal of the sentence, the trial court held an evidentiary hearing regarding whether Petitioner's prior convictions had included the proper Boykin/Tahl advisements (Respondent's Lodgment 15, pp. 15-48). At this hearing, the prosecution introduced the following evidence to support the validity of Petitioner's 1994 conviction: (1) a Felony Complaint charging Petitioner with one count of selling, transporting, etc., rock cocaine and one count of driving with a suspended or revoked license (Clerk's Transcript, Respondent's Lodgment 12, p. 43); (2) an Abstract of Judgment indicating that on June 29, 1994, Petitioner was sentenced on the drug count to the low term of three years pursuant to a plea (Supplemental Clerk's Transcript, Respondent's Lodgment 13, p. 17); (3) a Declaration of Defendant Upon Plea form dated June 29, 1994, which contained Petitioner's initials and signature: (a) indicating that Petitioner desired to plead guilty to the drug count in exchange for a low term sentence of three years; (b) acknowledging that Petitioner understood and was waiving his constitutional rights, including the right to a speedy and public trial by jury, the right to see, hear, and question all witnesses against him, the right to remain silent, and the right to counsel; (c) acknowledging that Petitioner's lawyer had explained the form and discussed the nature of the charges, possible defenses, and consequences; and (d) concurring with a statement by Petitioner's counsel that counsel personally read and explained the contents of the declaration to Petitioner, witnessed the signing, and agreed with the plea (Respondent's Lodgment 12, pp. 44-48); (4) a minute sheet dated June 29, 1994, indicating, inter alia: (a) the court had been presented with Petitioner's Declaration; (b) Petitioner had acknowledged the terms and conditions of the plea sentence had been correctly stated "in open court, " that Petitioner's counsel had explained all terms and conditions, and that Petitioner understood the plea bargain; and (c) Petitioner was voluntarily waiving his right to a jury trial, his right to confront his accusers, and his privilege against self-incrimination (Respondent's Lodgment 12, p. 54); and (5) court minutes dated October 20, 1994, indicating that the defense was withdrawing its motion to withdraw the plea (Respondent's Lodgment 12, p. 50).
In attempted contradiction of this documentary evidence, Petitioner testified at the hearing that he was never advised of his constitutional rights in connection with the 1994 conviction, and that he had initialed and signed the plea related documents without reading them (Respondent's Lodgment 15, pp. 29-34; see also Respondent's Lodgment 13, pp. 2-7 (Petitioner's declaration re same)). Petitioner offered nothing other than his own testimony in an attempt to contest the prosecution's evidence and to support his claim that he had never changed his plea to guilty. The trial court found that Petitioner's "self-serving" testimony, which "[flew] in the face of all the documents that the Court[] received, " failed to prove that Petitioner did not knowingly and voluntarily waive his Boykin/Tahl rights (Respondent's Lodgment 15, pp. 41-42).
The Court of Appeal subsequently ruled that the trial court did not err in finding that Petitioner failed to prove he was unaware of his rights and would not have pled guilty in his prior cases had he been advised of those rights. See Respondent's Lodgment 17, p. 5.
To the extent Petitioner faults counsel for allegedly failing to investigate and discover unspecified evidence that might have rebutted the prosecution's documentary evidence, Petitioner has failed to demonstrate the requisite prejudice. See Ceja v. Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996), cert. denied, 522 U.S. 971 (1997) (rejecting Strickland claim where the petitioner failed to explain what compelling evidence would have been uncovered had counsel interviewed more witnesses); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991) (petitioner cannot satisfy Strickland standard by "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense"); Cooks v. Spaulding, 660 F.2d 738, 740 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982) (mere speculation insufficient to establish Strickland prejudice). Petitioner has failed to identify any specific evidence that counsel could have discovered that would have created a reasonable probability of a different outcome.
To the extent Petitioner faults counsel for allegedly failing to challenge the 1994 plea on the ground that Petitioner supposedly did not change his plea "in person and orally, " Petitioner's ineffectiveness claim similarly fails. In Parker v. North Carolina, 397 U.S. 790, & 792 n.2 (1970), the United States Supreme Court affirmed a conviction based on written plea where state law provided that the state could accept a plea tendered in writing signed by the defendant and counsel. California law does not require a defendant to plead orally; a plea may be made orally or in writing, if accepted "in open court." See Cal. Penal Code §§ 1017, 1018; see also People v. Manriquez, 188 Cal. 602, 605, 206 P. 63 (1922) ("The form of the plea is not of vital importance, provided the admission of guilt is clear, definite, and unconditional.") (citation omitted).
The phrase "open court" means "nothing more or less than a hearing or trial held in a courtroom from which the public is not excluded." People v. Allegheny Cas. Co., 41 Cal.4th 704, 709, 61 Cal.Rptr.3d 689, 161 P.3d 198 (2007); see also People v. Valenzuela, 259 Cal.App.2d 826, 831-33, 66 Cal.Rptr. 825 (1968), cert. denied, 393 U.S. 943 (1968) (equating "open court" with "public trial, " and discussing the presumption of regularity applied to lower court proceedings). Here, there is no indication in the record that the proceedings relating to Petitioner's plea were closed to the public. Petitioner conceded that the court had "called the case" (Respondent's Lodgment 15 at 31). The court's minute sheet reflects that the terms and conditions of the plea sentence were stated "in open court" (Respondent's Lodgment 12, p. 54). Accordingly, had Petitioner's counsel challenged the 1994 conviction on the grounds suggested by Petitioner, there is no reasonable likelihood that such a challenge would have affected the outcome. Counsel cannot be faulted for failing to raise a meritless argument. See Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989) ("[T]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.") (citation and internal quotations omitted). In any event, the trial court disbelieved Petitioner's testimony, such that counsel's challenge also would have been rejected for lack of any credible factual support.
To the extent Petitioner faults counsel for failing to argue that Petitioner supposedly did not read or understand any of the documents Petitioner signed relating to his plea, Petitioner again has failed to demonstrate the requisite prejudice. Again, the trial court disbelieved Petitioner's testimony that Petitioner supposedly did not read or understand these documents. There is no reasonable probability any argument by counsel would have produced a different outcome.
II. Petitioner Has Failed to Demonstrate That Counsel Provided Ineffective Assistance with Respect to the 1986 Conviction.
Petitioner also asserts that his counsel was ineffective for allegedly failing to investigate the 1986 prior conviction. Petitioner claims that, had counsel done so, counsel would have discovered: (1) the court in the 1986 case allegedly failed to advise Petitioner of his constitutional rights; (2) Petitioner allegedly never signed a waiver form; and (3) Petitioner purportedly had pled guilty to a lesser charge. See Petition, Ground Two, and pages attached thereto.
The record reflects that Petitioner's trial counsel undertook some investigation into Petitioner's claim that he pled guilty to a lesser charge in 1986. In arguing pretrial motions before Petitioner's first trial, counsel stated that there was a "legitimate dispute" as to whether Petitioner was convicted of shooting at an inhabited dwelling or some lesser charge (Reporter's Transcript, Respondent's Lodgment 4, p. 4). Counsel described the documentation then available as "a little sketchy" (Respondent's Lodgment 4, p. 4). At the time, counsel had documents indicating that Petitioner had been charged with shooting at an inhabited dwelling and that Petitioner later was placed on felony probation, but counsel assertedly did not have anything to indicate the crime as to which Petitioner was convicted (Respondent's Lodgment 4, p. 5). Counsel explained:
At the Boykin/Tahl hearing, the prosecution introduced the following evidence concerning Petitioner's 1986 conviction: (1) the Information charging Petitioner with one count of shooting at an inhabited dwelling in violation of California Penal Code section 246 (Respondent's Lodgment 13, pp. 24-25); (2) a trial minute order including checked boxes indicating: (a) the case was called for trial; (b) Petitioner and his counsel waived trial by jury and by the court; (c) Petitioner personally waived his right to confrontation of witnesses for the purpose of further cross-examination, as well as the privilege against self-incrimination; (d) Petitioner personally withdrew his plea of not guilty to Count 1 and, with the consent of the District Attorney and the approval of the court, pled guilty to a violation of section 246 of the Penal Code; and (e) Petitioner was referred to the probation department (Respondent's Lodgment 13, p. 29); and (3) a probation and sentencing minute order indicating that for the charge of "246, " Petitioner was granted a three year period of probation (Respondent's Lodgment 13, p. 39).
At the Boykin-Tahl hearing, Petitioner offered only his own testimony in an attempt to contradict the documentary evidence (Respondent's Lodgment 15, pp. 23-40; Respondent's Lodgment 13, pp. 2-7). Consistent with his allegations herein, Petitioner testified that it was his understanding he was going to plead guilty to "some type of alcohol-related" lesser charge (Respondent's Lodgment 15, pp. 25-27, 34-39). Petitioner admittedly had never before challenged his 1986 conviction despite having had possession for many years of the sentencing order and the terms of probation (Respondent's Lodgment 15, pp. 25-26, 36-37). Petitioner claimed he did not recall signing a paper acknowledging and waiving his rights in order to enter into the plea agreement, and also claimed that his lawyer had never explained those rights to him (Respondent's Lodgment 15, p. 27). The trial court found Petitioner's "self-serving" testimony not credible (Respondent's Lodgment 15, pp. 40-41).
Petitioner's conclusory allegations that counsel failed to investigate the 1986 prior conviction do not prove a Strickland violation. Petitioner has not shown what favorable evidence the desired investigation would have yielded or how any such evidence could have produced a different outcome. See Ceja v. Stewart, 97 F.3d at 1255; Zettlemoyer v. Fulcomer, 923 F.2d at 298.
Counsel's alleged failure to discover the supposed lack of a written waiver relating to the 1986 plea was of no moment. Petitioner was not required to sign a written waiver in order to enter into a valid plea agreement. See Cal. Penal Code §§ 1017, 1018; People v. Manriquez, 188 Cal. at 605. The documentation concerning the 1986 conviction presented by the prosecution does not appear to reference any written waiver.
Petitioner claims he thought in 1986 that he was pleading guilty to some alcohol-related offense, and Petitioner points to the trial court's mention of "DUI" at one point in the transcript. See Attachment to Petition, p. "5-C A"; Attachment A to Petition, p. 3; Respondent's Lodgment 13, p. 3. This Court observes that, under California law, had Petitioner been sentenced for driving under the influence in violation of California Vehicle Code section 23152, the sentencing court would have been required to impose probation terms that were not imposed on Petitioner (e.g., a requirement that the probationer, if arrested for driving under the influence, shall not refuse to submit to chemical testing to determine alcohol content). See Cal. Veh. Code § 23206 (1985). Nothing in the documentary record from 1986 supports Petitioner's claim that he pled to a lesser offense. On the available record, counsel cannot be faulted for assertedly failing to argue that Petitioner pled to a lesser offense. Moreover, given especially the trial court's disbelief of Petitioner's testimony, there is no reasonable probability of a different outcome had counsel argued the matter as Petitioner now urges.
III. Petitioner Has Failed to Demonstrate Counsel's Ineffective Assistance in Any Other Respect.
Petitioner generally faults counsel for failing to "consult adequately" with Petitioner prior to the Boykin/Tahl hearing, failing to challenge any of the prosecution's documentary evidence, and failing to file a notice of appeal after the trial court resentenced Petitioner. See Attachment to Petition, p. "C-B." None of these challenges demonstrates ineffective assistance.
Counsel's challenged actions and omissions at the Boykin/Tahl hearing represented strategic choices this Court would not ordinarily be inclined to second guess. See generally, Morris v. California, 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 83 (1992); United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, 488 U.S. 910 (1988). For example, counsel likely chose not to object to the prosecution's documentary evidence (which consisted of certified court documents), because such an objection doubtlessly would have been overruled. See Cal. Evid. Code § 452.5 (certified official records of a prior conviction are admissible to prove the prior conviction); see also Rupe v. Wood, 93 F.3d at 1445 ("the failure to take a futile action can never be deficient performance"); Shah v. United States, 878 F.2d at 1162 ("the failure to raise a meritless legal argument does not constitute ineffective assistance of counsel"; citation and internal quotations omitted).
However, assuming that counsel was somehow unreasonable for failing to "consult adequately" with Petitioner or to challenge the documentary evidence, Petitioner cannot demonstrate the requisite Strickland prejudice. After evaluating the credibility of Petitioner's testimony, the state court rejected Petitioner's version of events. Petitioner has failed to demonstrate that counsel could have discovered and presented at the Boykin-Tahl hearing anything that would have altered the outcome of that hearing.
Finally, counsel's alleged failure to file a notice of appeal after Petitioner's resentencing was patently non-prejudicial. Petitioner timely filed a notice of appeal on his own behalf and pursued his appeal through a decision by the California Supreme Court (Respondent's Lodgment's 14, 16-19). A notice of appeal filed by counsel could not have produced any different appellate outcome.
IV. Conclusion
For the foregoing reasons, Petitioner has failed to demonstrate he was denied the effective assistance of counsel. For the same reasons, the California Supreme Court's rejection of Petitioner's claims was not: (1) contrary to, or an unreasonable application of, any "clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Therefore, Petitioner is not entitled to federal habeas relief. See id.
In light of this recommended disposition, Petitioner's request for an evidentiary hearing is denied. Where, as here, the state court adjudicated the claims on the merits and such adjudication was not "unreasonable" under section 2254(d), habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present in federal court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011) ("if a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court, " even where the state court denied the petition summarily) (footnote omitted); Gulbrandson v. Ryan, 738 F.3d 976, 994 n.6 (9th Cir. 2013), cert. denied, 134 S.Ct. 2823 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as to section 2254(d)(1) claims). Moreover, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to the claims adjudicated herein.
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
My difficulty with [the 1986 conviction]... [is that] I have never in my life seen anybody placed on probation for 246. [It is] [n]ormally a state prison case when you shoot at a car full of people. In this case there was basically a time-served disposition. And felony probation with a bunch of alcohol rehabilitation terms. It's possible. I wish to look into it further before a decision is made whether my client testifies.
(Respondent's Lodgment 4, p. 5; but see Cal. Penal Code § 246 (stating that violation is a felony punishable "by imprisonment in state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year")).