Joseph Duran v. David Long, No. 2:2012cv10599 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE by Magistrate Judge Suzanne H. Segal. For the foregoing reasons, the Petition for Writ of Habeas Corpus is DENIED. IT IS ORDERED that Judgment be entered dismissing this action with prejudice. (See document for further details). (mr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSEPH DURAN, 12 Petitioner, 13 14 v. DAVID LONG, Warden, 15 Respondent. ) ) ) ) ) ) ) ) ) ) NO. CV 12-10599 SS MEMORANDUM DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE 16 17 18 I. 19 INTRODUCTION 20 21 On December 11, 2012, Joseph Duran ( Petitioner ), a California 22 state prisoner proceeding pro se, filed a Petition for Writ of Habeas 23 Corpus ( Petition ) pursuant to 28 U.S.C. § 2254 and a Memorandum of 24 Points and Authorities ( Pet. Mem. ). 25 filed an 26 Authorities. Respondent also lodged the relevant portions of the record 27 from Petitioner s state court proceedings, including a two-volume copy 28 of the Clerk s Transcript ( CT ) and a three-volume copy of the Answer to the Petition and On March 27, 2013, Respondent a Memorandum of Points and 1 Reporter s Transcript ( RT ) from Petitioner s trial. 2 Petitioner 3 jurisdiction of the undersigned Magistrate Judge for final disposition 4 of this matter. 5 Petition is DENIED and this action is DISMISSED with prejudice. filed a Reply. All parties have On May 17, 2013, consented to the Accordingly, for the reasons discussed below, the 6 7 II. 8 PRIOR PROCEEDINGS 9 10 On March 10, 2011, a Los Angeles County Superior Court jury 11 convicted Petitioner of second degree robbery in violation of California 12 Penal Code ( Penal Code ) section 211, second degree commercial burglary 13 in violation of Penal Code section 459, attempted second degree robbery 14 in violation of Penal Code sections 211/664, and assault with a firearm 15 in violation of Penal Code section 245. 16 03). 17 a handgun during the commission of the offenses. 18 RT 1201-03). 19 eleven years in state prison. (CT 308-11, 328-30; RT 1201- The jury also found it to be true that a principal was armed with (CT 308-11, 328-30; On April 8, 2011, the trial court sentenced Petitioner to (CT 370-73, 378-79; RT 1509-11). 20 21 Petitioner appealed his conviction and sentence to the California 22 Court of Appeal, which affirmed the judgment in an unpublished decision 23 filed on April 25, 2012. 24 petition for review, which the California Supreme Court summarily denied 25 on July 25, 2012. 26 \\ 27 \\ 28 \\ (Lodgments A-D). (Lodgments E-F). 2 Petitioner then filed a 1 III. 2 FACTUAL BACKGROUND 3 4 The following facts, taken from the California Court of Appeal s 5 written decision on direct review, have not been rebutted with clear and 6 convincing evidence and must, therefore, be presumed correct. 28 U.S.C. 7 § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009). 8 9 On April 6, 2011, Albert Garcia met with [co-defendant 10 Kekai] Larsen and [Petitioner] in Rosemead. They asked 11 Garcia to drive them to the Santa Anita Mall. [Petitioner 12 and Larsen] got into Garcia s car, along with a female. 13 the vehicle passed a business on Gidley Street in El Monte, 14 [Petitioner and Larsen] told Garcia to stop because they 15 wanted to check it out. 16 and looked at a large air compressor in the parking lot in 17 front 18 compressor. 19 Henry Franco, came outside and confronted them. [Petitioner] 20 and Larsen approached him aggressively. 21 Franco s wallet. 22 shirt and showed him a handgun in his waistband. 23 handed over his wallet, and asked if he could have his wallet 24 and identification cards back after the money was removed. 25 He wrestled with Larsen to retrieve them. 26 [Petitioner] went into the building and into Franco s office. 27 When [Petitioner] emerged from the building, he and Larsen 28 ran back to the car and Larsen told Garcia, Take off. of the business. As [Petitioner] got out of the car He unhooked Larsen got out of the car. a hose from the The business owner, Larsen demanded When Franco refused, Larsen lifted his 3 Franco In the meantime, 1 Garcia saw that Larsen had a pistol on his lap. Franco wrote 2 down the license plate number of the car, and took the 3 compressors inside the building. 4 office had been ransacked and his cell phone was missing. 5 addition, $153 was taken from his wallet. He discovered that his In 6 7 Garcia continued to drive the car to Arcadia. As they 8 were driving on a residential street, they saw Qiu Qim Sheng 9 walking her dog. [Petitioner] said, I want to get that 10 dog. 11 [Petitioner] jumped out of the car, grabbed the leash out of 12 Sheng s hand, and ran down the street with the dog. 13 Gibbs 14 [Petitioner] take the dog. 15 or 16 continued to run. 17 Garcia, Larsen got out of the car to assist [Petitioner]. 18 Garcia heard gunshots coming from behind the car. 19 [Petitioner] and Larsen got in the car and Garcia drove off. 20 Gibbs said he saw [Petitioner] dive into the rear seat of the 21 car and then a person in the front passenger seat leaned out 22 of the car and fired at Gibbs, striking him in the leg. 23 Walter Quintanilla, who was driving down the street, saw a 24 man running towards a car. The man dove into the rear 25 passenger arm 26 Quintanilla heard a gunshot. 27 person who jumped in the car was the one who put his arm out 60 Garcia was made exiting yards and seat a a U-turn residence and on drove the street let go of the Garcia pulled the car up. then Sheng. and John saw Gibbs chased [Petitioner] for 50 [Petitioner] and past an came out leash and According to of the Both car. He could not tell whether the 28 4 1 of the window. 2 He wrote down the license plate number of the car. 3 4 Larsen and [Petitioner] told Garcia to drive them to El 5 Sereno. [Larsen, Petitioner] and the female got out of the 6 car and Larsen threw a bag of methamphetamine towards Garcia. 7 8 9 When Garcia arrived home at approximately 7:10 p.m. that evening, he was detained by police. They found a glass 10 methamphetamine pipe in the car and methamphetamine in his 11 pocket. 12 that day. 13 up [Petitioner and Larsen, Petitioner] sat in the front 14 passenger seat and Larsen sat in the rear seat on the 15 driver s side. 16 wallet, [Petitioner] got in the front seat again. 17 the 18 [Petitioner] and Larsen were staying at a hotel about five 19 miles away from where the dog had been taken. 20 responded to the hotel and detained [Petitioner and Larsen]. 21 Franco identified both of them at a field showup and said 22 that Larsen was the one with the gun. 23 photographic lineup, Franco did not identify either one. 24 Police performed gunshot residue tests on [Petitioner and 25 Larsen s] hands and the results were consistent with firing, 26 touching, or being around a firearm. only Garcia admitted that he had used methamphetamine Garcia told a detective that when he first picked one After [Petitioner and Larsen] took Franco s with a gun. Garcia 27 28 5 told Larsen was police that Officers The next day at a 1 At the preliminary hearing, Franco identified 2 [Petitioner] but not Larsen. At trial, Franco identified 3 both men and Larsen as the one with the gun. 4 not identify Larsen at the preliminary hearing because he 5 feared for his life. He said he did 6 7 At trial, Garcia testified that the female sat in the 8 front passenger seat of his car. He admitted that he had 9 pled guilty to two misdemeanor counts and one count of being 10 an accessory after the fact. He acknowledged that he had 11 entered into an agreement with the district attorney s office 12 for leniency in exchange for testifying. 13 14 Gibbs testified that the person in the front passenger 15 seat leaned out and fired at him. He first described the 16 shooter as a he, but could not identify anyone present in 17 court as the shooter. 18 for sure whether the shooter was a male or female. On cross-examination, he could not say 19 20 Neither [Petitioner nor Larsen] testified. Larsen 21 called one witness, Leandra Munoz, who testified that she saw 22 a Hispanic man wearing a blue shirt taking a dog from a woman 23 about 20 feet away. 24 fired a gun at someone chasing him. 25 either [Petitioner or Larsen] in court. She said the man jumped into a car and 26 27 (Lodgment D at 2-4). 28 6 She could not identify 1 IV. 2 PETITIONER S CLAIMS 3 4 The Petition raises two grounds for federal habeas relief. 5 Ground One, Petitioner contends that the trial court erred when it 6 failed to stay his commercial burglary sentence pursuant to Penal Code 7 section 654.1 8 contends that he received ineffective assistance of counsel when his 9 trial counsel failed to object to the trial court s erroneous reasoning 10 in sentencing Petitioner to consecutive sentences for robbing Franco and 11 burglarizing his business. (Pet. at 5; Pet. Mem. at 7-9). In In Ground Two, Petitioner (Pet. at 5; Pet. Mem. at 10-12). 12 13 V. 14 STANDARD OF REVIEW 15 16 The Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA ) 17 applies to the instant Petition because Petitioner filed it after 18 AEDPA s effective date of April 24, 1996. 19 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). 20 [AEDPA] bars relitigation of any claim adjudicated on the merits in 21 state court, subject only to the exceptions in §§ 2254(d)(1) and 22 (d)(2). Lindh v. Murphy, 521 U.S. By its terms Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 784, 178 23 24 25 1 Penal Code section 654(a) provides, in pertinent part, that [a]n act or omission that is punishable in different ways by different 27 provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the 28 act or omission be punished under more than one provision. 26 7 1 L. Ed. 2d 624 (2011). Under AEDPA s deferential standard, a federal 2 court may grant habeas relief only if the state court adjudication was 3 contrary to or an unreasonable application of clearly established 4 federal law or was based upon an unreasonable determination of the 5 facts. 28 U.S.C. § 2254(d). 6 7 Petitioner raised his pending claims in his petition for review to 8 the California Supreme Court, which denied these claims without comment 9 or citation to authority. (Lodgments E-F). The California Supreme 10 Court s discretionary decision to deny Petitioner s petition for review 11 without comment or citation to authority was not a decision on the 12 merits. 13 2d 336 (2011) (state supreme court s decision not to hear an appeal is 14 not an adjudication on the merits under § 2254(d)(1)); Cannedy v. Adams, 15 706 F.3d 1148, 1158 (9th Cir. 2013) ( [D]enials of discretionary review 16 are not decisions on the merits[.] ), as amended, 2013 WL 3744048 (9th 17 Cir. 2013), pet. for cert. filed, 82 USLW 3247 (Oct. 13, 2013); Camper 18 v. Workers Comp. Appeals Bd., 3 Cal. 4th 679, 689 n.8, 12 Cal. Rptr. 19 2d 101 (1992) ( [W]e reiterate the well-established rule in this state 20 that a denial of a petition for review is not an expression of opinion 21 of the Supreme Court on the merits of the case. ). 22 been one reasoned state judgment rejecting a federal claim, later 23 unexplained orders upholding that judgment or rejecting the same claim 24 rest upon the same ground. 25 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991); see also Cannedy, 706 F.3d 26 at 1159 ( [W]e conclude that Richter does not change our practice of 27 looking through summary denials to the last reasoned decision 28 whether those denials are on the merits or denials of discretionary See Greene v. Fisher, __ U.S. __, 132 S. Ct. 38, 45, 181 L. Ed. Where there has Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 8 1 review. (footnote omitted)). Thus, in addressing Petitioner s claims, 2 the Court will consider the reasoning of the California Court of Appeal, 3 which issued a written decision addressing those claims. 4 Thompkins, 560 U.S. 370, __, 130 S. Ct. 2250, 2259, 176 L. Ed. 2d 1098 5 (2010). 6 VI. 7 Berghuis v. DISCUSSION 8 9 10 A. Petitioner Is Not Entitled To Habeas Relief For the Alleged Violation Of Penal Code Section 654 11 12 A federal court, in conducting habeas review, is limited to 13 deciding whether a state court decision violates the Constitution, laws 14 or treaties of the United States. 15 Cooke, __ U.S. __, 131 S. Ct. 859, 861, 178 L. Ed. 2d 732 (2011) (per 16 curiam); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. 17 Ed. 2d 385 (1991). 18 errors of state law. 19 3092, 111 L. Ed. 2d 606 (1990); McGuire, 502 U.S. at 67, 112 S. Ct. 475; 20 see also Dugger v. Adams, 489 U.S. 401, 409, 109 S. Ct. 1211, 103 L. Ed. 21 2d 435 (1989) ( [T]he availability of a claim under state law does not 22 of itself establish that a claim was available under the United States 23 Constitution. ); Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 79 24 L. Ed. 2d 29 (1984) ( A federal court may not issue the writ [of habeas 25 corpus] on the basis of a perceived error of state law. ). 28 U.S.C. § 2254(a); Swarthout v. Federal habeas corpus relief does not lie for Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 26 27 In Ground One, Petitioner contends that the trial court erred when 28 it sentenced him to the high term of five years for the robbery of 9 1 Franco and also sentenced him to a one year consecutive sentence for the 2 commercial burglary of Franco s business since the burglary sentence 3 should have been stayed under Penal Code section 654. 4 Mem. at 7-9). 5 cognizable ground for federal habeas corpus relief. 6 Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ( The decision whether to 7 impose sentences concurrently or consecutively is a matter of state 8 criminal procedure and is not within the purview of federal habeas 9 corpus. ); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) 10 (petitioner s claim that sentence violated Penal Code section 654 was 11 not cognizable on federal habeas corpus review). 12 changed by Petitioner s cursory references to due process and a fair 13 trial.2 (Pet. at 5; Pet. However, this state law allegation fails to state a See Cacoperdo v. Nor is this result (See Pet. Mem. at 7; Reply at 3); see also Langford v. Day, 110 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Under narrow circumstances, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50, 113 S. Ct. 528, 121 L. Ed. 2d 411 (1992) ( [T]he federal, constitutional question is whether [the sentencing error] is so arbitrary or capricious as to constitute an independent due process . . . violation. (citation omitted)); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ( Absent a showing of fundamental unfairness, a state court s misapplication if its own sentencing laws does not justify federal habeas relief. ). However, even if the Court ignored Petitioner s citation of only state law and interpreted Petitioner s vague references to due process and a fair trial as raising a federal constitutional claim, and even setting aside Petitioner s failure to exhaust Ground One as a federal constitutional claim, (see Lodgment E), Ground One would still fail. See 28 U.S.C. § 2254(b)(2) ( An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. ). As detailed below, the California Court of Appeal determined that the trial court appropriately applied state sentencing law, and as this Court is bound by the California Court of Appeal s interpretation of state law, Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005) (per curiam); Hicks on behalf of Feiock v. Feiock, 485 U.S. 624, 629-30 & n.3, 108 S. Ct. 1423, 99 L. Ed. 2d 721 (1988), Petitioner cannot even show a misapplication of state law, let alone a due process violation. 10 1 F.3d 1380, 1389 (9th Cir. 1997) ( Langford may not . . . transform a 2 state-law issue into a federal one merely by asserting a violation of 3 due process. ); Moore v. Chrones, 687 F. Supp. 2d 1005, 1040-41 n.27 4 (C.D. Cal. 2010) ( [M]erely placing [a due process] label on an alleged 5 state law sentencing violation is insufficient to state a cognizable 6 federal constitutional claim. ). 7 8 9 B. Petitioner Is Not Entitled To Habeas Relief On His Ineffective Assistance Of Counsel Claim 10 11 In Ground Two, Petitioner alleges he received ineffective 12 assistance of counsel when his trial counsel failed to object to the 13 trial 14 consecutive sentences for robbing Franco and burglarizing his business. 15 (Pet. at 5; Pet. Mem. at 10-12). court s erroneous reasoning in sentencing Petitioner to 16 17 1. Background 18 19 20 The California Court of Appeal set forth the following facts underlying Petitioner s ineffective assistance of counsel claim: 21 22 [Petitioner] was sentenced to five years for the robbery 23 of Franco and a consecutive term of eight months for the 24 commercial burglary of Franco s business and another four 25 months for the principal armed allegation. 26 consecutive term for the burglary, the court stated, The 27 reason the court is imposing consecutive sentences is after 28 looking at California Rules of Court 4.125, the crimes were 11 After imposing a 1 predominantly independent of each other, the crimes involved 2 separate acts of violence, and the crimes were committed at 3 different 4 counsel did not object. 5 sentencing memorandum that did not address the imposition of 6 consecutive terms. times and different places. [Petitioner s] [Petitioner s] counsel had filed a 7 8 (Lodgment D at 8). 9 10 2. California Court of Appeal s Opinion 11 12 The California Court of Appeal concluded that Petitioner was 13 properly sentenced to consecutive sentences under Penal Code section 654 14 and, therefore, Petitioner s trial counsel was not ineffective in 15 failing to object to Petitioner s consecutive sentences for robbery and 16 burglary: 17 18 The record reflects that Garcia was told to pull over by 19 Larsen when they were on their way to the Santa Anita Mall. 20 Larsen 21 [Petitioner] 22 compressors which were in the parking lot in front of the 23 building. 24 of 25 confronted the two men. 26 when Franco refused, Larsen showed him a handgun in his 27 waistband. 28 the told Garcia got to out stop of while the on car Gidley to look Street at the and air While [Petitioner] and Larsen were in the process unhooking the hoses, Franco came out and verbally They then demanded his wallet, and Franco testified that [Petitioner] went inside building and into Franco s 12 office while Larsen was 1 demanding Franco s wallet. While Franco gave his wallet to 2 Larsen, [Petitioner] came out of the office, and both men 3 left. 4 been ransacked and a cell phone had been taken. It was then that Franco determined that his office had 5 6 Penal Code section 654 prohibits punishment for two 7 crimes arising from a single indivisible course of conduct. 8 If all of the crimes were merely incidental to, or were the 9 means of accomplishing or facilitating one objective, a 10 defendant may be punished only once. If, however, a 11 defendant had several independent criminal objectives, he may 12 be punished for each crime committed in pursuit of each 13 objective, even though the crimes shared common acts or were 14 parts of an otherwise indivisible course of conduct. 15 defendant s intent and objective are factual questions for 16 the trial court, and we will uphold its ruling on these 17 matters if it is supported by substantial evidence. The 18 19 * * * 20 [Petitioner and Larsen] stopped at Franco s business to 21 steal the compressors that were outside of the building. 22 While they were in the process of moving the compressors, 23 Franco came out and confronted them. 24 [Petitioner and Larsen] formed the intent to take Franco s 25 wallet and demanded that he relinquish it. 26 refused, Larsen displayed his gun and repeated the demand. 27 While 28 opportunity to go inside the building and into the office, Franco was being detained, 13 It was then that When Franco [Petitioner] took the 1 obviously looking for something of value. 2 evidence [Petitioner] knew Franco s office existed prior to 3 his entry into the building. 4 [Petitioner] entered the building to facilitate the taking of 5 Franco s wallet. 6 * There is no Nor is there evidence that * * 7 . . . [Petitioner and Larsen] had accomplished the 8 robbery and did not form the intent to burglarize the office 9 until Franco was immobilized through Larsen s use of force. 10 There is substantial evidence that [Petitioner and Larsen] 11 had three separate objectives, each formed independently as 12 the events unfolded. 13 compressors. 14 they formed the intent to rob him. 15 entered the building for the purpose of determining whether 16 other property could be seized. 17 trial 18 building 19 confrontation with Franco. 20 21 court was First, they intended to steal the Second, when Franco emerged from the building, reasonably an Based on the evidence, the concluded afterthought * * Third, [Petitioner] that brought burglarizing about by the the * As we have discussed, Franco s cell phone was not taken 22 during the course of the robbery. 23 a time and place separate from the robbery, the entry into 24 the office did not facilitate the robbery, and [Petitioner 25 and Larsen] had multiple, independent criminal objectives. 26 If [Petitioner and Larsen] had intended from the outset to 27 invade Franco s building in search of property, they would 28 have done so instead of attempting to take the compressors. 14 The burglary occurred at 1 The imposition of consecutive sentences for the burglary and 2 robbery was proper.[Fn. 2] 3 4 Fn. 2. Given our conclusion, [Petitioner s] claim that 5 counsel was ineffective for failing to object to the sentence 6 necessarily fails. 7 8 (Lodgment D at 8-11 (citations omitted)). 9 3. 10 Analysis 11 12 The Sixth Amendment guarantees criminal defendants the effective 13 assistance of counsel. Yarborough v. Gentry, 540 U.S. 1, 4, 124 S. Ct. 14 1, 157 L. Ed. 2d 1 (2003) (per curiam). 15 assistance of trial counsel claim, a habeas petitioner must demonstrate 16 both that counsel s performance was deficient and that the deficient 17 performance prejudiced the defense. 18 390, 19 Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 20 The 21 Williams, 529 U.S. at 390-91; Strickland, 466 U.S. at 687. 22 establish deficient performance, a person challenging a conviction must 23 show that counsel s representation fell below an objective standard of 24 reasonableness. Richter, 131 S. Ct. at 787 (citation omitted); Premo 25 v. Moore, __ U.S. __, 131 S. Ct. 733, 739, 178 L. Ed. 2d 649 (2011). 26 Prejudice 27 performance 28 proceeding fundamentally unfair. 120 S. Ct. petitioner 1495, bears focuses renders 146 the on the L. burden the Williams v. Taylor, 529 U.S. 362, Ed. of question results To succeed on an ineffective of 2d 389 (2000); establishing whether the trial Strickland both v. counsel s components. To deficient unreliable or the Lockhart v. Fretwell, 506 U.S. 364, 15 1 372, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993); Williams, 529 U.S. at 393 2 n.17. 3 deficient before examining the prejudice the alleged deficiencies caused 4 the defendant. See Smith v. Robbins, 528 U.S. 259, 286 n.14, 120 S. Ct. 5 746, 145 L. Ed. 2d 746 (2000) ( If it is easier to dispose of an 6 ineffectiveness 7 prejudice, . . . that course should be followed (quoting Strickland, 8 466 U.S. at 697)). A court need not determine whether counsel s performance was claim on the ground of lack of sufficient 9 10 Here, the California Court of Appeal concluded that the trial 11 court s imposition of consecutive sentences for Petitioner s burglary 12 and robbery convictions was a proper application of California law, and 13 this Court must defer to the California Court of Appeal s determination 14 of state law. 15 163 L. Ed. 2d 407 (2005) (per curiam) ( [A] state court s interpretation 16 of state law, including one announced on direct appeal of the challenged 17 conviction, binds a federal court sitting in habeas corpus. ); Hicks on 18 behalf of Feiock v. Feiock, 485 U.S. 624, 629-30 & n.3, 108 S. Ct. 1423, 19 99 L. Ed. 2d 721 (1988) ( We are not at liberty to depart from the state 20 appellate court s resolution of these issues of state law. 21 petitioner marshals a number of sources in support of the contention 22 that the state appellate court misapplied state law on these two points, 23 the California Supreme Court denied review of this case, and we are not 24 free in this situation to overturn the state court s conclusions of 25 state law. ). 26 under California law, Petitioner cannot show either that trial counsel 27 was deficient or that he was in any manner prejudiced because trial 28 counsel failed to make a futile objection to Petitioner s sentence. See See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, Although Accordingly, because Petitioner was properly sentenced 16 1 Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) ( It should be 2 obvious that the failure of an attorney to raise a meritless claim is 3 not prejudicial[.] ), cert. denied, 133 S. Ct. 2831 (2013); Rupe v. 4 Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996) ( [T]he failure to take a 5 futile action can never be deficient performance. ). 6 7 Accordingly, the California courts rejection of this claim was 8 neither contrary to, nor 9 an unreasonable application of, clearly established federal law. 10 11 VII. 12 CONCLUSION 13 14 For the foregoing reasons, the Petition for Writ of Habeas Corpus 15 is DENIED. IT IS ORDERED that Judgment be entered dismissing this 16 action with prejudice. 17 18 19 20 DATED: December 13, 2013 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 17
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