(HC) Helm v. Ahlin, No. 1:2010cv01517 - Document 15 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition be DENIED on All Grounds With the Exception of Petitioner's Equal Protection Argument; Petitioner's Equal Protection Argument be DISMISSED WITHOUT PREJUDICE; and the Clerk of Court be Directed to Enter Judgment re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Gary S. Austin on 5/12/2011. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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(HC) Helm v. Ahlin Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 JAMES LEE HELM, 1:10-CV-01517 LJO GSA HC 9 Petitioner, FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS 10 v. 11 PAM AHLIN, Executive Director, 12 Respondent. 13 / 14 Petitioner is currently confined by the California Department of Mental Health as a sexually 15 violent predator pursuant to Cal. Welfare and Institutions Code § 6600, et seq., also known as 16 California’s Sexually Violent Predator Act (“SVPA”). He is proceeding pro se with a petition for 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. 18 PROCEDURAL HISTORY 19 On June 18, 2009, a Stanislaus County Superior Court jury found Petitioner to be a sexually 20 violent predator within the meaning of the SVPA. (CT1 118-120.) He was involuntarily committed 21 for an indeterminate term pursuant to Cal. Welfare & Inst. Code § 6604. (CT 118-120.) Petitioner 22 filed a notice of appeal. (CT 121.) On April 9, 2010, the California Court of Appeals, Fifth 23 Appellate District (hereinafter “Fifth DCA”), remanded the matter back to the superior court for 24 hearing on Petitioner’s equal protection claim under People v. McKee, 47 Cal.4th 1172 (2010); 25 judgment was affirmed in all other respects. (LD2 3.) Petitioner then filed a petition for review in the 26 27 1 “CT” refers to the Clerk’s Transcript on Appeal. 28 2 “LD” refers to the documents lodged by Respondent with his answer. U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 California Supreme Court. (LD 4.) The California Supreme Court summarily denied the petition. 2 (LD 5.) 3 On October 13, 2010, Petitioner filed the instant petition for writ of habeas corpus in this 4 Court. He contends his involuntary indefinite commitment violates his constitutional rights. He 5 contends the indefinite nature of his commitment violates due process, the ex post facto clause, the 6 double jeopardy clause, the equal protection clause, and the prohibition against cruel and unusual 7 punishment. He also claims the Department of Mental Health uses an invalid, underground 8 regulation that fails to comply with California’s Administrative Procedures Act. Last, Petitioner 9 claims he was denied his right to effective assistance of counsel. Respondent filed an answer on 10 January 18, 2011. 11 12 FACTUAL BACKGROUND Insofar as Petitioner’s claims involve pure questions of law, the Court will not recite the 13 underlying facts concerning Petitioner’s commitment. Suffice it to say that Petitioner suffered 14 convictions in the Stanislaus County Superior Court in 1983 for lewd acts against a seven-year old 15 and an eleven-year old. Based on the testimony of two evaluating clinical psychologists and 16 Petitioner, a jury found Petitioner to be a sexually violent predator. 17 18 DISCUSSION I. Jurisdiction 19 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant 20 to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of 21 the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 22 375 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. 23 Constitution. In addition, the involuntary civil commitment challenged arises out of the Stanislaus 24 County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 25 2241(d). Accordingly, the Court has jurisdiction over the action. 26 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 27 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. 28 Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 (1997); Jeffries v. Wood, 114 U .S. D istrict C ourt E. D . C alifornia 2 1 F.3d 1484, 1499 (9th Cir. 1997), quoting, Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. 2 denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) 3 (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was 4 filed after the enactment of the AEDPA; thus, it is governed by its provisions. 5 II. Legal Standard of Review 6 The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death 7 Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 8 (2003). Under the AEDPA, a petitioner can prevail only if he can show that the state court’s 9 adjudication of his claim: 10 11 12 (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. 13 28 U.S.C. § 2254(d); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413. 14 As a threshold matter, this Court must "first decide what constitutes 'clearly established 15 Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, 16 quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court 17 must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time 18 of the relevant state-court decision." Id., quoting Williams, 592 U.S. at 412; see also Harrington v. 19 Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011). "In other words, 'clearly established Federal law' 20 under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at 21 the time the state court renders its decision." Lockyer, 538 U.S. at 71. 22 Finally, this Court must consider whether the state court's decision was "contrary to, or 23 involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 72, 24 quoting, 28 U.S.C. § 2254(d)(1). “Under the ‘contrary to’ clause, a federal habeas court may grant 25 the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 26 question of law or if the state court decides a case differently than [the] Court has on a set of 27 materially indistinguishable facts.” Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. 28 U .S. D istrict C ourt E. D . C alifornia 3 1 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if the state 2 court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably 3 applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. 4 “[A] federal court may not issue the writ simply because the court concludes in its 5 independent judgment that the relevant state court decision applied clearly established federal law 6 erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also 7 Harrington, 131 S.Ct. at 785. A federal habeas court making the “unreasonable application” inquiry 8 should ask whether the state court’s application of clearly established federal law was “objectively 9 unreasonable.” Williams, 529 U.S. at 409. “A state court’s determination that a claim lacks merit 10 precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the 11 state court’s decision.” Harrington, 131 S.Ct. at 786, quoting, Yarborough v. Alvarado, 541 U.S. 12 652, 664 (2004). Further, “it is not an unreasonable application of clearly established Federal law for 13 a state court to decline to apply a specific legal rule that has not been squarely established by this 14 Court.” Knowles v. Mirzayance, 556 U.S. __, __, 129 S.Ct. 1411, 1413-14 (2009). “Under 2254(d), 15 a habeas court must determine what arguments or theories supported or, . . . could have supported, 16 the state court’s decision; and then it must ask whether it is possible fairminded jurists could 17 disagree that those arguments or theories are inconsistent with the holding of a prior decision of [the 18 Supreme] Court.” Harrington, 131 S.Ct. at 786. Only “where there is no possibility fairminded 19 jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents” 20 may the writ issue. Id. 21 Petitioner has the burden of establishing that the decision of the state court is contrary to or 22 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 23 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, 24 Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court 25 decision is objectively unreasonable. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th 26 Cir.1999). 27 III. Review of Petition 28 A. Ground One U .S. D istrict C ourt E. D . C alifornia 4 1 In his first claim for relief, Petitioner alleges the indefinite nature of his commitment violates 2 due process, the ex post facto clause, the double jeopardy clause, the equal protection clause, and the 3 prohibition against cruel and unusual punishment. Petitioner presented this claim to the Fifth DCA 4 on direct appeal. The claim, with the exception of the equal protection argument, was rejected in a 5 reasoned opinion. Petitioner then presented the claim in a petition for review in the California 6 Supreme Court. The petition was summarily denied. The California Supreme Court is presumed to 7 have denied the claims presented for the same reasons stated in the opinion of the Fifth DCA. Ylst 8 v. Nunnemaker, 501 U.S. 797, 803 (1991). 1. Due Process 9 10 Petitioner argues that California’s judicial review of a detainee’s confinement violates due 11 process because the detainee is not entitled to an expert, and the detainee has the burden of proof in 12 any hearing ordered by the trial court. Petitioner argues he is constitutionally entitled to an expert in 13 any hearing on his continued detention. Second, he states that although the initial hearing requires 14 the State to prove mental illness beyond a reasonable doubt, a subsequent hearing ordered by the trial 15 court when a detainee files a petition for discharge pursuant to Cal. Welfare & Inst. Code § 6608 16 requires the detainee to carry the burden of proof by a preponderance of the evidence. He argues the 17 Constitution requires the State to carry the burden of proof beyond a reasonable doubt. 18 The appellate court analyzed and rejected the claim as follows: 19 Likewise, the law is settled that an indeterminate SVPA commitment, even after the 2006 amendments, does not violate due process. (See McKee, supra, 47 Cal.4th at pp. 11881193, 104 Cal.Rptr.3d 427, 223 P.3d 566 [imposing the burden of proof by a preponderance of the evidence that a committee with an indeterminate commitment is no longer an SVP does not violate due process]; see also Kansas v. Hendricks (1997) 521 U.S. 346, 357, 117 S.Ct. 2072, 138 L.Ed.2d 501 [involuntary civil confinement of a limited subclass of dangerous persons with proper procedures and evidentiary standards is not “contrary to our understanding of ordered liberty”]; Foucha v. Louisiana (1992) 504 U.S. 71, 77, 112 S.Ct. 1780, 118 L.Ed.2d 437 [due process allows holding a civil committee “as long as he is both mentally ill and dangerous, but no longer”]; Jones v. United States (1983) 463 U.S. 354, 366368, 103 S.Ct. 3043, 77 L.Ed.2d 694 [imposing the burden of proof by a preponderance of the evidence that a committee with an indeterminate commitment is not guilty by reason of insanity “comports with due process”].) 20 21 22 23 24 25 26 27 28 (LD 3.) As Respondent correctly states, there is no clearly established Supreme Court precedent requiring that the burden of proof be borne by the prosecution in a subsequent hearing initiated by a U .S. D istrict C ourt E. D . C alifornia 5 1 detainee. In Addington v. Texas, 441 U.S. 418, 432-433 (1979), the Supreme Court held that the 2 prosecution bears the burden of proof of clear and convincing evidence in the initial commitment 3 proceeding. California’s SVPA requires the more onerous burden of proof beyond a reasonable 4 doubt in the initial hearing. It is therefore in accord with Addington. 5 In Jones v. United States, 463 U.S. 354, 370 (1983), the Supreme Court held that “when a 6 criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by 7 reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to 8 confine him to a mental institution until such time as he has regained his sanity or is no longer a 9 danger to himself or society.” In reaching this holding, the Supreme Court expressed no reservations 10 about the District of Columbia statute’s placement of the burden of proof on an acquittee seeking 11 release, once he has been committed. Id. at 356-358. 12 In Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme Court reviewed Kansas’ SVPA, 13 which “establishe[d] procedures for the civil commitment of persons who, due to a ‘mental 14 abnormality’ or a ‘personality disorder,’ [were] likely to engage in ‘predatory acts of sexual 15 violence.’” Id. at 350, quoting Kan. Stat. Ann. §59-29a01 et seq. (1994). As part of the process for 16 committing an individual the State believed to be a sexually violent predator pursuant to the Act, a 17 trial must be held to determine whether the individual is a sexually violent predator. Id. at 352-353. 18 The prosecution bears the burden of proof beyond a reasonable doubt. Id. at 353. Once confined, the 19 individual is entitled to an annual review by the committing court to determine whether further 20 commitment was warranted. Id. In addition, at any time, the Secretary of Social and Rehabilitation 21 Services can authorize the individual to petition for release if the Secretary determines that the 22 individual’s condition had so changed that release was appropriate. Id. Finally, the individual could 23 petition the committing court at any time. Id. The Supreme Court upheld the statute and did not 24 address the specific procedures for continued confinement or the burden of proof in any of the 25 proceedings. Id. at 356-360. The Supreme Court stated: “We have consistently upheld such 26 involuntary commitment statutes provided the confinement takes place pursuant to proper 27 procedures and evidentiary standards.” Id. at 357. 28 Insofar as the only clearly established Supreme Court precedent regarding the burden of proof U .S. D istrict C ourt E. D . C alifornia 6 1 in a civil commitment statute requires that the initial commitment be by clear and convincing 2 evidence, and California’s SVPA requires a much higher standard at the initial commitment, 3 Petitioner cannot demonstrate that the state court rejection of his claim was contrary to or an 4 unreasonable application of clearly established Supreme Court precedent. He further fails to 5 demonstrate that the procedures used by California for release from commitment are contrary to 6 Federal law. Thus, his claim concerning the burden of proof must fail. 7 Likewise, his claim regarding the appointment of an expert is meritless. Under California’s 8 SVPA, Petitioner is entitled to the assistance of an expert at his annual review. Cal. Welfare & Inst. 9 Code § 6605. California courts have stated that although the statute does not specifically provide for 10 the appointment of an expert at a detainee-initiated hearing, such appointment “may be reasonably 11 inferred.” People v. McKee, 47 Cal. 4th 1172, 1192 (2010). In any case, there is no clearly 12 established Supreme Court precedent which requires an expert be appointed to assist a detainee in a 13 release hearing requested by the detainee. Therefore, habeas relief is unavailable. 14 2. Double Jeopardy, Ex Post Facto, and Cruel and Unusual Punishment 15 Petitioner next argues his indefinite commitment violates the ex post facto clause of the 16 Constitution, the double jeopardy clause, and the Eighth Amendment prohibition against cruel and 17 unusual punishment. This claim was also presented on direct appeal where it was denied by the Fifth 18 DCA as follows: After McKee, the law is settled that an indeterminate SVPA commitment, even after the 2006 amendments, is a civil matter imposing no punishment. (See McKee, supra, 47 Cal.4th at pp. 1193-1195, 104 Cal.Rptr.3d 427, 223 P.3d 566 [the 2006 amendments do not render the statutory scheme punitive]; see also Collins v. Youngblood (1990) 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 [the ex post facto clause prohibits only those laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts”]; People v. Vasquez (2001) 25 Cal.4th 1225, 1231, 108 Cal.Rptr.2d 610, 25 P.3d 1090 [the SVPA is “protective rather than punitive in its intent”]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1179, 81 Cal.Rptr.2d 492, 969 P.2d 584 [the SVPA neither imposes punishment nor otherwise implicates ex post facto concerns].) So Helm's double jeopardy, ex post facto, and cruel and/or unusual punishment arguments are meritless. 19 20 21 22 23 24 25 (LD 3.) 26 The ex post facto clause prohibits a state from enacting a law that imposes additional 27 punishment for a crime than the punishment was when the defendant committed the crime. Weaver 28 v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964 (1981). The double jeopardy clause prohibits the U .S. D istrict C ourt E. D . C alifornia 7 1 imposition of multiple punishments for the same offense resulting from successive proceedings. 2 Hudson v. United States, 522 U.S. 93, 99 (1997). As to these constitutional protections, the state 3 court decision is in accord with clearly established Supreme Court precedent. In Kansas v. 4 Hendricks, the Supreme Court determined that Kansas’ SVPA could not violate the double jeopardy 5 and ex post facto clauses, because the Act did not establish criminal proceedings, and involuntary 6 confinement pursuant to the Act was not punitive. 521 U.S. at 369. Likewise, indefinite 7 commitment pursuant to California’s SVPA is not punitive in nature. As Petitioner acknowledges, 8 he has been indefinitely committed in a civil proceeding because a jury has determined he currently 9 suffers from a mental disorder that makes him a danger to the health and safety of others in that it is 10 likely he will engage in sexually violent criminal behavior. See Cal. Welfare & Inst. Code 11 § 6600(a)(1). Therefore, Petitioner’s double jeopardy and ex post facto clause claims must fail. 12 In addition, his claim of cruel and unusual punishment is meritless. The Eighth Amendment 13 prohibits the imposition of “cruel and unusual punishments.” U.S. Const. amend. VIII. The Eighth 14 Amendment proscribes “barbaric punishments,” Solem v. Helm, 463 U.S. 277, 284 (1983), as well 15 as any criminal sentence that is not proportionate to the crime for which a defendant is convicted. 16 Lockyer v. Andrade, 538 U.S. 63 (2003). But like the double jeopardy and ex post facto clauses, the 17 proscription against cruel and unusual punishment is inapplicable here because Petitioner has been 18 civilly committed. He is not being punished for a crime. This fact is fatal to his claim. Accordingly, 19 the state court rejection of the claim was not contrary to or an unreasonable application of clearly 20 established Supreme Court precedent. 21 3. Equal Protection 22 Petitioner also contends that his indefinite civil commitment violates his constitutional right 23 to equal protection. He argues that individuals are subjected to disparate treatment if they are 24 committed pursuant to California’s SVPA or if they are committed under California’s Mentally 25 Disordered Offender Action. As noted by Respondent, however, this claim is unexhausted. 26 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 27 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 28 exhaustion doctrine is based on comity to the state court and gives the state court the initial U .S. D istrict C ourt E. D . C alifornia 8 1 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 2 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 3 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). A petitioner can satisfy the 4 exhaustion requirement by providing the highest state court with a full and fair opportunity to 5 consider each claim before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276, 6 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). 7 In this case, Petitioner presented his equal protection claim along with his other claims on 8 direct appeal to the Fifth DCA. In light of the California Supreme Court’s holding in People v. 9 McKee, 47 Cal. 4th 1172, 1192 (2010), the Fifth DCA remanded the case to the superior court for 10 proceedings on the equal protection claim. Respondent notes that the matter is currently pending 11 before the Stanislaus County Superior Court. In addition, Petitioner did not raise his equal 12 protection claim to the California Supreme Court. Therefore, the claim is unexhausted and should 13 be dismissed without prejudice. 28 U.S.C. § 2254(b)(1). 14 B. Ground Two 15 Petitioner next alleges that California’s Department of Mental Health (“DMH”) uses an 16 invalid, underground regulation that fails to comply with California’s Administrative Procedures 17 Act. 18 Petitioner does not allege a violation of the Constitution or Federal law. Petitioner does not 19 allege that the adjudication of his claim in state court “resulted in a decision that was contrary to, or 20 involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254. 21 Petitioner’s claim is entirely based on the interpretation and application of state law, and generally, 22 issues of state law are not cognizable on federal habeas. Estelle v. McGuire, 502 U.S. 62, 67, (1991) 23 ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.' "), 24 quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) 25 (O’Connor, J., concurring) (“mere error of state law, one that does not rise to the level of a 26 constitutional violation, may not be corrected on federal habeas”). In addition, federal courts are 27 bound by state court rulings on questions of state law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 28 (9th Cir.), cert. denied, 493 U.S. 942 (1989). The claim should be denied. U .S. D istrict C ourt E. D . C alifornia 9 1 C. Ground Three 2 Petitioner claims his trial counsel rendered ineffective assistance by failing to object on the 3 4 grounds discussed above. The law governing ineffective assistance of counsel claims is clearly established for the 5 purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Canales v. Roe, 151 6 F.3d 1226, 1229 (9th Cir. 1998.) In a petition for writ of habeas corpus alleging ineffective assistance 7 of counsel, the court must consider two factors. Strickland v. Washington, 466 U.S. 668, 687, 104 8 S.Ct. 2052, 2064 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must 9 show that counsel's performance was deficient, requiring a showing that counsel made errors so 10 serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. 11 Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell below an 12 objective standard of reasonableness, and must identify counsel’s alleged acts or omissions that were 13 not the result of reasonable professional judgment considering the circumstances. Id. at 688; United 14 States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's 15 performance is highly deferential. A court indulges a strong presumption that counsel's conduct falls 16 within the wide range of reasonable professional assistance. Strickland, 466 U.S. 668, 687, 104 17 S.Ct. 2052, 2064 (1984); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994). 18 Second, the petitioner must demonstrate that "there is a reasonable probability that, but for 19 counsel's unprofessional errors, the result ... would have been different," 466 U.S., at 694. Petitioner 20 must show that counsel's errors were so egregious as to deprive defendant of a fair trial, one whose 21 result is reliable. Strickland, 466 U.S. at 688. The court must evaluate whether the entire trial was 22 fundamentally unfair or unreliable because of counsel’s ineffectiveness. Id.; Quintero-Barraza, 78 23 F.3d at 1345; United States v. Palomba, 31 F.3d 1356, 1461 (9th Cir. 1994). 24 In this case, Petitioner fails to demonstrate that counsel’s performance was deficient or that 25 he suffered prejudice from counsel’s alleged failures. None of Petitioner’s claims, except for his 26 equal protection argument, have any merit. As for the equal protection argument, the matter has 27 been remanded to the trial court for a determination on the merits. Therefore, Petitioner has not 28 demonstrated that counsel committed serious error by failing to object on these bases. In addition, U .S. D istrict C ourt E. D . C alifornia 10 1 Petitioner fails to demonstrate prejudice, that is, but for counsel’s failures, the result would have 2 been different. Accordingly, the state court rejection of the claim was not an unreasonable 3 application of the Strickland standard. 28 U.S.C. § 2254(d)(1). The claim should be rejected. 4 5 6 RECOMMENDATION 7 Accordingly, IT IS HEREBY RECOMMENDED: 8 1) The petition be DENIED on all grounds with the exception of Petitioner’s equal protection 9 argument; 10 2) Petitioner’s equal protection argument be DISMISSED WITHOUT PREJUDICE; and 11 3) The Clerk of Court be DIRECTED to enter judgment. 12 This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill, 13 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 14 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 15 Within thirty (30) days after date of service of the Findings and Recommendation, any party may file 16 written objections with the Court and serve a copy on all parties. Such a document should be 17 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 18 objections shall be served and filed within ten (10) days after date of service of the objections. The 19 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The 20 parties are advised that failure to file objections within the specified time may waive the right to 21 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 IT IS SO ORDERED. 24 Dated: 6i0kij May 12, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 11