1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM JOSEPH BAUMER, Case No.: 3:19-cv-0870-CAB-WVG
12 Petitioner, ORDER DENYING OF PETITION 13 v. FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF 14 RALPH DIAZ, Warden, APPEALABILITY 15 Respondent. 16 17 18 I. INTRODUCTION 19 Petitioner William Joseph Baumer (“Petitioner” or “Baumer”), a state prisoner 20 proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 21 § 2254, challenging his 2001 sentence stemming from his conviction in San Diego 22 Superior Court case number SF141219. (See Pet. at 1, ECF No. 1.)1 On January 3, 2001, 23 Petitioner was sentenced to 78-years-to-life in prison under California’s Three Strikes 24 Law after being convicted of two counts of battery on a nonconfined person, one count of 25 possession of a weapon or sharp instrument while confined in a penal institution, and one 26
27 1 Page numbers for docketed materials cited in this Report and Recommendation refer to 28 1 count of manufacturing a weapon while confined in a penal institution. (See Pet., ECF 2 No. 1 at 1–2; see also Lodgment No. 1, ECF No. 7-1 at 249–50.) 3 In 2012, California voters passed Proposition 36, California’s Three Strikes 4 Reform Act. Baumer sought resentencing pursuant to the new law. (See Lodgment No. 5 1, ECF No. 7-1 at 21–49.) In his Petition, he argues the state courts’ denial of his request 6 for resentencing violated his rights under the United States Constitution. (See generally, 7 Pet., ECF No. 1.) The Court has reviewed the Petition, the Answer and Memorandum of 8 Points and Authorities in Support of the Answer, the Traverse, the lodgments, and all the 9 supporting documents submitted by both parties. For the reasons discussed below, the 10 Petition is DENIED. 11 II. FACTUAL BACKGROUND 12 This Court gives deference to state court findings of fact and presumes them to be 13 correct; Petitioner may rebut the presumption of correctness, but only by clear and 14 convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 15 506 U.S. 20, 35–36 (1992) (holding findings of historical fact, including inferences 16 properly drawn from those facts, are entitled to statutory presumption of correctness). 17 The California Court of Appeal summarized the facts as to Baumer’s underlying 18 convictions as follows: 19 On February 6, 1999, a correctional officer at the Richard J. Donovan correctional facility conducted a search of Baumer’s one-person cell. The 20 officer found hidden in Baumer’s mattress an inmate-manufactured, seven 21 and a half-inch hard plastic object that had been sharpened to a point. The officer believed that the item was intended to be a stabbing instrument. 22
23 On the night of April 3, 1999, a correctional officer was conducting a routine count of inmates. As the officer walked by Baumer’s cell, he noticed 24 Baumer using an incendiary device to heat a black object. The officer saw 25 Baumer scrape the heated object on the floor to fashion a sharp, pointed object that could be used as a weapon. The officer opined that Baumer was 26 fashioning the object in this manner in order to use the object as a weapon. 27 The following morning, the officer told a correctional sergeant about what he had observed Baumer doing the night before. 28 1 conducAtet da rao suenadr c8h: 0o0f aB.mau.m oenr A’sp creill l4. , Tah daitf foefrfeicnet rc foorurencdt iaonn aolb ojeffcitc, ewr rapped 2 in cellophane and hidden inside a bottle of hand lotion, that appeared to be 3 an “inmate-manufactured weapon.” The object was approximately five and three-quarters inches long, and had been sharpened to a point at one end. 4
5 In the afternoon of June 8, 1999, a correctional officer was removing Baumer’s handcuffs through a slot in the cell door. Baumer pulled his hands 6 away from the officer, pulling the handcuffs and the officer’s hands into the 7 slot. In the process of doing this, Baumer caused the officer to suffer cuts and abrasions to one of his hands. Baumer refused to return the handcuffs to 8 the officer. Eventually a correctional lieutenant was called, and the 9 lieutenant was able to convince Baumer to return the handcuffs.
10 On June 11, 1999, while the same officer who had been injured by 11 Baumer’s pulling his hands and handcuffs through the cell slot was escorting Baumer to the shower, Baumer verbally threatened the officer, telling him 12 that he would “kick [his] ass even with handcuffs on.” Baumer made verbal 13 threats the entire time as they walked to the shower area. After the officer locked Baumer inside the shower area, Baumer turned around and spat in the 14 officer’s face. 15 The April 3 and 4, 1999 incidents led to the charges alleged in counts 16 3 and 4. The June 8 and June 11, 1999 incidents led to the charges alleged 17 in counts 1 and 2.
19 (Lodgment No. 6, ECF No. 7-7 at 3–5.) 20 III. PROCEDURAL HISTORY 21 On June 19, 2000, a jury found Baumer guilty of two counts of battery on a 22 nonconfined person by a prisoner (Cal. Penal Code § 4501.5 (counts one and two)). (See 23 Lodgment No. 1, ECF No. 7-1 at 1–2, 9.) The jury further found true the special 24 allegations that Petitioner had suffered three prison priors and two “strike” priors (Cal. 25 Penal Code §§ 667(b)–(i), 667.5(b)). (Lodgment No. 1, ECF No. 7-1 at 221–25.) 26 Baumer also pleaded guilty to possession of a weapon or sharp instrument while confined 27 in a penal institution (Cal. Penal Code § 4502(a) (count three)), and manufacturing a 28 weapon while confined in a penal institution (Cal. Penal Code § 4502(b) (count four)). 1 (Lodgment No. 1, ECF No. 7-1 at 51–52, 216–17.) On January 3, 2001, the trial court 2 sentenced Baumer to 78-years-to-life in prison, pursuant to California’s Three Strikes 3 Law.2 (Id. at 249–50.) 4 On November 6, 2012, California voters approved Proposition 36, also known as 5 the Three Strikes Reform Act of 2012 (“Act”). See Cal. Penal Code § 1170.126 6 (codifying Proposition 36). The Act changed the requirements for sentencing a third 7 strike offender to an indeterminate prison term of 25-years-to-life. Under the original 8 three strikes law, an offender with two or more prior strikes who was convicted of any 9 new felony was subject to an indeterminate life sentence. People v. Yearwood, 213 Cal. 10 App. 4th 161, 167 (Cal. Ct. App. 2013). The Act “diluted the three strikes law by 11 reserving the life sentence for cases where the current crime [was] a serious or violent 12 felony or the prosecution ha[d] pled and proved an enumerated disqualifying factor. In 13 all other cases, the recidivist [would] be sentenced as a second strike offender.” Id. at 14 167–68. 15 On August 17, 2015, Baumer filed a petition to have his sentence modified under 16 the Act. (See Lodgment No. 1, ECF No. 7-1 at 21–49.) The trial court denied the 17 petition on January 12, 2016, concluding that, as to counts one and two, Baumer was 18 ineligible for resentencing under the Act because doing so would pose an unreasonable 19 risk of danger to public safety. (See Supp. Lodgment, ECF No. 13-1 at 25–29.) As to 20 counts three and four, the court denied the petition because it found that during the 21 commission of those crimes, Baumer was armed with a deadly weapon. (Id. at 12–13.) 22 Baumer appealed to the California Court of Appeal. (See Lodgment No. 3, ECF 23 No. 7-4.) His court-appointed appellate attorney argued (1) the trial court abused its 24 discretion in denying resentencing in counts one and two, (2) the trial court applied the 25
26 2 The court sentenced Baumer to consecutive 25-years-to-life terms for counts one, two 27 and three, plus three one-year terms for the prison priors found to be true. As for count four, the 25-years-to-life term was stayed pursuant to California Penal Code section 654. 28 1 incorrect standard for determining Petitioner posed an “unreasonable risk of danger,” (3) 2 he had a right to jury determination on the dangerousness finding, (4) the trial court erred 3 in denying resentencing on counts three and four, and (5) a jury was required to find him 4 ineligibile for resentencing on counts three and four beyond a reasonable doubt. (See id. 5 at 16–62.) On June 28, 2017, the appellate court affirmed the trial court’s order denying 6 Baumer’s petition for sentence modification. (See Lodgment No. 6, ECF No. 7-7.) On 7 July 28, 2017, Baumer filed a petition for review in the California Supreme Court. 8 (Lodgment No. 7, ECF No. 7-8.) The California Supreme Court denied the petition for 9 review on October 11, 2017, without comment or citation. (Lodgment No. 8, ECF No. 7- 10 9.) 11 On August 27, 2018, Baumer filed a petition for writ of habeas corpus in the San 12 Diego County Superior Court. (Lodgment No. 9, ECF No. 7-10.) The court denied the 13 petition in a reasoned decision on October 11, 2018. (Lodgment No. 10, ECF No. 7-11.) 14 Baumer then filed a petition for writ of habeas corpus in the California Court of Appeal 15 on October 24, 2018. (Lodgment No. 11, ECF No. 7-12.) Baumer raised four grounds 16 for relief: (1) he was deprived of due process when the trial court denied him 17 resentencing on the battery counts because there was insufficient evidence he posed an 18 unreasonable risk of danger to the public, (2) the court erred in denying resentencing on 19 counts three and four because the court failed to make a factual finding he was armed 20 with a deadly weapon, (3) trial counsel was ineffective in failing to investigate and 21 present evidence he presented a low risk to public safety if released, (4) appellate counsel 22 was ineffective for failing to raise the previous three claims on appeal. (Lodgment No. 23 11, ECF No. 7-12 at 7–48.) On November 2, 2018, the appellate court denied the petition 24 in a reasoned decision, concluding the claims were procedurally barred and without 25 merit. (Lodgment No. 12, ECF No. 7-13 at 2–5.) Baumer filed a habeas petition in the 26 California Supreme Court on November 26, 2018, raising the same four claims he raised 27 in his petition to the appellate court. (Lodgment No. 13, ECF No. 28 / / / 1 7-14 at 9–50.) On April 24, 2019, the court denied the petition without comment or 2 citation. (Lodgment No. 14, ECF No. 7-15.) 3 On May 8, 2019, Baumer, proceeding pro se, filed the instant Petition for writ of 4 habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1.) Respondent 5 filed an Answer and Memorandum of Points and Authorities on July 15, 2019. (ECF No. 6 6-1.) On September 11, 2019, Petitioner filed a Traverse. (ECF No. 15.) 7 IV. SCOPE OF REVIEW 8 Baumer’s Petition is governed by the provisions of the Antiterrorism and Effective 9 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). 10 Under AEDPA, a habeas petition will not be granted unless the adjudication: (1) resulted 11 in a decision that was contrary to, or involved an unreasonable application of clearly 12 established federal law; or (2) resulted in a decision that was based on an unreasonable 13 determination of the facts in light of the evidence presented at the state court proceeding. 14 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). 15 A federal court is not called upon to decide whether it agrees with the state court’s 16 determination; rather, the court applies an extraordinarily deferential review, inquiring 17 only whether the state court’s decision was objectively unreasonable. See Yarborough v. 18 Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In 19 order to grant relief under § 2254(d)(2), a federal court “must be convinced that an 20 appellate panel, applying the normal standards of appellate review, could not reasonably 21 conclude that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d 22 992, 1001 (9th Cir. 2004). 23 A federal habeas court may grant relief under the “contrary to” clause if the state 24 court applied a rule different from the governing law set forth in Supreme Court cases, or 25 if it decided a case differently than the Supreme Court on a set of materially 26 indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant 27 relief under the “unreasonable application” clause if the state court correctly identified 28 the governing legal principle from Supreme Court decisions but unreasonably applied 1 those decisions to the facts of a particular case. Id. Additionally, the “unreasonable 2 application” clause requires that the state court decision be more than incorrect or 3 erroneous; to warrant habeas relief, the state court’s application of clearly established 4 federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 5 (2003). “[A] federal habeas court may not issue the writ simply because that court 6 concludes in its independent judgment that the relevant state-court decision applied 7 clearly established federal law erroneously or incorrectly. Rather, that application must 8 also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court’s 9 determination that a claim lacks merit precludes federal habeas relief so long as 10 ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 11 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 12 U.S. 652, 664 (2004)). 13 Where there is no reasoned decision from the state’s highest court, the Court 14 “looks through” to the underlying appellate court decision and presumes it provides the 15 basis for the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 16 797, 805–06 (1991). If the dispositive state court order does not “furnish a basis for its 17 reasoning,” federal habeas courts must conduct an independent review of the record to 18 determine whether the state court’s decision is contrary to, or an unreasonable application 19 of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th 20 Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75–76); accord Himes v. 21 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite 22 Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 23 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts 24 [Supreme Court precedent,]” the state court decision will not be “contrary to” clearly 25 established federal law. Id. Clearly established federal law, for purposes of § 2254(d), 26 means “the governing principle or principles set forth by the Supreme Court at the time 27 the state court renders its decision.” Andrade, 538 U.S. at 72. 28 / / / 1 V. DISCUSSION 2 Baumer raises four claims in his Petition: (1) his due process rights were violated 3 when the state court improperly denied his request for resentencing on counts one and 4 two without finding some evidence of danger to public safety, (2) his due process rights 5 were violated when the state court found him ineligible for resentencing on counts three 6 and four based on insufficient evidence he was armed with a deadly weapon at the time 7 of the offenses, (3) his counsel at resentencing was ineffective, in violation of his Sixth 8 Amendment rights and (4) appellate counsel was ineffective, in violation of his Sixth 9 Amendment rights. (See generally, Pet., ECF No. 1.) Respondent argues claims one 10 and two are procedurally barred and not cognizable on federal habeas. (Mem. P. & A. 11 Supp. Answer, ECF No. 6-1 at 9–14.) Further, Respondent argues all four claims fail on 12 the merits. (See id.) 13 A. Claim One: Unreasonable Risk of Danger 14 In ground one, Petitioner argues the state court’s denial of his motion to recall his 15 sentence as to counts one and two under Proposition 36 (Cal. Penal Code §1170.126) 16 violated his right to Due Process under the United States Constitution. (Pet., ECF No. 1 17 at 12.) Baumer contends the trial court’s conclusion that he was not entitled to 18 resentencing on counts one and two because he posed an “unreasonable risk of danger to 19 the public” was based on insufficient evidence. (Id. at 12–29; see also Traverse, ECF 20 No. 15 at 13–17.) 21 Baumer raised this claim in his petition for writ of habeas corpus to the California 22 Supreme Court and it was denied without comment or citation. (Lodgment Nos. 13, 14, 23 ECF Nos. 7-14, 7-15.) This Court therefore looks through to the last reasoned state court 24 opinion to address the claim. See Ylst, 501 U.S. at 805–06. Here, that is the California 25 Court of Appeal’s denial of Baumer’s habeas petition. In its decision, the appellate court 26 concluded that because Baumer could have raised the claim on direct appeal, but failed to 27 do so, it was procedurally barred under In re Dixon, 41 Cal.2d 756, 759 (1953). 28 (Lodgment No. 12, ECF No. 7-13 at 3.) The court further held Baumer failed to state a 1 prima facie case on the merits of the claim, noting that the resentencing court reviewed 2 Baumer’s history and “found the violence involved in the crimes and disciplinary 3 violations Baumer committed while in prison and the manipulativeness he displayed at 4 trial and in prison made him unreasonably dangerous to public safety.” (Id. at 3.) 5 Respondent argues the claim is procedurally defaulted because the state appellate 6 court found it barred under Dixon, 41 Cal.2d at 759. (See Mem. P. & A. Supp. Answer, 7 ECF No. 6-1 at 12–14.) Under the procedural default doctrine, federal courts “will not 8 review a question of federal law decided by a state court if the decision of that court rests 9 on a state law ground that is independent of the federal question and adequate to support 10 the judgment.” Coleman v. Thompson, 501 U.S. 722729; Park v. California, 202 F.3d 11 1146, 1151 (9th Cir. 2000); see also Johnson v. Montgomery, 899 F.3d 1052, 1060 (9th 12 Cir. 2018) (recognizing that California’s Dixon bar is an adequate and independent state 13 law ground to bar federal habeas review); Cook v. Kernan, — Fed. App’x —, 2020 WL 14 354623, *1 (9th Cir. Jan. 21, 2020) (stating “California’s Dixon bar has been upheld as an 15 adequate and independent procedural ground capable of barring federal habeas review”). 16 In his Traverse, Baumer acknowledges the claim was procedurally barred in state 17 court but contends he should be excused from any possible procedural default on federal 18 habeas because he suffered cause and prejudice due to ineffective assistance of appellate 19 counsel for failure to raise the claim on direct appeal. 3 (See Traverse, ECF No. 15 at 8, 20 16.) This Court need not determine whether Petitioner can establish cause and prejudice 21 to excuse the default. The Ninth Circuit has indicated that: “Procedural bar issues are not 22
23 3 Federal courts may still review procedurally defaulted claims if the petitioner 24 meets one of two exceptions: (1) a showing of adequate legal cause for the default and 25 prejudice arising from the default, or (2) a showing of a miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750. For ineffective 26 assistance of counsel to constitute cause, the ineffective assistance claim must have been 27 presented as an independent claim to the state courts and Petitioner must establish that his attorney was “constitutionally ineffective under the standard established in Strickland v. 28 1 infrequently more complex than the merits issues presented by the appeal, so it may well 2 make sense in some instances to proceed to the merits if the result will be the same.” 3 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (citing Lambrix v. Singletary, 4 520 U.S. 518, 525 (1997) (stating that where it is easier to resolve a petitioner’s claims on 5 the merits, the interests of judicial economy counsel against deciding the often more 6 complicated issue of procedural default)). Here, the Court finds the interests of judicial 7 economy support denying the claim on the merits without determining whether Petitioner 8 can overcome the procedural default. 9 It is clear Baumer is not entitled to relief on the merits. First, to the extent that 10 Petitioner seeks to challenge the state courts’ specific determination that he was ineligible 11 for Proposition 36 resentencing on counts one and two, that claim is not cognizable 12 because it turns solely on the interpretation of state law. See Estelle v. McGuire, 502 13 U.S. 62, 67–68 (1991) (holding mere errors in the application of state law are not 14 cognizable on habeas corpus). Generally, whether a state court properly construed or 15 applied state sentencing law is a question of state law not subject to federal habeas 16 review. See Miller v. Vasquez, 868 F.2d 1116, 1118–19 (9th Cir. 1989); Cacoperdo v. 17 Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (concluding a state court’s sentence 18 determination was “matter of state criminal procedure and is not within the purview of 19 federal habeas corpus”). As such, challenges to Proposition 36 resentencing 20 determinations generally not cognizable on federal habeas. See Mueck v. Anglea, 2019 21 WL 3564013, at *2 (E.D. Cal. Aug. 6, 2019) (finding a petitioner’s claim that his due 22 process rights were violated when the resentencing court found him ineligible for 23 Proposition 36 resentencing because he was an “unreasonable risk of danger to public 24 safety” was not cognizable); Cowan v. Gastelo, 2018 WL 4185423, *5 (S.D. Cal. Aug. 25 13, 2018) (“[T]o the extent that Petitioner seeks to challenge the state courts’ specific 26 determination that he was ineligible for resentencing under Proposition 36, that claim is 27 not cognizable in this case because it turns solely on the interpretation of state law.”); 28 / / / 1 Foster v. California, 2018 U.S. Dist. LEXIS 74653, at *8 (C.D. Cal. May 2, 2018) (“A 2 claim premised on either Proposition 36 or Proposition 47 is not cognizable on federal 3 habeas review.”). 4 And Baumer may not, as he attempts to do here, convert a state law claim into a 5 federal one simply by characterizing his claims as federal constitutional violations. See 6 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“[The petitioner] may not . . . 7 transform a state-law issue into a federal one merely by asserting a violation of due 8 process”); see also Adams v. Borders, 2016 WL 4523163, at *8 (C.D. Cal. July 29, 2016) 9 (“The fact that Petitioner may be attempting to characterize his claim concerning 10 resentencing under Proposition 47 as a federal constitutional claim is not sufficient to 11 render it cognizable.”) (internal citation omitted). Furthermore, even if such a claim were 12 cognizable on federal habeas, the Court would be bound by the state court’s 13 determination that Petitioner was ineligible for resentencing under California law. See 14 Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation of state law, 15 including one announced on direct appeal of the challenged conviction, binds a federal 16 court sitting in habeas corpus.”). 17 In his Petition, Baumer argues his due process rights were violated because 18 Proposition 36 created a “liberty interest in resentencing.” (See Pet., ECF No. 1 at 14.) 19 The Supreme Court has held that state law may guarantee a defendant certain procedural 20 rights at sentencing which may not be arbitrarily denied under due process. See Hicks v. 21 Oklahoma, 447 U.S. 343, 346 (1980) (defendant may not be arbitrarily denied state- 22 created liberty interest in sentencing procedure); Swarthout v. Cooke, 562 U.S. 216, 220 23 (2011); see also Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). However, Baumer 24 fails to show that a liberty interest was created by Proposition 36. The California 25 Supreme Court has expressly held that Proposition 36, by its terms, “does not create an 26 entitlement to resentencing.” People v. Perez, 4 Cal. 5th 1055, 1064 (Cal. 2018) (“the 27 / / / 28 / / / 1 finding of a fact that renders a petitioner ineligible for resentencing deprives him or her 2 of an opportunity to have the trial court make a discretionary determination as to whether 3 he or she should be resentenced”). 4 Lastly, Baumer has failed to show the state court’s denial of resentencing was “so 5 arbitrary or capricious as to constitute an independent due process . . . violation.” See 6 Richmond v. Lewis, 506 U.S. at 50 (holding that a state court’s application of state law 7 does not rise to the level of a federal due process violation unless it was so arbitrary or 8 capricious as to constitute an independent due process violation). Proposition 36 9 authorizes an inmate currently serving an indeterminate term under the original Three 10 Strikes law to petition the trial court for resentencing in light of the narrowed class of 11 third-strike felonies for which an indeterminate sentence can be imposed. Cal. Penal 12 Code § 1170.126(a), (b). “Upon receiving such a petition, the trial court ‘shall determine 13 whether the petitioner satisfies the criteria’ for resentencing eligibility” under the revised 14 Three Strikes law.” Perez, 4 Cal. 5th at 1062 (citing Cal. Penal Code § 1170.126(e), (f)). 15 Then, “[i]f the petitioner is found eligible for resentencing, he or she ‘shall be 16 resentenced pursuant to Proposition 36 unless the court, in its discretion, determines that 17 resentencing the petitioner would pose an unreasonable risk of danger to public safety.’” 18 Id. (citing Cal. Penal Code § 1170.126(f)). Section 1170.126(g) then provides factors the 19 court may consider in determining whether resentencing would pose an unreasonable risk 20 of danger to public safety. It identifies: (1) consideration of a “petitioners criminal 21 conviction history, including the types of crimes committed, the extent of injury to 22 victims, the length of prior prison commitments, and the remoteness of the crimes;” (2) 23 the petitioner’s disciplinary and rehabilitation records while in custody; and (3) any other 24 evidence relevant to determining “whether a new sentence would result in an 25 unreasonable risk of danger to public safety.” Cal. Penal Code § 1170.126(g)(1)–(3). 26 Here, the court reviewed Baumer’s criminal history, his prison disciplinary records 27 and evidence of his progress while incarcerated and concluded: 28 [F]aced with all of the information I have now, both the good as well 1 aesm tphhea psirsio orn h pisutobrliyc, sI abfeeltiye vbee chaeu’sse a In d uonnr’eta tshoinnakb hlee rwisoku tlod pmuabilnitca sina fheitsy . The 2 behavior on the outside because I saw what he was doing before and the 3 reason why he would do it again. [¶] He’s manipulative. . . . So the bottom line is at this particular stage I believe he’s still currently a danger. 4
5 (Supp. Lodgment, ECF No. 13-1 at 27–28.) Thus, the court reviewed Baumer’s history 6 and relevant facts, as required under section 1170.126(g). Petitioner’s criminal and 7 prison history was extensive, despite being somewhat remote in time. As the 8 prosecution noted, Baumer had at least 20 disciplinary write-ups between 1998 and 9 2011, including 13 “serious rules violations,” also known as “CDC 115” violations.4 10 (See Supp. Lodgment, ECF No. 13-1 at 14–16; see also Lodgment No. 1, ECF No. 7-1 11 at 112–13, 150–84.) In light of this history, it was not arbitrary or capricious for the 12 trial court to find Petitioner posed an unreasonable risk of danger to public safety. See 13 Richmond, 506 U.S. at 50. Nor was the state court’s determination based on an 14 unreasonable determination of the facts in light of the state court record. See Miller-El 15 v. Cockrell, 537 U.S. 322, 340 (2003) (holding a petitioner may only establish a 16 decision was based on an unreasonable determination of the facts after rebutting the 17 presumption of correctness by clear and convincing evidence). 18 In sum, the Court concludes Baumer has failed to state a cognizable claim on 19 federal habeas. Estelle, 502 U.S. at 67–68. In addition, the state court’s denial of 20 Baumer’s petition for sentence modification under Proposition 36 was neither contrary 21 to, nor an unreasonable application of, clearly established law. See 28 U.S.C. 22 / / / 23 / / / 24 25
26 4 A “CDC 115” refers to a California Department of Corrections and Rehabilitation rules 27 violation report that documents misconduct that is believed to be a violation of law or is not minor in nature. See In re Roderick 154 Cal. App. 4th 242, 249, fn. 3 (Cal. Ct. App. 28 1 § 2254(d)(1); Williams, 529 U.S. at 407–08. Nor was the state court’s denial of the 2 claim based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2); 3 Miller-El, 537 U.S. at 340. Claim one is therefore DENIED. 4 B. Claim Two: Deadly Weapon 5 In his second claim, Baumer argues the trial court erred in concluding he was 6 ineligible for resentencing on counts three and four, amounting to a due process violation. 7 Specifically, he contends the court erroneously found he was ineligible for resentencing 8 on counts three and four because he was armed with a deadly weapon during the 9 commission of those crimes. (Pet., ECF No. 1 at 30–33; see also Traverse, ECF No. 15 10 at 17–19.) Petitioner raised this claim in his habeas corpus petition filed in the 11 California Supreme Court. (Lodgment No. 13, ECF No. 7-14 at 33–36.) The petition 12 was denied without comment or citation. (See Lodgment No. 14, ECF No. 7-15.) As 13 such, this Court “looks through” that silent denial to the decision of the appellate court 14 denying Baumer’s petition for writ of habeas corpus. See Ylst, 501 U.S. at 805–06. 15 The appellate court found the claim was procedurally barred as untimely and for 16 failure to raise the claim on direct appeal. (Lodgment No. 12, CF No. 7-13 at 2–3.) The 17 court further concluded the claim was without merit, stating that by pleading guilty to the 18 manufacture and possession of the weapon while in prison, “Baumer obviously was 19 present with the weapon and had it available for the use both when he manufactured it 20 and when he possessed it, his no contest plea established beyond a reasonable doubt that 21 he was armed at those times and therefore was ineligible for resentencing under 22 Proposition 36.” (Id. at 5.) 23 Respondent argues the claim is procedurally defaulted. (See Mem. P. & A. Supp. 24 Answer, ECF No. 6-1 at 12–15.) As with ground one, Baumer contends any procedural 25 default should be excused because counsel was ineffective in failing to raise the claim in 26 state court. (See Traverse, ECF No. 15 at 8, 16.) As discussed above, however, this 27 Court need not decide the procedural default issue because the claim clearly fails on the 28 merits. See Lambrix, 520 U.S. at 525 (stating that where it is easier to resolve a 1 petitioner’s claims on the merits, the interests of judicial economy counsel against 2 deciding the often more complicated issue of procedural default). 3 Baumer’s challenge to the state courts’ determination that he was ineligible for re- 4 sentencing fails for the same reason as ground one—it involves only an alleged error in 5 the application of state law, specifically, an alleged misapplication of California Penal 6 Code section 1170.126. As discussed above, matters relating to state sentencing law 7 generally are not cognizable on federal habeas review. Estelle, 502 U.S. at 67–68 (“[I]t is 8 not the province of a federal habeas court to reexamine state-court decisions on state-law 9 grounds.”); Miller, 868 F.2d at 1118–19; Souch v. Schaivo, 289 F.3d 616, 622–23 (9th 10 Cir. 2002) (state prisoner’s challenge to trial court’s exercise of discretion under state 11 sentencing law fails to state federal habeas claim); see also, e.g., Jones v. Superior Court, 12 2016 WL 7638205, at *2 (C.D. Cal. Nov. 17, 2016) (petitioner’s contention that he was 13 entitled to resentencing under Proposition 36 was not cognizable as it challenged only a 14 state sentencing issue); Williams v. Valenzuela, 2018 WL 2059644, at *5 (C.D. Cal. Mar. 15 23, 2018). 16 Furthermore, even assuming the claim is cognizable, Baumer has failed to establish 17 the state court’s purported misapplication of the resentencing law was “so arbitrary or 18 capricious as to constitute an independent due process” violation. See Richmond, 506 19 U.S. at 50. Under Proposition 36, an already sentenced inmate whose third strike was a 20 nonserious, nonviolent felony and who otherwise satisfies the criteria for resentencing is 21 nonetheless ineligible for resentencing if his current sentence was imposed for an offense 22 during which he “was armed with a firearm or deadly weapon.” Perez, 4 Cal. 5th at 1062 23 (citing Cal. Penal Code §§ 1170.12(c)(2)(C)(iii) and 1170.126(e)(2)). Here, the state 24 court concluded that under California law, Baumer was not entitled to resentencing on 25 counts three (possession of a weapon of sharp instrument while confined in a penal 26 institution) and count four (manufacturing a weapon while confined in a penal institution) 27 because he was armed with a deadly weapon at the time. (Supp. Lodgment, ECF No. 13- 28 1 at 12–13.) This Court is bound by the state courts’ interpretation of California law. 1 See Bradshaw, 546 U.S. at 76 (stating that “a state court’s interpretation of state law, 2 including one announced on direct appeal of the challenged conviction, binds a federal 3 court sitting in habeas corpus”). Because Petitioner was ineligible to be resentenced 4 under Proposition 36, he has failed to show any error, let alone demonstrate that the state 5 court’s determination was “so arbitrary or capricious” as to violate due process. See 6 Richmond, 506 U.S. at 50; see also Perez v. Asuncion, 2017 WL 8160292, at *4–5 (C.D. 7 Cal. Nov. 17, 2017) (finding petitioner ineligible for resentencing under Proposition 36 8 based on finding that he was armed during his commission the offenses was not arbitrary 9 and capricious); Williams v. Valenzuela, 2018 WL 22059644, at *6 (C.D. Cal. Mar. 23, 10 2018); Jordan v. Rackley, 2017 WL 1652597, at *2 (C.D. Cal. Feb. 10, 2017). 11 Baumer appears to also argue that the state court’s decision was based on an 12 unreasonable determination of the facts in light of the state court record. At the 13 preliminary hearing on counts three and four, a correctional officer testified that he saw 14 Baumer manufacturing a weapon in his cell. He was seen heating plastic item, molding it 15 and scraping it on the floor before it cooled and hardened to a point so that it could be 16 used as a weapon. (Lodgment No. 1, ECF No. 7-1 at 127–29, 131–32.) The weapon 17 nearly 6 inches long was found in Baumer’s cell, which he occupied alone. (Id. at 133.) 18 The correctional officer testified that he considered the item to be a “deadly weapon.” 19 (Id. at 134.) Based on this testimony alone, the court’s determination that Baumer was 20 in possession of a deadly weapon at the time he committed counts three and four was not 21 based on an unreasonable determination of the facts, in light of the state court record. See 22 Miller-El, 537 U.S. at 340; see also Parke, 506 U.S. at 35–36 (holding findings of 23 historical fact, including inferences properly drawn from those facts, are entitled to 24 presumption of correctness). 25 Therefore, for the reasons discussed above, Baumer is not entitled to relief on 26 ground two because he has failed to state a cognizable claim on federal habeas. 27 Furthermore, even assuming he alleges a due process violation, the state court’s denial of 28 Alexandre’s due process claim was neither contrary to, nor an unreasonable application 1 of, clearly established law. See Williams, 529 U.S. at 412–13. Likewise, the decision 2 did not involve an “unreasonable determination of the facts in light of the evidence 3 presented in the state court proceedings.” See Miller-El, 537 U.S. at 340. Ground two is 4 therefore DENIED 5 C. Claims Three and Four: Ineffective Assistance of Counsel 6 In his third and fourth grounds for relief, Petitioner argues he received ineffective 7 assistance from his resentencing hearing counsel and his appellate counsel, respectively. 8 (Pet., ECF No. 1 at 33–39.) He argues that counsel at resentencing and on appeal both 9 failed to raise or adequately argue the above two claims. (Id.) He also argues appellate 10 counsel was ineffective in failing to raise a claim of ineffective assistance of resentencing 11 counsel on appeal. (See id.) Respondent argues both claims are without merit because 12 the state court’s denial was neither contrary to, nor an unreasonable application of, 13 clearly established law. (Mem. P. & A. Supp. Answer, ECF No. 6-1 at 15–19.) 14 1. State Court Decision 15 Baumer raised his claims of ineffective assistance of trial and appellate counsel in 16 his petition for writ of habeas corpus to the California Supreme Court. (Lodgment No. 17 13, ECF No. 7-14 at 37–45.) The court denied the petition without comment or citation. 18 (Lodgment No. 14, ECF No. 7-15.) Therefore, this Court looks through to the last 19 reasoned decision from the state courts, in this case that is the California Court of 20 Appeal’s denial of Baumer’s habeas petition. See Ylst, 501 U.S. at 805–06. In denying 21 relief, the appellate court rejected both of Petitioner’s claims, discussing them together as 22 follows: 23 Baumer’s claims of ineffective assistance of counsel fail to state a prima facie case. To state a claim against trial counsel, Baumer must 24 identify an act or omission of counsel that was not the result of reasonable 25 professional judgment and must show a reasonable probability that, but for that act or omission, the result of the resentencing hearing would have been 26 different. (Strickland v. Washington (1984) 466 U.S. 668, 690, 694 27 (Strickland); accord, People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To state a claim against appellate counsel, Baumer must identify “Crucial 28 1 awshsiigchn mcoeunntss eolf ienrerxocru, swahbilcyh f aairlgeuda tbol ya smseigrth. t (hIanv ree r Sesmuiltthe d(1 i9n7 a0 r)e 3v eCrasal.l3”d a nd 2 192, 202.) 3 Trial counsel did not unreasonably and prejudicially fail to challenge 4 the evidence regarding the risk of danger resentencing Baumer would pose 5 to public safety. His current dangerousness was the primary issue in dispute at the hearing on the Proposition 36 petition for resentencing. Counsel 6 argued that Baumer would not pose an unreasonable risk to public safety 7 because he had stayed out of trouble since 2002 and had maintained good behavior after his transfer out of administrative segregation. In response to 8 counsel’s argument, the trial court acknowledged that Baumer had improved 9 himself considerably while in prison, but nevertheless found the violence involved in the crimes and disciplinary violations Baumer committed while 10 in prison and the manipulativeness he displayed at trial and in prison made 11 resentencing him unreasonably dangerous to public safety. Given the trial court’s stated concerns, although trial counsel could have bolstered her 12 argument that resentencing Baumer was not unreasonably dangerous had she 13 discovered and cited the CSRA that reduced his rated risk of recidivism from moderate to low, her failure to do so does not “undermine confidence 14 in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) Nor was appellate 15 counsel ineffective for failing to mount a challenge to the sufficiency of the evidence to support the trial court’s determination. A court’s discretionary 16 determination of dangerousness on a Proposition 36 resentencing petition 17 will be upheld if it is supported by substantial evidence. (People v. Frierson (2017) 4 Cal. 5th 225, 239.) The trial court considered the relevant facts, 18 including Baumer’s criminal history, his disciplinary record and 19 rehabilitative accomplishments in prison, and his manipulative behavior at trial and in prison. (Pen. Code, § 117.126, subd. (g).) Its conclusion from 20 those facts that resentencing Baumer would pose an unreasonable risk of 21 danger to public safety was not “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 22 377.) Since a sufficiency of evidence challenge to the trial court’s 23 dangerousness determination had no “reasonable potential for success,” appellate counsel did not perform deficiently by failing to make the 24 challenge. 25 Finally, any argument by either trial our appellate counsel that 26 Baumer was not ineligible for resentencing on the weapon manufacture and 27 possession convictions, because the evidence did not establish beyond a reasonable doubt that he was armed with a deadly weapon when he 28 1 cpoetmitmiointteerd’s t hinoesleig cirbiimliteys ,f owro ruelsde nhtaevnec ibnege nu nfudteirl eP. r oTphoes Piteioonp l3e6 m buesyto pnrdo va e a 2 reasonable doubt. (People v. Frierson, supra, 4 Cal.5th at p. 230) “[A] 3 person is armed with a weapon for purposes of the Proposition 36 exception if the evidence from the record of conviction establishes that he or she was 4 present with the weapon and had it available for use at any time he or she 5 had actual or constructive possession of it within the time period for which the defendant was charged and convicted” (People v. Valdez (2017) 10 6 Cal.App.5th 1338, 1342.) By pleading no contest to the weapon-related 7 charges, Baumer effectively pleaded guilty (Pen. Code, § 1016) and admitted he manufactured and possessed the weapon while in prison (id., § 8 4502, subds. (a), (b); People v. West (1970) 3 Cal.3d 595, 612). By the plea, 9 Baumer also conceded the People could prove beyond a reasonable doubt that he manufactured and possessed the weapon while in prison. (People v. 10 Turner (1985) 171 Cal.App.3d 116, 125.) Since Baumer obviously was 11 present with the weapon and had it available for use both when he manufactured it and when he possessed it, his no contest plea established 12 beyond a reasonable doubt that he was armed at those times and therefore 13 was ineligible for resentencing under Proposition 36. (Valdez, at p. 1342.) Hence, neither trial nor appellate counsel was ineffective for failing to argue 14 ineligibility had not been established beyond a reasonable doubt. (People v. 15 McPeters (1992) 2 Cal.4th 1148, 1173 [“Defense counsel is not required to advance unmeritorious arguments on the defendant’s behalf.”]; Redante v. 16 Yockelson (2003) 112 Cal.App.4th 1351, 1356 [“appellate counsel is no 17 responsible for filing an actual frivolous appeal no is he required to contrive arguable issues”].) 18
19 (Lodgment No. 12, ECF No. 7-13 at 4–5 (emphasis in original).) 20 2. Clearly Established Law 21 Clearly established law for ineffective assistance of trial counsel and appellate 22 counsel comes from the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 23 668 (1984). To establish ineffective assistance of counsel, a petitioner must first show 24 his attorney’s representation fell below an objective standard of reasonableness. Id. at 25 688. “This requires showing that counsel made errors so serious that counsel was not 26 functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 27 687. Petitioner must also show he was prejudiced by counsel’s errors. Id. at 694. 28 Prejudice can be demonstrated by a showing that “there is a reasonable probability that, 1 but for counsel’s unprofessional errors, the result of the proceeding would have been 2 different. A reasonable probability is a probability sufficient to undermine confidence in 3 the outcome.” Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993). “The 4 likelihood of a different result must be substantial, not just conceivable.” Richter, 562 5 U.S. at 112 (citing Strickland, 466 U.S. at 693). 6 The Court need not address both the deficiency prong and the prejudice prong if 7 the defendant fails to make a sufficient showing of either one. Id. at 697. There is a 8 “strong presumption that counsel’s conduct falls within a wide range of reasonable 9 professional assistance.” Id. at 686–87. “Surmounting Strickland’s high bar is never an 10 easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Representation is 11 constitutionally ineffective only if it ‘so undermined the proper functioning of the 12 adversarial process’ that the defendant was denied a fair trial.” Strickland, 466 U.S. at 13 687. 14 It is clearly established that standard for evaluating claims of ineffective assistance 15 of appellate counsel is the same as enunciated in Strickland. Smith v. Robbins, 528 U.S. 16 259, 285 (2000) (citing Smith v. Murray, 477 U.S. 527, 535–36 (1986)). Specifically, a 17 petitioner must show appellate counsel “unreasonably failed to discover nonfrivolous 18 issues and to file a merits brief raising them.” Smith, 528 U.S. at 285. To establish 19 prejudice, Petitioner must demonstrate that she would have prevailed on appeal absent 20 appellate counsel’s errors. Smith, 528 U.S. at 285. 21 The Ninth Circuit has observed that: 22 [Strickland’s] two prongs partially overlap when evaluating the performance of appellate counsel. In many instances, appellate counsel will 23 fail to raise an issue because she foresees little or no likelihood of success on 24 that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. . . . Appellate counsel 25 will therefore frequently remain above an objective standard of competence 26 (prong one) and have caused her client no prejudice (prong two) for the same reason – because she declined to raise a weak issue. 27
28 Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). An indigent defendant “does not 1 have a constitutional right to compel appointed counsel to press nonfrivolous points 2 requested by the client, if counsel, as a matter of professional judgment, decides not to 3 present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983). 4 Under the standards of both 28 U.S.C. § 2254(d) and Strickland, judicial review is 5 “highly deferential and when the two apply in tandem, review is doubly so.” Richter, 562 6 U.S. at 105 (internal quotation marks and citations omitted). As a result, “the question 7 [under § 2254(d)] is not whether counsel’s actions were reasonable. The question is 8 whether there is any reasonable argument that counsel satisfied Strickland’s deferential 9 standard.” Id. The Strickland prejudice analysis is complete in itself and there is no need 10 for an additional harmless error review under Brecht, 507 U.S. at 637. See Musladin v. 11 Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (“[W]here a habeas petition governed by 12 AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 13 U.S. 668 (1984), we apply Strickland’s prejudice standard and do not engage in a 14 separate analysis applying the Brecht standard.”); Avila v. Galaza, 297 F.3d 911, 918 n.7 15 (9th Cir. 2002). 16 3. Ineffective Assistance of Counsel at Resentencing (Claim Three) 17 Petitioner argues defense counsel at his resentencing hearing was ineffective as to 18 counts one and two because she failed to present evidence of his low risk to public safety. 19 (See Pet., ECF No. 1 at 33–37.) He further contends counsel failed to argue he was 20 eligible for resentencing on counts three and four because the weapon he possessed as to 21 those counts was not “a per se deadly weapon.” (Id. at 35.) As noted above, the state 22 appellate court denied the claims, concluding Baumer failed to establish prejudice under 23 Strickland. (See Lodgment No. 12, ECF No. 7-13 at 4.) 24 The state court’s denial of the claim was neither contrary to, nor an unreasonable 25 application of clearly established law. First, defense counsel argued at length that 26 Baumer qualified for resentencing on counts one and two. She asserted that, while 27 Baumer did have numerous disciplinary violations while incarcerated, in recent years he 28 had been an exemplary prisoner. Counsel specifically argued that Baumer did not present 1 an “unreasonable risk of danger to the public.” (See Supp. Lodgment, ECF No. 13-1 at 2 16–24.) She pointed to his good behavior in prison in recent years, along with his 3 success in educational programs he participated in while incarcerated. (Id. at 18–21.) 4 Baumer argues that counsel was ineffective because she failed to present the trial 5 court with a 2015 “Classification Committee Chrono” indicating his “California Static 6 Risk Assessment” score was low. (See Pet., ECF No. 1, Ex. R at 173.) As the state 7 appellate court found, however, even assuming arguendo that Baumer could meet 8 Strickland’s “highly deferential” standard and establish counsel’s failure to present the 9 report was unreasonable, Baumer cannot establish prejudice. See Richter, 562 U.S. at 10 105. The trial court reviewed Baumer’s extensive history, including reports showing his 11 improved behavior in prison, and nonetheless found the violence involved in his 12 commitment crimes, the numerous disciplinary violations Baumer previously committed 13 and his manipulativeness in prison made resentencing him unreasonably dangerous to 14 public safety. (See Supp. Lodgment, ECF No. 13-1 at 26–29.) Given the trial court’s 15 stated reasons for denying resentencing, the appellate court’s conclusion that counsel’s 16 failure to present the report did not “undermine confidence in the outcome” was not 17 objectively unreasonable. Strickland, 466 U.S. at 694. 18 Likewise, Baumer has failed to show ineffective assistance of counsel as to 19 resentencing on counts three and four. As the state court noted, defense counsel argued 20 at the hearing that Baumer was eligible for resentencing on those counts despite his 21 alleged possession of a deadly weapon, but acknowledged that under current California 22 law, her argument was futile. (See Supp. Lodgment, ECF No. 13-1 at 10–11.) Further, 23 as the appellate court concluded, Baumer was categorically ineligible for resentencing on 24 counts three and four because he possessed a deadly weapon at the time. See Perez, 4 25 Cal. 5th at 1062 (citing Cal. Penal Code §§ 1170.12(c)(2)(C)(iii) and 1170.126(e)(2)). 26 Because any additional argument by defense counsel would have been futile, her 27 performance was neither unreasonable or prejudicial. See Strickland, 466 U.S. at 687, 28 see also James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994). 1 Therefore, the state court’s denial of Baumer’s claims of ineffective assistance of 2 trial counsel was neither contrary to, nor an unreasonable application of, clearly 3 established law. See Williams, 423 U.S. at 412–13. In addition, the state court’s 4 adjudication did not involve an “unreasonable determination of the facts in light of the 5 evidence presented in the state court proceedings,” because Petitioner has not 6 demonstrated that the state court’s factual findings were objectively unreasonable. See 7 Miller-El, 537 U.S. at 340. Petitioner’s claims of ineffective assistance of counsel at his 8 resentencing hearing are therefore DENIED. 9 4. Ineffective Assistance of Counsel on Appeal (Claim Four) 10 Finally, Baumer argues appellate counsel was ineffective for failing to adequately 11 argue on appeal that he was entitled to resentencing one counts one and two because he 12 was a low risk of danger to the public, he was not ineligible for resentencing on counts 13 three and four, and that counsel at his resentencing was ineffective. (See Pet., ECF No. 1 14 at 38–39.) As discussed above in sections V(A)–(B), Petitioner’s claims he was entitled 15 to resentencing on any count are without merit. Appellate counsel’s declination to argue 16 meritless issues on appeal does not amount to ineffective assistance of appellate counsel. 17 See Miller, 882 F.3d at 1434. Further, as the Court has explained in section V(C)(3) of 18 this Order, Petitioner has not demonstrated that he received ineffective assistance from 19 trial counsel. For that reason, Petitioner cannot show that he was prejudiced by appellate 20 counsel’s failure to present claims of ineffective assistance of trial counsel on appeal. 21 See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001). Therefore, the state court’s 22 denial of Petitioner’s claims of ineffective assistance of appellate counsel was neither 23 contrary to, nor an unreasonable application of, clearly established law. See Williams, 24 423 U.S. at 412–13. Nor was it based on an “unreasonable determination of the facts in 25 light of the evidence presented in the state court proceedings.” See Miller-El, 537 U.S. at 26 340. Claim four is therefore DENIED. 27 / / / 28 / / / 1 || VI. CERTIFICATE OF APPEALABILITY 2 Under AEDPA, a state prisoner seeking to appeal a district court’s denial of a 3 || habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). 4 || The district court may issue a certificate of appealability if the petitioner has made a 5 || substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To 6 || satisfy this standard, a petitioner must show that “reasonable jurists would find the 7 || district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 8 || McDaniel, 529 U.S. 473, 484 (2000). 9 The federal rules governing habeas cases brought by state prisoners require a 10 || district court that issues an order denying a habeas petition to either grant or deny a 11 || certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a). The Ninth 12 || Circuit has noted that the standard for granting a certificate of appealability is “relatively 13 low.” Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). A petitioner “need 14 || not show that he should prevail on the merits,” Lambright v. Stewart, 220 F.3d 1022, 15 |} 1025 (9th Cir. 2000), but may be entitled to a certificate when the “questions are 16 adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 17 || 880, 893 n. 4 (1983) (superseded on other grounds by 28 U.S.C. § 2253(c)(2)). Here, 18 || Baumer has failed to make “a substantial showing of the denial of a constitutional right,” 19 || and reasonable jurists would not find debatable this Court’s assessment of his claims. 20 || See Slack, 529 U.S. at 484. Accordingly, a certificate of appealability DENIED. 21 || CONCLUSION 22 Based on the foregoing, the Court DENIES the petition for writ of habeas corpus 23 ||and DENIES a certificate of appealability. 24 || IT IS SO ORDERED. 25 Dated: March 16, 2020 i 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28