1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 KENYATTA Q. MITCHELL, Case No.: 24-cv-01080-AJB-BJC

14 Petitioner, ORDER DENYING PETITION FOR 15 v. WRIT OF HABEAS CORPUS AND 16 C. PFIEFFER, Warden, et al., DENYING A CERTIFICATE OF Respondents. APPEALABILITY 17 18 19 Presently before the Court is a Petition for a Writ of Habeas Corpus pursuant to 28

by Kenyatta Q. Mitchell, a state prisoner proceeding pro se and in forma 21 pauperis. (Doc. No. 1.) Respondent filed an Answer and lodged the state court record. 22 (Doc. Nos. 14–15.) Petitioner filed a Traverse with a supporting brief.1 (Doc. Nos. 18– 23 19.) 24 /// 25 /// 26

27 1 Although this case was referred to the assigned United States Magistrate Judge pursuant to 28

(b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral 1 I. Background 2 On December 14, 2016, a San Diego County Superior Court jury found Petitioner 3 guilty of second-degree robbery. (Lodgment No. 1 at 104–07, Doc. No. 15-1.) Petitioner 4 admitted he had a prior serious felony conviction which constituted a strike and two prison 5 priors. (Id.) On January 13, 2017, he was sentenced to the upper term of five years on the 6 robbery conviction, doubled as a result of the prior serious felony, plus a five-year 7 enhancement for the prior serious felony, plus a one-year enhancement for each of the two 8 prison priors, for a total sentence of 17 years. (Id. at 106–07.) The conviction and sentence 9 were upheld on appeal. (Lodgment No. 12 at 1, Doc. No. 15-13.) 10 On February 4, 2019, the trial court denied Petitioner’s motion to strike the prior 11 conviction and resentence him pursuant to SB 1393, which took effect on January 1, 2019, 12 because that provision did not apply retroactively to his sentence which had become final 13 before SB 1393 took effect. (Lodgment No. 1 at 109, Doc. No. 15-1.) On March 22, 2022, 14 pursuant to a stipulation by the parties, the enhancements on the two one-year prison priors 15 were invalidated pursuant to California Penal Code § 1171.1, and the sentence was 16 corrected to 15 years. (Lodgment No. 1 at 110–11.) 17 Plaintiff filed numerous motions and petitions in state court requesting release from 18 custody, arguing that the five-year enhancement on the prior serious felony conviction 19 should be dismissed and the mid-term be imposed on the robbery conviction pursuant to 20 California Penal Code § 1171.1, and that the public defender who entered the stipulation 21 on his behalf falsely claimed he attempted but failed to contact Petitioner before stipulating. 22 (Id. at 44–72.) The trial court held a hearing on September 30, 2022, at which Petitioner’s 23 request to represent himself was granted, and the court imposed the same 15-year sentence. 24 (Id. at 98–100, 114.) The trial court noted Petitioner’s objection that he had not been a 25 party to the stipulation and treated it as a nullity. (Lodgment No. 2 at 23, Doc. No. 15-3.) 26 Petitioner appealed, raising claims not presented here. (Lodgment Nos. 5–7, Doc. 27 Nos. 15-6, 15-7, 15-8.) On March 12, 2024, the appellate court affirmed, and described 28 the resentencing hearing as follows: 1 In September 2022, the trial court (with a different judge presiding) held a hearing to resentence Mitchell in accordance with section 1172.75. The 2 parties had agreed Mitchell was entitled to have both of his one-year prison 3 prior enhancements stricken. They disagreed, however, on other aspects of Mitchell’s resentencing. 4 Relying on People v. Superior Court (Romero) (1996)

5 and section 1385, among other authorities, Mitchell urged the trial court to dismiss his prior strike conviction and prior serious felony enhancement and 6 to impose a middle-term sentence. The prosecution opposed further reduction 7 of Mitchell’s sentence on the ground his numerous offenses and poor performance in prison showed he was a danger to public safety. The trial 8 court denied Mitchell’s Romero motion to dismiss the prior strike after 9 concluding the seriousness of his criminal history and the recency of the strike conviction brought him squarely within the spirit of the Three Strikes law. It 10 elected to impose the serious felony enhancement based in part on its finding 11 that Mitchell had continued to engage in violent conduct while in prison such that public safety would be endangered by dismissal of the enhancement. 12 Finally, the trial court elected to impose the upper term, stating: “The (c)ourt 13 is choosing the upper term based upon the prior convictions that were admitted by the defendant in his original trial, and thus proven beyond a reasonable 14 doubt; and is relying on (California Rules of Court, rule) 4.421(b)(2) and 15 (b)(3) to choose the upper term.” After making its sentencing decision, the court “also note(d) pursuant to (section) 1172.75, the upper term was 16 originally chosen.” 17 The court thus resentenced Mitchell to a total prison term of 15 years, 18 consisting of the upper term of five years for the robbery, doubled to 10 years 19 for the strike prior, plus a consecutive five-year term for the prior serious felony. 20

21 (Lodgment No. 8 at 3–4, Doc. No. 15-9.) 22 The appellate court rejected Petitioner’s contentions that his equal protection rights 23 were violated by provisions of California Penal Code § 1171.1, later renumbered California 24 Penal Code § 1172.75(d)(3) and (d)(4), which permitted the court to impose the upper term 25 on the robbery conviction based on post-conviction factors without a requirement they be 26 proven beyond a reasonable doubt or stipulated to by the defendant, finding his sentence 27 was not affected by that alleged disparity because he had admitted the priors at trial and 28 the resentencing court did not rely on post-conviction factors to impose the upper term, 1 merely to find that dismissal of the strike was not appropriate. (Id. at 7–10.) The appellate 2 court rejected his other equal protection argument of disparate treatment arising from a 3 provision that when an upper term is imposed at trial the resentencing court can only apply 4 a sentence longer than the middle term if there are circumstances in aggravation found at 5 trial beyond a reasonable doubt or stipulated to by the defendant, finding Petitioner waived 6 that argument by failing to raise it in the trial court and that it failed on the merits for lack 7 of prejudice because the resentencing court did not rely on the fact that the upper term was 8 previously imposed. (Id.) Petitioner filed habeas petitions in the trial and appellate courts 9 while his appeal was pending, which were denied without prejudice to the consideration of 10 the claims in the appeal. (Lodgment Nos. 11–16, Doc. Nos. 15-12, 15-13, 15-14, 15-16, 11 15-17.) The state supreme court summarily denied review on May 15, 2024. (Lodgment 12 No. 10, Doc. No. 15-11.) 13 On March 29, 2024, Petitioner filed a habeas petition in the state supreme court 14 raising claims 1-3 presented here, which was summarily denied. (Lodgment Nos. 17–18, 15 Doc. Nos. 12-18, 12-19.) Claim four was raised in an appellate court habeas petition but 16 not in the state supreme court. (Lodgment No. 15 at 8, Doc. No. 15-16; Lodgment No. 16 17 at 2, Doc. No. 15-17.) 18 II. Petitioner’s Claims 19 (1) Petitioner’s Sixth Amendment Confrontation Clause right to be present was 20 violated because he was not a party to the stipulation which he did not receive until after 21 resentencing, rendering the resentencing hearing a sham because the same sentence was 22 imposed with consideration of unadmitted prior convictions. (Doc. No. 1 at 6.) 23 (2) Petitioner’s Fourteenth Amendment right to equal protection was violated by his 24 failure to be a party to the stipulation. (Id. at 7.) 25 (3) Petitioner’s Fourteenth Amendment right to equal protection was violated by the 26 refusal of the appellate court to consider his objections that he was not a party to the 27 stipulation and to the use of unadmitted priors at resentencing. (Id. at 8.) 28 /// 1 (4) Petitioner’s Sixth Amendment right to the effective assistance of counsel was 2 denied by trial counsel’s failure to include him in the stipulation and allowing consideration 3 of unadmitted priors at resentencing, and by appellate counsel’s failure to raise those issues 4 on appeal. (Id. at 9.) 5 III. Discussion 6 A. Standard of Review 7 In order to obtain federal habeas relief with respect to a claim which was adjudicated 8 on the merits in state court, a federal habeas petitioner must first demonstrate that the state 9 court adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved 10 an unreasonable application of, clearly established Federal law, as determined by the 11 Supreme Court of the United States; or (2) resulted in a decision that was based on an 12 unreasonable determination of the facts in light of the evidence presented in the State court 13 proceeding.”

(d). 14 A state court’s decision may be “contrary to” clearly established law (1) “if the state 15 court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” 16 or (2) “if the state court confronts a set of facts that are materially indistinguishable from a 17 decision of [the Supreme] Court and nevertheless arrives at a result different from our 18 precedent.” Williams v. Taylor,

(2000). An “unreasonable 19 application” of clearly established federal law occurs “if the state court identifies the 20 correct governing legal rule from this Court’s cases but unreasonably applies it to the facts 21 of the particular state prisoner’s case,” or “either unreasonably extends a legal principle 22 from our precedent to a new context where it should not apply or unreasonably refuses to 23 extend that principle to a new context where it should apply.”

. 24 Clearly established law “refers to the holdings, as opposed to the dicta, of [Supreme 25 Court] decisions as of the time of the relevant state-court decision.”

. “Factual 26 determinations by state courts are presumed correct absent clear and convincing evidence 27 to the contrary, and a decision adjudicated on the merits in a state court and based on a 28 factual determination will not be overturned on factual grounds unless objectively 1 unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El 2 v. Cockrell,

(2003), citing

(e)(1)&(d)(2). Even if 3 Petitioner can satisfy § 2254(d), a showing of a constitutional violation is still necessary 4 for habeas relief. See Fry v. Pliler,

(2007) (holding that section 2254(d) 5 “sets forth a precondition to the grant of habeas relief . . ., not an entitlement to it.”). Even 6 then federal habeas relief is ordinarily not available if the federal constitutional error is 7 harmless. See Brecht v. Abrahamson,

(1993) (holding that a state 8 prisoner seeking federal habeas relief must show a trial error had “a substantial and 9 injurious effect or influence in determining the jury’s verdict.”). 10 B. Claim One 11 Petitioner claims his Sixth Amendment Confrontation Clause right was violated 12 because he was not a party to the May 20, 2022, stipulation, which referenced unadmitted 13 priors and agreed to dismiss the two one-year enhancements and resentence him to 15 14 years, as the stipulation rendered the September 30, 2022, resentencing hearing a sham. 15 (Doc. No. 1 at 6.) Respondent answers that Petitioner’s claim fails factually because the 16 record shows he was present at the September 30, 2022, hearing where the trial court 17 indicated it was aware Petitioner was not a party to the stipulation and did not rely on it. 18 (Doc. No. 14-1 at 5–6.) Respondent also argues that the state court adjudication of this 19 claim cannot be contrary to or involve an unreasonable application of clearly established 20 federal law because Petitioner relies solely on an error of state sentencing law which is not 21 cognizable on federal habeas. (Id. at 6–7.) Petitioner replies that the same stipulated 22 sentence was imposed at the resentencing hearing, indicating it was a sham, and the 23 resentencing court did not ask him if he admitted the prior convictions prior to using them 24 in its decision. (Doc. No. 18 at 8–9; Doc. No. 19 at 1–10.) 25 Claim one was presented to the state supreme court in a habeas petition arguing that 26 Petitioner’s failure to be party to the stipulation violated his Sixth Amendment rights 27 because it allowed an unlawful sentence to be imposed which included reliance on 28 unadmitted priors. (Lodgment No. 17 at 3, Doc. No. 15-18 at 3.) It was denied in an order 1 which stated: “Petition for writ of habeas corpus denied. Guerrero, C. J., was recused and 2 did not participate.” (Lodgment No. 18, Doc. No. 15-19.) There is no other state court 3 decision addressing claim one. 4 The silent denial of claim one by the state supreme court is presumptively a decision 5 on the merits of the claim. Hunter v. Aispuro,

, 347–48 (9th Cir. 1992); 6 Harrington v. Richter,

, 99–100 (2011) (holding that an unexplained denial of 7 a claim by the California Supreme Court is an adjudication on the merits entitled to AEDPA 8 deference unless “there is reason to think some other explanation for the state court’s 9 decision is more likely.”). “Federal habeas review is not de novo when the state court does 10 not supply reasoning for its decision, but an independent review of the record is required 11 to determine whether the state court clearly erred in its application of controlling federal 12 law.” Delgado v. Lewis,

(9th Cir. 2000); see also Pirtle v. Morgan, 313

, 1167 (9th Cir. 2002) (holding that when the state court reaches the merits of a 14 claim but provides no reasoning to support its conclusion, “although we independently 15 review the record, we still defer to the state court’s ultimate decision.”). Rather, the Court 16 “must determine what arguments or theories . . . could have supported the state court’s 17 decision; and then it must ask whether it is possible fairminded jurists could disagree that 18 those arguments or theories are inconsistent with the holding in a prior decision of this 19 Court.” Richter,

. 20 The state supreme court could have denied this claim on the basis that no federal 21 constitutional violation occurred because the stipulation became moot when the trial court 22 held the resentencing hearing and because the state court record reflects that Petitioner 23 admitted the truth of his prior convictions in open court at trial. (Lodgment No. 1 at 105, 24 Doc. No. 15-1.) Petitioner’s contention that the same sentence was imposed merely reflects 25 the trial court’s rejection of his request for discretionary dismissal of the prior strike 26 conviction. As noted above, the appellate court stated: 27 Relying on People v. Superior Court (Romero) (1996)

and section 1385, among other authorities, Mitchell urged the trial court to 28 1 dismiss his prior strike conviction and prior serious felony enhancement and to impose a middle-term sentence. The prosecution opposed further reduction 2 of Mitchell’s sentence on the ground his numerous offenses and poor 3 performance in prison showed he was a danger to public safety. The trial court denied Mitchell’s Romero motion to dismiss the prior strike after 4 concluding the seriousness of his criminal history and the recency of the strike 5 conviction brought him squarely within the spirit of the Three Strikes law. It elected to impose the serious felony enhancement based in part on its finding 6 that Mitchell had continued to engage in violent conduct while in prison such 7 that public safety would be endangered by dismissal of the enhancement. Finally, the trial court elected to impose the upper term, stating: “The (c)ourt 8 is choosing the upper term based upon the prior convictions that were admitted 9 by the defendant in his original trial, and thus proven beyond a reasonable doubt; and is relying on (California Rules of Court, rule) 4.421(b)(2) and 10 (b)(3) to choose the upper term.” After making its sentencing decision, the 11 court “also note(d) pursuant to (section) 1172.75, the upper term was originally chosen.” 12

13 (Lodgment No. 8 at 3–4, Doc. No. 15-9.) 14 The record reflects the trial court read and considered Petitioner’s papers and 15 provided him with the opportunity to address the court before and after resentencing, at 16 which he was present representing himself. (Lodgment No. 2 at 17–19, 21–23; Doc. No. 17 15-3.) Prior to ruling on the resentencing motion, the trial court granted Petitioner’s request 18 to set aside the stipulation, stating: 19 Having found that the original judgment includes the prior enhancements, pursuant to Senate Bill 483 and Penal Code Section 1172.75, 20 the Court shall re-call and resentence the defendant. This issue of 21 resentencing is open by the mere fact of having a prison prior. In essence, the Court is going back to the 17-year prison sentence because Mr. Mitchell has 22 asked to have this reviewed since he was not part -- since he was not present 23 when the parties entered into their stipulation; and thus the resentencing is open to the Court. 24

25 (Id. at 23.) The court noted Petitioner admitted his prior convictions at trial. (Id. at 26.) 26 Petitioner has not shown that the state supreme court’s denial of his claim that the 27 trial court conducted a sham hearing by reimposing the stipulated sentence and considering 28 unadmitted prior convictions in violation of his Sixth Amendment right to be a party to the 1 stipulation, is based on an unreasonable determination of the facts in light of the evidence 2 presented in the state court proceedings. Neither has he shown it resulted in a decision that 3 was contrary to, or involved an unreasonable application of, clearly established federal law. 4 The Ninth Circuit has held that a state criminal defendant does not have a federal 5 constitutional right to be present at resentencing proceedings. See Wade v. Calderon, 29

(9th Cir. 1994) (“[P]etitioner does not have an automatic right to be 7 present at a hearing in which he is collaterally attacking his criminal conviction.”), 8 overruled in part on other grounds as recognized in Schardt v. Payne,

(9th 9 Cir. 2005). Even assuming Petitioner had a Sixth Amendment right to be a party to the 10 stipulation and that it was violated, harmless error analysis of Brecht applies to such a 11 claim. Campbell v. Rice,

(9th Cir. 2005) (en banc). Nothing in the 12 record suggests Petitioner’s failure to be a party to a stipulation that Penal Code § 1171.1 13 required the dismissal of the two one-year enhancements, or by the failure of the 14 resentencing court to require him to re-admit his priors, had a “substantial and injurious 15 effect” on the outcome of the resentencing hearing, which was held at Petitioner’s request, 16 with Petitioner in attendance, with consideration of his arguments, and after the trial court 17 clearly indicated it was relying on the admission of the priors at trial and treated the 18 stipulation as a nullity because Petitioner was not a party to it. Brecht,

. 19 Habeas relief is denied with respect to claim one because the state court adjudication 20 of the claim is objectively reasonable within the meaning of

(d)(1)–(2) 21 and because even assuming that standard can be met, any federal constitutional error is 22 harmless within the meaning of Brecht. 23 C. Claim Two 24 Petitioner contends in claim two that his Fourteenth Amendment right to equal 25 protection was violated by his failure to be a party to the stipulation because it rendered a 26 sham the subsequent resentencing hearing where unadmitted priors were considered. (Doc. 27 No. 1 at 7.) Respondent answers that this claim fails because the stipulation became moot 28 at the resentencing hearing and any claim the state court violated state sentencing laws is 1 not cognizable on federal habeas. (Doc. No. 14-1 at 6–7.) Petitioner replies that his failure 2 to be party to the stipulation, which contained unadmitted priors, rendered the later hearing 3 a violation of due process. (Doc. No. 18 at 8–9; Doc. No. 19 at 1–10.) 4 This claim was presented to the state supreme court in a habeas petition arguing that 5 Petitioner’s failure to be party to the stipulation violated his Fourteenth Amendment due 6 process rights because he was unable to object to the new sentence, which was increased 7 based on prior convictions for which the resentencing court did not obtain an express 8 admission. (Lodgment No. 17 at 4, Doc. No. 15-18.) It was summarily denied. (Lodgment 9 No. 18, Doc. No. 15-19.) There is no other state court decision addressing this claim. As 10 with claim one, the Court “must determine what arguments or theories . . . could have 11 supported the state court’s decision; and then it must ask whether it is possible fairminded 12 jurists could disagree that those arguments or theories are inconsistent with the holding in 13 a prior decision of this Court.” Richter,

. 14 The state supreme court could have denied this claim on the basis that the record 15 clearly reflected, as set forth with respect to claim one, that the trial court did not rely on 16 the stipulation at resentencing but treated it as a nullity, and that the resentencing court was 17 entitled to rely on Petitioner’s admissions at trial of the truth of the priors. Thus, Petitioner 18 has not shown that the state supreme court’s denial of this claim is based on an 19 unreasonable determination of the facts in light of the evidence presented in the state court 20 proceedings. 21 Neither has he shown it resulted in a decision that was contrary to, or involved an 22 unreasonable application of, clearly established federal law. See Langford v. Day,

1380, 1389 (9th Cir. 1997) (“alleged errors in the application of state law are not cognizable 24 in federal habeas corpus” proceedings); Sturm v. California Youth Authority,

, 25 448 (9th Cir. 1967) (holding that “a state court’s interpretation of its [sentencing] statute 26 does not raise a federal question.”). Even were a federal due process or equal protection 27 violation to have occurred, there is nothing in the record to suggest Petitioner’s failure to 28 be a party to the stipulation or the resentencing court’s failure to require him to re-admit 1 his priors had any effect on resentencing, much less a “substantial and injurious effect” on 2 the outcome of the resentencing hearing. Brecht,

. 3 Habeas relief is denied with respect to claim two because the adjudication of the 4 claim by the state court is objectively reasonable within the meaning of 28 U.S.C. 5 § 2254(d)(1)-(2), and because even assuming that standard can be met, any federal 6 constitutional error is harmless within the meaning of Brecht. 7 D. Claim Three 8 Petitioner contends in claim three that his Fourteenth Amendment right to equal 9 protection was violated by the state appellate court’s August 12, 2024, decision to affirm 10 the trial court’s resentencing judgment without addressing his arguments that he was not 11 party to the stipulation and did not admit the truth of the priors at the resentencing hearing. 12 (Doc. No. 1 at 8.) Respondent answers this claim fails because the stipulation became 13 moot after the resentencing hearing, Petitioner admitted the priors at trial, and any claim 14 the state court violated state sentencing laws is not cognizable on federal habeas. (Doc. 15 No. 14-1 at 6-7.) Petitioner replies that despite being represented on appeal by appointed 16 counsel, the appellate court did not consider his arguments regarding the stipulation and 17 the use of unadmitted prior convictions. (Doc. No. 18 at 6-7.) 18 This claim was presented to the state supreme court in a habeas petition (Lodgment 19 No. 17 at 5, Doc. No. 15-18), which was summarily denied (Lodgment No. 18, Doc. No. 20 15-19), and there is no other state court decision addressing this claim. The Court “must 21 determine what arguments or theories . . . could have supported the state court’s decision; 22 and then it must ask whether it is possible fairminded jurists could disagree that those 23 arguments or theories are inconsistent with the holding in a prior decision of this Court.” 24 Richter,

. 25 The state supreme court could have denied this claim on the basis that the appellate 26 court’s failure to explicitly address Petitioner’s arguments that he was not a party to the 27 stipulation and did not re-admit his priors did not violate equal protection because his 28 arguments failed on the facts and the merits. As noted, Petitioner admitted the priors at 1 trial and the stipulation was treated as a nullity by the resentencing court. Thus, Petitioner 2 has not shown that the state supreme court’s denial of this claim is based on an 3 unreasonable determination of the facts or that it resulted in a decision that was contrary 4 to, or involved an unreasonable application of, clearly established federal law. See 5 Langford, 110 F.3d at 1389 (“alleged errors in the application of state law are not 6 cognizable in federal habeas corpus” proceedings); Sturm,

(holding that “a 7 state court’s interpretation of its [sentencing] statute does not raise a federal question”). 8 Even if Petitioner could show a federal constitutional violation occurred, there is nothing 9 in the record to suggest the appellate court’s failure to explicitly address his arguments 10 regarding his failure to be a party to the stipulation and failure to admit the truth of the 11 priors at the resentencing hearing had a “substantial and injurious effect” on the outcome 12 of the resentencing hearing or his appeal. Brecht,

. 13 Although not entirely clear, it appears possible that Petitioner is attempting in claims 14 two and/or three to challenge the state appellate court’s rejection of the equal protection 15 challenge his appointed counsel raised on direct appeal of his resentencing. (See Doc. No. 16 1 at 7-8.) To the extent this is an attempt to raise the same equal protection claim in this 17 Court as his appellate counsel raised on appeal, the claim fails. The Court looks through 18 the state supreme court’s silent denial of the petition for review on appeal of the 19 resentencing decision (Lodgment No. 10, Doc. No. 15-11), and applies the provisions of 20

(d) to the last reasoned state court decision addressing the claim, the 21 appellate court opinion on appeal. Ylst v. Nunnemaker,

(1991). 22 The appellate court rejected the first challenge to the provision which permitted the 23 court to impose the upper term on the robbery conviction based on post-conviction factors 24 without a requirement they be proven beyond a reasonable doubt or stipulated to by the 25 defendant, on the basis that Petitioner’s sentence was not affected by post-conviction 26 factors because they were not considered in imposing the upper term, merely on finding 27 Petitioner posed a danger if released and in declining to strike the prior serious felony 28 conviction. (Lodgment No. 8 at 7-10, Doc. No. 15-9.) The appellate court rejected the 1 other equal protection argument of disparate treatment arising from a provision that when 2 the upper term was imposed at trial the resentencing court can only apply a sentence longer 3 than the middle term if there are circumstances in aggravation found at trial beyond a 4 reasonable doubt or stipulated to by the defendant, finding that Petitioner had waived that 5 argument by failing to raise it in the trial court, but that even if they did address the claim 6 it failed on the merits for lack of prejudice. (Id. at 10-17.) The appellate court concluded 7 by stating: “[Petitioner] does not succeed in showing that the court relied on postconviction 8 factors, nor does he succeed in demonstrating that the court based its upper term decision 9 on the fact that he originally received the upper term.” (Id. at 17.) Thus, even if Petitioner 10 seeks to raise the equal protection claims here that were raised on his direct appeal of his 11 resentencing, they fail for the same reasons set forth above as to why his other claims fail. 12 Namely, any error is harmless because Petitioner has not shown that even if provisions of 13 the resentencing statutes caused disparate impacts on similarly situated defendants in 14 violation of equal protection, that they had any effect on the outcome of his resentencing 15 hearing, much less a “substantial and injurious effect.” Brecht,

. 16 Habeas relief is denied with respect to claim three because the adjudication of the 17 claim by the state court is objectively reasonable within the meaning of 28 U.S.C. 18 § 2254(d)(1)-(2), and because even assuming that standard can be met, any federal 19 constitutional error is harmless within the meaning of Brecht. 20 E. Claim Four 21 Finally, Petitioner alleges in claim four that his Sixth Amendment right to the 22 effective assistance of counsel was denied by trial counsel’s failure to include him as a 23 party to the stipulation and allowing consideration on resentencing of unadmitted prior 24 convictions, and by appellate counsel’s failure to raise those issues on appeal. (Doc. No. 25 1 at 9.) Respondent answers that this claim is without merit because neither counsel had a 26 constitutional obligation to raise meritless claims or arguments. (Doc. No. 14-1 at 8.) 27 Petitioner replies that his appellate counsel did not even mention the stipulation or the 28 unadmitted priors in his opening brief, resulting in the failure of the state appellate court to 1 correct the trial court’s failure to consider that the public defender did not make him a party 2 to the stipulation and that he did not admit the priors. (Doc. No. 19 at 4-10.) 3 Respondent contends this claim was presented to the state supreme court in a habeas 4 petition lodged as Lodgment No. 17. (Doc. No. 14-1 at 4.) However, although claims one 5 through three in the federal Petition here were raised in that state supreme court petition 6 (see Lodgment No. 17 at 3-5, Doc. No. 15-18), Petitioner did not raise a claim of ineffective 7 assistance of counsel. Petitioner indicates he raised claim four here in that state supreme 8 court habeas petition and in the petition for review filed in the state supreme court by his 9 appointed counsel on direct appeal. (Doc. No. 1 at 9.) This claim was not presented in the 10 state supreme court petition for review either. (See Lodgment No. 9, Doc. No. 15-10.) 11 Petitioner raised an ineffective assistance of appellate counsel claim in an appellate court 12 habeas petition filed while his appeal was pending. (Lodgment No. 15 at 8, Doc. No. 15- 13 16.) The appellate court found: “we conclude his petition is procedurally barred at this 14 time. Assuming, without deciding, that Mitchell raises a meritorious claim in his writ 15 petition, he may be able to file a new petition after his appeal is final to assert that his 16 appellate counsel was ineffective if he can establish he was prejudiced by a failure to raise 17 the claim.” (Lodgment No. 16 at 2, Doc. No. 15-17.) There is no indication in the record 18 that this aspect of claim four was thereafter presented to the state supreme court as required 19 for proper exhaustion of state court remedies, and it does not appear the ineffective 20 assistance of trial counsel claim has been presented to the state court at all. 21 However, “[t]he exhaustion requirement ‘refers only to remedies still available at 22 the time of the federal petition.’ If a petitioner failed to present his claims in state court 23 and can no longer raise them through any state procedure, state remedies are no longer 24 available, and are thus exhausted.” Franklin v. Johnson,

(9th Cir. 25 2002), quoting Engle v. Isaac,

, 125 n.28 (1982). “A habeas petitioner who 26 has defaulted his federal claims in state court meets the technical requirements for 27 exhaustion; there are no state remedies any longer ‘available’ to him.” Cassett v. Stewart, 28

, 621 n.5 (9th Cir. 2005), quoting Coleman v. Thompson,

, 732 1 (1991). It is now too late for Petitioner to timely present these claims to the state court 2 because he was clearly aware of them at the time he filed his state supreme court habeas 3 petition presenting his other claims on March 29, 2024, following the state appellate court’s 4 March 12, 2024, opinion. See Walker v. Martin,

(2011) (holding that 5 California’s timeliness rule which requires petitioners to file known claims “as promptly 6 as the circumstances allow” is clearly established and consistently applied). 7 A federal habeas court can conduct a de novo review of claims to rule on their merits 8 if they are technically exhausted. See Berghuis v. Thompkins,

(2010) 9 (holding that a federal habeas court may conduct a de novo review to deny a petition 10 “because a habeas petition will not be entitled to a writ of habeas corpus if his or her claim 11 is rejected on de novo review.”);

(b)(2) (“An application for a writ of 12 habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to 13 exhaust the remedies available in the courts of the state.”). Although a claim may be denied 14 under

(b)(2) only if “it is perfectly clear that the petitioner has no hope of 15 prevailing,” Cassett,

, that is clearly the case with claim four here. 16 Under de novo review “state court judgments of conviction and sentence carry a 17 presumption of finality and legality and may be set aside only when a state prisoner carries 18 his burden of proving that [his] detention violates the fundamental liberties of the person, 19 safeguarded against state action by the Federal Constitution.” Hayes v. Brown,

972, 978 (9th Cir. 2005) (en banc); see also Frantz v. Hazey,

(9th Cir. 2008) 21 (en banc) (holding that even if state court does not address a constitutional issue, where the 22 reasoning of the state court is relevant to resolution of the issue, that reasoning must be 23 part of federal habeas court’s consideration even under a de novo review). 24 To constitute constitutionally ineffective assistance of counsel, counsel’s 25 performance must have been deficient, which “requires showing that counsel made errors 26 so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 27 the Sixth Amendment.” Strickland v. Washington,

(1984). Counsel’s 28 deficient performance must also have prejudiced the defense, which requires showing that 1 “counsel’s errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose result 2 is reliable.”

Prejudice requires a reasonable probability that the result of the proceeding 3 would have been different absent the error, that is, “a probability sufficient to undermine 4 confidence in the outcome.”

. Both deficient performance and prejudice must be 5 shown, although a reviewing court need not examine both prongs if either one is not 6 established.

. Federal habeas review under Strickland is “highly deferential.” 7 Cullen v. Pinholster,

(2011). 8 For the reasons set forth above with respect to Petitioner’s other claims, the Court 9 finds Petitioner has failed to show that the decision by trial or appellate counsel to refrain 10 from raising a claim that his failure to be a party to the stipulation and his failure to be 11 required to repeat his trial admission to the truth of the prior convictions at resentencing, 12 amounted to deficient performance or prejudice. See Boag v. Raines,

, 1344 13 (9th Cir. 1985) (counsel not ineffective for failing to raise meritless claims); Strickland, 14

(prejudice requires a showing of a reasonable probability that the result of 15 the proceeding would have been different absent the error). 16 The Court denies federal habeas relief as to claim four under a de novo review. 17 IV. Certificate of Appealability 18 The Court is required to grant or deny a Certificate of Appealability when entering 19 a final order adjudicating a

habeas petition. See R. 11, Rules Governing 20 Section 2254 Cases (2019). “[T]he only question [in determining whether to grant a 21 Certificate of Appealability] is whether the applicant has shown that ‘jurists of reason could 22 disagree with the district court’s resolution of his constitutional claims or that jurists could 23 conclude the issues presented are adequate to deserve encouragement to proceed further.’” 24 Buck v. Davis,

(2017), quoting Miller-El,

. 25 Under that standard, the Court finds that the issues involved in all four claims are 26 neither adequate to deserve encouragement to proceed further or that jurists of reason could 27 disagree with the resolution of the claims. A Certificate of Appealability is denied as to all 28 claims in the Petition. 1 Conclusion and Order 2 Based on the foregoing, the Petition for a Writ of Habeas Corpus (Doc. No. 1) is 3 || DENIED, and the Court DENIES a Certificate of Appealability. The Clerk of Court shall 4 || enter judgment accordingly. 5 IT IS SO ORDERED. 6 || Dated: December 4, 2024

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