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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JEFFREY Q. MILES,

Petitioner, No. CIV S-04-1431 LKK EFB P

vs.

D. L. RUNNELS,

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding in propria persona with an application for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a June 14, 2002, judgment

of conviction entered against him in Sacramento Superior Court on charges of first degree

burglary. He seeks relief on the grounds that: (1) the trial court violated his right to due process

by allowing a security officer to stand behind him during his trial without a showing of a

“manifest security need” and by allowing jurors to see him in physical restraints; and (2) his

sentence of sixty years-to-life constitutes cruel and unusual punishment. Petitioner also raises

several claims in the traverse. Upon careful consideration of the record and the applicable law,

the undersigned recommends that petitioner’s application for habeas corpus relief be denied.

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 The following summary is drawn, in part, from the August 19, 2003 opinion by the

California Court of Appeal for the Third Appellate District (hereinafter Opinion), at pp. 1-2,

filed in this court as Exhibit D to respondent’s answer. This court presumes that the state court’s

findings of fact are correct unless petitioner rebuts that presumption with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). 

Petitioner has failed to overcome the presumption with respect to the underlying events. The

court will therefore rely on the state court’s recitation of the facts. 

2

I. Procedural and Factual Background1

A jury convicted defendant Jeffrey Quinton Miles of two counts of

first degree burglary, and the trial court found he had two prior

serious felony convictions and strikes under the three strikes law. 

The court sentenced him to state prison for two consecutive

indeterminate terms of 25 years to life and additional determinate

enhancements totaling 10 years.

* * *

Defendant broke into two different apartments on separate

occasions in January of 2002. In the second incident, the tenant

arrived home while defendant was still inside. When the tenant

confronted him, defendant said he had a gun and reached behind

his back. The tenant ran out of the apartment, and defendant

initially chased him before getting into his car and driving away.

Defendant was 42 years old at the time of the offenses. He

indicated he had worked at a car wash for four years but was laid

off in October of 2001. He is apparently divorced and has

children. The trial court received letters of support for defendant

from some family members and friends.

Defendant's prior record is lengthy and characteristic of a recidivist

offender. As a juvenile, he committed battery, receiving stolen

property, petty theft, and multiple burglaries. As an adult, he was

convicted of: (1) assault with a deadly weapon in 1979; (2)

obstructing a peace officer in 1982; (3) (misdemeanor) burglary in

1982; (4) obstructing a peace officer in 1983; (5) attempted first

degree burglary in 1984; (6) first degree burglary in 1985; and (7)

first degree burglary in 1990. Defendant's two prior strikes

stemmed from the 1984 attempted burglary and 1990 burglary

convictions.

Petitioner filed a timely appeal of his conviction in the California Court of Appeal for the

Third Appellate District. Answer, Ex. A. The Court of Appeal affirmed petitioner’s conviction

and sentence in a reasoned decision dated August 19, 2003. Answer, Ex. D. Subsequently,

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petitioner filed a petition for review in the California Supreme Court. Answer, Ex. F. That

petition was summarily denied by order dated October 29, 2003. Answer, Ex. E.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state

court proceedings unless the state court’s adjudication of the claim:

 (1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d). 

Under section 2254(d)(1), a state court decision is “contrary to” clearly established

United States Supreme Court precedents “if it ‘applies a rule that contradicts the governing law

set forth in [Supreme Court] cases’, or if it ‘confronts a set of facts that are materially

indistinguishable from a decision’” of the Supreme Court and nevertheless arrives at a different

result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406

(2000)). 

Under the “unreasonable application” clause of section 2254(d)(1), a federal habeas

court may grant the writ if the state court identifies the correct governing legal principle from the

Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s

case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ simply because

that court concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application must also be

unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is “not

enough that a federal habeas court, in its independent review of the legal question, is left with a

‘firm conviction’ that the state court was ‘erroneous.’”) 

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The court looks to the last reasoned state court decision as the basis for the state court

judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a

decision on the merits but provides no reasoning to support its conclusion, a federal

habeas court independently reviews the record to determine whether habeas corpus relief is

available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

B. Petitioner’s Claims

1. Violation of Right to Due Process

Petitioner’s first claim is that he was “denied due process and was prejudiced” when the

trial court allowed a security escort officer to stand behind him during trial without any showing

of need. He argues that the presence of the security officer “is closely analogous to the use of

physical restraints and jail clothing.” Pet. at 5. Petitioner also claims that jurors saw him being

escorted from the courtroom in handcuffs, in violation of his right to due process. Id. In the

traverse, petitioner claims that his right to due process was violated when the trial court informed

the jury that petitioner was in custody and could not make bail, and that his trial counsel

rendered ineffective assistance when he failed to object to the presence of the security guard. 

Traverse at 5, 6, 9.

On direct appeal, petitioner claimed that the trial court erred by telling the jury he was in

custody and by allowing a security escort officer to stand behind him during trial. Opinion at 3. 

Alternatively, petitioner claimed his trial counsel rendered ineffective assistance in failing to

object to the presence of the security officer. Id. The California Court of Appeal rejected these

claims, reasoning as follows: 

Trial Judge’s Statement to Jury that Defendant was in

Custody

Before trial, defense counsel made a motion to have defendant

appear in court without physical restraints. The court noted that

defendant did not seem to have any restraints and asked the bailiff,

“I assume, . . . there isn’t any reason that the Sheriff’s Department

is requesting any extraordinary physical restraints on the

defendant?” The bailiff said the court was correct. The

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prosecutor did not object, and the court granted defendant’s

motion.

After the trial, defendant requested new counsel to bring a new

trial motion based on ineffective assistance of trial counsel. One

of defendant’s claims was that his counsel “failed to object to the

court informing the jury that [defendant] was still incarcerated

because [he] could not make bail.” The court held a Marsden

hearing to consider defendant’s claims. (People v. Marsden (1970)

2 Cal.3d 118.)

At the hearing, defense counsel explained: “Early on, the court

gave me the option of whether I wanted the jury to know

[defendant] was or was not in custody. Given the fact that he was

in custody, and I think pretty obviously, so I chose, tactically, that

the jury be advised that he is in custody. [¶] And the court

suggested, and I agreed, that you give them some kind of

admonition so that they understand he’s in custody not because

he’s violent or perhaps a three-strike candidate but simply because

he can’t make bail. [¶] I advised my client of that at the time . . . . 

And I was happy that the court gave that admonition rather than let

the jury wonder why he is in and can’t get out.”

The trial court commented it was “wise for defense counsel to

confront this issue head on.” The court explained, “Jurors are not

stupid. They know when they see an officer behind you that you

are in custody. And unless we tell them why you’re in custody,

they may succumb to wild speculation. They may think you’re

dangerous. They may think you’re a three-strikes defendant. They

may assume all sorts of things . . . . [¶] And it is true bail will not

be set in a three-strikes case and so perhaps it was a little

misleading about not being able to make bail but that was to your

benefit to tell them. And I did tell them that we don’t think you’re

a flight risk, we don’t think you’re dangerous, we don’t think

you’re guilty. I told them the only reason you’re in custody is

because you couldn’t make the bail, which is true because there

was none. So that’s all to your advantage.”

On appeal, defendant contends “the only possible meaning the jury

could take from the court’s misinformation that [defendant] could

not make bail was that he was poor or unemployed.” However,

since defendant agreed to this procedure, he has waived his right to

direct appellate review.

Presence of Escort Officer Near Defendant

Defendant argues on appeal (but not at the trial court) “that this

record establishes that [defendant] was shadowed by an ‘escort

officer’ who stood behind him during trial, that [defendant]

presented no security risk to justify this procedure, [and] that

defense counsel did not object, . . .” Defendant characterizes the

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court’s actions in advising the jury of his custody status and having

an escort officer present as “remarkable” considering it granted his

motions to be tried in civilian clothes without physical restraints.

Defendant claims the court deprived him of the presumption of

innocence and denied his rights to due process and a fair trial.

Preliminarily, we conclude that defendant’s failure to raise the

issue of the presence of the escort officer in a timely manner in the

trial court waived his right to direct appellate review. Established

case law recognizes that a defendant’s failure to object waives

similar issues, including the imposition of physical restraints 

(People v. Tuilaepa (1992) 4 Cal.4th 569, 583) or the use of

identifiable jail clothes at trial (People v. Taylor (1982) 31 Cal.3d

488, 495-496). “A timely objection allows the court to remedy

the situation before any prejudice accrues.” (Id . at p. 496.) 

Additionally, tactical considerations may warrant emphasis on a

defendant’s custody status. (Cf. ibid.)

Although defendant suggests that the use of an escort officer is

customary and any objection would have been futile, we do not

agree. Defendant supports his argument by citing a declaration in

another case that is not part of the record and by asserting that the

trial court “implied” as much in its comments. Defendant has not

shown that the court lacked discretion in the matter or that it made

any statements to that effect. An objection would have allowed the

parties and the court to make a record of the reasons, facts, and

other attendant circumstances concerning the security precautions. 

The court could very well have taken some action to minimize the

impact of an officer’s presence, particularly if it was unduly

obtrusive.

Ineffective Assistance of Counsel

We now consider defendant’s fallback argument that his counsel

was ineffective. To prevail on this claim, defendant must show his

counsel’s representation fell below an objective standard of

reasonableness and, but for counsel’s error, there is a reasonable

probability of an outcome more favorable to defendant. (See

Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694

[80 L.Ed.2d 674, 693-694, 697-698]; People v. Ledesma (1987) 43

Cal.3d 171, 215-218.) Further, defendant is not entitled to relief

on direct appeal if the record does not show why counsel acted or

failed to act in the manner defendant challenges unless there is no

satisfactory explanation for counsel’s conduct or counsel was

asked for an explanation and failed to provide one. (See People v.

Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here, defendant has

not shown his counsel was ineffective for failing to object to the

escort officer or for agreeing to have the jury admonished

concerning defendant’s custody status.

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First, we consider the escort officer. Although it does not appear

there was a security issue that necessitated the imposition of

physical restraints, that is not to say there was no reason to have

the officer present. Our state Supreme Court has recognized that

the trial court has broad discretion concerning the use of such

security measures, and “the presence of armed guards in the

courtroom would not require justification on the record ‘[u]nless

they are present in unreasonable numbers.’” (People v. Jenkins

(2000) 22 Cal.4th 900, 995.)

Further, the use of security officers is not inherently prejudicial

and must be considered on a case-by-case basis. (See Holbrook v.

Flynn (1986) 475 U.S. 560, 569 [89 L.Ed.2d 525, 535]; People v.

Jenkins, supra, 22 Cal.4th at pp. 996-997.) “While shackling and

prison clothes are unmistakable indications of the need to separate

a defendant from the community at large, the presence of guards at

a defendants trial need not be interpreted as a sign that he is

particularly dangerous or culpable. Jurors may just as easily

believe that the officers are there to guard against disruptions

emanating from outside the courtroom or to ensure that tense

courtroom exchanges do not erupt into violence . . . . If they are

placed at some distance from the accused, security officers may

well be perceived more as elements of an impressive drama than as

reminders of the defendants special status. (Holbrook v. Flynn,

supra, at p. 569 [89 L.Ed.2d at pp. 534-535].)

Here, the existing record does not indicate that the security

measures at issue were unreasonable or obtrusive so as to suggest

that defendant was being singled out for special treatment.

Contrary to defendant’s speculation and hyperbolic argument, the

record does not show “[t]he constant presence of [a] uniformed

deputy, dogging [defendant’s] footsteps” and “restrict[ing]

effective communication [with] counsel,” or that the officer

“would have shadowed [him] to the witness stand had he testified.” 

The record indicates little more than that an officer was present

“behind” defendant at some parts of the trial, and that the jury

could have deduced that defendant was in custody. In fact,

defendant concedes in his reply brief that “the contemporaneous

record does not delineate the escort officer’s movements.”

Based on the existing record, we cannot conclude that counsel

should have objected to the presence of the escort officer or that

defendant was prejudiced by counsel’s failure to object.

In light of our conclusion, we next consider counsel’s decision to

have the court admonish the jury about defendant’s custody status.

It is possible that references to a defendant’s custody status may

impinge a defendant’s rights in some circumstances. (See People

v. Bradford (1997) 15 Cal.4th 1229, 1335-1336.) But “an isolated

comment that a defendant is in custody simply does not create the

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potential for the impairment of the presumption of innocence that

might arise were such information repeatedly conveyed to the

jury.” (Id. at p. 1336.) And though defendant suggests that the

reference to an inability to make bail suggested he was poor and

had a motive for burglary, the court’s admonition was designed to

preclude other speculation and to dispel potential negative

inferences concerning the nature and reasons underlying his

custody status. Under the circumstances, the trial court and

defense counsel acted in a reasonable manner to protect

defendant’s rights.

Opinion at 3-9

The state court record before this court supports the appellate court’s findings of fact to

the following extent. On the first day of trial, petitioner’s counsel made an in limine motion that

petitioner be allowed to appear without physical restraints. Clerk’s Transcript on Appeal (CT) at

44, 59-67. The trial court granted this motion because all parties agreed there wasn’t “any

reason that the Sheriff’s Department is requesting any extraordinary physical restraints on the

defendant.” Reporter’s Transcript on Appeal (RT) at 2. The opinion by the California Court of

Appeal explains that during the hearing on petitioner’s motion for new trial, the parties discussed

the trial court’s admonishment to the jury that petitioner was in custody because he could not

make bail. The reporter’s transcript of the trial proceedings that has been lodged with the court

does not reflect the trial court’s advice to the jury that petitioner was in custody. However,

neither party has challenged the state appellate court’s factual summary of what transpired at the

hearing on the motion for new trial. Accordingly, this court will presume the summary is correct

and that the trial court made such an admonishment to the jury. Finally, the record before the

court does not describe the escort officer’s actions or where he was situated in the courtroom. 

However, the transcript of the sentencing proceedings reflects that an escort officer answered a

question from the trial judge during those proceedings, thereby reflecting that there was a

security officer present at that time. Id. at 1004. 

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a. Escort Officer

Petitioner claims that the presence of a security guard who was standing behind him

during trial violated his right to due process and was “closely analogous to the use of physical

restraints and jail clothing.” Pet. at 5.

The United States Supreme Court has concluded that the presence of armed guards in the

courtroom is not equivalent to physically restraining the defendant. Holbrook v. Flynn, 475 U.S.

560, 568-69 (1986) (petitioner was not denied his constitutional right to a fair trial when, at his

trial with five co-defendants, customary courtroom security force was supplemented by four

uniformed state troopers sitting in first row of spectator section). The deployment of security

personnel during trial is not “the sort of inherently prejudicial practice that, like shackling,

should be permitted only where justified by an essential state interest specific to each trial.” Id.

Instead, when analyzing the propriety of security in the courtroom,

All a federal court may do in such a situation is look at the scene

presented to jurors and determine whether what they saw was so

inherently prejudicial as to pose an unacceptable threat to

defendant’s right to a fair trial; if the challenged practice is not

found inherently prejudicial and if the defendant fails to show

actual prejudice, the inquiry is over.

Id. at 572. Cf. Estelle v. Williams, 425 U.S. 501, 503, 505 (1976) (making a defendant appear in

prison clothing poses such a threat to the “fairness of the factfinding process” that it must be

justified by an “essential state policy”). 

Although petitioner states that a security officer was standing “behind” him, the record

does not reflect the placement of the security officer during the trial. As noted by the California

Court of Appeal, “[t]he record indicates little more than that an officer was present ‘behind’

defendant at some parts of the trial, and that the jury could have deduced that defendant was in

custody.” Opinion at 8. Assuming arguendo that the guard was standing behind petitioner at all

times during trial, there is no evidence that the presence of the guard was unduly prejudicial. As

explained by the United States Supreme Court, “[o]ur society has become inured to the presence

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of armed guards in most public places; they are doubtless taken for granted so long as their

numbers or weaponry do not suggest particular official concern or alarm.” Holbrook, 475 U.S.

at 569. There is no evidence in this case that the presence of the security guard suggested

particular concern or alarm as to petitioner’s dangerousness – especially since he was not

shackled in any way and was dressed in civilian clothing. Similarly, the record does not reflect

that the presence of the guard unreasonably suggested petitioner was dangerous or that he was

being “singled out for special treatment.” Opinion at 8. Indeed, petitioner’s jury was

specifically instructed by the judge that he was not in custody because he was a flight risk,

dangerous, or guilty, but because he could not make bail. Id. at 4. Further, petitioner’s failure to

object to the presence of the security guard in the courtroom implies that the situation did not

appear to pose “an unacceptable risk . . . of impermissible factors coming into play.” Holbrook,

475 U.S. at 570 (quoting Williams, 425 U.S. at 505). 

In short, petitioner has failed to demonstrate that the presence of the guard in this case

was so inherently prejudicial as to pose an unacceptable threat to his right to a fair trial. See

Ainsworth v. Calderon, 138 F.3d 787, 797 (9th Cir. 1998) (ratio of two guards standing behind

one defendant in a capital murder case not prejudicial); King v. Rowland, 977 F.2d 1354, 1358

(9th Cir. 1992) (upholding ratio of three armed guards to single defendant); Morgan v. Aispuro,

946 F.2d 1462, 1465 (9th Cir. 1991) (no denial of due process where petitioner was tried in a

security courtroom); Spivey v. Head 207 F.3d 1263, 1272-73 (11th Cir. 2000) (presence of eight

security guards in courtroom not prejudicial where petitioner was not shackled, was permitted to

stand to ask questions during voir dire, and the guards did not form a semicircle around the

petitioner). The opinion of the California Court of Appeal to the same effect is not contrary to or

an unreasonable application of federal law. Accordingly, petitioner is not entitled to relief on

this claim.

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 In order to be colorable, a claim must have both legal and factual support. Beaudry

Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 756 (9th Cir. 1986). 

11

b. Jury Viewing Petitioner in Restraints

Petitioner claims that the trial court violated his right to due process by allowing the jury

to view him in restraints. His claim is stated, in full, as follows: “Petitioner was also lead passed

jurors handcuffed after court.” Pet. at 5. Respondent argues that this claim has not been

exhausted in state court.

Generally, a state prisoner must exhaust all available state court remedies, either on direct

appeal or through collateral proceedings, before a federal court may consider granting habeas

corpus relief. 28 U.S.C. § 2254(b)(1). However, a federal court considering a habeas petition

may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not

“colorable” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).2 Notwithstanding the

exhaustion requirement, this court recommends that petitioner’s claim in this regard be denied. 

Petitioner has provided neither legal nor factual support for this claim. He has failed to

substantiate his allegation that the jury saw him in restraints or to explain any of the surrounding

circumstances. Rather, the claim is unduly vague and must be denied. See Jones v. Gomez, 66

F.3d 199, 204 (9th Cir. 1995) (“‘[c]onclusory allegations which are not supported by a statement

of specific facts do not warrant habeas relief’”) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir.

1994)). 

Assuming arguendo that petitioner’s jurors saw him in shackles, petitioner has failed to

demonstrate that he suffered prejudice. It is true that the appearance of a defendant in shackles

before a jury may constitute a violation of the defendant’s right to due process. Deck v.

Missouri, 544 U.S. 622 (2005). However, unjustified shackling does not rise to the level of

constitutional error unless the defendant makes a showing that he suffered prejudice as a result. 

Id. (citing United States v. Olano, 62 F.3d 1180, 1190 (9th Cir 1995) and United States v.

Halliburton, 870 F.2d 557, 561-62 (9th Cir. 1989)). See also Cox v. Ayers, 588 F.3d 1038, 1044

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 For these same reasons, petitioner’s remark, made for the first time in the traverse, that

he “argued” with his trial counsel about “being handcuffed while jurors observed” does not merit

habeas corpus relief. See Traverse at 11.

12

(9th Cir. 2009). In the Ninth Circuit, “only the most egregious kind of shackling has been found

. . . to deny due process.” Castillo v. Stainer, 983 F.2d 145, 148 (9th Cir. 1992). Petitioner has

failed to show that what the jury saw was so prejudicial as to violate his right to a fair trial. 

Accordingly, he is not entitled to habeas relief on this claim. See United States v. Leach, 429

F.2d 956, 962 (8th Cir. 1970) (“[i]t is a normal and regular as well as a highly desirable and

necessary practice to handcuff prisoners when they are being taken from one place to another,

and the jury is aware of this”).3

c. Trial Court’s Advisement about Petitioner’s Custody Status

Petitioner claims in the traverse, as he did on direct appeal, that his right to due process

was violated when the trial court informed the jury that petitioner was in custody. Traverse at 5. 

As explained above, the trial court apparently informed petitioner’s jury that he was in custody

because he couldn’t make bail. At the hearing on petitioner’s motion for new trial, the trial court

stated that it was “wise” for defense counsel to allow the court to give this advisement because

otherwise the jurors may have “succumb[ed] to wild speculations” about the reasons for

petitioner’s obvious custody status. Opinion at 4. The trial court believed that the advisement

was “all to [petitioner’s] advantage.” Id. The state appellate court concluded that the trial

court’s advisement about petitioner’s custody status was a reasonable attempt to protect

petitioner’s rights. Id. at 9.

As discussed above, habeas relief is only available on the basis of a violation of federal

law, as set forth by the United States Supreme Court. 28 U.S.C. § 2254(d)(1); see Williams, 529

U.S. at 412 (“Section 2254(d)(1) restricts the source of clearly established law to [the Supreme]

Court’s jurisprudence.”). In his direct appeal, petitioner cited Estelle v. Williams, 425 U.S. 501

(1976) in support of this claim. Answer, Ex. A at 11. Estelle did not hold that due process is

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violated when a trial court informs the jury of the defendant’s custodial status. Rather, in

Estelle, the Supreme Court held that requiring a defendant to wear prison clothing throughout a

trial may violate his due process rights. 425 U.S. at 504-05. Here, unlike the prison garb and

excessive security at issue in Estelle, which the Supreme Court noted were a “constant reminder”

of the defendant’s custodial status, 425 U.S. at 504, the trial court simply advised the jury that

petitioner was in custody because he was unable to make bail. Estelle does not “clearly

establish” a right to have the jury remain ignorant of petitioner’s custodial status within the

meaning of AEDPA. Accordingly, the trial court’s advice to the jury about petitioner’s custodial

status does not provide grounds for habeas relief.

Moreover, as noted by the California Court of Appeal, the trial court specifically directed

the jury not to draw any negative inference from the fact that petitioner was in custody. There is

an “almost invariable assumption of the law that jurors follow their instructions.” Richardson v.

Marsh, 481 U.S. 200, 206 (1987). There is nothing in this record to suggest petitioner’s jurors

did otherwise. Accordingly, petitioner is unable to demonstrate that he suffered prejudice as a

result of the trial court’s advisement. See Brecht v. Abrahamson, 507 U.S. 619, 627 (1993) (“[A]

federal court may grant habeas relief based on trial error only when that error had substantial and

injurious effect or influence” on the proceedings); Fry v. Pliler, 551 U.S. 112 (2007) (on habeas

review, a federal court must assess the prejudicial impact of a trial error under the Brecht

standard in all habeas cases regardless of the error standard applied by the state court). For these

reasons, petitioner is not entitled to relief on this claim.

d. Ineffective Assistance of Counsel

In the traverse, petitioner claims that his trial counsel rendered ineffective assistance

when he failed to object to the presence of the security guard at petitioner’s trial and when he

allowed the trial court to advise the jury that petitioner was in custody. Traverse at 9-11. This

claim was also raised on direct appeal in state court. With regard to the presence of the security

guard, the California Court of Appeal concluded that trial counsel did not render ineffective

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assistance in failing to object because there was no evidence the security procedures were unduly

prejudicial. With regard to the issue of petitioner’s custody status, the state court concluded that

counsel’s decision to allow the trial court to tell the jury petitioner was in custody was

reasonable because it prevented the jury from assuming that petitioner was dangerous or a threestrike candidate.

To support a claim of ineffective assistance of counsel, a petitioner must first show that,

considering all the circumstances, counsel’s performance fell below an objective standard of

reasonableness. See Strickland, 466 U.S. at 687-88. After a petitioner identifies the acts or

omissions that are alleged not to have been the result of reasonable professional judgment, the

court must determine whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v.

Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by

counsel’s deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A reasonable probability is “a probability

sufficient to undermine confidence in the outcome.” Id. 

For the reasons set forth above, petitioner has failed to demonstrate that he suffered

prejudice as a result of his trial counsel’s failure to object to the presence of the security guard

during trial or to the trial court’s admonition that petitioner was in custody because he could not

make bail. There is no reasonable probability that, but for counsel’s actions, the result of the

proceeding would have been different. Accordingly, petitioner is not entitled to relief on these

claims.

2. Cruel and Unusual Punishment

Petitioner claims that his sentence of 60 years-to-life constitutes cruel and unusual

punishment. He argues that his sentence is “grossly disproportionate to the offense committed or

the culpability of the offender.” Pet. at 5. Petitioner also complains that the trial court declined

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to “reduce [his] status to a second-striker.” Id.

The California Court of Appeal rejected this claim, reasoning as follows:

Defendant claims his sentence violates the federal and state

Constitutions because it is cruel and/or unusual. (U.S. Const., 8th

Amend.; Cal. Const., art. I, § 17.) Defendant has not shown his

counsel directly raised the constitutional issues in the trial court,

although counsel did ask the court to exercise its discretion to

dismiss some of defendant’s prior strikes. Under the

circumstances, the record is sufficient to address the constitutional

issues and we may thereby forestall any claim that defendant’s

counsel was ineffective for failing to directly raise them. (See

People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

The federal Constitution does not require strict proportionality

between a sentence and the crime for which it is imposed; “‘it

forbids only extreme sentences that are “grossly disproportionate”

to the crime.’” (Ewing v. California (2003) 538 U.S. 11 [155

L.Ed.2d 108, 119] (plur. opn. of O’Connor, J.), quoting Harmelin

v.. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836, 869]

(opn. of Kennedy, J.).) A punishment may violate the California

Constitution if “it is so disproportionate to the crime . . . that it

shocks the conscience and offends fundamental notions of human

dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) Three factors

are often considered in evaluating a claim under the California

Constitution: (1) the nature of the offense and the offender; (2) a

comparison with the penalty for more serious crimes in the same

jurisdiction; and (3) a comparison with the punishment imposed

for the same offense in different jurisdictions. (Id. at pp. 425-427.)

However, “[t]he sole test remains . . . whether the punishment

‘shocks the conscience and offends fundamental notions of human

dignity.’” (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38,

quoting In re Lynch, supra, 8 Cal.3d at p. 424.)

Defendant’s three strikes sentence does not violate either the state

or federal Constitutions. The sentence does not merely reflect the

commission of the current offense; it also reflects defendant’s

recidivist criminal behavior. (See People v. Kinsey (1995) 40

Cal.App.4th 1621, 1630; see also Rummel v. Estelle (1980) 445

U.S. 263, 284-285 [63 L.Ed.2d 382, 397].) And here, defendant’s

record, including his prior strikes and the relatively serious current

offenses, indicate he has continued to pursue a life of crime. “If

increased penalties do not deter the repeat offender, then society is

warranted in segregating that person for an extended period of

time.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) 

“That California’s punishment scheme is among the most extreme

does not compel the conclusion that it is unconstitutionally cruel or

unusual.” (Id. at p. 1516.) Indeed, the United States Supreme

Court recently rejected a federal constitutional challenge to a three

strikes sentence for a recidivist offender who stole some golf clubs. 

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4

 A “wobbler” is an offense that can be punished as either a misdemeanor or a felony

under applicable law. See Ferreira v. Ashcroft, 382 F.3d 1045, 1051 (9th Cir. 2004).

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(See Ewing v. California, supra, 538 U.S. 11 [155 L.Ed.2d 108].)

Opinion at 9-11.

In Lockyer v. Andrade, 538 U.S. 63 (2003), the United States Supreme Court found that

in addressing an Eighth Amendment challenge to a prison sentence, the “only relevant clearly

established law amenable to [AEDPA’s] ‘contrary to’ or ‘unreasonable application of’

framework is the gross disproportionality principle, the precise contours of which are unclear

and applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” Id. at 73 (citing Harmelin v.

Michigan, 501 U.S. 957, 1001 (1991); Solem v. Helm, 463 U.S. 277, 290 (1983); and Rummel v.

Estelle, 445 U.S. 263, 272 (1980)). See also Taylor v. Lewis, 460 F.3d 1093, 1097 (9th Cir.

2006). The Supreme Court in Andrade thus concluded that two consecutive twenty-five years to

life sentences with the possibility of parole, imposed under California’s Three Strikes law

following two petty theft convictions with priors, did not amount to cruel and unusual

punishment. 538 U.S. at 77. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court

held that a sentence of twenty-five years to life imposed for felony grand theft under California’s

Three Strikes law did not violate the Eighth Amendment.

Following the decision in Andrade the Ninth Circuit held that a third strike sentence of

twenty-five years to life in prison for a third shoplifting offense, a “wobbler” under state law,

constituted cruel and unusual punishment. Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004).4

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so holding, the court relied upon the limited and non-violent nature of the petitioner’s prior

criminal history and the fact that the petitioner’s only prior period of incarceration had been a

single one-year jail sentence. Id. at 768-69. Thereafter, in Rios v. Garcia, 390 F.3d 1082 (9th

Cir. 2004), the Ninth Circuit concluded that a third strike sentence of twenty-five years to life for

the theft of two watches having a combined value of $79.98 was not cruel and unusual. The

court distinguished the holding in Ramirez from the situation it confronted, finding that the

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5

 The author of petitioner’s traverse informs the court that he is an “inmate helper” who

volunteered to write the traverse on petitioner’s behalf. Traverse at 12-13. He explains that

petitioner is unable to litigate this matter “due to lack of cognizant abilities.” Id. at 12. 

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petitioner in Rios had a “lengthy criminal history,” had “been incarcerated several times,” and

that the prior strikes used to enhance the petitioner’s sentence had “involved the threat of

violence.” Id. at 1086.

Petitioner’s sentence does not fall within the type of “exceedingly rare” circumstance that

would support a finding that his sentence violates the Eighth Amendment. As noted by the

California Court of Appeal, petitioner had a lengthy criminal history, including juvenile

convictions for battery, receiving stolen property, petty theft, and multiple burglaries; and adult

convictions for assault with a deadly weapon, obstructing a peace officer, and burglary. Under

these circumstances, the state courts’ rejection of petitioner’s Eighth Amendment claim was

neither contrary to, nor an unreasonable application of clearly established federal law. This

claim for relief should therefore be denied.

3. Claims Raised in the Traverse

Petitioner raises additional claims in his traverse that were not raised in the instant

petition or in petitioner’s state court filings.5 Specifically, he alleges that his trial counsel

rendered ineffective assistance because he failed to investigate “the license plate issue.” 

Traverse at 11. Petitioner also claims that his trial counsel was operating under a conflict of

interest because he had previously prosecuted petitioner for burglary. Id. at 11-14. Finally, he

claims that “California’s application of the 3-Strikes Law, in cases where prior ‘strike

convictions’ were plea agreements, guaranteeing 5 year enhancements – only – to new felony

convictions” violate the Fifth, Sixth and Fourteenth Amendments to the United States

Constitution. Id. at 20.

A Traverse is not the proper pleading to raise additional grounds for relief. Cacoperdo v.

Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). “In order for the State to be properly advised of

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additional claims, they should be presented in an amended petition or . . . in a statement of

additional grounds. Then the State can answer and the action can proceed.” Id. See also

Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“we review only issues

which are argued specifically and distinctly in a party’s opening brief”). Accordingly,

petitioner’s claims raised for the first time in the traverse are not properly before the court and

must be denied. Furthermore, even if petitioner had sought leave to amend to add these

unexhausted claims, he is not entitled to habeas relief for the reasons set forth below. Thus, any

amendment at this time would be futile.

a. Trial Counsel’s Failure to Investigate

Petitioner has failed to substantiate his vague claim that his trial counsel rendered

ineffective assistance because he failed to investigate “the license plate issue.” He has provided

neither legal nor factual support for this claim. Accordingly, any such claim must be denied. 

See Jones, 66 F.3d at 204; James, 24 F.3d at 26. 

b. Conflict of Interest

Petitioner has also failed to provide adequate support for his claim that his trial counsel

operated under a conflict of interest. In support of this claim, petitioner attaches a letter from his

trial counsel which reads as follows: 

I’d also like to confirm in writing what I disclosed to you this

morning. I discovered today during my review of your previous

convictions that I was the prosecutor during a portion of your 1990

burglary prosecution (it appears that I conducted the preliminary

examination, although not the trial). I don’t have any independent

recollection of you or your case, nor do I feel that this represents

any kind of a conflict of interest, or that this will impair my ability

to represent you in any way. However, if you feel differently,

please let me know, and we can discuss our options.

Traverse, first exhibit.

The Sixth Amendment right to counsel includes the right to counsel of undivided loyalty. 

Wood v. Georgia, 450 U.S. 261, 271-72 (1981). “In order to demonstrate a violation of his Sixth

Amendment rights on the basis of an alleged conflict, a defendant must establish that an actual

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conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S.

335, 350 (1980). See also Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002) (an actual conflict “is

not something separate and apart from adverse effect”); Bonin v. Calderon, 59 F.3d 815, 825

(9th Cir. 1995). An adverse effect in the Cuyler sense must be one that “significantly worsens

counsel’s representation of the client before the court or in negotiations with the government.” 

United States v. Mett, 65 F.3d 1531, 1535 (9th Cir. 1995). Although a defendant alleging a

conflict of interest “need not demonstrate prejudice,” he must prove that “counsel actively

represented conflicting interests.” Cuyler, 446 U.S. at 349. Courts “generally presume that the

lawyer is fully conscious of the overarching duty of complete loyalty to his or her client.” 

Burger v. Kemp, 483 U.S. 776, 784 (1987).

The state court record reflects that prior to the commencement of the evidence portion of

trial, petitioner’s counsel informed the court that he had had a role in the prosecution of

petitioner for one of his prior convictions. RT at 5. Counsel explained that he conducted the

preliminary examination and was present during a number of pretrial hearings. Id. Counsel also

stated that he had informed petitioner of this fact and that neither he nor petitioner perceived any

conflict of interest. Id. On the same page of transcript, the following colloquy then appears:

THE COURT: Mr. Miles, are you indeed aware that [the

prosecutor] conducted a preliminary hearing and charged against

you [sic] some 12 years ago?

THE DEFENDANT: (Witness nods head), yes, yes, sir.

THE COURT: And notwithstanding that knowledge, you are

satisfied to have him represent you here in this trial?

THE DEFENDANT: Yes.

THE COURT: Ms. O’Connor (the prosecutor), do you have anything to add?

MS. O’CONNOR: No, Your Honor. I just wanted to for

clarification purposes that the waiver be on the record that he has

no problem with (defense counsel’s) representation of him now.

THE COURT: All right.

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There is no evidence in this case that petitioner’s trial counsel was actively representing

conflicting interests or that counsel’s involvement as the prosecutor during the preliminary

hearing in petitioner’s prior criminal case caused an adverse effect in counsel’s performance at

petitioner’s later trial on the instant charges. Petitioner’s unsupported allegations in the traverse

also fail to rebut the presumption that his trial counsel was acting according to his duty of

loyalty. On the contrary, counsel diligently notified both petitioner and the trial court of his

prior role as the prosecutor in one of petitioner’s earlier cases. Counsel took care to have the

trial court assure itself on the record that the petitioner wanted trial counsel to continue the

representation notwithstanding the prior role as a prosecutor. There is no evidence that the trial

counsel actively represented conflicting interests or breach a duty of loyalty to the petitioner. 

For these reasons, petitioner is not entitled to relief on this claim.

c. Three Strikes Law/Breach of Prior Plea Agreement

Nor is petitioner entitled to relief on his challenge to California’s Three Strikes Law, as

articulated in the traverse. Petitioner claims, in effect, that his sentence under the Three Strikes

Law violated his plea agreement in a previous case, which provided that any future felony

conviction could result in a maximum increased sentence of five years. Traverse at 21. 

A guilty plea is invalid if induced by a promise which renders the plea involuntary. 

Machibroda v. United States, 368 U.S. 487, 493 (1962); Chizen v. Hunter, 809 F.2d 560, 561

(9th Cir. 1986). When a plea agreement rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be a part of the inducement or

consideration, such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262

(1971); Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985). Claims of a breached plea

agreement are analyzed according to contract law standards of interpretation, such that a court

looks to what was reasonably understood by the parties to be the terms of the agreement and

whether or not those terms were fulfilled. See United States v. Kamer, 781 F.2d 1380, 1387 (9th

Cir. 1986). 

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6

 At the time of petitioner’s 1986 convictions, when a defendant suffered a serious felony

conviction, California Penal Code § 667(a) mandated a consecutive five-year sentence

enhancement for a prior serious felony conviction. Wheeler v. Yarbrough, 352 F. Supp.2d 1085,

1092 n.10 (C.D. Cal. 2005). 

7

 In Apprendi, the United States Supreme Court held that the Due Process Clause of the

Fourteenth Amendment requires any fact other than a prior conviction that “increases the penalty

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Petitioner contends that his sentence in this case violates the plea agreement he entered

into in 1986 because he was informed at that time that any future enhancements would be for a

five-year period if applied against a felony conviction. Although petitioner attempts to phrase

his claim in terms of a breach of the 1986 plea agreement, his argument is that the prosecutor and

the court promised him in 1986 that state law would not change or, that if it did, the change

would not be enforced as to him. Petitioner has made no showing that such a promise was made

and it is a fair assumption that the subjects were not addressed at those earlier proceedings. 

Moreover, applying contract law, a prosecutor would have no authority to make such a promise. 

See Johnson, 769 F.2d at 633 (a promissor must have authority to make the promise).6

Petitioner does not assert that he received a state prison term for his earlier crimes greater

than that stated in the plea bargain for those offenses. He concedes he was specifically advised

that his priors could be used as part of an enhancement allegation in future criminal proceedings. 

At the sentencing proceedings on the instant crimes, petitioner raised no objection to his

sentence of 60 years-to-life on the ground that it violated the terms of his previous plea

agreement. RT at 1002-07. Nor has petitioner cited any case holding that use of a current

sentencing enhancement law constitutes a breach of enhancement provisions contained in a plea

agreement that was entered into prior to passage of that law. Under these circumstances, this

claim is without merit.

Petitioner also appears to be arguing that his sentence under the Three Strikes Law

violates the rulings in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), Blakely v. Washington,

542 U.S. 296 (2004), and related cases.7

 Traverse at 28. This claim is based, in part, on “the

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for a crime beyond the prescribed statutory maximum” to be “submitted to a jury and proved

beyond a reasonable doubt.” 530 U.S. at 490. In Blakely, the United States Supreme Court

decided that a defendant in a criminal case is entitled to have a jury determine beyond a

reasonable doubt any fact that increases the statutory maximum sentence, unless the fact was

admitted by the defendant or was based on a prior conviction. 542 U.S. at 303-04. In United

States v. Booker, 543 U.S. 220 (2005), the United States Supreme Court applied Blakely to the

Federal Sentencing Guidelines. In Cunningham v. California, 549 U.S. 270 (2007), the Supreme

Court, citing Apprendi and Blakely, held that California’s Determinate Sentencing Law violates a

defendant’s right to a jury trial to the extent it permits a trial court to impose an upper term based

on facts found by the court rather than by a jury. The Ninth Circuit subsequently held that

Cunningham may be applied retroactively on collateral review. Butler v. Curry, 528 F.3d 624,

639 (9th Cir. 2008). 

22

Supreme Courts broad sweeping language” in these rulings and an evaluation of “Apprendi’s

‘fairness.’” Id. Petitioner has failed to explain how the rulings in Apprendi and Blakely are

applicable to his sentence under California’s Three Strikes Law. Accordingly, he is not entitled

to relief on this claim.

4. Request for Evidentiary Hearing

On March 9, 2006, petitioner filed a request for an evidentiary hearing on his claims. He

notes that he did not receive an evidentiary hearing in state court.

Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the

following circumstances:

(e)(2) If the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant shows that-

(A) the claim relies on-

(I) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error,

no reasonable fact finder would have found the applicant guilty of

the underlying offense;

28 U.S.C. § 2254(e)(2).

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Under this statutory scheme, a district court presented with a request for an evidentiary

hearing must first determine whether a factual basis exists in the record to support a petitioner’s

claims and, if not, whether an evidentiary hearing “might be appropriate.” Baja v. Ducharme,

187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.

2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A federal court must

take into account the AEDPA standards in deciding whether an evidentiary hearing is

appropriate. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). A petitioner must also “allege[]

facts that, if proved, would entitle him to relief.” Schell v. Witek, 218 F.3d 1017, 1028 (9th Cir.

2000). 

The court concludes that no additional factual supplementation is necessary and that an

evidentiary hearing is not appropriate with respect to the claims raised in the instant petition. In

addition, for the reasons described above, petitioner has failed to demonstrate that the state

courts’ decision on his claims is an unreasonable determination of the facts under § 2254(d)(2). 

See Schriro, 550 U.S. at 481. Accordingly, an evidentiary hearing is not necessary or

appropriate in this case.

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that:

1. Petitioner’s application for a writ of habeas corpus be denied;

2. Petitioner’s March 9, 2006 request for an evidentiary hearing be denied; and

3. The Clerk be directed to close the case.

These findings and recommendations are submitted to the United States District Judge

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

within the specified time may waive the right to appeal the District Court’s order. Turner v.

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). If

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petitioner files objections to the findings and recommendations, he may address whether a

certificate of appealability should issue in the event he files an appeal of the judgment in this

case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or

deny a certificate of appealability when it enters a final order adverse to the applicant). A

certificate of appealability may issue under 28 U.S.C. §2253 “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

DATED: February 5, 2010.

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