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United States District Court, Northern District of California

April 28, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.


Petitioner was convicted by a jury on February 11, 1999, in the Superior Court of the State of California in and for the County of Contra Costa of possession of ephedrine with intent to manufacture methamphetamine. On the same day, the jury found true the enhancements related to three prior drug-related convictions. On June 17, 1999, petitioner was sentenced to an aggravated term of six years for the substantive offense and a consecutive term of three years for the first prior conviction enhancement. The court struck the remaining two enhancements.

Petitioner appealed his conviction to the California Court of Appeal, claiming that evidence of his prior convictions should not have been admitted during trial. The state court of appeal affirmed the conviction on July 20, 2000. A petition for review by the California Supreme Court was denied on September 27, 2000.

On September 8, 2000, while his petition for review was still pending, petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal. The petition was denied on September 14, 2000, without prejudice to re-filing in the Contra Costa County Superior Court. Petitioner then filed a state petition for writ of habeas corpus in the superior court on the grounds that his trial counsel had been constitutionally ineffective by failing to inform him that his prior convictions could be admitted. An evidentiary hearing was held on March 12, 2001, after which the petition was denied from the bench. Finally, petitioner exhausted his pursuit of relief from the state courts by filing a petition for writ of habeas corpus in the California Supreme Court, which was denied without comment on November 28, 2001.

Petitioner then filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2254. An order to show cause why a writ of habeas corpus should not be granted was issued to respondent on April 15, 2002. Respondent filed an answer. Petitioner then filed a traverse.


The California Court of Appeal summarized the facts of the case as follows:

Richmond Police Officer La Raunce Robinson testified that on the night of September 22, 1998, he stopped [petitioner], who was driving alone in a red Acura, for driving without a license p late. On the passenger seat next to [petitioner] the officer observed a cellular phone and a pager that was vibrating and moving around. At the officer's request, [petitioner] consented to a personal search and to a search of the car. Officer Robinson, who had been joined at the scene by other officers and a canine unit, proceeded to search [petitioner] and found $2,085 in cash. The dog from the canine unit was trained in drug detection, and was set free to search the car. The do detected nothing in the interior of the car, but did alert on a red and black duffel bag in the trunk. Inside the bag the police found aluminum foil, a pie cutter, Ziplock Bags, a portable scale, and a brown paper bag containing a white crystal substance that later tested positive for ephedrine or pseudoephedrine weighing 22.22 grams. A forensic toxicologist later testified that ephedrine is used in the manufacture of methamphetamine.
There was another bag in the trunk with clothing and other items, including several receipts with [petitioner's] name on them. The dog alerted a second time to the area around one of the car's brake lights, behind which the officers found a brown bag containing $8,000 in cash. The dog handler testified that do was trained to alert to several illegal drugs including methamphetamine, but not ephedrine. The handler concluded there must have been a trace of an illegal drug on the bag containing the ephedrine and on the money.
The prosecution called two law enforcement experts on methamphetamine manufacturing. Each was given a hypothetical scenario paralleling [petitioner's] case, and asked to form an opinion whether the ephedrine was possessed for the purpose of manufacturing methamphetamine. Both were of the opinion that given the circumstances of the hypothetical, the ephedrine was possessed for that purpose. One of the experts testified the amount of ephedrine found in the car was substantial, and could be used to produce 11 grams of methamphetamine.
The defense also called an expert in the manufacture of methamphetamine, who was given a hypothetical similar to the one given the prosecution's experts and asked to form an opinion regarding whether the ephedrine was possessed with the intent to manufacture methamphetamine. In his opinion it was "not convincing or compelling . . . that it has to do with manufacture of methamphetamine." He based his opinion in part on the fact that many items necessary for the manufacture of methamphetamine were missing, such as a cooker, heater, boiler, thermostat and funnel. He also testified that the quantity of ephedrine found was enough to make $400 worth of methamphetamine, which was the amount one might use in a week.
In addition to its expert, the defense called [petitioner's] father, brother, and girlfriend. His father, Gus Aragon, testified that [petitioner] lived with him from September 1997 to September 1998. During some of that time [petitioner] worked for All American Roofing. [Petitioner] also worked for someone named Kent, helping him fix up wrecked cars. Kent owned the red Acura [petitioner] was driving when he was arrested. [Petitioner] was working on the Acura for Kent, and drove it sometimes, but he regularly drove a truck his father had bought him.
[Petitioner's] brother, Steve Aragon, also lived with his father. He testified that [petitioner] helped do heavy work around the house, and worked for All Amencan Roofing for the last half of 1997, earning around $8,500. Starting in January 1998 [petitioner] worked on cars for Kent Keating, who bought damaged cars at auction and repaired them for resale. The Acura was one of Keating's cars. Keating had dropped the car off at [petitioner's] father's house several times so [petitioner] could work on it, and [petitioner] sometimes drove it. During this same time period, [petitioner] was gambling in local card rooms. About a week and a half before his arrest he won $1,100.
[Petitioner's] girlfriend, Stacy Ann Darby, testified that she saw [petitioner] three or tour times a week, and that he almost always drove a truck. he testified that [petitioner] worked for All American Roofing, then for Kent Keating. She saw [petitioner] driving the red Acura three or four times. She also testified that [petitioner] gambled frequently in a local casino, and that he "won a lot the two days before" he was arrested.
On rebuttal, and over a defense objection, the prosecution was allowed to p resent evidence of two prior incidents involving [petitioner]. Richmond Police Officer Mitchell Peixoto testified that on March 23, 1995, he stopped [petitioner] for a traffic violation. [Petitioner] was driving a truck registered in his brother's name. A search of [petitioner] uncovered 7 grams of methamphetamine in a Ziplock bag, a pager, and $117 cash. A search of the truck uncovered 2 more baggies containing 28 grams and 27 grams of methamphetamine and 17 empty Zip lock bags. [Petitioner] admitted that the drugs belonged to him, and not his brother. He was arrested for transporting a controlled substance and possession for sale of methamphetamine.
Pinole Police Officer David Spencer testified that he stopped [petitioner] for a traffic violation on August 11, 1994. The officer smelled marijuana and asked [petitioner] if he had been smoking, which [petitioner] admitted. [Petitioner] told the officer that the pick-up he was driving did not belong to him, and that he had been driving it only a few days. He consented to a search, which uncovered an envelope stuck in a hole in the driver's door, containing 23.9 grams of methamphetamine in a Ziplock bag. [Petitioner] told the officer that he had borrowed the car and had not noticed the envelope protruding from the door panel. [Petitioner] was arrested for possession for sale of methamphetamine.
After the two officers testified on rebuttal, the trial court instructed the jury to consider their testimony only for the purpose of showing [petitioner's] intent or his knowledge of the nature of the items found in the car, and not to show him to be a person of bad character or criminal disposition.
People v. Aragon, No. A087486, slip op. at 2-4 (Cal. Ct. App. July 20, 2000) (footnotes omitted) (Resp't Ex. 9).


I. Standard of Review

This court may grant a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

The writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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." Id. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

"[A] federal habeas court may not issue the writ simply because the 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 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

II. Legal Claims

Petitioner raises two claims: (1) that he received ineffective assistance of counsel because his counsel failed to advise him during plea negotiations that his prior convictions could be admitted even if he did not testify, and (2) that his due process rights were violated by the trial court's admission of evidence relating to his prior convictions.

A. Ineffective Assistance of Counsel

In order to prevail on an ineffective assistance of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "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.

Petitioner has the burden of "showing" that counsel's performance was deficient. Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir. 1990). Similarly, he must "affirmatively prove prejudice." Strickland, 466 U.S. at 693. Conclusory allegations that counsel was ineffective do not warrant relief. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995).

Judicial scrutiny of counsel's performance must be highly deferential. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689.

The Supreme Court has recognized that the Strickland standard for ineffective assistance of counsel applies in plea negotiations. Hill v. Lockhart, 474 U.S. 52, 57 (1985) ("the same two-part standard [in Strickland] seems to us applicable to ineffective-assistance claims arising out of the plea process."). Ineffective assistance of counsel may be found where there has been "`an incompetently counseled decision to go to trial.'" Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir. 1988) (quoting Turner v. Tennessee, 664 F. Supp. 1113, 1120 (M.D. Tenn. 1987)).

In the instant case, petitioner initially indicated that he wanted to obtain private counsel; however, he was represented at his early state criminal proceedings by Oscar Bobrow from the Public Defender's Office. State Writ of Habeas Corpus Evidentiary Hearing Rep. Tr. (hereinafter "Habeas Rep. Tr.") at 5, 9, 25, & 56. During the time that Mr. Bobrow represented petitioner, the prosecution offered a plea bargain consisting of one year in county jail and three years of probation. Id. Mr. Bobrow conveyed the offer to petitioner and told him he thought he should take it. Id. at 6. Petitioner's response was that he didn't want to take the offer and that he wanted private counsel to take over the case. Id. at 11, 13, & 55-56.

Mr. Bobrow also indicated to petitioner that he couldn't testify because if he did, his prior convictions would probably be admitted at trial. Id. at 7. He did not indicate to petitioner that the priors could be admitted even if he did not testify. Id. at 8-9. At the state habeas evidentiary hearing, Mr. Bobrow testified that if he had the case longer, he would have looked in detail at the priors and would have been better able to advise petitioner regarding the admission of the prior convictions. Id. at 9.

At some point, petitioner retained Matthew Wilson as private counsel. Id. at 31-32. In a meeting with petitioner, Mr. Bobrow and Mr. Wilson present, Mr. Bobrow and Mr. Wilson reiterated the plea offer to petitioner and indicated their opinion that he ought to accept the offer. Id. at 32. They also told petitioner that if he testified at trial, his priors could be admitted. Id. at 33. Mr. Wilson did not indicate that his priors could be admitted if he did not testify. Id. at 35. Mr. Wilson told petitioner that if he went to trial and lost, he would get about a 10-year sentence. Id. at 47. Mr. Wilson outlined the potential defenses to petitioner's case and indicated that it was possible that he could successfully defend petitioner's case at trial. Id. at 34 and 36. Petitioner's response was that he was interested in hiring Mr. Wilson, that he did not, at that time, wish to accept the plea offer, and that he wanted to keep the offer open. Id. at 35-36 and 51. (He did not formally reject the offer at that time. Id. at 43.)

Mr. Wilson arranged with the prosecution to keep the plea offer open for a month, during which time Mr. Wilson investigated potential defenses. Id. at 35. The offer, in fact, stayed open for about six weeks, after which, petitioner rejected the offer. Id. at 44. At the time of the deadline for the offer, Mr. Wilson indicated again that he thought petitioner should take the offer, but he also indicated that the case was defensible. Id. at 52.

In McMann v. Richardson, 397 U.S. 759, 761-771 (1970), the Supreme Court considered whether counsel were ineffective by advising clients to plead guilty on the basis of prior confessions where the prior confessions may have been inadmissable due to coercion. The Court noted that

[c]ourts continue to have serious differences among themselves on the admissibility of evidence. . . . That this Court might hold a defendant's confession inadmissible in evidence, possibly by a divided vote, hardly justifies a conclusion that the defendant's attorney was incompetent or ineffective when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty. In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession. Whether a p lea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.
Id. at 770-771 (footnotes omitted). The Court held that the petitioners in McMann were not entitled to a hearing because they failed to demonstrate that their counsel had committed "gross error" in evaluating the admissibility of the confessions. Id. at 771-772. Therefore, the proper consideration for this Court in the present matter is not whether counsel for petitioner misjudged the admissibility of his prior convictions, but rather, whether counsel's failure to inform petitioner that the priors could be admitted, even if he didn't testify, was "gross error" under an "objective standard of reasonableness."

The Ninth Circuit has noted that "where the issue is whether to advise the client to plead or not `the attorney has the duty to advise the defendant of the available options and possible consequences' and failure to do so constitutes ineffective assistance of counsel." United States v. Baylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting Beckman v. Wainwright, 639 F.2d 262, 267 (5th Cir. 1981)). However, it has also stated that "[c]ounsel cannot be required to accurately predict what the jury or court might find, but he can be required to give the defendant the tools he needs to make an intelligent decision." Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002). The Turner court found that the petitioner in their case had the necessary tools — he knew his case could result in a death sentence, he knew the terms of the plea offer, and he had time to think about it. Id. Even though Turner followed his counsel's advice in turning down the plea offer, the court stated that "counsel was not constitutionally defective because he lacked a crystal ball." Id. Petitioner in the instant case had all of the tools mentioned in Turner. He was informed that he could have a possible sentence of 10 years if he went to trial, he knew what the terms of the plea offer were, and he had six weeks to consider accepting the plea offer.

In denying petitioner's state writ of habeas corpus, the Superior Court concluded that it was not reasonable to expect petitioner's counsel to predict that the trial court would admit petitioner's prior convictions under California Evidence Code § 1101(b).*fn1 The court noted:

basically it's about[:] is the defense required to advise the defendant of possible motions to be presented by [] the People at the trial, likelihood of ruling in People's favor on those motions prior to preliminary hearing, and in this particular case in looking at some cases the Court finds the answer to that to be no, that this is not a motion that you would expect in this type of a case. It's a drug case. Usually those are discussed in sexual assault cases and domestic violence cases, and this would be a rather unusual case for that type of a motion.
Although a defendant testifying would be something that would be more expected and something that the defense attorney might address in an oral motion, but the 1101(b) issue i[n] a drug case would not be in my mind one that is expected which[,] certainly if not presented in front of the defendant by defense attorneys would deem them to be incompetent. I don't think that to be the case. The defendant was told of the risks [and] the evidence against him. He was told to take the offer. He had acknowledged it, it was a good offer. He knew if convicted he could face up to 10 years.
The information that was given to Mr. Aragon prior to the preliminary hearing was one of the parameters [t]hat competent attorneys would give, and it was after the preliminary hearing when you would more fully discuss 1101(b), any other types of issues that would come into play, getting closer to the time of trial when you might discuss those.
Habeas Rep. Tr. at 80-81.

The Superior Court did not err in its conclusions. The trial record indicates that the judge's decision to allow the prior convictions was a hotly debated one. Trial Rep. Tr. at 8-32, 437-458, and 524-534. As the trial judge noted during his ruling denying a motion for a new trial, "I think the record is pretty complete that we did take a lot of time on this 1101(b) issue." Id. at 780. The judge also stated to the attorneys that

you both ought to know that I'm not happy with 1101(b) evidence. I'm very concerned a bout ever allowing it to come into evidence before a jury. But the law indicates that there are times when it's appropriate. And I found that it's appropriate and I am going to allow it to come in. I don't like it but I'll allow it to come in.
Id. at 529. In light of this record, it is reasonable to conclude that a competent attorney may not have anticipated that the priors would be admitted in this case. Here, just as in McMann, the admissibility of the evidence (the prior convictions) is not so clear cut one way or the other that counsel should be expected to take it into consideration in giving plea advice. As such, counsel's failure to advise petitioner of the possibility of the admission of the priors even if he testified fell within the range of attorney competence and was not gross error. See Strickland, 466 U.S. at 687-88; McMann, 397 U.S. at 771-72.

Even if this Court disagreed with the state court's rejection of petitioner's ineffectiveness claim, it cannot be said that the state court's application of Strickland was objectively unreasonable. See Woodford v. Visciotti, 123 S.Ct. 357, 360 (2002); Early v. Packer, 123 S.Ct. 362, 366 (2002). Petitioner is not entitled to federal habeas relief on this claim.*fn2

B. Admission of Prior Convictions

The California Court of Appeal determined that the trial court's admission of petitioner's prior convictions did not violate state evidentiary law. People v. Aragon, No. A087486, slip op. at 5-8 (Cal. Ct. App. July 20, 2000). It is not within this Court's power to review that determination. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); Jammal v. Van De Kamp, 926 F.2d 918, 919-920 (9th Cir. 1991) (same). However, this Court can make a determination regarding whether the admission of the priors violated petitioner's due process rights.

The Supreme Court has held that evidence of prior convictions, though prejudicial, can be admitted at trial without violating the Due Process Clause of the Fourteenth Amendment. See Spencer v. Texas, 385 U.S. 554, 561-569 (1967). In Spencer, the Supreme Court found that the admission of prior convictions during a one-stage recidivist trial did not violate constitutional rights. They noted that prejudice of the admission was outweighed by the valid state purpose of admitting the evidence for the purpose of sentencing. 385 U.S. at 561. In Estelle, the Supreme Court found that the admission of prior injuries to establish battered child syndrome was permissible because it was probative of the essential element of intent and thus relevant to an issue of the case. 502 U.S. at 69-70. Therefore, the admission of prior acts can survive due process scrutiny as long as they are admitted for a valid purpose, such as establishing an element of the charged offense.

Similarly, the Ninth Circuit has held that evidence admitted at trial violates due process "only if there are no permissible inferences the jury may draw from the evidence" and the evidence is "`of such quality as necessarily prevents a fair trial.'" Jammal, 926 F.2d at 920 (quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986)). In Jammal, the court held that admission of evidence that the habeas petitioner had $135,000 in the trunk of his car when he was arrested did not violate his due process rights because the evidence created the rational inference that $47,000 and drugs found in the trunk of a car stolen from the petitioner belonged to him. 926 F.2d at 919-20. Such "modus operandi" evidence allows the permissible inference of intent and identity of a defendant. See Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986) (similar method of sexual assault); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) (similar method of luring attempted rape victims).

Admissible evidence need not directly infer the presence of an essential element of a charged offense; it is enough that it tends to make any fact relevant to an essential element more or less probable. McKinney v. Rees, 993 F.2d 1378, 1382 (9th Cir. 1993). In McKinney, however, evidence that the habeas petitioner was known to own and have an interest in knives was found to be admitted in violation of due process rights because the only inference was that the petitioner "was the type of person who would own a knife." Id. at 1382-1383. Such evidence was found not to be probative of opportunity for murder as alleged by the state. Id. at 1382. Similarly, evidence that petitioner had been seen wearing camouflage pants with a knife was found inadmissible to infer that, because petitioner was wearing the pants on the night of the murder, he was also wearing a knife the night of the murder. Id. at 1383.

In the instant case, the California Court of Appeal concluded that petitioner's prior convictions for possession for sale of methamphetamine were admissible to show that petitioner had the intent to manufacture methamphetamine from the ephedrine found in his possession. People v. Aragon, No. A087486, slip op. at 5-8. The court found that

a jury logically and reasonably could have inferred the intermediate fact that the [petitioner], who was twice arrested for possessing methamphetamine for sale, knew ephednne was used in making the drug, from which it could then reasonably infer the ultimate fact: that he intended to manufacture methamphetamine with the ephedrine in his possession. . . . [I]t was not unreasonable in the present case to connect [petitioner's] sale of methamphetamine to his involvement in the preceding phase of manufacturing the drug. . . . [I]t is not far fetched to infer that one who has possessed methamphetamine for sale in the past harbors a criminal, rather than an innocent, intent when found in possession of a precursor to the drug.
Id. at 6-7. The Court of Appeal's analysis that a logical chain exists allowing one to infer the essential element that petitioner intended to manufacture methamphetamine is reasonable. There was no violation of petitioner's due process rights because there was a permissible inference from the admitted prior convictions. See McKinney, 993 F.3d at 1382; Jammal, 926 F.2d at 929.*fn3

Finally, even if the admission of petitioner's prior convictions violated his due process rights, the admission was harmless error. On collateral review, a trial "error is harmless unless it `had substantial and injurious effect or influence in determining the jury's verdict.'" Garceau v. Woodford, 275 F.3d 769, 776 (9th Cir. 2001) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Here, there was ample evidence by which the jury could convicted petitioner even if it had not heard the prior conviction testimony. It cannot be have said that the prior convictions, coupled with a limiting instruction, had a substantial influence in determining the jury's verdict.

In summary, petitioner is not entitled to federal habeas relief on this claim because the state court's rejection of the claim was neither contrary to, nor an unreasonable application of, controlling federal law. See 28 U.S.C. § 2254(d).


For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

The clerk shall enter judgment in favor of respondent and close the file.


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