Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

GRALING v. PLILER

United States District Court, Northern District of California


May 27, 2003

SHANNON LEE GRALING, PETITIONER,
v.
CHERYL PLILER, WARDEN, RESPONDENT.

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

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

INTRODUCTION

Petitioner, a state prisoner incarcerated at California State Prison, Sacramento, seeks a writ of habeas corpus under 28 U.S.C. § 2254. In its order filed April 15, 2002, the court found that when liberally construed, the petition stated colorable claims for relief under § 2254, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause.

STATEMENT OF THE CASE

After a jury found petitioner guilty of five counts of lewd and lascivious acts on a child under the age of 14 (Cal. Pen. Code § 288(a)), petitioner admitted allegations that he previously had been convicted of four prior sex offenses and incurred four prior strike convictions. He was sentenced to state prison for a term of 375 years to life. On March 4, 1999, the California Court of Appeal issued an unpublished opinion affirming the judgment of conviction and, on June 16, 1999, the California Supreme Court summarily denied review.

Petitioner then filed a petition for writ of habeas corpus in the Superior Court of California, County of Santa Cruz, alleging ineffective assistance of counsel for failing to include in a petition for review an issue concerning the alleged unlawfulness of his arrest.*fn1 In its order filed August 11, 2000, the Superior Court found that petitioner's claim did not merit relief and denied the petition. The California Court of Appeal issued a written opinion on June 21, 2001, denying the petition for writ of habeas corpus and, on December 19, 2001, the California Supreme Court summarily denied the petition. The instant petition for writ of federal habeas corpus followed.

FACTS OF THE CASE

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

During 1994, defendant repaired computers at a Santa Cruz store named Computer Pics. Angie B., who owned a used computer often in need of repair, would bring it to defendant, who would fix it. Angie frequently brought along her 10-year-old son Jared. Defendant told Angie he taught children about computers, and he often invited Angie to bring Jared to his home so he could teach Jared and babysit while Angie ran errands.
In the fall of 1995, defendant left the store and began to work out of his home. Angie continued to go to defendant for the needed repairs, and he befriended her and gave her free computer accessories. In response to defendant's repeated offers, Angie twice left Jared for a couple of hours while defendant worked on her computer and she ran errands. While Angie was gone, defendant gave Jared candy and allowed him to play computer games.
Shortly before defendant moved to Oregon in the summer of 1996, he took Jared and Angie to the movies; Angie noticed defendant holding Jared's hand in the theater but attributed the conduct to `male bonding.'
The evening of August 27, 1996, defendant appeared unannounced at Angie's house, asking if he could take Jared to the Santa Cruz Boardwalk the next day. Jared asked if Angie would go with him, but she had a bad sunburn and declined.
The next morning, defendant came for Jared in his pickup truck. En route to the Boardwalk, defendant said he needed to stop at his motel room at the Hitching Post, where he had rented a room the previous day for one night. In his room, defendant produced a camera capable of taking digital pictures that could be stored on a computer and transmitted over the Internet. He told Jared it was a special camera, that only he could develop the pictures on his computer, and that they were `for [his] eyes only.'
Defendant had Jared lie on the bed and say `cheese' while he took some photographs. Defendant then told Jared to remove his clothes. Afraid because defendant was older and stronger, Jared complied. Defendant photographed Jared in his underwear as Jared undressed. He then forced Jared to pose naked for more photographs. After making Jared lie on his stomach, defendant placed his hand on Jared's ankles and spread Jared's legs apart, so he could photograph Jared's genitals. He then made Jared hold his own penis and masturbate for the camera.
Defendant next undressed, orally copulated Jared, and took Jared's hand and forced him to rub defendant's penis until it `stuck straight out.' Defendant made Jared lie face down; he climbed on top of Jared, placed his penis between Jared's legs near Jared's buttocks, moved his penis up and down, and said, `This feels really good.' Jared heard defendant breathe heavily and sigh and then felt something wet. Defendant got up and photographed Jared, still naked, with defendant's semen on his back. After wiping up his semen with a towel, defendant said this was their `little secret' and that Jared would get in `big trouble' if he told anyone.
Defendant had placed four $5 bills on a dresser; when he finished violating and photographing Jared, he gave Jared the $20, saying `You earned it. You did deserve it.'
Defendant next took Jared to the West Wind Motel near the Boardwalk; he told Jared to say defendant was his uncle if asked. When defendant arrived with Jared around noon and asked for a room for the night, manager Pamela Clark recognized defendant because he had been a long-term tenant at the motel in 1993. Clark was concerned for Jared's safety because, during defendant's tenancy, she had been told by a coworker that defendant was a child molester. Defendant said b he just had driven from Oregon and wanted a room to take a nap; he said Jared was his nephew and asked for a room with one bed. When Clark offered two beds for $10 more, defendant declined. Clark rented defendant a room but claimed it was unavailable until after 2 p.m. Telling him to return then, Clark took down defendant's driver's license and asked for a description of his truck. Defendant then took Jared to the Boardwalk, where he bought Jared a ride pass and played carnival games with him. When defendant left, Clark called the police, expressed concern for Jared's safety given defendant had checked in with the 10-year-old boy, and provided a description of defendant's truck.
After receiving this information, Detective McPhillips and three other officers staked out defendant's truck. At 2:40 p.m., McPhillips saw defendant and Jared leave the Boardwalk and enter the truck. After defendant drove a few blocks, he was pulled over by the surveillance team. Defendant's truck had Oregon license plates, and defendant gave McPhillips an Oregon driver's license before producing California identification upon request. Defendant told McPhillips Jared was a friend of his. Defendant then was arrested `on an unrelated matter' [violation of section 290].
When McPhillips searched defendant's truck, he found the registration receipts for the Hitching Post and the West Wind and a bag containing high storage computer disks. He then obtained a search warrant for the truck and for defendant's room at the Hitching Post. From that motel room, officers seized a digital camera and a laptop computer with extra storage capacity.
When police downloaded images stored in the camera, they found the photographs of Jared. In a file labelled `Office AM, Steve' in the laptop, they found pictures of another young naked boy in various poses. Officers learned those photographs were taken in defendant's Oregon home, and FBI agents located similar photographs of `Steve' on defendant's Oregon computer. Defendant's Oregon apartment manager testified he moved there in July 1996 and that she occasionally had seen him with the boy depicted in the `Steve' photographs.
When pediatric physician Loretta Rao examined Jared on September 5, 1996, she saw two tears in his anus in what she described as the `12' and `6 o'clock' positions and bruising on Jared's scrotal area. Rao testified the injuries were consistent with Jared's description of defendant thrusting his penis between Jared's legs below the anus. Rao also testified the boy whose photographs were in the `Steve' file was between 12 and 14 years old. The prosecution presented the following evidence of defendant's prior acts involving molestations of young boys in Wenatchee, Washington.
Michael C. testified he was 14 or 15 years old when he met defendant in 1984 or 1985. Defendant, who was working in a bowling alley, invited Michael to his home to play video games. On one occasion, defendant fondled Michael s penis through his pants, ordered Michael to lie on a bed, removed Michael's clothes, and orally copulated him. After making Michael cross his legs, defendant ejaculate by moving his penis between Michael's legs. Defendant tried to take Polaroid pictures of Michael, but Michael refused.
Charles Fabian worked at the bowling alley. He testified defendant told him he would tape $10 bills to a wall and, if a boy performed sexual favors, the boy could keep the money. In a room vacated by his former roommate, Fabian found a photograph of a naked boy named Willie J.
Willie J. testified he was 13, 14, or 15 years old when he met defendant between 1983 and 1985. Defendant invited Willie to his home to play video games. There, defendant undressed Willie and orally copulated and sodomized him. Defendant took the photograph of Willie found by Fabian. Money was taped to a wall and, after the molestation, defendant gave Willie $10 or $20 and said `thanks for the work.' He told Willie not to tell anyone.
Timothy C. testified he was 10 or 11 years old when he met defendant at the bowling alley. Defendant invited Tim to his home to play video games. After telling Timothy to lie on the bed, defendant would place his penis between Timothy's legs and move it up and down. Defendant orally copulated Timothy and took photographs of him naked. Defendant would take money off the wall and `reward' Timothy for these acts.
Called to testify on behalf of the defense, Sergeant Lee Sepulveda testified that, when he initially spoke to Jared about the molestations and asked what Jared and defendant had done the day defendant was arrested, Jared only mentioned going to the Boardwalk. However, when Sepulveda said he had seen defendant's photographs, Jared said `yes, it happened' and described the molestation in detail. Sepulveda testified Jared said defendant had told him the money on the dresser was for him `when it would be over.'
People v. Neal, No. H017164, slip op. at 2-8 (Cal. Ct. App. Mar. 4, 1999) (footnotes omitted) (Resp't Ex. 6).*fn2

DISCUSSION

I. Standard of Review

A federal writ of habeas corpus 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 claims: "(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 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 Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, 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." Id. 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." Id. at 411. Rather, that application must be "objectively unreasonable." Id. at 409.

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the relevant state-court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003), overruled in part on other grounds, Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003). "While circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied." Clark, 317 F.3d at 1044 (citations and internal quotations omitted).

II. Claims

Petitioner raises four claims for relief under 28 U.S.C. § 2254. Three of his claims allege ineffective assistance of counsel: (1) failure to raise the issue of unlawful arrest before the California Supreme Court; (2) failure to introduce the Santa Cruz police department's vehicle inventory and search policy at trial and on appeal; and (3) failure to investigate and introduce testimony of a witness at his suppression hearing. Petitioner also alleges he was denied his due process rights on the ground that he was not given the benefit of a change in the law.

A. Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied or as having produced a just result." Id.

In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two elements. 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." Id. at 687-88. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687. Judicial scrutiny of counsel's performance must be highly deferential, and a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. 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 means a probability sufficient to undermine confidence in the outcome. Id.

1. Failure to raise illegality of arrest issue in appeal to the California Supreme Court.
Petitioner claims that he was denied his Sixth Amendment right to effective assistance of counsel when his appellate attorney, C. Elliot Kessler, failed to raise to the California Supreme Court that petitioner's arrest based on violation of Cal. Penal Code § 290(f) ("§ 290") was unlawful because the statute did not apply to him. Mr. Kessler had fully briefed the issue before the California Court of Appeal, which determined that § 290 did apply to petitioner, but also noted that this "precise issue" was pending before the California Supreme Court in People v. Franklin. See People v. Neal, No. H017164, slip op. at 15. Petitioner contends that Mr. Kessler did not perform as a reasonably competent attorney and that, but for Kessler's deficient performance, the California Supreme Court would have granted review in the matter and the results of petitioner's case would have been different.

Petitioner submitted a declaration by Mr. Kessler admitting he should have raised the issue, and a sworn declaration by Dallas Sacher, the assistant director of the Sixth District Appellate Program, opining that Mr. Kessler's performance was deficient.

Despite the declarations, petitioner cannot state a valid Sixth Amendment claim. "[T]he right to appointed counsel extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). There is no constitutional right to an attorney in any other state post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 755-57 (1991) (no right to counsel on appeal from state habeas trial court judgment); Wainwright v. Torna, 455 U.S. 586, 587 (1982) (no right to counsel when pursuing discretionary state appeal); Finley, 481 U.S. at 555 (no right to counsel in state collateral proceedings after exhaustion of direct appellate review). And where no constitutional right to counsel exists, there can be no claim for ineffective assistance. See Coleman, 501 U.S. at 757; Wainwright, 455 U.S. at 587-88.

Here, petitioner's allegations do not relate to attorney conduct that occurred in connection with petitioner's first appeal. Rather, his allegations arise out of conduct that occurred in connection with the filing of a petition for discretionary review in the California Supreme Court. Because the California Supreme Court petition was a discretionary appeal filed after petitioner's first appeal of right, the appeal is not a right guaranteed by the Sixth Amendment. See Finley, 481 U.S. at 555. And having no Wright to counsel for his discretionary appeal to the California Supreme Court, petitioner cannot state a claim that he was denied effective assistance of counsel in connection with that appeal. See Wainwright, 455 U.S. at 587-88 (no ineffective assistance of counsel claim for retained counsel's failure to file timely application for discretionary state appeal when no right to counsel at such proceeding).

2. Failure to introduce police department's vehicle inventory and search policy to challenge the search of petitioner's truck.
Petitioner claims that he was denied his Sixth Amendment right to effective assistance of counsel at his suppression hearing when his trial counsel, Diana August, failed to admit into evidence the Santa Cruz City Police Department's vehicle inventory and search policy, and when his appellate attorney, Mr. Kessler, failed to raise the issue during the appellate proceedings.

The department's policy states that a vehicle inventory search is not intended to be a search for items of evidence, but rather is intended generally to identify and list personal property contained in the vehicle being stored or impounded. Petitioner alleges that had the policy been presented to the trial and appellate courts, the courts would not have upheld the validity of the search of petitioner's truck because it was not a valid vehicle inventory search pursuant to the department's policy.

Petitioner's claim relates to the search of his truck at the scene of his arrest. Detective Jack McPhillips searched petitioner's truck and observed two motel receipts near the center console in the passenger compartment of the truck and 22 computer disks in the camper shell area. Detective McPhillips did not seize any evidence at the scene but rather, impounded the truck and two days later obtained a search warrant based on the information he observed in the truck. The motel receipts were then seized and provided a basis for the search of petitioner's room at the Hitching Post Motel, where officers seized the digital camera and additional computer disks from petitioner's personal belongings.*fn3 A vehicle inventory search was also conducted at some point after the truck was impounded.

Petitioner moved to suppress all of the evidence based on his contention that because the officers lacked probable cause to arrest petitioner and to search his truck at the scene, the information in the search warrant affidavit describing the motel receipts and computer disks tainted the warrant. At the suppression hearing, Detective McPhillips testified that the purpose of the search at the scene was "for a couple of reasons: We're looking for evidence of where he lived and I was looking for evidence of crime with this eleven year old boy." The trial court denied petitioner's suppression motion finding that the officers had probable cause to search for two crimes: violation of § 290 and, molestation of a child. It reasoned that the search at the scene was justified as a search incident to arrest and pursuant to the automobile exception to the warrant requirement.

(a) Claim Against Trial Counsel, Ms. August

Petitioner alleges that Ms. August should have challenged the search and seizure by presenting the police department's policy at the suppression hearing and that, had she done so, the court would have found the search invalid and excluded the evidence found in petitioner's motel room.

To establish ineffective assistance of counsel based on counsel's failure to raise a Fourth Amendment issue, petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687-92. To demonstrate prejudice, petitioner must show that: (1) the overlooked motion to suppress would have been meritorious, and (2) there is a reasonable probability that the jury would have reached a different verdict absent the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003).

Here, petitioner failed to meet his burden. He has not demonstrated that Ms. August's performance was deficient or that he was prejudiced. A motion to suppress based on the officer's failure to follow the department's vehicle inventory and search policy likely would have been found meritless. The trial court ruled at the suppression hearing, brought under different grounds, that the search at the scene was justified as a search incident to arrest and, pursuant to the automobile exception to the warrant requirement. The department's vehicle inventory and search policy would have been irrelevant as to the lawfulness of the initial search because that search was not a vehicle inventory search.

In any case, petitioner did not show that there is a reasonable probability the jury verdict would have been different if the evidence seized at the motel had been suppressed. The digital camera and computer disks seized at the motel were not the only pieces of evidence used in the prosecution's case. The jury also heard evidence including: Jared's testimony of the molestation, Dr. Loretta Rao's testimony that during her medical examination of Jared she observed tears in his anus and scrotal bruising that were consistent with Jared's account of the molestation, Sergeant Lee Sepulveda's testimony as to his conversation with Jared where Jared described the molestation in detail, and testimony by Michael C., Timothy C., and Willie J., that each was sexually molested at some time between the age of 10-15 years old by the petitioner in a similar manner to Jared. Even if the photographs and computer disks were suppressed, there is no reasonable probability that the jury verdict would have been different.

The state courts' denial of petitioner's ineffectiveness of counsel claim was a reasonable application of the Strickland/Kimmelman standard. The record shows that the state courts' decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law," or was based on an "unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus based on this claim.

(b) Claim as to Appellate Counsel, Mr. Kessler

Petitioner alleges that Mr. Kessler was not a reasonably competent attorney because he failed to raise the same issue before the California Court of Appeal.

The proper standard for evaluating petitioner's claim of ineffective assistance of appellate counsel is the Strickland standard. See Smith v. Robbins, 528 U.S. 259, 285 (2000). Petitioner must show that: (1) Mr. Kessler's performance was objectively unreasonable and, (2) petitioner suffered prejudice as a result, i.e., he would have prevailed on appeal. See id. Petitioner must overcome the strong presumption that Mr. Kessler's performance falls within the wide range of reasonable professional assistance and that, under the circumstances, his failure to present the police department's policy was not sound strategy. See Strickland, U.S. 466 U.S. at 688-89; Kimmelman, 477 U.S. at 381.

Appellate counsel need not raise every non-frivolous claim on appeal, but rather may select from among them in order to maximize the likelihood of success on appeal. Robbins, 528 U.S. at 288 (citing Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). As discussed above pertaining to Ms. August, a claim that the department's vehicle inventory and search policy invalidated the initial search would have been meritless. The search at the scene was not an inventory search and the department's policy would have been irrelevant. The trial court determined that the warrantless search of petitioner's truck was justified on other grounds. Petitioner has not shown that Mr. Kessler's omission of the policy was unreasonable or that his conduct relating to this issue was otherwise deficient.

In addition, petitioner has not shown that he suffered any prejudice during the appellate proceedings as a result of Mr. Kessler's omission of the vehicle inventory policy. He failed to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, U.S. 466 at 694. The appellate court upheld the search of petitioner's truck at the scene on two independent grounds: (1) a search incident to arrest,*fn4 and (2) the automobile exception to the warrant requirement.*fn5 Neither ground is affected by whether the officers followed the department's vehicle inventory and search policy. The evidence petitioner seeks to suppress would have been admitted under either justification. In sum, raising the issue of an improper vehicle inventory search would not have disturbed the appellate court's affirmation of the validity of the search. Petitioner was not prejudiced by Mr. Kessler's failure to raise this issue.

The state courts' denial of petitioner's ineffectiveness of counsel claim was a reasonable application of the Strickland/Kimmelman standard. The record shows that the state courts' decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law," or was based on an "unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus based on this claim.

3. Failure to introduce Mr. Fort's testimony at the suppression hearing to challenge the search of petitioner's motel room.
Petitioner claims that he was denied his Sixth Amendment right to effective assistance of counsel because Ms. August failed to introduce the testimony of Mr. Pierre Fort, the owner of the Hitching Post Motel, at the suppression hearing. According to petitioner, Mr. Fort's testimony would have demonstrated that the search and seizure of evidence from petitioner's motel room was unlawful because the search warrant for the motel room was issued the day after the officers seized petitioner's property. Mr. Fort testified at petitioner's trial that the officers seized petitioner's personal property from the motel on August 29, 1996. The search warrant for the motel was dated August 30, 1996.

Petitioner contends that as a result of Ms. August's failure to investigate or interview Mr. Fort, she did not present his testimony at the suppression hearing to raise the issue that the officers searched the motel room without a warrant.

As discussed in the previous section, to establish ineffective assistance of counsel based on counsel's failure to raise a Fourth Amendment issue, petitioner must show that Ms. August's performance was deficient and that: (1) the overlooked motion to suppress would have been meritorious, and (2) there is a reasonable probability that the jury would have reached a different verdict absent the excludable evidence. Kimmelman, 477 U.S. at 375.

Counsel has a general duty "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. The duty to investigate does not require that every conceivable witness be interviewed, however. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). And, counsel's decision not to investigate must be given a heavy measure of deference. See Strickland, 466 U.S. at 691.

The issue whether Ms. August's conduct was deficient for failing to interview Mr. Fort before the suppression hearing need not be decided here because the prejudice prong has not been met. See Wilson v. Henry, 185 F.3d 986, 989 (9th Cir. 1999) (where there was no prejudice to defendant, there was no ineffective assistance of counsel even if counsel's failure to conduct minimal investigation was deficient performance). Petitioner has not demonstrated that there is a reasonable probability that the jury would have reached a different verdict without the evidence seized from the motel room. As stated in the previous section, even if the digital camera and computer disks from the motel room were suppressed, the jury heard evidence from a variety of sources that would support its verdict to convict including: Jared's testimony of the molestation, corroborating medical testimony by Dr. Loretta Rao, Sergeant Lee Sepulveda's recollection of his conversation with Jared where Jared gave a detailed description of the molestation, and testimony by three other males that each was molested as a minor by petitioner in a similar manner to Jared. Petitioner has not shown he suffered prejudice by Ms. August's omission of Mr. Fort's testimony at the suppression hearing. See Kimmelman, 477 U.S. at 375.*fn6

The state courts' denial of petitioner's ineffectiveness of counsel claim was a reasonable application of the Strickland/Kimmelman standard. The record shows that the state courts' decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law," or was based on an "unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus based on this claim.

B. Due Process

On May 3, 1999, after petitioner's direct appeal was denied, the California Supreme Court issued its opinion in People v. Franklin, 20 Cal.4th at 250-51, reversing the § 290 conviction of a registered sex offender who, like petitioner, moved out of California to another state without notifying authorities. The Court determined that prior to the amendment of § 290(f) in 1998, the statute was ambiguous regarding its application to out-of-state moves and construed the ambiguous statute in defendant's favor. See id. at 255.*fn7 Petitioner claims that he was denied his constitutional right to due process of law because he was not given the benefit of the change of law regarding the interpretation of Cal. Penal Code § 290(f). In effect, petitioner claims that because his move to Oregon without notifying California law enforcement did not constitute a violation of § 290(f), the officers lacked probable cause to arrest him and, therefore, the search was unlawful and the evidence found in his truck and motel room should have been suppressed. Petitioner's claim fails for three reasons.

First, petitioner cannot challenge the state court's denial of his motion to suppress on a petition for federal writ of habeas corpus. "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). The undisputed evidence shows that petitioner's motion to suppress was given a full evidentiary hearing and was reconsidered on direct appeal. There is no evidence that petitioner did not receive full and fair litigation of his "de facto" Fourth Amendment claim.

Second, even if petitioner could overcome the Stone v. Powell prohibition, his claim is without merit because he already has obtained the benefits of the change in law. In a separate case arising from the same arrest, the California Court of Appeal reversed his conviction for violating § 290(f) based on the Franklin decision.

Third, the state courts concluded on collateral review that Franklin did not support the suppression of the evidence found in petitioner's truck and motel room because it did not vitiate the reasonableness of the officers' probable cause to arrest petitioner for violating § 290. Relying on United States v. Leon, 468 U.S. 897 (1984), the state courts determined that the evidence was properly admitted because the arresting officers acted reasonably under the then-current interpretation of the law. See In re Graling, No. H022969, slip op. at 2 (Cal. Ct. App. June 21, 2001) (Resp't Ex. 11); In re Graling No. S6-09580, slip op. at 1 (Cal. Super. Ct. Aug. 11, 2000) (Resp't Ex. 10).

In Leon, the Supreme Court recognized that "unbending application of the exclusionary sanction" — intended to defer law enforcement officers from violating the Fourth Amendment — "would impede unacceptably the truth-finding functions of the judge and jury." Leon, 468 U.S. at 907 (citation and internal quotation marks omitted). If law enforcement officers violated the Fourth Amendment but acted objectively reasonable, the exclusionary rule should not be applied. Id. at 918-20 (holding that evidence obtained in violation of the Fourth Amendment need not be excluded because officers acted objectively reasonable when they relied on a presumably valid search warrant). The objectively reasonable standard only requires officers to have a reasonable knowledge of what the law prohibits. See id. at 919, n. 20.

Here, the state courts reasonably applied Leon to the facts of this case. At the time of petitioner's arrest in 1996, the prevailing interpretation of § 290 was that its registration requirements applied to sex offenders who moved out of state. The California Supreme Court, in fact, stated in Franklin that prior to the amendment of § 290 in 1998, it was reasonable to believe that the statute applied to out-of-state moves. See Franklin, 20 Cal.4th at 255. It simply cannot be said that the arresting officers knew (or even had any reason to know) that § 290 did not apply to petitioner and could not be the basis for probable cause to arrest and search. On this record, it was at least reasonable for the state courts to conclude under Leon, that the arresting officers acted objectively reasonable and that the exclusionary rule should not apply, which means that the state courts' conclusion must stand. See Early v. Packer, 123 S.Ct. 362, 366 (2002) (applying 28 U.S.C. § 2254(d)). Petitioner is not entitled to federal-habeas relief on his due process claim.

CONCLUSION

After a careful review of the record and pertinent law, the court is satisfied that the petition for writ of habeas corpus must be DENIED.

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

SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.