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August 27, 2003


The opinion of the court was delivered by: Vaughn Walker, District Judge


Petitioner Taliebu Daniel Hurd seeks a writ of habeas corpus under 28 U.S.C. § 2254.*fn1 Hurd claims that his Sixth and Fourteenth Amendment rights were violated because the trial court precluded evidence concerning the guilt of his accomplices, improperly admitted evidence of uncharged conduct, failed to give a limiting instruction regarding the same uncharged conduct, and provided a jury instruction that prevented free and fair deliberation. Hurd also contends that the cumulative effect of these alleged errors amounted to a denial of due process. For the reasons set forth below, the petition is DENIED. [ Page 2]


On September 8, 1999, Hurd was convicted by a Santa Clara County jury for possession of cocaine base for sale and transportation of cocaine base under California Health and Safety Code §§ 11351.5 and 11352. He was sentenced to 13 years in prison, a term that included enhancements for a prior felony and commission of an offense while out on bail.

The judgment against Hurd was affirmed by the California Court of Appeal on February 21, 2001, and an order modifying the opinion and denying a rehearing was filed on March 9, 2001. The California Supreme Court denied Hurd's petition for review on May 2, 2001.

On March 23, 2002, Hurd filed a petition for a writ of habeas corpus in this court and an order to show cause issued. The state attorney general's office answered on July 23, 2002, and Hurd filed a traverse on August 12, 2002.


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

On May 11, 1999, San Jose police officers were maintaining surveillance of a residence at 1356 Old Rose Place, hoping to find Torriano Walker, a man wanted for robbery in Santa Cruz. Police believed that Walker associated with someone who lived at this address. Officer Rosenbrook saw three Black males, including appellant [Hurd], in the front yard talking on cellular phones and apparently looking for traffic. During the five-hour period or the officer's observation, appellant went inside the house and came back numerous times. About six times he drove away from the premises and returned. The officer saw several activities that indicated drug trafficking at this residence.
Officer Rosenbrook thought appellant might be Walker, so he told other surveillance units to stop appellant's car. When officers did so, however, appellant produced his driver's license and gave his address, and he was allowed to go on his way.
On May 25, 1999, police again were watching the house at 1356 Old Rose Place. At about 8:00 p.m. Officer Scott Thorne saw a two-door Chevy Cavalier arrive at the house. Torriano Walker, the driver, got out of the car while the passenger waited. Walker took a folded plaid shirt [ Page 3]
from the trunk and "wrapped it into a ball" before going inside the house. Ten or fifteen minutes later, the passenger, Clarence Grayson, also went inside. They returned to the car half an hour later with appellant, who got into the back seat of the car. The driver put the shirt, which he carried loosely now, back into the trunk and drove away.
The car was stopped less than a mile away and each occupant was ordered out of the car, one at a time, with one to two minutes between each person. Appellant was the last one to get out. The officers then searched the car. Between the driver's seat and the center console they found a piece of plastic wrapped around 7.22 grams of cocaine base. Two more pieces 01 plastic, each containing a rock of cocaine base, were found inside a Burger King bag, which was on the rear passenger-side floorboard. One of those samples weighed 7.0 grams.
Walker had no money or personal property on him when arrested. Greyson had only $7.75. Appellant had $330 in cash and a pager. The pager beeped four times within an hour, but the arresting officer did not record any numbers from it.
None of the three occupants was under the influence of narcotics. Officer Richard Lira, testifying as an expert, expressed the opinion that the cocaine was possessed for sale, based on the quantity of the cocaine, the large amount of cash appellant was carrying, and the pager. Lira also believed that the activity observed by surveillance officers on May 11 was consistent with drug trafficking.
Monique Hurd, appellant's wife of nearly three months, testified for appellant at trial. She said she was the one who had paged appellant repeatedly the night of May 25, 1999. Appellant was supposed to pick her up from her parents' house, but he did not show up, so she paged him every hour beginning at 6:00 p.m.
Shirley Jefferson was appellant's aunt. In May of 1999 her mother, Ruby Sims, lived at 1356 Old Rose Place, as did her disabled brother and appellant. Sims was in very poor health, so members of her large family frequently visited to help care for her. Jefferson was there every other day, sometimes for 12 hours, and she had never seen anyone in possession of drugs at the house. She generally did not visit on Tuesdays, however. Both May 11 and May 25 were Tuesdays.
Appellant, Walker, and Grayson were charged together with transporting narcotics and possessing cocaine base for sale. Walker and Grayson pleaded guilty to all the charges. The jury found appellant guilty. He admitted he had been out on bail when he committed the offenses, and he agreed to a court trial on the prior conviction allegations of the amended information. The trial court found these allegations to be true and sentenced appellant to a term of 13 years in prison.
People v Hurd. No H020662, slip op at 1-3 (Cal Ct App. Feb 21, 2001) (Resp't Ex F). [ Page 4]


A. 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 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 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 `unreasonable 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 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 state court decision. Id at 412; Clark v Murphy. 317 F.3d 1038, 1044 (9th Cir 2003). While circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable [ Page 5]

application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

B. Claims

Hurd raises five claims for relief under 28 U.S.C. ยง 2254: (1) the trial court prevented him from presenting evidence regarding the guilt of his accomplices; (2) evidence of uncharged conduct was improperly admitted; (3) the trial court failed to provide a limiting instruction concerning the same uncharged conduct; (4) the jury instruction stifled free and fair ...

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