The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to
28 U.S.C. § 2254. The court ordered respondent to show cause why the
writ should not be granted. Respondent has filed an answer and a
memorandum of points and authorities in support of it, and has lodged
exhibits with the court. Petitioner has responded with a traverse. The
matter is submitted.
Petitioner was convicted by a jury of selling cocaine base,
see Cal. Health & Safety Code § 11352(a),
and being under the influence of cocaine, see Cal.
Health & Safety Code § 11550(a). With enhancements for a prior
"strike" and prior prison terms, petitioner was sentenced to prison for a
term of nine years. His conviction and sentence were affirmed on appeal
by the Court of Appeal of California, and the Supreme Court of California
denied review. Petitioner also filed several unsuccessful state habeas
petitions in Superior Court. As grounds for habeas relief he assserts
that: (1) there was insufficient evidence to support the conviction; (2)
exculpatory evidence was withheld by the prosecution; (3) his counsel was
ineffective; and (4) his due process rights were violated when the trial
court denied his motion to discover citizen complaints against the
Petitioner does not dispute the following facts, which are taken from
the opinion of the California Court of Appeal.
On April 2, 1998, San Jose Police officer Henry
Duran was on patrol as part of the Narcotics
Enforcement Team. He was surveilling the area of
Seventh and Santa Clara Streets in San Jose, a
known drug area, from a building above the ground.
At about 5:50 p.m., Ed Cordova and Harry Boukis
were wandering slowly around the area. They
had a brief encounter with someone. Their
actions caused Officer Duran to believe they
were "possible buyers."
Defendant lived about five or six blocks away
from the area. Officer Duran observed him
whistle and motion for Cordova and Boukis to come
over. Cordova made contact with defendant while
Boukis stood a few feet off to the side. Cordova
reached over and received something from
defendant's hand. He then gave defendant
something with his other hand. Cordova than
walked away, smiling, with his hand in a fist.
The entire transaction took about five seconds.
Officer Duran believed that a drug transaction
had taken place. He believed that Cordova was the
buyer and that defendant was the seller, for
several reasons. First, Cordova had received
something first, consistent with the general
rule of drug transactions: "[y]ou want to get
the drugs before you [give] the money. . . ."
Second, Cordova left while defendant remained in
the area. A seller usually remains in his or her
"business area," where he or she has
"protection and lookouts" and keeps his or her
"stash." Third, defendant was Black, while
Cordova was White. Drug sales in the area of
Seventh and Santa Clara Streets are
predominately conducted by Blacks, while Whites
make up most of the purchasers.
After Cordova and Boukis walked away, Officer
Duran put out an alert. Another undercover
officer located them. He saw that Cordova still
had something in his fist. Cordova and Boukis
got into a vehicle and drove off. About a half
block later, they were stopped by two
Boukis was the driver of the car, Cordova was
the passenger. One of the officers asked Cordova
for permission to search him. The search
revealed. 31 grams of rock cocaine in Cordova's
sock. The rock cocaine had a street value of
approximately $20. Cordova had a small amount of
marijuana and $46.50 cash in his pocket.
Marijuana was also found on Boukis.
Meanwhile, after the transaction with Cordova,
defendant also walked away. Officer Duran lost
visual contact with him. However, defendant
returned to the area about 15 or 20 minutes
later. Officers kept him under surveillance
until they received word of the results of the
Cordova and Boukis stop.
Defendant was observed walking with a blond
woman. They went into a carport and stood next
to a car: defendant was on the passenger side
and the woman was on the driver's side. At that
point, two uniformed officers approached. They
arrested defendant and searched him. He had no
narcotics on his person at that time. No stash
of narcotics was located in the carport area.
According to Officer Duran, a drug seller
often keeps his or her drugs in a hidden
location and might only carry enough narcotics
to perform only [sic] one transaction at a time.
If the area is "a real hot spot," the drug
seller might not keep any drugs on his her person.
At the time of his arrest, defendant exhibited
sign of being under the influence of cocaine: a
dry mouth, constricted unresponsive pupils, and
excited speech. According to Officer Duran, it
is not uncommon for a seller of drugs to be
under the influence. "[M]ost sellers use, and
they usually sell to keep their
habit because it's an expensive habit." His
blood tested positive for cocaine.
Boukis testified at trial. He had gone to the
area of Seventh and Santa Clara Streets in order
to pick up Cordova, who worked in that area but
lived in Fremont. When he arrived, Cordova was
talking to people at a bus stop. Cordova wanted
to look for a friend, so they walked up the
block. Cordova approached several people. Boukis
did not hear any of the conversations and was
not "paying too much attention to what [Cordova]
was doing as he approached these people."
Boukis believed Cordova might be trying to buy
crack cocaine, as Cordova had a history of crack
cocaine use. Boukis did not believe that Cordova
was trying to sell crack cocaine. Boukis saw
Cordova contact defendant. He did not see any
hand to hand transaction take
place, but he was "pretty much turned away"
during their interaction. He did not see Cordova
place anything in his sock.
Ex. I (court of appeal opinion) at 2-4.
The petition in this case was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the
provisions of that act apply to it. See Lindh
v. Murphy, 521 U.S. 320, 327 (1997); Jeffiies v. Wood
114 F.3d 1484, 1499-1500 (9th Cir.), cert.
denied 522 U.S. 93 (1997) ("justice and judicial economy are
better served by applying the Act to cases filed after the enactment
date."). Under the AEDPA a district court may not grant a petition
challenging a state conviction or sentence on the basis of a claim that
was reviewed 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). The first prong applies
both to questions of law and to mixed questions of law and fact,
Williams (Terry) v. Taylor. 529 U.S. 362, 407-09
(2001), while the second prong applies to decisions based on factual
determinations, Miller El v. Cockrell, 123
S.Ct 1029, 1041 (2003).
A state court decision is "contrary to" Supreme Court authority, that
is, falls under the first clause of § 2254(d)(1), only 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 (Terry). 529 U.S.
at 412-13. A state court decision is an "unreasonable application of'
Supreme Court authority, falls under the second clause of § 2254(d)(l),
if it correctly identifies the 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. The federal
court on habeas review 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, the application
must be "objectively unreasonable" to support granting the writ.
See id at 409.
"Factual determinations by state courts are presumed correct absent
clear and convincing evidence to the contrary." Miller
El, 123 S.Ct. at 1041. This presumption is not altered by the
fact that the finding was made by a state court of appeals, rather than
by a state trial court. Sumner v. Mata, 449 U.S. 539,
546-47 (1981); Bragg v. Galaza. 242 F.3d 1082, 1087
(9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A
petitioner must present clear and convincing evidence to overcome §
2254(e)(1)'s presumption of correctness; conclusory assertions will not
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a
factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state
court proceeding." Miller EL 123
S.Ct. at ...