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March 31, 2004.

D.L. RUNNELS, Respondent

The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge


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 investigating officers. Page 2

  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 uniformed officers.
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 Page 3 habit because it's an expensive habit." His blood tested positive for cocaine.

  [Paragraph omitted]

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.


 A. Standard. of review

  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 Page 4 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 do. Id

  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 ...

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