United States District Court, N.D. California
March 31, 2004.
JOSEPH MICHAEL LEWIS, Petitioner;
D.L. RUNNELS, Respondent
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.
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
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 1041; see also Torres v. Prunty, 223 F.3d 1103, 1107
(9th Cir. 2000).
B. Issues Presented
1. Sufficiency of the evidence
A state prisoner who proves that the evidence in support of his state
conviction cannot be fairly characterized as sufficient to have led a
rational trier of fact to find guilt beyond a reasonable doubt is
entitled to federal habeas relief. Jackson v.
Virginia, 443 U.S. 307, 324 (1979). Only if no rational trier of
fact could have found proof of guilt beyond a reasonable doubt may
the writ be granted. Id.
Petitioner contends that the evidence was insufficient because officer
Duran did not see what he and Cordova exchanged, and Boukis saw no
exchange at all because he was "turned away." Petitioner was seen
loitering in an area known for drug sales. Cordova's friend Boukis said
that Cordova, who used crack, approached several people in the area. A
jury might infer that this was an attempt find drugs. Petitioner whistled
and gestured for Cordova and Boukis to come over to him. A hand
to hand transfer ensued, with Cordova receiving whatever was
passed first; the whole encounter lasting about five seconds. Expert
testimony was that a buyer wanted to have the drug in his hand first.
Cordova left the area, whereas petitioner did not. Cordova was found with
a rock of crack cocaine. Although petitioner had no narcotics in his
possession when arrested, expert testimony was that drug dealers try not
to have the drugs on their person, working from a "stash" instead.
Circumstantial evidence and inferences drawn from that evidence may be
sufficient to sustain a conviction. Walters v. Maass,
45 F.3d 1355, 1358 (9th Cir. 1995). Mere suspicion and speculation,
however, cannot support logical inferences. Id. The
"prosecution need not affirmatively 'rule out every hypothesis except
that of guilt,'" and the reviewing federal court "`faced with a record of
historical facts that supports conflicting inferences must presume
even if it does not affirmatively appear on the record-that the
trier of fact resolved any such conflicts in favor of the prosecution,
and must defer to that resolution."' Wright v. West
505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326);
see, e.g., Davis v. Woodford. 333 F.3d 982, 993-94 (9th Cir.
2003) (finding sufficient evidence of premeditation). The existence of
some small doubt based on an unsupported yet unrebutted hypothesis of
innocence therefore is not sufficient to invalidate an otherwise
legitimate conviction. Taylor v. Stainer, 31 F.3d 907, 910 (9th
Petitioner is mistaken that he could not be convicted of selling drugs
if no witness saw the drugs and identified them as such. No doubt that is
why the exchange between petitioner and Cordova was with closed hands.
But the circumstantial evidence here, with inferences from it resolved in
favor of the prosecution, as the Court must in this context, is
support the conviction.
2. Brady violation
Petitioner contends that the prosecution violated the rule announced in
Brady v. Maryland when it failed to turn over to the defense
the result of a blood test of Cordova which showed he had cocaine in his
bloodstream at the time of the transaction. This came up in a
Marsden hearing at the time of petitioner's sentencing in state
court. People v. Masden is a state case which held that when a
criminal defendant requests replacement of his or her attorney, the court
must hold a hearing and allow the defendant to specify the reasons for
the request. People v. Marsden. 2 Cal.3d 118 (1970). A
transcript of the Marsden hearing has been filed with the Court under
seal, and has been reviewed as it applies to this issue, although it adds
little to what has already been said publicly by the court of appeal in
its ruling on this issue. In response to petitioner's contentions
regarding her failure to ask for the blood test results, counsel stated
that she decided not to ask for them because she felt it would be better
not to have the tests in evidence, allowing her to argue that there was
no evidence that Cordova was high, so it was more likely he was the
seller than petitioner, who was under the influence of cocaine. Ex. 1 at
The government has an obligation to surrender favorable evidence that
is "material either to guilt or to punishment" Brady v.
Maryland 373 U.S. 83, 87 (1963). "[E]vidence is material only if
there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different. A
`reasonable probability' is a probability sufficient to undermine
confidence in the outcome." United States v. Bagley.
473 U.S. 667, 682 (1985) (plurality opinion); accord id at 685 (White,
J., concurring). If the defense does not request such information, the
prosecutor must nonetheless turn over any evidence that might create a
reasonable doubt that otherwise would not exist. United States v.
Agurs, 427 U.S. at 112-13 (omission of such evidence must be
evaluated in the context of the whole case and violation of due process
occurs when a defendant is denied a fair trial; thus, even minor
violations may meet the reasonable doubt requirement in a close case).
The Court of Appeal assumed that the Brady claim was not
waived and assumed the truth of the allegation that Cordova's blood test
showed he was under the influence of cocaine. It held, on these
assumptions, that the omission was not material. Ex. I at 8-9. This Court
will also assume for purposes of this ruling that the test showed that
Cordova was under the influence of cocaine at the time he was tested.
There was a solid circumstantial case against petitioner, though
certainly the evidence was not overwhelming. The evidence that Cordova
had used cocaine before coming into contact with petitioner, however,
cuts both ways. As petitioner's attorney said in explaining her decision
not to ask for the results of the blood test, if there was no evidence at
trial that Cordova was high, the jury might take that to mean it was more
likely he was the seller; on the other hand, petitioner is correct that
the expert testimony was that sellers usually are also users, so perhaps
it would have cut the other way. In any event, since introduction of the
evidence could do no more than even things out, would only mean that
there was evidence that both parties were users, the impact would have
Possibly petitioner's stronger argument is that knowing Cordova had
used cocaine recently would make the jury more likely to believe that the
cocaine found in his sock was his, rather than a purchase from
petitioner; but again, the impact of the evidence would have been
minimal, given that the jury already knew from other evidence Cordova was
a cocaine user.
On balance the Court concludes that the withheld evidence was not
material, i.e., it is not reasonably probable that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different. Certainly, taking into account the standard of review here,
the state appellate courts' decision on this issue was not contrary to,
or an unreasonable application of, clearly established Supreme Court
3. Ineffective assistance of counsel
Petitioner contends that his counsel was ineffective in several
respects: he contends that (1) one of her defenses presented in closing
argument was contrary to the evidence; (2) she failed to object to
improper evidence, and (3) she did not move to dismiss the information
when a witness gave testimony at trial which was contrary to what
an officer had testified at the preliminary hearing the witness had told
him. In order to prevail on a Sixth Amendment ineffectiveness 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
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. A difference of opinion as to trial tactics does not constitute
denial of effective assistance, United States v. Mayo.
646 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not ineffective
assistance simply because in retrospect better tactics are known to have
been available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.
In closing, defense counsel suggested the possibility of mistaken
identify, that Cordova might have been the seller rather than petitioner,
or that petitioner might have given Cordova something other than cocaine.
Petitioner contends that because the police did not find any cocaine in
his possession when they arrested him, counsel's suggestion that he was
the buyer rather than the seller was not supported by the evidence. As
the court of appeal noted, the challenged theory was supported by some of
the evidence, namely that petitioner was under the influence of cocaine
when arrested and the failure of the police to find any money in his
possession, and the evidence was at best unclear was to whether
petitioner had an opportunity to get rid of any evidence that is,
if he were the buyer, that he had no cocaine when apprehended might mean
that he had concealed it. In addition, it seems a sound tactical decision
for counsel to attempt to confuse further the question of who was the
buyer and who
the seller by repeating the point. Counsel was not ineffective in
mentioning this theory, and most certainly this passing reference, in the
context of alternative theories suggested to the jury, could not have
Petitioner contends that his attorney should have objected to officer
Duran's testimony that most of the drug sales in that area are by blacks,
who sell to whites. Counsel explained * her failure to object as
tactical; in her closing argument, she launched a vigorous attack on
Duran as racist. Obviously this decision was not only tactical, which
means it could not have been ineffective, but it also was a wise choice,
allowing defense counsel to raise police racism as an issue.
Petitioner also contends that counsel should have moved to dismiss the
information when Boukis denied seeing him buy cocaine, which was contrary
to testimony by officer Kelly at the preliminary hearing that Boukis had
told police that petitioner bought cocaine. Petitioner's position is that
this shows Kelly that lied at the preliminary hearing, which he believes
would be grounds for dismissal. As the court of appeal correctly noted,
the testimony does not show that Kelly lied; Boukis did not testify at
trial that he had told Kelly he was looking away and didn't see
anything, a statement which would have been contrary to Kelly's
preliminary hearing testimony. It was not ineffective for counsel to fail
to move to dismiss the information, and because such a motion could not
have succeeded, petitioner was not prejudiced.
Petitioner's three claims of ineffective assistance of counsel are
without merit. The state appellate courts' rejection of them was not
contrary to, or an unreasonable application of, clearly established
Supreme Court authority.
4. Pitchess claim
In Pitchess v. Superior Court 11 Cal.3d 531 (1974) (en
banc), the California Supreme Court held that a criminal defendants have
a right to discovery of citizen complaints against investigating officers
upon a showing of good cause. Id. at 537-38. The trial court
found good cause, reviewed the complaints in camera, and concluded that
the complaints were
not discoverable. Ex. I at 15. The California Court of Appeal also
reviewed the confidential information and found no error. Id. The citizen
complaints which were the subject of this exercise have been supplied to
this Court under seal.
Petitioner contends that the denial of discovery of the complaints
violated his due process rights under Brady and
Bagley, discussed in section two, above. United States v.
Bagley, 473 U.S. 667 (1985); Brady v. Maryland 373 U.S. 83
(1963). The Court, having reviewed the sealed material, concludes that it
was not "material" within the meaning of Bagley. That is, there
was not a "reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different."
Id. at 682.
As a result, the rejection of this claim by the state appellate courts
was not contrary to, or an unreasonable application of, clearly
established Supreme Court authority.
For the foregoing reasons, the petition for a writ of habeas corpus is
DENIED. The clerk shall close the file.
IT IS SO ORDERED.
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