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United States District Court, N.D. California

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 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. Page 5

  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 Cir. 1994).

  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 sufficient to Page 6 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 6.

  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). Page 7

  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 been minimal.

  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 authority.

  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 Page 8 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. 1984).

  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 Page 9 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 been prejudicial.

  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 Page 10 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.



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