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FELICIANO v. LAMARQUE

July 9, 2004.

DOMINIC FELICIANO, Petitioner,
v.
ANTHONY LAMARQUE, Warden, Salinas Valley State Prison Respondent.



The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner was convicted after a court trial in the Superior Court of the State of California in and for the County of Santa Clara of being under the influence while in possession of a firearm, possession of a firearm by a felon, resisting arrest and reckless driving. The court also found that petitioner suffered three prior felony convictions within the meaning of California's Three Strikes Law and, on October 6, 1999, sentenced him to 25 years to life in state prison. The California Court of Appeal affirmed the conviction and on June 13, 2001, the California Supreme Court denied review.

Petitioner, a state prisoner at Salinas Valley State Prison, initially filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 on November 27, 2001. The court gave petitioner 30 days to either pay the $5.00 filing fee or submit a completed in forma pauperis application. When petitioner failed to respond in time, the court dismissed the petition without prejudice on January 18, 2002.

  Petitioner refiled his petition as a new action on October 22, 2002. Respondent moved to dismiss the petition as untimely. On September 12, 2003, the court found that petitioner was entitled to equitable tolling and denied the motion to dismiss. The court then ordered respondent to file an answer to the court's earlier order to show cause why a writ of habeas should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.

  BACKGROUND

  The California Court of Appeal summarized the factual and procedural background of the case as follows:
At 1:27 am on November 7, 1998, San Jose Police Officers Davis and Johst were in uniform in a marked patrol car on Old Oakland Road when Davis tried to stop a car in which defendant was the driver and codefendant Patti Skeggs was his passenger. The car had made a left turn into the Casa Del Lago mobile home park without signaling. Though Davis turned on his lights and siren, defendant did not pull over. Instead he continued driving through the mobile home park. The officers noticed that defendant reached for his waist area and then, as he slowed the car, he reached toward the center console or passenger floorboard in an apparent effort to "conceal[] something." Seconds later, defendant stopped the car. Davis then exited the patrol car and ordered defendant to exit his car.
When Officer Johst approached defendant's car, defendant "spun the tires and took off." It was raining and the roads were wet as defendant drove through the small, confined area of the mobile home park at speeds up to "65 miles per hour." While so driving, defendant "almost los[t] control a couple of times and swip[ed] some bushes." At a dead end, he stopped and fled on foot. After a chase during which he ignored orders to stop, defendant was forcibly detained. Though he continued to struggle, "flailing about and trying to escape," he ultimately was subdued.
When the officers returned to where the cars had been left, Skeggs was waiting outside the car defendant had been driving. A search of that car revealed a backpack on the passenger side rear seat. Inside the pack was a bag containing two syringes, a cap with cotton and white residue, a pen tube, a glass narcotic smoking pipe, and Skeggs' California identification card. Under the front passenger seat was a loaded, operable .22 revolver. Its handle was facing the driver's side, and its location and placement were consistent with the driver, ie, defendant, "leaning over and placing it underneath the passenger seat."
Defendant and Skeggs were arrested. Both exhibited a multitude of symptoms which led officer Davis to believe they were under the influence of a controlled stimulant. A blood sample of defendant taken at 3:50 am contained cocaine and methamphetamine. Skeggs's blood sample also contained methamphetamine. The cap found in the backpack contained .98 grams of methamphetamine, a usable amount.
At the scene, when Officer Davis asked Skeggs about the gun, she told him she "didn't know anything about it." The car was registered to a Calud Castro in Castroville. Defendant's prior convictions were proved by documentary evidence.
People v. Feliciano, No H020798, slip op at 2-3 (Cal Ct App. March 21, 2001) (Resp't Ex 6).

  DISCUSSION

  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. Rather, that application must also be unreasonable." Id at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "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, 331 F.3d 1062, 1069 (9th Cir 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable 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

  Petitioner's sole argument is that the trial court's denial of his request for self-representation ...


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