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September 19, 2005.

EDWARD S. ALAMEIDA, Jr., Director, Respondent.

The opinion of the court was delivered by: ROGER BENITEZ, District Judge

A jury convicted Petitioner MICHAEL WENSEL ("Petitioner" or "Wensel") of possession of stolen property under California Penal Code § 496(a). Under the Three Strikes Law, Wensel was sentenced to 26 years to life.*fn1

After unsuccessfully challenging his conviction in the state courts, Wensel has now filed a pro se petition for a writ of habeas corpus ("Petition") under 28 U.S.C. § 2254. See, 28 U.S.C. § 2254 (". . . [A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court. . . ."). After the matter was fully briefed, it was referred to the Honorable Magistrate Judge Jan M. Adler for Report and Recommendation ("Report"). See, 28 U.S.C. 636(b). Judge Adler issued a Report, recommending the Petition be denied in its entirety. Wensel objects to Judge Adler's findings in the Report. The Court has made a de novo review of the Report. See, 28 U.S.C. § 636(b)(1) (The Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]."); see also, Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir. 2005). Having done so, the Court ADOPTS the Report in full. The Court also denies Wensel's request for an evidentiary hearing. Accordingly, Wensel is not entitled to habeas relief and his Petition is DENIED. The Clerk shall close the file.

  As Judge Adler found, Wensel has failed to show that the state court's denial of his claims was contrary to, or involved an unreasonable application of, clearly established Supreme Court law. Specifically, "[i]n 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA).*fn2 In that Act, Congress placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners." Williams v. Taylor, 529 U.S. 362, 399 (2000).

  "AEDPA imposes a highly deferential standard for evaluating state-court rulings." Boyd v. Newland, 393 F.3d 1008, 1012 (9th Cir. 2004) (Citations omitted). "The highly deferential standard for evaluating state-court rulings reflects a respect for state courts as part of a co-equal judiciary and as competent interpreters of federal law." Turney v. Pugh, 400 F.3d 1197, 1200 (9th Cir. 2005). Under the AEDPA, the Court "may not disturb a state court's determination unless it `was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States" or "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.'" Id., quoting, 28 U.S.C. § 2254(d)(1); see also, Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000).

  A state court decision is "contrary to" the Supreme Court's precendent if it is "`diametrically different,' `opposite in character or nature,' or `mutually opposed'" with the precedent. Williams v. Taylor, 529 U.S. at 405. "The text of § 2254(d)(1) therefore suggests that the state court's decision must be substantially different from the relevant precedent of the [Supreme] Court." Id. "A state-court decision will also be contrary to th[e] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [that] precedent." Id. at 406.

  Next, "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." Williams v. Taylor, 529 U.S. at 409. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. "A state court's decision can involve an `unreasonable application' of Federal law if it either: 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).

  In this regard, "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." Williams v. Taylor, 529 U.S. at 411; see also, Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir. 2000) ("It is not enough for [the Court] to determine in [its] independent judgment that the state court decision was incorrect or erroneous — instead the important question is whether the state court's decision was `objectively unreasonable.'").

  "Additionally, § 2254(e)(1) states: `a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'" Buckley v. Terhune, 397 F.3d 1149, 1154 (9th Cir. 2005), quoting 28 U.S.C. § 2254(e)(1); see also, Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004) ("We presume that state courts' . . . factual findings are correct in the absence of clear and convincing evidence to the contrary."). "Clear and convincing evidence requires greater proof than the preponderance of the evidence. To meet this higher standard, a party must present sufficient evidence to produce in the ultimate fact-finder an abiding conviction that the truth of its factual contentions are highly probable." Sophanthavong v. Palmateer, 378 F.3d 859, 866-867 (9th Cir. 2004).

  "Finally, even if the state court's decision was contrary to, or an unreasonable application of, clearly established federal law, habeas relief may still be denied absent a showing of prejudice." Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004), citing Early v. Packer, 537 U.S. 3, 10-11 (2002) (Per curiam). "There are two forms of prejudice. Only a small group of `structural errors' are deemed so harmful that they warrant per se relief. The overwhelming majority of trial errors are non-structural and do not trigger habeas relief unless the error resulted in `substantial and injurious effect or influence in determining the jury's verdict', or unless the judge `is in grave doubt' about the harmlessness of the error." Id. In other words, a "determination that [a petitioner's] constitutional rights were violated does not end the inquiry." Dillard v. Roe, 244 F.3d 758, 773-774 (9th Cir. 2001). "Thus, in determining whether this violation of [a petitioner's] constitutional rights entitles him to habeas relief, [the Court] must ask `whether the error had a substantial and injurious effect" on the outcome of the trial." Id. "Under this standard of review, [th Court] may not grant habeas relief unless [the petitioner] can establish that, as a result of the state trial court's error, he suffered `actual prejudice'; i.e., that as a result of the error, the outcome of the trial was rendered fundamentally unfair." Id.

  Against this backdrop, Judge Adler found Wensel is not entitled to habeas relief. The Court agrees. As noted, Wensel was convicted of receiving or possessing stolen property under Penal Code § 496. Section 496, subdivision (a) provides:
Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison. . . .
Id. "Consequently, . . . the [prosecution] must prove (1) the property was stolen; (2) the defendant knew it was stolen; and (3) the defendant had possession of it." In re Anthony J., 117 Cal.App.4th 718, 728 (2004). See also, Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (In determining whether the elements of a crime have been met and whether sufficient evidence supports those elements, the district court "must . . . appl[y] . . . the substantive elements of the criminal offense as defined by state law.").

  Uncontradicted evidence at trial established all three elements. Specifically, the evidence at trial showed that Wensel possessed and attempted to sell a Kubota lawn mower that was reportedly stolen. At trial, the owners of the lawn mower — the Races*fn3 — testified that several boxed lawn mowers were stolen from them. Gino Race then notified the sheriff's department and several repair shops and dealers. Within one or two weeks, a repair shop manager contacted Gino and told him a man named Michael Wensel called trying to sell a Kubota lawn mower. Gino contacted Wensel and set up a meeting. Gino then gave this information to a deputy sheriff, Detective Bradley. The Races also provided detective Bradley with the document containing the serial numbers of the lawn mowers they owned.

  Detective Bradley and another deputy sheriff, dressed as gardeners, then met with Wensel. Wensel directed Bradley to a garage where a boxed lawn mower was stored. According to Detective Bradley's testimony, the serial number on the lawn mower that Wensel was attempting to sell matched one of the serial numbers on the document detective Bradley received from the Races. At trial, the prosecution also introduced a two-page document containing lists of serial numbers of lawn mowers. The Races testified that the document reflected exact copies of the original receipts and invoices received from San Diego Tractor showing the serial numbers of their purchased lawn mowers. The foregoing evidence was sufficient to establish Wensel was in possession of a stolen lawn mower.

  There was also direct or circumstantial evidence from which the jurors could reasonably infer Wensel knew or had reason to know the lawn mower was stolen. "Knowledge that the property was stolen may be inferred from circumstantial evidence [citation] such as where the accused is found, as here, in possession of the property soon after it was stolen [citation] or an unsatisfactory explanation of its presence is given by him or there are other suspicious circumstances." In re James D., 116 Cal.App.3d 810, 814 (1981). "[I]n addition to possession, slight corroboration in the form of statements or conduct of the defendant tend[s] to show his guilt. [Citations]." People v. McFarland, 58 Cal.2d 748, 754 (1962). Such is the case here.

  First, the timing and nature of Wensel's attempted sale provide circumstantial evidence supporting knowledge. The evidence revealed Wensel was attempting to sell a rare boxed Kubota lawn mower used only for commercial purposes within two weeks after the lawn mowers were stolen. Also, when attempting to sell the lawn mower, Wensel told detective Bradley the lawn mower belonged to his father in Texas, and that Wensel was trying to sell it for $350. This, Wensel told the detective, would upset his father because the lawn mower was worth $700. Similarly, after waiving his Miranda rights, Wensel initially said he had received the lawn mower from another person whom he did not know. Wensel then changed his story, stating that he had received the lawn mower from a man named Rodney Rouse. According to Wensel, Rouse told him to sell the mower for $350, and Wensel could keep $50. When Wensel asked Rouse where he had received the lawn mower, Rouse would not tell him. Based on that response, Wensel admitted that he thought the lawn mower was stolen. Wensel said he ...

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