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United States District Court, S.D. California

September 28, 2005.

MATTHEW C. KRAMER, Warden of Sierra Conservation Center, Respondent.

The opinion of the court was delivered by: WILLIAM McCURINE, JR., Magistrate Judge

ERIC ANGEL THOMAS ("Thomas"), a state inmate proceeding pro se and in forma pauperis, challenges his San Diego Superior Court conviction in case number SCD167289 with a habeas corpus petition in this Court pursuant to 28 U.S.C. § 2254. In his petition, Thomas claims that: (1) his trial attorney provided ineffective counsel because the attorney failed to request the personnel records of the arresting officer, failed to present the rock-cocaine and fingerprint analysis at trial, and did not adequately present evidence and/or emphasize facts which showed Petitioner's innocence; and, (2) there is insufficient evidence to support the conviction.

This Report and Recommendation is submitted to United States District Judge Dana M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule H.C.2 of the United States District Court for the Southern District of California. After reviewing the Petition, Respondent's Answer and Memorandum of Points and Authorities in support thereof ("Answer"), and all the supporting documents submitted by the parties, the Court recommends that the Petition be DENIED for the reasons stated below.


  On May 31, 2002, the San Diego County District Attorney's Office filed an Information in the San Diego Superior Court charging Thomas with one count of Possession of Cocaine Base for Sale (Cal. Health & Saf. Code § 11351.5). The Information also alleged that Thomas had a prior "strike" conviction (Cal. Penal Code §§ 667(b)-(i), 668, 1170.12). (Lodgment 1 [Clerk's Transcript ("CT")] at 1-2.)

  On July 30, 2002, Thomas admitted that he had been previously convicted of armed robbery and thus had a prior strike. (Id. at 108.) On August 2, 2002, the jury convicted Thomas of Possession of Cocaine Base in violation of Health and Safety Code section 11350(a), a lesser included offense within the crime of Possession of Cocaine Base for Sale charged as Count One of the Information. (Id. at 77.) On August 30, 2002, the court sentenced Thomas to a total of three years and eight months in state prison. (Id. at 101.)

  On February 20, 2003, Thomas's appellate attorney filed Appellant's Opening Brief in the California Court of Appeal, Fourth Appellate District, Division One. In addition, Thomas filed an appellate brief on his own behalf claiming there was insufficient evidence to support a conviction and that his conviction by an allegedly all white jury violated his right to equal protection under Batson v. Kentucky, 476 U.S. 79 (1986). (Lodgment 4).

  The California Court of Appeal affirmed Thomas's conviction on June 3, 2003, concluding that there was sufficient evidence to support the conviction and that Thomas failed to establish a prima facie case of discrimination under Batson. (Lodgment 5.) No petition for review of the appellate decision was filed.

  On March 18, 2003, Thomas filed a petition for writ of habeas corpus with the California Court of Appeal, alleging ineffective assistance of counsel based on his trial attorney allowing him to be tried by an all white jury. On July 7, 2003, the court denied Thomas's petition for writ of habeas corpus, concluding that there was no record of the race of the jurors and that the claim had not been raised in the trial court. (Lodgment 6 [Petition for Writ of Habeas Corpus]; Lodgment 7 [Denial of Petition].)

  On October 1, 2003, Thomas filed a Petition for Writ of Habeas Corpus in the California Supreme Court claiming ineffective assistance of counsel and insufficient evidence. (Lodgment 8.) The California Supreme Court rejected Thomas's petition for writ of habeas corpus without written analysis or citation of authority on February 18, 2004. (Lodgment 9.)


  Thomas filed a Petition for Writ of Habeas Corpus ("Pet.") in this Court on March 16, 2004. Respondent filed an Answer to the petition ("Ans.") on May 5, 2005. Petitioner did not file a Traverse.


  Title 28, United States Code § 2254, subsection (e)(1) provides: "[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C.A. § 2254(e)(1) (West Supp. 2005). The petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see also Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc) overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (stating that federal courts must "give great deference to the state court's factual findings.") The following facts are taken from the court of appeal's opinion in Thomas's direct appeal (Lodgment 5).

  At approximately 2:00 a.m. on May 7, 2002, San Diego Police Officer Matthew Novak was in the area of the "C Street corridor" in downtown San Diego. At the time, there was light foot traffic in the area.

  Officer Novak noticed Thomas walk back and forth along the corridor. Novak proceeded to tell Thomas he wanted to talk with him. Thomas appeared startled or surprised. His hand was "balled in a fist." Thomas did not stop but walked quickly toward a planter, opened his fist and dropped a metallic-looking object. Novak picked up the object and, inside the metallic paper, saw five pieces of rock cocaine. There were no similar looking objects in the area. Novak then arrested Thomas.


  Title 28, United States Code § 2254, sets forth the following scope of review for federal habeas corpus claims:*fn1


The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. [. . .]
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(a), (d)(1)-(2).

  When determining what constitutes "clearly established federal law" under section 2254(d)(1), federal courts look to United States Supreme Court holdings at the time of the state court's decision. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). Ninth Circuit law may also be considered "for its persuasive authority in applying Supreme Court law." Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000), overruled on other grounds, Lockyer, 538 U.S. 63; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), cert. denied, 540 U.S. 968 (2003).

  A state court's decision is "contrary to" clearly established United States Supreme Court precedent if (1) the state court applies a rule different from the governing law set forth in Supreme Court cases or (2) the state court confronts a set of facts that are materially indistinguishable from a Supreme Court case, but still reaches a different result. Williams, 529 U.S. at 405-06, 412 (2000); Bell v. Cone, 535 U.S. 685, 694 (2002); Lockyer, 538 U.S. at 73; Clark, 331 F.3d at 1067. A state court decision does not have to cite to or even be aware of clearly established Supreme Court precedent, so long as neither the reasoning nor the result of the state court decision contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002).

  A state court decision involves an "unreasonable application" of Supreme Court precedent if (1) the state court identifies the correct governing rule, but then applies it to a new set of facts in an unreasonable way, or (2) "the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Wiggins v. Smith, 539 U.S. 510, 520 (2003); Lockyer, 538 U.S. at 76 (citing Williams, 529 U.S. at 407); Clark, 331 F.3d at 1067. An unreasonable application of federal law requires the state court decision to be more than incorrect or erroneous. Lockyer, 538 U.S. at 76. Instead, the state court's application must be "objectively unreasonable." Id.

  Where there is no reasoned decision from the state's highest court, the Court "looks through" to the last reasoned state-court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Van Lynn v. Farmon, 347 F.3d 735 (9th Cir. 2003). However, if the dispositive state court order does not "furnish a basis for its reasoning," the federal court considering the habeas petition must conduct an independent review of the record to determine whether the state court unreasonably applied controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).


  Thomas exhausted his claims via a habeas corpus petition filed in the California Supreme Court, which denied Thomas's habeas petition without written analysis or citation of authority. (Lodgment 9.) Thus, because there are no lower state court opinions which this court may "look through" to determine whether the denial of Thomas's petition for writ of habeas corpus was reasonable, this Court must conduct an independent review of the record. Delgado, 223 F.3d at 982. 1. Ineffective Assistance of Counsel

  Thomas claims that he received ineffective assistance of trial counsel. (Pet. at 7) To prove such a claim, a petitioner must first demonstrate that his attorney's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must show that his case was prejudiced by counsel's deficient performance such that there is a reasonable probability that, but for the trial counsel's errors, the result of the proceeding would have been different. Id. at 694. Review of counsel's performance should be "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. at 690.

  The petitioner must prove both elements and the court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.

  a. Failure to Motion for Discovery of Officer Novak's Personnel Records

  Thomas claims that his trial attorney's failure to file a Pitchess*fn2 motion to obtain discovery of Officer Novak's personnel records to determine if such records included a history of racial discrimination amounted to ineffective assistance of counsel. (Pet. at 6.) However, the record, when viewed with deference to the attorney's decision, does not indicate that failure to file such a motion amounted to deficient representation.

  Thomas does not allege any specific facts to support this claim; however, the record indicates that Officer Novak observed Thomas interact with two white males shortly before he approached Thomas. (RT at 104-105). As such, Thomas's claim appears to rest on the inference that a Pitchess motion would have been appropriate to determine if Officer Novak had a history of racial profiling that would explain his choice to approach Thomas, a black male, rather than the two white males. Respondent asserts that a motion to compel discovery of Officer Novak's personnel records would have been denied and thus Thomas's claim is without merit. (Answer at 8-9.)

  To succeed on a Pitchess claim, California Evidence Code Sections 1043 and 1045 provide that an officer's personnel records and any complaints against the officer must be material to the subject of the pending action and there must be good cause for disclosure. "There are two elements to the required showing [of good cause]: first, the defendant must establish the materiality of the information; and second, the defendant must state a reasonable belief that the police agency has the records or information at issue." Warrick v. Superior Court, 35 Cal. 4th 1011, 1019 (2005). Respondent contends that there was insufficient factual support to show good cause for a successful Pitchess motion. However, Warrick notes that "to obtain in-chambers review, a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred." Id. at 1016. While Officer Novak provided reasonable explanations for his actions, it remains plausible that his actions were racially motivated. Accordingly, it is not clear that a Pitchess motion would have been futile.

  Nonetheless, in the context of ineffective counsel, the focus is on whether the counsel's decision was unreasonable and resulted in an unreliable result. Strickland, 466 U.S. at 694. Thomas's theory of racial discrimination is plausible, however, it does not rest on any evidence other than inferences drawn from two white males having been present in the vicinity of the arrest. Moreover, during cross-examination of Officer Novak, Thomas's trial attorney questioned the motives behind the officer's decision to approach Thomas rather than the two white males. (RT at 104-105, 108). In response, Officer Novak explained that Thomas's sustained loitering on C street had made him the prime target. (RT at 129-130). The record also indicates that Officer Novak was working alone and therefore approaching the two white males was a less safe alternative. (RT at 129) Because of the lack of evidence supporting a theory of discrimination, the attorney's failure to file a Pitchess motion based on such a theory did not fall outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690. Finally, even if a Pitchess motion would have been granted, Thomas fails to show how Officer Novak's records would have disproved any of the elements of the charged offense. Moreover, the possibility that any discoverable personnel records would have successfully discredited Officer Novak's testimony depends on sufficiently tenuous contingencies, including the success of the Pitchess motion, retrieving useful evidence from such a motion, and, the jury's reaction. Accordingly, the Petitioner fails to show a reasonable probability that even if a Pitchess motion would have been filed, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. Thus, the California Supreme Court's denial of the petitioner's ineffective assistance of counsel claim is neither contrary to, nor an unreasonable application of, federal law. Williams, 529 US at 412-413.

  b. Failure to Present the Rock-Cocaine and Fingerprint Evidence

  Thomas claims that his attorney's failure to present the rock-cocaine and the crime lab results, which found no fingerprints on the rock-cocaine, amounted to ineffective assistance of counsel. (Pet. at 6). The rock-cocaine was, however, entered into evidence as Exhibit 1 during the People's case. (RT at 168.) As such, defense counsel had no duty or foreseeable reason to further present the jury with evidence of the rock cocaine. The decision not to reintroduce such physical evidence certainly was not outside the range of professionally competent assistance. Strickland, 466 U.S. at 690.

  Regarding evidence of the absence of prints on the rock-cocaine, the parties stipulated that the crime lab "could not locate any prints . . . which to lift". (RT at 199-200.) Because facts to which the parties have stipulated are deemed to have been conclusively established, the defense had no need to further present such evidence. Moreover, during his defense of Thomas, the trial attorney emphasized the lack of available prints both during the cross examination of the San Diego Police Department criminalist and during closing arguments. (RT at 29, 345.) Because the record indicates counsel had incorporated this evidence in Thomas's defense, there is no showing that the attorney's representation fell below an objective standard of reasonableness. Furthermore, Thomas has failed to show how counsel's actions may have prejudiced the outcome. See Strickland, 466 U.S. at 694. c. Failure to Elaborate on Facts Favorable to the Defendant

  Thomas alleges that his trial counsel failed to sufficiently elaborate on facts that "point[ed] towards [his] innocence." (Pet. at 6.) Specifically, Thomas claims that his attorney failed to adequately present evidence that the rock cocaine was retrieved from the sidewalk rather than from Thomas's person, that there was a lack of fingerprints on the rock cocaine, and that Thomas lacked any prior arrests for drug use. Id.

  "Mere criticism of a trial tactic is not sufficient to support a charge of ineffective representation." United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985) (quoting Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980)). Moreover, the record indicates that the trial tactics were reasonably appropriate. During closing argument the defense attorney specifically noted that no fingerprints were found on the rock cocaine and that the prosecution's case rested solely on Officer Novak's claim that Thomas dropped the rock cocaine. (RT at 345, 366.) Further, both on direct examination of Thomas, and in closing argument, the defense counsel attempted to establish that Thomas was not a cocaine user. (RT at 245-246, 361.) Thus, Defense counsel did raise the issues specified by Thomas and Thomas's claim that the defense counsel's tactics amounted to ineffective assistance of counsel are baseless.

  Based on the foregoing, Thomas's allegations have failed to demonstrate that his counsel's performance was objectively unreasonable pursuant to the standards established under Strickland. In addition, there is no showing of a reasonable probability of an alternate outcome even if counsel had performed differently. As such, under 28 U.S.C. § 2254(d), it is recommended that habeas relief for this claim be denied.

  2. Sufficiency of Evidence

  Thomas's second ground for relief asserts that there was insufficient evidence to support a conviction. (Pet. at 7.) Specifically, Thomas alleges that there was a lack of evidence showing that he was in possession of the rock-cocaine. Id. Respondent contends that such a claim does not present a federal claim upon which this court may fashion relief. Nonetheless, while Thomas cites no federal law or federal claim for relief on these grounds, it is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt of every element of the crime charged. In re Winship, 397 U.S. 358 (1970); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

  In Jackson, the Court held that the Fourteenth Amendment's Due Process Clause is violated, and an applicant is entitled to habeas corpus relief, "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324. In making this determination, habeas courts must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict. Jackson, 443 U.S. at 319. Once a state court fact finder has found a defendant guilty, federal habeas courts must consider the evidence "in the light most favorable to the prosecution." Id. Federal habeas courts must also analyze Jackson claims "with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. Finally, "factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, [U.S.C.] § 2254(e)(1), and a decision adjudicated on the merits in a state court and 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, [U.S.C.] § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

  The Ninth Circuit has yet to decide whether sufficiency of evidence claims such as the one presently before this Court is extended an additional level of deference by Section 2254(d)(1).*fn3 Nonetheless, the Court need not decide what level of deference is appropriate here because Petitioner's claim fails even after an independent review of the record.

  This Court has engaged in an independent review of the state court record to determine whether the conviction is supported by the evidence. In so doing, the Court has considered the elements of the offenses as they are defined under California law. See Jackson, 443 U.S. at 324 n. 16. California law provides that unlawful possession of narcotics is established by proof that: (1) the accused exercised dominion and control over the contraband, (2) that he had knowledge of its presence, and (3) that the accused had knowledge that the material was a narcotic. People v. Williams, 5 Cal. 3d 211, 215, (1971). Petitioner only challenges the first element of this offense, claiming that he never exercised dominion or control over the contraband. (Pet. at 7.) Specifically, Thomas claims that the rock-cocaine had "no physical connection to none other than a public sidewalk in a very busy commercial area (not to mention a well known and documented drug area of the city)." Id.

  Despite Petitioner's claims to the contrary, evidence at the trial was sufficient to establish that Petitioner was in possession of rock-cocaine. As the state court noted, the arresting officer, Officer Novak, testified that upon initiating contact with Petitioner, he witnessed Petitioner drop a "metallic-appearing object," later determined to be a packet containing cocaine. (RT at 66-75). Thus, the jury was presented with direct evidence in the form of eyewitness testimony and physical evidence that supported a finding that Petitioner had possessed rock-cocaine. As the state court noted, the jury simply believed Officer Novak and disbelieved Petitioner. Considering the available evidence "in a light most favorable to the prosecution," Jackson, 443 U.S. at 319, and giving deference to the jury's findings, the element of possession was sufficiently supported under Jackson.

  Based on the foregoing, the state court's adjudication of this claim was objectively reasonable, and habeas relief is unavailable in this Court. Early v. Packer, 537 U.S. 3 (noting that even where a contrary position is reasonable, if it is at least as reasonable to conclude the state court's position is correct, "the state court's determination to that effect must stand."); Williams, 529 U.S. at 412. The Court therefore recommends denying habeas relief as to Petitioner's claim based on insufficient evidence.


  For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered denying the Petition and dismissing this action.

  IT IS ORDERED that no later than October 21, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than November 4, 2005. The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).


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