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Paul v. Carey

July 26, 2006

ROBERT PAUL, PETITIONER,
v.
TOM CAREY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Charles R. Breyer United States District Judge

MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner, a state prisoner incarcerated at California State Prison, Solano, seeks a writ of habeas corpus under 28 U.S.C. § 2254. STATEMENT OF THE CASE Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda for (1) selling cocaine and (2) possessing cocaine base for sale. Petitioner admitted a prior strike allegation and an on-bail enhancement. On March 14, 2003, he was sentenced to twelve years and eight months in state prison. The California Court of Appeal affirmed the judgment of the trial court on December 17, 2003, and the Supreme Court of California denied review on February 24, 2003. Petitioner also unsuccessfully sought collateral relief from the state courts. On December 1, 2004, the Supreme Court of California denied his final requests for state habeas relief.

Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on April 15, 2005, the Court found that the petition, when liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause, and petitioner filed a traverse.

FACTUAL BACKGROUND

A search warrant was issued on June 19, 2001 for the search of petitioner, his house and his two vehicles, based on the affidavit of Detective David Lindenau. Lindenau testified that he conducted a controlled buy using a confidential reliable informant "X" around June 11, 2001. X identified petitioner from a photo as the dealer who sold him cocaine from 3425 Chestnut Street in Oakland, California.

At about 7:00 a.m. on June 28, 2001, Berkeley police, under the direction of Lindenau, executed a search warrant for petitioner and his residence at 3425 Chestnut Street. A search of petitioner revealed $515 in cash, a cell phone, six marijuana joints and packaging material. Lindenau arrested petitioner for possession of marijuana for sale. The police later found a false book containing about twenty-three grams of cocaine and five grams of marijuana, used and new drug packaging material, a digital scale, and over $13,000 in cash in six videotape cases in a search of the residence, and a box of hypodermic needles in petitioner's car. Petitioner was charged on December 26, 2001 with possession of cocaine base for sale (Cal. Health & Saf. Code § 11351.5), possession of marijuana for sale (Cal. Health & Saf. Code § 11359) and unauthorized possession of a hypodermic needle or syringe (Cal. Bus. & Prof. Code § 4140). The information alleged petitioner had one prior strike conviction. Petitioner was released on bail on December 13, 2001.

On May 18, 2002, Officer Roundtree conducted surveillance of the 3400 block of Chestnut Street.*fn1 He observed a woman contact petitioner in front of 3425 Chestnut Street. At Roundtree's request, Officer Vallimont contacted the woman, later identified as Brenda Green, and noticed she had a twist in her mouth containing suspected cocaine. Ms. Green spit out the bag and indicated she purchased the drugs from a man at 34th and Chestnut; Ms. Green was subsequently arrested. Shortly thereafter on the same day, Roundtree observed a man and a woman, later identified as Mr. Kellum and Ms. Dupree, approach petitioner's residence and conduct a hand-to-mouth transaction consistent with drug sales. Roundtree radioed officers assigned to an arrest team in the area, and Officers Crum and Cowles arrested Mr. Kellum and Ms. Dupree within two minutes. The officers apprehended the pair about a block from Chestnut Street. The officers recovered cocaine in a bag from Mr. Kellum. Ms. Dupree indicated she purchased a dime bag from a black male in his fifties named "Bob" outside a house near Chestnut and 35th Street. Ms. Dupree then gave the bag to Mr. Kellum. On June 26, 2002, a separate information was filed charging petitioner with selling cocaine base, a § 11352 violation, while on bail at the time of the offense awaiting trial on the June 2001 possession charges. On January 16, 2003, the court granted the prosecution's motion to consolidate the two cases. The possession of marijuana for sale and unauthorized possession of a hypodermic needle or syringe counts were dismissed. On February 3, 2003, petitioner admitted the on-bail enhancement and, on February 6, 2003, a jury found petitioner guilty of selling cocaine base (§ 11352 violation) and possession of cocaine base for sale (§ 11351.5 violation). Petitioner admitted the prior strike conviction allegation.

On March 14, 2003, the court sentenced petitioner to a four-year middle term for selling cocaine base, doubled to eight years pursuant to the three strikes law; a consecutive one-third of the middle term, or sixteen months, doubled to two years, eight months, pursuant to the three strikes law, for possession of cocaine base for sale; and two years for the on-bail enhancement.

DISCUSSION

I. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in 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." 28 U.S.C. § 2254(a).

The 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." Id. § 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 'reasonable 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 the 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.

II. Claims

Petitioner raises seven claims for relief under ยง 2254: (1) insufficient evidence to support the conviction of selling cocaine (Pet. Claims 1, 18); (2) ineffective assistance of counsel at the preliminary hearing (Pet. Claim 11), trial (Pet. Claims 4, 7, 13, 15), and on appeal (Pet. Claim 10); (3) the trial court erred by (a) admitting improperly obtained evidence (Pet. Claim 3), (b) allowing a defective warrant for search and arrest (Pet. Claims 5, 6, 8), (c) allowing the joinder of the two counts (Pet. Claims 14, 17), and (d) failing to grant a motion to reveal the identity of a confidential informant (Pet. Claim 9); (5) the court of appeal erred by failing to provide an augmentation of the record to petitioner (Pet. Claim 20); (6) the State of California maintains unconstitutional policies of (a) requiring parole after the full service of a sentence (Pet. Claim 19), (b) failing to provide effective assistance of appellate counsel to indigent defendants (Pet. Claim 16), and (c) ...


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