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Holloway v. Marshall

November 21, 2006

WAYNE HOLLOWAY, AKA DWAYNE HOLLOWAY, PETITIONER,
v.
JOHN MARSHALL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Peter C. Lewis U.S. Magistrate Judge United States District Court

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

This Report and Recommendation is submitted to United States District Judge Larry A. Burns, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

I. FEDERAL PROCEEDINGS

On January 30, 2006, this Court received a Petition for Writ of Habeas Corpus ("Pet.") filed pursuant to 28 U.S.C. § 2254 by Wayne Holloway a/k/a Dwayne Holloway ("Petitioner"), a state prisoner proceeding pro se, from the Central District of California. (Doc. No. 1) On April 28, 2006, Respondent filed a motion to dismiss the Petition, which this Court denied on July 6, 2006.*fn1 (Doc. Nos. 7-9 & 14) On August 11, 2006, Respondent filed an Answer ("Ans.) and supporting Lodgments ("Lodg."). (Doc. Nos. 16 & 17) On September 8, 2006, Petitioner filed a Traverse ("Trav.") and supporting documents entitled Statement of the Evidence ("Statement"). (Doc. Nos. 18 & 19) Finally, on September 29, 2006, this case was transferred to Peter C. Lewis, Magistrate Judge, for a Report and Recommendation. (Doc. 20)

II. STATE PROCEEDINGS

On February 18, 2003, Petitioner was charged in an information with one count of selling and furnishing cocaine base in violation of California Health and Safety Code*fn2 section 11352(a) (count one), and possession for sale, and purchase for purposes of sale, of cocaine base in violation of Health and Safety Code section 11351.5 (count two). (Lodg. 1 at 1-4) The information further alleged three prison priors each pursuant to Penal Code sections 667.5(b) and 668, and a strike prior pursuant to Penal Code sections 667(b)-(I), 1170.2, and 668. (Id.) On June 3, 2003, Petitioner waived his right to a jury trial and agreed to have his case submitted for decision by the trial judge based on the preliminary hearing transcript, a chemical analysis of the substance seized, and his testimony at the bench trial. (Id. at 55) The government moved to dismiss count two of the information, the possession charge, and the trial court found Petitioner guilty of count one, selling and furnishing cocaine base. (Id. at 55-56) The government also moved to incorporate the second prison prior with the first prison prior, leaving two prison priors. (Id. at 56) On September 5, 2003, Petitioner admitted the two prison priors and the strike prior. (Id. at 63) The trial court sentenced Petitioner to a total prison term of eight years. (Id.) Petitioner received three years for count one which was doubled due to the strike prior, and a one year consecutive term for each of the prison priors. (Id.)

On March 30, 2004, Petitioner appealed his conviction and sentence to the Court of Appeal, Fourth Appellate District, Division One. (Lodg. 2) On August 6, 2004, in an unpublished opinion, the Court of Appeal affirmed the judgment. (Lodg. 5) On September 13, 2004, Petitioner filed a petition for review with the California Supreme Court. (Lodg.6) On October 20, 2004, the California Supreme Court summarily denied the petition. (Lodg. 7)

On October 18, 2005, Petitioner filed a petition for writ of mandamus with the California Supreme Court, which was subsequently transferred to the Court of Appeal. (Lodg. 8) On November 17, 2005, in an unpublished opinion, the Court of Appeal denied the petition on procedural grounds. (Lodg. 9) On November 28, 2005, Petitioner filed a petition for review with the California Supreme Court. (Lodg. 10) On January 4, 2006, the California Supreme Court summarily denied the petition. (Lodg. 11)

III. UNDERLYING FACTS

On January 22, 2003, San Diego Police Officer Carol Beason ("Beason") was working undercover during a narcotics buy/bust operation near the intersection of Fifth and C Streets in downtown San Diego. (Lodg. 12 at 2) At approximately 7:20 p.m., Petitioner was on foot looking for a liquor store, and decided to take the trolley to the Gaslamp district. (Lodg. 14 at 84) As he approached the trolley, Beason stepped in front of him and smiled. (Id.; Lodg. 12 at 3) She asked Petitioner "if he knew who was working," which is street slang for who is selling narcotics, and he asked what she was looking for. (Lodg. 12 at 3 & 4) She told him that she "wanted a twenty," which is street slang for $20.00 worth of cocaine base. (Id.) According to Beason's testimony, Petitioner responded that he could help her in exchange for some of the drugs, and Beason agreed. (Id. at 4 & 8) According to Petitioner's testimony, at that point he only agreed to help her find the drugs. (Lodg. 14 at 86 & 87)

Petitioner and Beason walked eastbound on C street where Petitioner contacted a black male waiting at the trolley stop. (Lodg. 12 at 4) After Petitioner spoke with the man, Beason gave Petitioner a $20.00 bill. (Id.) Petitioner did not buy any cocaine base from that man because the drugs were not worth $20.00. (Id. at 4; Lodg. 14 at 86) In other words, the man was trying to "rip" them off. (Lodg. 14 at 86) Petitioner and Beason continued eastbound. (Lodg.12 at 4) According to Petitioner's testimony, it was at this point that Beason offered to give him some of the drugs for his help. (Lodg. 14 at 87) Since he was a cocaine user, Petitioner's motivation to help Beason was to keep some of the drugs for himself. (Id. at 91) Beason also offered to smoke the drugs with him under the bridge, which Petitioner interpreted as a possible sexual encounter with Beason. (Id. at 95) Petitioner testified that Beason never forced him, or did anything to make him, participate in this deal except smile and ask him for help. (Id. at 96) It was enough for Petitioner that she was a young woman that offered to give him some drugs and smoke it under the bridge. (Id.)

Petitioner told Beason that "his boy," which is street slang for someone that Petitioner knows sells narcotics, "would hook us up." (Lodg. 12 at 4) Petitioner testified that he had bought drugs before in that area and knew who sold them. (Lodg. 14 at 92-93) At the corner of 7th and C street, Petitioner told Beason to wait by a light post. (Lodg. 12 at 4) Petitioner did not want Beason to see that he was going to take half of the drugs for himself. (Lodg. 14 at 87) He wanted to make sure, even though she agreed to split it with him, that he got some for himself. (Id.) Petitioner walked about 50 feet away and made contact with two black males that were sitting on a wall. (Lodg. 12 at 4) Beason testified that Detective Dennis Davis, who was part of the surveillance unit, saw a hand-to-hand transaction between Petitioner and one of the black males who was later identified as Joshua Weiss. (Id. at 5) Petitioner testified that he approached Joshua Weiss, gave him the $20.00 bill, and Weiss gave him some cocaine. (Lodg. 14 at 88) According to Petitioner's testimony, he had bought drugs from Weiss before and therefore knew that Weiss had drugs for sale. (Id.) According to Beason's testimony, Petitioner then had what appeared to be another hand-to-hand transaction with a white male later identified as Otis Anderson. (Lodg. 12 at 5) According to Petitioner's testimony, Otis Anderson approached him and asked him for change, so Petitioner gave the man a quarter. (Lodg. 14 at 88) Petitioner then returned to Beason, gave her a piece of cocaine base, and was subsequently arrested. (Lodg. 12 at 5) Joshua Weiss was pursued by officers and arrested. (Id. at 10 &11) He did not have the $20.00 bill on him. (Id. at 10) Otis Anderson was also stopped by police, and he did not have any drugs nor money on him. (Id.) The $20.00 bill was never recovered. (Id.)

After Petitioner was arrested, Beason conducted an interview. (Id. at 11) During the interview, Petitioner indicated that he was a drug addict. (Id.) He also stated that his sole purpose in ...


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