The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF
Petitioner Wayne Holloway ("Holloway"), a state prisoner proceeding pro se with a 28 U.S.C. § 2254 habeas petition, challenges his conviction for furnishing cocaine base to an undercover police officer as having been obtained in violation of his due process rights. He also challenges his sentence as having been enhanced by an unconstitutional prior conviction. Respondent filed a Motion To Dismiss, arguing Holloway failed to exhaust those claims. By Order entered July 6, 2006, this court adopted the Report and Recommendation ("R&R") from the magistrate judge then assigned to this case that the Motion be denied. Dkt No. 14. Respondent thereafter answered the Petition, and Holloway filed a Traverse. Dkt Nos. 16, 18. Magistrate Judge Peter C. Lewis has now entered an R&R recommending this court deny Holloway's Petition on the merits. Dkt No. 21. Holloway filed Objections to the R&R. Dkt No. 27. Respondent filed no Reply. For the reasons discussed below, the court ADOPTS the R&R and DENIES Holloway's Petition.
Holloway expressly accepts the magistrate judge's description of the prior state and federal proceedings in his case. Obj. 1:22-23. He also submits to the magistrate judge's summary of the facts, with the exception of two points, neither of which is material to this result.*fn1 The event giving rise to this Petition occurred on a January 2003 evening when police officer Carol Beason ("Beason"), participating under cover during a narcotics buy/bust operation, approached Holloway, smiled, and asked if he knew who was "working" (street slang for who is selling narcotics). He asked what she was looking for, she told him she "wanted a twenty" (street slang for $20.00 of cocaine base), and he offered to help her in exchange for some of the drugs. Beason agreed and gave him $20.00. Holloway made the transaction while observed by a member of a police surveillance unit and was arrested.*fn2 He indicated during a subsequent interview he was a drug addict.
Holloway asserts two grounds for habeas relief: (1) "Due Process prohibits drug addicted defendants from criminal conviction under the entrapment doctrine -sales of narcotics" (Pet. 5:2-4); and (2) "State court must strike a prior conviction which was unconstitutional[ly] obtained, otherwise ruling on motion challenge was contrary to, or involved an unreasonable application of, clearly establish[ed] federal law, as determined by the Supreme Court of the United States" (Pet. 11:2-6).
A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. FED.R.CIV.P. ("Rule") 72(b); see 28 U.S.C. § 636(b)(1). The district judge may also "receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. The district judge "shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Rule 72(b); U.S. v. Raddatz, 447 U.S. 667, 676 (1980) (when objections are made, the court must make a de novo determination of the factual findings to which there are objections). The court also reviews de novo the magistrate judge's conclusions of law. Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995)
The November 17, 2005 California Court of Appeal Order Denying Petition For Writ of Mandamus construed that filing as Holloway's attempt to obtain relief in the nature of habeas corpus on entrapment grounds, a theory advanced for the first time post-conviction in that petition. That court found he failed to seek relief on the issue in superior court in the first instance and noted his failure to pursue the issue on direct appeal "generally precludes review by a post-conviction, postappeal collateral attack on the judgment," citing In re Harris, 5 Cal.4th 813, 829 (1993) (state courts are precluded from reaching the merits of petitioner's claims in a state habeas petition when the claims were not previously raised on direct appeal). Lodg. 9 at 2. The R&R reviewed the claim de novo rather than applying the review standards of Anti-Terrorism And Effective Death Penalty Act of 1996 ("AEDPA") because no reasoned state opinion on the issue exists.*fn3
B. Holloway Is Not In Custody In Violation Of His Federal Rights
1. Drug Addicted Defendant Entrapment*fn4
For the entrapment component of Holloway's first ground for relief, he contends that at the time of his arrest he was a "habitual narcotics user" attempting to break the habit, so was not looking to buy drugs that day. Pet. at 8-9. He contends Beason approached and lured him into furnishing her with rock cocaine he was to purchase for her, with the promise she would share the rock with him. He contends due process prohibits drug-addicted defendants such as himself from criminal conviction under the entrapment doctrine. Pet. p. 5; Pet. 9:26-10:3 ("our constitution under the 5th and 14th Amendment[s] prohibits habitual narcotics users such as Holloway . . . from criminal prosecution on the grounds of entrapment - sales of narcotics"). He argues the state court unreasonably applied Supreme Court authority in rejecting his entrapment defense. He relies on Sherman v. U.S., 356 U.S. 369 (1958) (overturning a conviction for illegal narcotics sales due to entrapment through persuasion and inducement), examining the defense recognized in Sorrells v. U.S., 287 U.S. 435 (1932).
"Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer," but the line is drawn when it is the government official who "implant[s] in the mind of an innocent person the disposition to commit the alleged offense and induce[s] its commission in order that they may prosecute." Sherman, 356 U.S. at 372, quoting Sorrells, 287 U.S. at 442. "To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." Id. at 373. The Sherman Court declined to consider as entrapment situations where "government agents merely afford opportunities or facilities for the commission of the offense." Sherman, 356 U.S. at 372 (citation omitted). Applying the elements of the entrapment defense, the undisputed facts of his case defeat his theory.
Holloway's circumstances, arrest, and conviction are wholly distinguishable from the Sherman case, where an informant: persistently solicited and repeatedly requested that the defendant perform the illegal act, despite the defendant's manifest reluctance and hesitancy; appealed to sentiments aroused by reminiscences of shared war experiences; and appealed to sympathy based on their mutual experiences with narcotics addiction. As noted in the R&R, the test in California for entrapment is whether the conduct of the law enforcement agent is likely to induce a normally law-abiding person to commit an offense. People v. Barraza, 23 Cal.3d 675, 689-90 (1979) (it is acceptable for a police officer simply to offer the opportunity to act unlawfully, but it is unacceptable for the police officer "to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative ...