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Oliver v. Hernandez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 19, 2007

CURTIS CLYDE OLIVER, PETITIONER,
v.
ROBERT J HERNANDEZ, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

On March 13, 2006, Petitioner Curtis Clyde Oliver submitted a pro se petition for writ of habeas corpus, challenging his California conviction pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The government submitted its answer on May 8, 2006, and Petitioner filed a traverse on May 26, 2006. (Doc. Nos. 4-5, 7-8.) On December 11, 2006, Magistrate Judge McCurine signed a Report and Recommendation that the petition be denied. (Doc. No. 9.) Petitioner filed objections on December 28, 2006. (Doc. No. 10.)

For reasons discussed below, the Court ADOPTS the report and recommendation, DENIES petitioner's objections, and DENIES the petition for a writ of habeas corpus.

Background

On January 21, 2004, Petitioner was convicted at trial for possession of cocaine base for sale, Cal. Health & Safety Code § 11351.5, and child endangerment, Cal. Penal Code § 273a(a). (Lodgment No. 1 at 151, 153.) On appeal, Petitioner raised three challenges: (1) the trial court erred by refusing to offer a requested jury instruction on the possession charge, (2) there was insufficient evidence to support the possession charge, and (3) there was insufficient evidence to support the child endangerment charge. (See Lodgments 3, 5.) On October 19, 2005, the California Court of Appeal reversed the child endangerment conviction based on insufficiency of the evidence, but rejected the other arguments and affirmed the conviction for possession. (See Lodgment No. 6.) On January 4, 2006, the California Supreme Court denied Petitioner's subsequent petition for review. (See Lodgments 7-8.)

The California Court of Appeals summarized the facts offered by the prosecution against Petitioner (then appellant) as follows:*fn1

On July 21, 2003, Deanna Horton, appellant's co-defendant, was seen by San Diego Police narcotics officers getting into appellant's car in an area where drug dealing frequently occurred. The car was stopped for a series of traffic violations. Horton was on probation for sale of cocaine base and subject to search. Appellant was found in possession of $142 in cash in small bills. Horton's wallet contained marijuana and approximately .20 grams of rock cocaine base worth about $40. Horton appeared under the influence of a stimulant. Horton admitted as much, and a urine test confirmed she was under the influence of cocaine.

The apartment appellant shared with Horton and her 13-year-old child was searched. In a stereo speaker, apparently used as a table in Horton and appellant's bedroom, officers found 15 individually packaged rocks of cocaine weighing approximately 4.00 grams. . . .

On top of the speaker containing the drugs was a letter addressed to appellant at the apartment's address and a utility bill for the apartment in appellant's name. Next to the speaker was a stick of men's deodorant. On the other side of the room was a rental agreement for the apartment in Horton's name. In the closet was a satchel containing two means of identification belonging to appellant.

Appellant was placed under arrest and was transported to a hospital. At the hospital appellant spontaneously stated to an officer he was getting tired of being locked up. The officer stated to appellant he did not want to talk to him. Appellant asked if the officer knew why he was under arrest. The officer read appellant a synopsis from a jail document indicating the basis for his arrest. Appellant then stated: "This is all bogus. It's not what it seems. I have a problem with drugs and all, but I don't think this is going anywhere when it gets to the judge." The officer told appellant he could understand that if the money was good it would be hard to stop. Appellant said: "The money isn't even that good. What I was selling wasn't even that big of a deal."

People v. Oliver, No. D045114, 2005 WL 2660294, at *1 (Cal. Ct. App. 2005). The court then summarized further facts offered by the defense:

Horton's 13-year-old son D. lived at the apartment where the drugs were found. He did not think appellant was living there. . . .

Deanna Horton testified that in May 2003 appellant moved into her apartment. While appellant helped Horton pay the bills, she did not know where he got his money. She stated appellant was unaware of the drugs in the house. Horton stated she purchased $100 worth of cocaine base three days before her arrest. She rationed it into 20 or 25 separate bindles and placed them in plastic bags. She kept the drugs for her personal use.

Id. at *2. The court then held there was sufficient evidence to support the possession charge against Petitioner and made the following findings:

There was strong evidence appellant not only lived at the apartment where the drugs were found but paid some of the expenses of the residence. Documents bearing appellant's name were found on the top of the speaker containing the cocaine. After his arrest appellant admitted to an officer he had a problem with drugs. When the officer stated he could understand that if the money was good it would be hard to stop, appellant replied the money was not that good and what he was selling was not "that big of a deal." This evidence taken together was sufficient to support appellant's conviction for possession of cocaine base for sale.

Id. at *3.

Discussion

I. Standards of Review

The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party objects to any portion of the report, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made." Id. Courts construe pro se pleadings liberally. See Maleng v. Cook, 490 U.S. 488, 493 (1989). The Court construes Petitioner's objections as encompassing the Report and Recommendation in its entirety and will review it de novo.

II. The Possession Conviction Was Supported by Sufficient Evidence

Petitioner challenges the sufficiency of the evidence to support his conviction.*fn2 (See Petition at 7-9.) Petitioner is entitled to habeas relief if, based upon the trial record, "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). The Ninth Circuit has noted that it is an open question whether 28 U.S.C. §§ 2254(d)(1) or 2254(d)(2) require deference in addition to the Jackson standard,*fn3 or whether it should be applied as written. See Garcia v. Carey, 395 F.3d 1099, 1102 (9th Cir. 2005); Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc). Since the Court would reach the same result with or without such additional deference, it is not necessary to resolve the interaction of section 2254(d) and Jackson. The Court concludes that, under the Jackson standard, Petitioner is not entitled to habeas relief.

The elements of possession for sale of cocaine are: (1) exercising control over the cocaine, (2) knowledge of the cocaine's presence and its nature as a controlled substance, (3) an amount of cocaine sufficient to be used for sale, and (4) possession with intent to sell.*fn4 In re Christopher B., 219 Cal. App. 3d 455, 466 (1990). "It is well established that one may become criminally liable for possession for sale . . . of a controlled substance, based upon either actual or constructive possession of the substance." People v. Morante, 20 Cal. 4th 403, 417 (1999). "Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another." Id. This encompasses a "wide variety of conduct in a wide variety of settings" in accordance with a policy of punishing those who exercise "such a degree of intentional direction over contraband that [they] can be justifiably and fairly punished in the same manner as if . . . in actual physical possession . . . ." Armstrong v. Superior Court 217 Cal. App. 3d 535, 539 (1990).

The evidence introduced here is sufficient to support each of these elements. In the apartment where the cocaine was found, officers also found a letter addressed to Petitioner at that address, a utility bill for the apartment in Petitioner's name, two forms of identification belonging to Petitioner, and men's deodorant. Oliver, No. D045114, 2005 WL 2660294, at *1. These all support an inference that Petitioner constructively possessed the cocaine found there. Petitioner also admitted "a problem with drugs" and stated that: "The money isn't even that good. What I was selling wasn't even that big of a deal." Id. A rational trier of fact could infer control, knowledge, and intent to sell from theses statements. The approximately four grams of cocaine was divided into 15 packages, sufficient for a rational trier of fact to conclude that it was sufficient in amount and intended for sale. Id.

Petitioner argues that mere presence is insufficient to support this possession charge, but the evidence here supports more than mere presence, particularly given Petitioner's statements. Petitioner further argues that the conviction was based on "speculation passion and prejudice" merely because he was "[a] black male living in a high crime area, who has a girlfriend who has an addiction . . . ." (Petition at 9.) The facts discussed above, however, show that a rational trier of fact could convict without undue speculation or prejudice, and Petitioner points to no facts indicating that race or other prejudicial factors were improperly considered.

Conclusion

For the reasons discussed above, the Court ADOPTS the report and recommendation, DENIES petitioner's objections, and DENIES the petition for a writ of habeas corpus.

IT IS SO ORDERED.


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