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Servin v. Hickman


September 5, 2008



Petitioner is a California prisoner proceeding with an application for a writ of habeas corpus under 28 U.S.C. § 2254. In 2002, petitioner was convicted for committing the following offenses in Shasta County: 1) possession of methamphetamine for sale; 2) possession of methamphetamine while armed with a loaded firearm; 3) possession of a concealed firearm in a vehicle by a convicted felon; 4) possession of a firearm by a convicted felon; 5) giving false identification to a peace officer; 5) possession of methamphetamine; 6) transportation of methamphetamine; and 7) possession of an opium pipe. CT 250-259. Petitioner is serving a sentence of sixteen years in the California Department of Corrections and Rehabilitation (CDCR). CT 203. He presents two grounds for relief, each one challenging his convictions for possession and transportation of methamphetamine.

I. Standard of Review

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings 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.

28 U.S.C. § 2254(d) (referenced herein in as "§ 2254(d)" or "AEDPA). See Ramirez v. Castro, 365 F.3d 755, 773-75 (9th Cir. 2004) (Ninth Circuit affirmed lower court's grant of habeas relief under 28 U.S.C. § 2254 after determining that petitioner was in custody in violation of his Eighth Amendment rights and that § 2254(d) does not preclude relief); see also Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003) (Supreme Court found relief precluded under § 2254(d) and therefore did not address the merits of petitioner's Eighth Amendment claim).*fn1 Courts are not required to address the merits of a particular claim, but may simply deny a habeas application on the ground that relief is precluded by 28 U.S.C. § 2254(d). Lockyer, 538 U.S. at 71 (overruling Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir. 2000) in which the Ninth Circuit required district courts to review state court decisions for error before determining whether relief is precluded by § 2254(d)). It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.

Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).

The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where, as in this case, the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.

It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999).

II. Factual Background

On direct appeal, the California Court of Appeal summarized the evidence presented at petitioner's trial with respect to his convictions for transportation and possession of methamphetamine as follows:

On January 17, 2002, Shasta County Deputy Sheriff Steven Berg stopped a vehicle, in which defendant was the passenger, for expired registration tags. A consensual search of defendant revealed over $4,000 in cash, a pager and a notebook, and a glass smoking pipe in defendant's shoe. The pipe contained a small amount of powder. Beneath the front passenger seat was a leather pouch containing a digital scale, which also had some powder on it. A Department of Justice criminalist testified the combined weight of the powder taken from the pipe and the scale was .02 gram and contained methamphetamine.

It was Deputy Berg's opinion--based upon his academy training, two refresher courses in narcotics, a class in recognition of persons under the influence of drugs, and the making of hundreds of arrests while working in the field--that the substance taken from the pipe, which constituted most of the .02 gram tested, was a usable amount. According to Berg, the substance taken from the scale was "marginally enough for use," and when the two amounts were combined there "certainly was enough for personal use."

Robert Modin, an agent with the Shasta Interagency Narcotic Task Force who had taken many courses regarding narcotics and their use and had been involved in narcotics field work, opined that .02 gram of a substance containing methamphetamine was a usable amount.

Pet., Ex. A at 2-3.

III. Analysis of Claims

A. Insufficiency of the Evidence

Petitioner's first claim is that the evidence supporting his convictions for possession and transportation of methamphetamine is not constitutionally sufficient. Pet. at 4, 10-14.*fn2 A petitioner seeking a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to convict. In Jackson v. Virginia, 443 U.S. 307, 319 (1979), the Supreme Court held "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.)

Petitioner asserts the evidence presented was insufficient to establish that the scale found under his car seat was in his possession. Under California law, a person possesses a controlled substance if he or she exercises control over it or had the right to control it. CT 171 (CALJIC 12.00). In light of the evidence presented at trial, including the arresting officer's testimony regarding items found on petitioner at the time of his arrest and the fact that the scale was found within arms' reach of petitioner, RT 217:4-218:2, 223:9-18, 231:25-232:15, a rational trier or fact could have found that petitioner had control over the scale.

Petitioner also asserts that the evidence was insufficient to establish that he transported or possessed methamphetamine because the amount of methamphetamine found in the pipe and on the scale was insignificant. On direct appeal, the California Court of Appeal commented as follows with respect to this claim:

In claiming insufficiency of the evidence, defendant faces the insurmountable hurdle in this case that two highly experienced officers testified the .02 gram of powder containing methamphetamine that defendant possessed was a usable amount. There was no testimony whatsoever that this amount was a useless residue.

Pet., Ex A at 4.

Petitioner fails to point to anything suggesting jurors should have found that the amount of methamphetamine found was not usable, except to argue his view that the amount was "de minimis." The state appellate court's characterization of the record regarding the amount of controlled substance is correct. RT 226:9-20, 228:22-229:15, 233:13-23 (Berg); RT 270:26-271:2 (Modin). On this record, the court cannot find that a rational juror could not have found petitioner guilty of transportation and possession of methamphetamine.

B. Ineffective Assistance of Counsel

Petitioner's second claim is that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment because his trial counsel failed to present an expert witness who could testify what amount of methamphetamine found in the opium pipe and on the scale under his car seat was "pure methamphetamine." Pet. at 4, 15-17. Petitioner's claim is speculative because he fails to indicate how a defense expert would have testified if called by petitioner's trial counsel. He cannot bear his burden of showing ineffective assistance of counsel by presenting "mere conclusory statements," United States v. Schaflander, 743 F.2d 714, 721 (9th Cir. 1984), but rather must tender affidavits from any witnesses counsel neglected to interview or call, showing the "helpful testimony for the defense" they could have presented. Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000); Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001). Because petitioner does not show he was prejudiced in any way by the action or inaction of trial counsel, his ineffective assistance claim must be rejected. See Strickland v. Washington, 466 U.S. 668, 693 (1984).

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's application for a writ of habeas corpus is denied;

2. This case is closed; and

3. The Clerk of the Court is directed to enter judgment.

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