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Velez v. Campbell

January 13, 2009

MARTIN VELEZ, PETITIONER,
v.
ROSANNE CAMPBELL, ET. AL., RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a California prisoner proceeding with an application for writ of habeas corpus under 28 U.S.C. § 2254. On September 10, 2003, petitioner pled no contest to the charge of possession of cocaine base for sale and admitted one prior serious felony conviction and to having served one prior prison term. The trial court sentenced him to an aggregate term of seven years in state prison made up of a three year term, which was doubled to six years under California's Three Strikes law, plus one year for the prior prison term enhancement. (Answer at 2; Resp't's Lodged Doc. No. 3 at 1-2.)

In his pro se petition petitioner seeks habeas relief on the grounds that he received ineffective assistance from his trial court counsel in connection with his pretrial motion to suppress evidence. Alternatively, if this ineffective assistance of trial court counsel claim is rejected, petitioner requests an evidentiary hearing to determine whether his constitutional rights to a trial and to effective assistance of trial and appellate counsel were violated. Upon careful consideration of the record and the applicable law, the undersigned will deny the request for an evidentiary hearing and recommend that petitioner's application for habeas corpus relief be denied as well.

FACTUAL AND PROCEDURAL BACKGROUND*fn1

On July 2, 2003 at approximately 6:00 p.m., Officer Shawn Johansen of the Stockton Police Department conducted a traffic stop on petitioner's car because the left rear brake lamp of the vehicle was crushed and not functioning. (Reporters' Transcript on Appeal, Resp't's Lodged Doc. No. 7 (hereinafter RT) at 3-5.) During the stop, Officer Johansen asked petitioner if he had any identification and petitioner responded that he did not. (RT at 7.) Johansen then escorted petitioner to his patrol car to establish his identity and requested to search petitioner, to which petitioner acquiesced. (Id.) The officer found petitioner's identification card in his back pocket and nothing more. (Id. at 8, 21.) Next, Officer Johansen placed petitioner in the back of the patrol car without handcuffs. (Id.) After speaking briefly with other officers who had arrived on the scene and being told by those officers, and seeing himself, that petitioner was moving around in the backseat of the patrol car, Officer Johansen opened the door to investigate. (Id. at 10-11, 22.) As Johansen opened the patrol car door, petitioner kicked it open and while continuing to kick exclaimed, "that's not mine." (Id. at 11.) Officer Johansen then discovered a large, rock-like substance in a bag in the back of the patrol car. (Id. at 12.) The substance was later determined to be cocaine. (Id.)

Petitioner was charged with possession of cocaine base for sale and resisting, delaying, or obstructing a public officer. As to the narcotics charge, the information alleged that petitioner had suffered two prior serious felony convictions, one prior drug conviction and had served two prior prison terms. (Resp't's Lodged Doc. 1 - Clerk's Transcript on Appeal (hereinafter CT) at 46-49.) On August 8, 2003, petitioner filed a motion to suppress evidence seized as a result of the traffic stop. (CT at 50-58.) Defense counsel argued that petitioner's detention was unduly prolonged and that there was no probable cause to arrest him therefore requiring the suppression of the controlled substance discovered after petitioner was placed in the patrol car. (Id.) Immediately following an evidentiary hearing, on September 8, 2003, the trial court denied the motion to suppress evidence filed. (RT 43-44.) Two days later, petitioner pled no contest to possession of cocaine base for sale and admitted one prior serious felony conviction and to having served one prior prison term. The remaining counts and enhancement allegations were stricken. (CT at 69-77; RT 58-68.)

On October 7, 2003, petitioner appealed his judgment of conviction by filing a timely notice of appeal from the denial of his motion to suppress evidence. (CT 78-82.) Counsel was appointed on appeal and on March 12, 2004, filed an opening brief requesting that the California Court of Appeal for the Third Appellate District review the entire record pursuant to People v. Wende, 25 Cal. 3d 436 (1979). (Resp't's Lodged Doc. 2 - Petitioner's Opening Brief on Appeal.) On July 7, 2004, the California Court of Appeal affirmed the judgment of conviction after receiving no supplemental briefing from petitioner. (Resp't's Lodged Doc. 3 at 2.) On September 22, 2004, petitioner's petition for review was summarily denied by the California Supreme Court. (Resp't's Lodged Doc. 4.)

On May 19, 2004, petitioner filed a petition for writ of habeas corpus in the San Joaquin County Superior Court alleging ineffective assistance of counsel. That petition was denied without prejudice because petitioner's direct appeal was still pending before the California Court of Appeal. (Resp't's Lodged Doc. 5.) On June 1, 2004, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Resp't's Lodged Doc. 6.) That habeas petition was denied with citation to the decisions in In re Swain, 34 Cal. 2d 300 (1949); People v. Duvall, 9 Cal. 4th 464, 474 (1995); In re Lessard, 62 Cal. 2d 497, 503 (1965), without further comment by the court. (Resp't's Lodged Doc. 6.)

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").*fn2 See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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. See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 ...


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