Petitioner, presently admitted to bail, is proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 25, 1999, petitioner pled no contest to one count of possession of narcotics for sale (Cal. Health & Safety Code § 11351) (cocaine). (Clerk's Transcript ("CT") at 145.) Petitioner claims he was deprived of his Sixth Amendment right to counsel and to a public trial, and that his due process rights were violated, inter alia, by the trial court's use of an in camera hearing on petitioner's motions to disclose the identity of the informant (CT 38-45), to quash or traverse the search warrant (CT 46-50) and to unseal the affidavit in support of the search warrant (CT 51-76), held pursuant to People v. Hobbs, 7 Cal.4th 948 (1994). Neither petitioner nor his defense lawyer were allowed to attend the in camera hearings held under Hobbs.
The substance of the Constitution's guarantee of the effective assistance of counsel is illuminated by reference to its underlying purpose. "[T]ruth," Lord Eldon said, "is best discovered by powerful statements on both sides of the question." [Footnote omitted.] This dictum describes the unique strength of our system of criminal justice. "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." [Citation and footnote omitted.] It is that "very premise" that underlies and gives meaning to the Sixth Amendment. [Footnote omitted.] It "is meant to assure fairness in the adversary criminal process."
United States v. Cronic, 466 U.S. 648, 655 n.12, 104 S.Ct. 2039 (1984)
The United States Supreme Court has revisited its prior holding in Cronic, albeit in the context of defense counsel appearing at a plea hearing by speaker phone. Wright v. Van Patten, ____ U.S. ____, 128 S.Ct. 743 (2008). The Supreme Court reiterated:
Cronic held that a Sixth Amendment violation may be found "without inquiring into counsel's actual performance or requiring the defendant to show the effect it had on the trial," Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843 . . . (2002), when "circumstances [exist] that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified," Cronic, supra, at 658, 104 S.Ct. 2039. Cronic, not Strickland, applies "when . . . the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial," 466 U.S., at 659-660, 104 S.Ct. 2039,*fn1 and one circumstance warranting the presumption is the "complete denial of counsel," that is, when "counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding," id., at 659, and n.25, 104 S.Ct. 2039.
Wright, 128 S.Ct. at 746. As set forth below, this court finds that petitioner was completely deprived of assistance of counsel when defense counsel was excluded from numerous in camera review hearings relevant to petitioner's motion to suppress, a critical stage of the proceeding. This denial was absolute despite one instance where defense counsel was permitted to submit questions for the judge to pose to the confidential informant, a form of shadow boxing with the search warrant affidavit that prevented counsel from assisting the accused during a critical stage of the proceeding. The exclusion of petitioner's counsel was, at a minimum, a denial of petitioner's Sixth Amendment right to counsel. This court recommends that the petition for writ of habeas corpus be granted.
Based on information from a confidential informant, a search warrant was issued to search the home of [petitioner] Bruce Moeller. Pursuant to the search warrant, the officers found approximately one-quarter pound of cocaine, two pounds of methamphetamine, and over $69,000 in cash. After his various motions to suppress evidence were denied, [petitioner] pleaded no contest to one count of possession of cocaine for sale. (Citation omitted.)
(People v. Moeller, slip op. at 1.)
On February 25, 1998, a search warrant was executed at petitioner's home. Officers found two pounds of methamphetamine, one-quarter pound of cocaine, $66,040 in currency and a shotgun. (CT 69-71.) The affidavit in support of the search warrant contained allegedly privileged information provided to the police by a confidential informant (CI). (Evid. Code, §§ 1041-1042.) The judge who signed search warrant No. 2043, ordered the entire affidavit sealed to protect the identity of the confidential informant. (CT 40; 59.)
Defense counsel moved to unseal the warrant. A second judge held an in camera hearing. (CT 40.)*fn3 After the in camera proceeding, the judge provided petitioner with a partially unsealed affidavit on June 26, 1998. (CT 40; see CT 61-72.) Defense counsel moved again to have the affidavit unsealed. (CT 40.) On July 23, 1998, the same judge ordered additional portions of the affidavit to be unsealed. (CT 40; see CT 73-75.) On July 29, 1998, defense counsel asked that all of the argument, rulings and sealed in camera proceedings relevant to the search warrant be part of the preliminary hearing record, and that was also done. (CT 40.)
On August 25, 1998, by information, petitioner was charged with two counts of possession of narcotics for sale (Cal. Health & Safety Code § 11351 (cocaine), § 11378 (methamphetamine), and with being armed with a firearm during a narcotics felony (Cal. Penal Code § 12022(c).) (CT 10-12.)
On December 1, 1998, defense counsel moved to disclose the identity of the confidential informant. (CT 38-45.) Counsel also moved to quash and traverse and unseal the affidavit. (CT 46-50; 51-76.) Defense counsel stated that a review of the unsealed portions of the affidavit demonstrated that all information relevant to probable cause remained sealed. (CT 41.) Defense counsel argued that unless the probable cause portions of the affidavit were unsealed, petitioner could not fully litigate a motion to reveal the identity of the informant (CT 41) or a motion to traverse the search warrant (CT 49, 54).
Defense counsel appended a copy of those portions of the search warrant that had been unsealed and provided to her. (CT 62-68; 74-75)
On December 7, 1998, the prosecution filed its response to petitioner's motion to unseal the affidavit. (CT 77.) In its motion, the prosecution stated that:
* when the search warrant was executed, petitioner was the sole occupant of the residence.
* approximately one pound of methamphetamine and a quarter pound of cocaine was found in petitioner's bedroom.
* another pound of methamphetamine, three loaded handguns, a loaded shotgun, petitioner's birth certificate and passport, and $69,040 in cash were found in a safe in a closet.
* petitioner was in possession of the key that opened the closet holding the safe and petitioner opened the safe upon request of the officers.
* petitioner "admitted selling of the drugs and stated he was unemployed." (CT 78.) The prosecution argued that the CI was not a material witness on the issue of guilt or innocence. (CT 80.) The prosecution further argued that because the petitioner was charged with possession for sale crimes, and a large quantity and high quality of drugs were found in petitioner's possession and petitioner admitted to the officers he sold the drugs, any contest as to the intent to sell would be precluded, and that the petitioner's right to a fair trial did not require the identity of the CI to be revealed. (CT 81.)
On May 11, 1999, the superior court held an in camera hearing. (CT 139.) The in camera hearing was attended by a third judge, the deputy district attorney, and a supervisor of the affiant. (RT 4.) Petitioner and his attorney were excluded from the in camera hearing. (Petition at 2; RT 4.) Petitioner's counsel, however, was allowed to propound questions to be asked in camera. (Petition at 3; RT 4.) The court confirmed that the CI did not request to have his name kept confidential; rather, the affiant's supervisor stated that they inform the informants that it is their policy to keep their identities confidential. (RT 7.) The transcript of the hearing was sealed. (CT 139.)
On May 25, 1999, the third judge held an open hearing on petitioner's motions. (CT 140-42; RT 1-31.) Petitioner and his defense counsel were present, along with the prosecution. (Id.) Defense counsel argued that through discovery it was determined that another individual lived at the residence and that during the search of the residence marijuana was found in and about the other individual's belongings. (RT 12.) Counsel stated that the other individual owns the home and that individual had equal access to the various areas of the home, and that there was cohabitation between petitioner and this other individual. (RT 12.) Counsel argued that those facts could be used to "suggest that there may be information that revelation of the informant's identity could provide that would suggest that perhaps [petitioner] did not exercise dominion and control over the items seized and that an informant might provide some information." (RT 12.) Counsel contended that the revelations of the identity of the informant could potentially show that the other individual who lived in the house exercised control over [petitioner] and therefore, that there was a relationship where [petitioner] was subject to that other individual's power and that might relate to whether or not [petitioner] actually exercised dominion and control over any contraband that he appeared to be in possession of. (RT 12-13.)
Defense counsel argued strenuously that her client's due process rights had been violated by the sealing of this information, and that he was deprived of his right to counsel because counsel was not provided information to enable her to effectively move to quash, traverse or unseal the affidavit or to reveal the identity of the informant. (RT 14-16.) Defense counsel argued that good defense lawyers look beyond the four corners of the search warrant and do their own separate investigation and often hire private investigators to investigate facts contained in affidavits in order to effectively challenge search warrants. (RT 17.) She contended that the Hobbs procedure essentially placed the judge in defense counsel's shoes without benefit of critical research, investigation or an advocate's perspective.
The prosecution reiterated the factual support cited in his response to the motion to unseal the affidavit. (RT 19; see also CT 78.) The prosecution stated that at the time of the search, "there was no individual who was present other than [petitioner]." (RT 19.) The prosecution also pointed out that three separate judges had reviewed the sealed material, and one of the judges had reviewed the affidavit twice. (RT 20-21.)
Following argument, the third judge admitted he did not investigate the facts, did not send an investigator out to check the officer's background and did not read the police reports. (RT 26.) However, the judge stated he tried to look at the sealed documents in the way a defense attorney would and asked questions of the officer based on the judge's "combined experiences of reading, signing, reviewing and ruling on search warrants for the last 15 years." (RT 26.) The judge stated he "strictly reviewed the affidavit itself and questioned the officer, which [he thought was] the Hobbs obligation here." (RT 26.) The judge continued:
I've tried to look at the four corners here and determined there really isn't much argument on the traversal because I've given you nothing and there's really nothing you can traverse. You can't put much evidence because you don't have much of a clue as to the nature of the comments the CI made.
So really mostly my responsibility has been in looking at the search warrant itself to determine if there's materially false statements or insufficient probable cause. And as I mentioned, I can't see that. In fact, the reason I can't see it is because the evidence is so strong with regard to probable cause. It's the same strong evidence that leads me to believe that this particular informant's information, if told, would reveal his or her identity.
I guess the motion to disclose the informant then is denied based on those findings. I think this informant was not present at the time, as far as I know. I think I did ask that question. I don't believe the informant was present at the time the search warrant was executed. And so it's a pointing of the finger situation and not a percipient witness situation. That's the facts that arise when Mr. Moeller is arrested and the search warrant that give rise to the possession allegations here. And I don't see anything in the search warrant to lead me to believe the informant did anything other than point the finger.
(RT 27.) The court then denied petitioner's motions to traverse or quash the search warrant and the motion to reveal the identity of the CI. (RT 27-28.)
Petitioner filed a timely appeal. The Court of Appeal reviewed the sealed materials, including the entire affidavit and the questions defense counsel submitted to the superior court for the in camera hearing. (People v. Moeller, slip op. at 8.) The state appellate court found that the superior court made the appropriate inquiries and findings pursuant to Hobbs, and that there [was] substantial evidence to support those findings. (See 7 Cal.4th at pp. 972-975.) Based on this review, [the court] conclude[s] that it was not reasonably probable that [petitioner] could prevail on his motions to traverse or quash the search warrant, unseal the search warrant affidavit, or disclose the identity of the CI. (Id. at p. 977.) (People v. Moeller, slip op. at 8.) The state appellate court also found that the California Supreme Court in Hobbs "determined implicitly that the procedure it outlined does not offend the Sixth Amendment right to counsel." (People v. Moeller, slip op. at 6.) Because the trial court expressly used the Hobbs procedure, the appellate court found the trial court did not deprive petitioner of his right to counsel. (People v. Moeller, slip op. at 6.) The appellate court noted that petitioner's counsel conceded that the Hobbs court explicitly rejected the theory that its procedures violated due process, but petitioner sought to preserve the due process claim for subsequent review. (People v. Moeller, slip op. at 8.) Finally, the appellate court found petitioner had waived his public trial claim because it had not been made in the trial court, and overruled petitioner's futility argument. (People v. Moeller, slip op. at 6-8.)
Petitioner filed a petition for review in the California Supreme Court on September 7, 2000. (Answer, Ex. C.) The petition was denied on October 18, 2000. (Answer, Ex. D.)
In addition to the petition, answer and traverse, counsel for respondents has lodged certain sealed documents from the state court proceedings. On September 12, 2005, the police report was filed under seal. Also, on September 12, 2005, the search warrant and supporting affidavit were filed under seal. On September 13, 2005, the reporter's transcript from the May 11, 1999 in camera hearing held in state court was also filed under seal.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief 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 ...