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Perry v. Brown

May 13, 2009


The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge Sitting by Designation


Petitioner David M. Perry is a state petitioner proceeding pro se with an application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254(a). Pending before this court are Perry's application for a writ of habeas corpus (Doc. 1), Respondent Edmund G. Brown, Jr.'s Answer (Doc. 12), and Exhibits 1-8 lodged by Brown. For the reasons discussed below, Perry's application is DENIED.


On February 16, 2007, Perry was convicted by a Solano County Superior Court jury of (1) possessing cocaine base for sale (Cal. Health & Safety Code § 11351.5) and (2) resisting, obstructing, or delaying a peace officer (Cal. Penal Code § 148(a)(1)). Ex. 1 at 255-56. The court found two enhancement allegations true based on evidence of Perry's prior felony convictions (Cal. Health & Safety Code § 11370.2; Cal. Penal Code § 667.5). Ex. 1 at 257. On March 13, 2007, Perry was sentenced to 7 years in state prison. Ex. 1 at 286.


Perry filed a direct appeal of his conviction before the California Court of Appeal, First Appellate Division. In its decision affirming the judgment, the Court of Appeal summarized the relevant facts as follows:*fn1

Sergeant Park of the Vallejo Police Department was on patrol in a marked police vehicle just after midnight on January 18, 2006, traveling westbound on Tennessee Street at Sonoma Boulevard, a "drug-infested area" of Vallejo. He observed [Perry] and another person standing "face-to-face" in an alley just south of the Nation's Hamburger parking lot. [Perry] appeared to be "handing something off" to the other person. In light of his experience and the "very high" incidence of narcotics use and sales in the area, Sergeant Park believed that "a possible narcotics transaction or sale had occurred." Sergeant Park made a U-turn, drove into a nearby alley, and turned his lights off. [Perry] began walking westbound in the alley directly toward the officer. When Sergeant Park turned his lights back on, [Perry] "made an abrupt about-face turn," and walked in the opposite direction away from the patrol vehicle, toward Sonoma Boulevard. Sergeant Park drove onto Sonoma Boulevard, where he observed [Perry] "still walking away at a hurried pace." Sergeant Park noticed that [Perry] committed pedestrian traffic infractions. He pointed his spotlight at [Perry], identified himself "as police," and yelled "stop." [Perry] looked back over his shoulder but "just continued to walk" toward the main gate of the Traveler's Inn Motel. Sergeant Park thought [Perry] was "trying to elude" him. He requested assistance, drove to the front of the motel, got out of his car, and "started running towards" [Perry].

As [Perry] reached a staircase, Sergeant Park observed that he made a "motion of his right hand going towards his mouth," which signified to the officer that he [might have been] swallowing drugs, and ran up the stairs. Sergeant Park "gave chase" up the stairs, as [Perry] reached the second floor balcony at the top of the staircase and "started to walk away in a hurried pace again." [Perry] then began "throwing personal items over the railing" of the balcony. Sergeant Park repeatedly ordered [Perry] to "stop" and "get on the ground," but [Perry] did not comply. According to Sergeant Park, he had a good view of [Perry] in the alley illuminated by the patrol vehicle spotlight, and maintained a "continuous view of him thereafter - except for a "second or two" when [Perry] turned the corner of the building.

Sergeant Park caught [Perry] on the balcony and pushed him to the ground. [Perry's] right hand disappeared into the "belly area" of his bulky clothing, which caused the officer concern that he might be "in possession of a weapon." Sergeant Park "unholstered" his firearm, pointed it at [Perry] and commanded him to "lay down on the ground." Again [Perry] did not comply.

He froze momentarily, then stood up, lunged abruptly and contacted Sergeant Park's arm, causing the gun to discharge into the ceiling above.

After the shot was fired [Perry] immediately raised his hands and dropped to the ground as ordered by Sergeant Park, whereupon he was handcuffed. [Perry] remained "agitated and hostile." A search of [Perry] uncovered a key to room 24 of the motel. No weapon or drugs were found in [Perry's] personal possession.

After backup officers arrived the motel room was searched. DMV paperwork, a car registration, and other documents with [Perry's] "name on it" were found. [Perry] was the only person registered in room 24, and no "paperwork belonging to anybody else" was found. A large clear plastic bag that contained 24 "rocks" of crack cocaine, each one individually wrapped in plastic with a knot at the top, having a total weight of 3.73 grams, was found in a drawer in the motel room. The officers did not discover a cell phone, smoking pipe or other drug paraphernalia, packaging material, or money in the room or in [Perry's] possession. [Perry] continued to exhibit "hostile and uncooperative" behavior, so Sergeant Park did not administer a test to determine if he was under the influence of drugs. Sergeant Park "couldn't tell" from [Perry's] appearance and conduct if he was "under the influence" of cocaine.

Two "small knotted pieces" of plastic baggies were observed at the base of the stairs where Sergeant Park had seen [Perry] throw "something down." The knots appeared to have been bitten or torn off plastic baggies, and were "similar" in size to the knots on the baggies of crack cocaine found in [Perry's] motel room. A plastic bag which contained loose tobacco, a piece of paper and ...

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