The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following jury trial in the Kern County Superior Court, Petitioner was convicted of possession of methamphetamine (Cal Pen. Code*fn1 § 11377(a)). Petitioner had prior convictions for attempted robbery (Pen. Code § 664/211) and voluntary manslaughter (Pen. Code § 192(a)). Petitioner was sentenced to twenty-five years to life under California's three-strikes law.
On April 17, 2001, Petitioner filed a notice of appeal. (Exhibit A.) On October 16, 2001, the California Court of Appeal, Fifth Appellate District affirmed the conviction and sentenced in a reasoned decision. (Exhibit D.)
Petitioner filed a petition for review in the California Supreme Court. (Exhibit E.) The petition was denied on January 8, 2002. (Exhibit F.)
Petitioner filed three state post-conviction collateral petitions in the Kern County Superior Court: HC007513, filed April 24, 2002, and denied on May 24, 2002 (Exhibits G, H); HC007735, filed on December 16, 2002, and denied on January 13, 2003 (Exhibits I, J); and HC008173, filed on November 6, 2003, and denied November 25, 2003. (Exhibits K, L).
Next, Petitioner filed three state habeas corpus petitions in the California Court of Appeal, Fifth Appellate District: F040860, filed on June 24, 2002, and denied on September 13, 2002 (Exhibits M, N); F042474, filed on February 24, 2003, and denied on August 14, 2003 (Exhibits O,P); and F044952, filed on February 23, 2004, and denied on August 4, 2005. (Exhibits Q, R).
Lastly, Petitioner filed a habeas corpus petition in the California Supreme Court on August 30, 2003, which was denied on July 12, 2006 (Exhibits S, T).
Petitioner filed the instant federal petition for writ of habeas corpus on November 13, 2006. Respondent filed an answer to the petition on May 14, 2007. Petitioner did not file a traverse.
On February 22, 2008, the Court appointed the Office of the Federal Defender and ordered supplemental briefing regarding Ground Five of the Petition-whether trial counsel was ineffective for failing to file a suppression motion under California Penal Code section 1538.5. (Court Doc. 15.) On April 29, 2008, Petitioner filed the supplemental brief. (Court Doc. 21.) Respondent filed a response on June 27, 2008, and Petitioner filed a reply on July 16, 2008. (Court Docs. 24, 25.)
On June 2, 2000, Deputy Eric Banducci of the Kern County Sheriff's Depatment, along with several other deputies, went to the apartment of Petitioner's brother, Jaime Quevedo, who was on probation, to conduct a probation search. (I RT 19-20.) Jaime Quevedo, his wife and children were all absent from the apartment at the time of the search. (I RT 20, 32.) Petitioner was the only individual in the apartment at the time of the search. (I RT 31.) During the search, Deputy Banducci located an address book on the bathroom counter on the right-hand side of the sink. A plastic bag containing a small amount of suspected narcotics was located inside the pages of the address book. (I RT 21-23, 29.) Petitioner's name was written on the second page of the address book. (I RT 23.)
After being read his Miranda rights by Deputy Banducci, Petitioner acknowledged that he understood his rights. (I RT 24.) The deputy showed Petitioner the bag of suspected narcotics, and asked Petitioner if he knew what it was. Petitioner responded that it was "crank." (I RT 25.) Petitioner admitted that the "crank" and address book belonged to him. (I RT 26.) Petitioner indicated that the narcotics were for his own personal use and not for sale. (I RT 26.)
Subsequent laboratory tests revealed that the narcotics consisted of.32 grams of methamphetamine, and Kern County Criminalist, David T. Diosi, opined that this constituted a usable amount. (I RT 43.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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); Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003) (disapproving of the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000)); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1174 (citations omitted). "Rather, that application must be objectively unreasonable." Id. (citations omitted).
While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983); Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769 (1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997).
C. Fourth Amendment Violation Based on Pretextual Probation Search of Brother's Residence
Petitioner contends that his Fourth Amendment rights were violated because the drugs found in his possession were seized during a pretextual probation search conducted in the home of his brother, Jaime Quevedo. Petitioner's brother, Jaime, was on probation with a condition that his residence could be searched at any hour, day or night, for narcotics. The police believed that Petitioner may have been responsible for a burglary and that he was possibly hiding at Jaime's home with items taken during the burglary. As the officers were aware, Jaime was in jail at the time of the burglary and was not a suspect. The search was conducted to obtain evidence against Petitioner, not Jaime.
This claim was raised in the petition for writ of habeas corpus, HC7513, filed in the Kern County Superior Court on April 24, 2004. (Exhibit G.) The claim was denied in a reasoned decision issued May 24, 2002. (Exhibit H.) Because the California Supreme Court's opinion is summary in nature, however, this Court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir.2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under § 2254(d)(1)).
A federal district court cannot grant habeas corpus relief on the ground that evidence was obtained by an unconstitutional search and seizure if the state court has provided the petitioner with a "full and fair opportunity to litigate" the Fourth Amendment issue. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052 (1976); Woolery v. Arvan, 8 F.3d 1325, 1326 (9th Cir. 1993), cert denied, 511 U.S. 1057 (1994). The only inquiry this Court can make is whether petitioner had a fair opportunity to litigate his claim, not whether petitioner did litigate nor even whether the court correctly decided the claim. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); see also Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (holding that because Cal. Penal Code § 1538.5 provides opportunity to challenge evidence, dismissal under Stone was necessary).
The policy behind the Stone Court's analysis is that the exclusionary rule is applied to stop future unconstitutional conduct of law enforcement. Stone, 428 U.S. at 492. However, excluding evidence that is not untrustworthy creates a windfall to the defendant at a substantial societal cost. See Stone, 428 U.S. at 489-90; Woolery, 8 F.3d at 1327-28. Thus, the Ninth Circuit has described the rationale for this rule by saying:
The holding is grounded in the Court's conclusion that in cases where a petitioner's Fourth Amendment claim has been adequately litigated in state court, enforcing the exclusionary rule through writs of habeas corpus would not further the deterrent and educative purposes of the rule to an extent sufficient to counter the negative effect such a policy would have on the interests of judicial efficiency, comity and federalism.
Woolery, 8 F.3d at 1326; see also Stone, 428 U.S. at 493-494.
California provides defendants such an opportunity in the trial court through California Penal Code section 1538.5. Petitioner's counsel chose not to file a suppression motion. Petitioner could, and did, raise this claim in his all of state habeas petitions, and his claim was denied. (See Exhibits G, I, K, M, O, Q, S; see Villafuerte v. Stewart, 111 F.3d 616, 627 (9th Cir. 1997). Because the state court provided Petitioner with a "full and fair opportunity to litigate" his Fourth Amendment issue, the claim must be denied. Stone, 428 U.S. at 494.
D. Illegal Search and Seizure - Fourteenth Amendment Violation
Petitioner contends that the search and seizure also violated his rights under the Fourteenth Amendment.
Petitioner is not entitled to habeas corpus relief on this claim because, where a provision of the Constitution "provides an explicit textual source of constitutional protection," a court must assess a claim under the explicit provision and not the more generalized concept of substantive due process. Graham v. Connor, 490 U.S. 386, 395 (1989); County of Sacramento v. Lewis, 523 U.S. 286, 293 (1999). A challenge to the reasonableness of a search by a government agent clearly falls under the Fourth Amendment, and not the Fourteenth Amendment. Conn v. Gabbert, 526 U.S. 286, 293 (1999). Accordingly, Petitioner is not entitled to habeas corpus relief on this claim.
E. Insufficient Evidence to Support Possession of Methamphetamine Conviction
Petitioner contends that his rights under the Fourteenth Amendment were violated because there was insufficient evidence presented at trial to establish his conviction for possession of methamphetamine. Respondent argues that this claim is procedurally defaulted and without merit.
Petitioner presented this claim to the Kern County Superior Court and the California Supreme Court in state habeas petitions. The lower court found that the claim was not properly raised on state habeas (Exhibit J), and the California Supreme Court denied the claim without comment (Exhibit T), thereby adopting the procedural default imposed by the lower court. Avila v. Galaza, 297 F.3d at 918 (citing Ylst v. Nunnemaker, 501 U.S. at 803-804).
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546 (1991); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). If the court finds an independent and adequate state procedural ground, "federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir. 1993); Coleman, 501 U.S. at 750; Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000).
"For a state procedural rule to be 'independent,' the state law basis for the decision must not be interwoven with federal law." LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001) (citing Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469 (1983)); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) ("Federal habeas review is not barred if the state decision 'fairly appears to rest primarily on federal law, or to be interwoven with federal law.'" (quoting Coleman, 501 U.S. at 735, 111 S.Ct. 2456)). "A state law is so interwoven if 'the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.'" Park, 202 F.3d at 1152 (quoting Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087 (1985)).
To be deemed adequate, the state law ground for decision must be well-established and consistently applied. Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999) ("A state procedural rule constitutes an adequate bar to federal court review if it was 'firmly established and regularly followed' at the time it was applied by the state court.") (quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850 (1991)). Although a state court's exercise of judicial discretion will not necessarily render a rule inadequate, the discretion must entail "'the exercise of judgment according to ...