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Rogers v. Shepherd

June 22, 2009

ELLIOTT LAMONT ROGERS, PETITIONER,
v.
MARK SHEPHERD, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on June 27, 2001, in the Butte County Superior Court on charges of robbery and possession of a firearm by a felon. He seeks relief on the grounds that: (1) his trial and appellate counsel rendered ineffective assistance; (2) the parole search of his apartment violated his rights under the Fourth Amendment; (3) the prosecutor at his trial committed misconduct; and (4) his right to an impartial jury was violated because the jury did not represent a cross-section of the community. Petitioner has also filed separate requests for an evidentiary hearing and for leave to conduct discovery. Upon careful consideration of the record and the applicable law, the undersigned will deny petitioner's application for habeas corpus relief as well as his requests for an evidentiary hearing and for leave to conduct discovery.

PROCEDURAL AND FACTUAL BACKGROUND*fn1

A jury convicted defendant Elliott Lamont Rogers of second degree robbery (Pen.Code, § 211-count 1)*fn2 with use of a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)) and of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1) -- count 2). In a court trial, defendant was found to have three prior serious felony convictions. (§§ 667, subds.(a) & (b)-(i), 1170.12.)

Sentenced to state prison for 64 years to life, defendant appeals, contending (1) the prosecutor committed prejudicial misconduct, (2) he received ineffective assistance of counsel, (3) the trial court erred by failing to strike one of the serious prior felony conviction findings, (4) remand for resentencing is required because the record shows the court was unaware of its sentencing discretion, and (5) that under proportionality review, the sentence constitutes cruel and unusual punishment. We shall affirm the judgment. FACTS On November 24, 1999, about 9:15 a.m., Artina Bratcher arrived for work at Check X-Change in Chico. She entered, locked the door behind her, and prepared for work, which included putting about $3,000 in her teller drawer. At 9:30 a.m., Bratcher opened the door; a customer and a second person, a black man whom Bratcher identified in court as defendant, entered.

Defendant, who was dressed in dark clothing, pointed a small handgun at Bratcher and ordered her to take him to the teller area. As they walked to the teller area, defendant donned a "Scream" mask (from the movie of the same name). Defendant handed Bratcher a small black duffel bag and told her to put the money from her drawer into the bag, which she did. After checking the other teller drawer for money, defendant ordered Bratcher and the customer to lie face down on the floor. They complied and defendant left. Bratcher watched as defendant entered a small maroon or burgundy vehicle and drove off. Bratcher called 911 and reported the robbery.

Marie Lenihan worked a few doors down from Check X-Change. On the morning of the robbery she saw a black man, dressed in black and carrying a black bag, run from Check X-Change and get into a small or medium maroon car. Later that morning, the police took Lenihan to where defendant was being detained. She was 70 to 80 percent sure defendant was the person she had seen fleeing Check X-Change.

Sara Cope, the assistant manager of Check X-Change, identified defendant as the person she saw outside Check X-Change the morning of November 23, the day before the robbery. It was Cope's custom to clean the counter tops and door handles when closing.

It was later learned that $3,005 had been taken in the robbery. The bill denominations were eight $100 bills, thirteen $50 bills, fifty-two $20 bills, thirty $10 bills, thirty-eight $5 bills, and twenty-five $1 bills. Some of the bills were wrapped in rubber bands.

About 10:15 a.m., California Highway Patrol Officer Chris Nicodemus, who had a description of the robber and his vehicle, stopped a maroon-colored Nissan driven by defendant on Highway 99. Defendant was wearing a running suit with a blue nylon jacket, and he identified himself as "Michael [M]." Nicodemus saw two wads of cash, held together by rubber bands, in one of the pockets of defendant's jacket. The cash was seized and, except for two fewer $10 bills and five fewer $1 bills, the denominations of the cash matched exactly the denominations of the bills taken in the Check X-Change robbery. A search of the car revealed one more $5 bill and three $1 bills.

Bratcher was brought to the scene of the detention, and although she couldn't positively identify defendant, she believed he was the robber. At trial Bratcher was certain defendant was the robber.

A search of the three-bedroom apartment in Chico occupied by defendant; his wife, Lisa Rogers; and Lisa's three children, including her son Michael M., disclosed Check X-Change and California identification cards in defendant's name in a drawer in the master bedroom. In a closet was a black backpack and a pair of black pants was lying on the floor. Also in the master bedroom was a black "belly bag" that contained a handgun and ammunition. Inside a drawer in a child's room was a Scream mask.

Bratcher identified the Scream mask and the duffel bag found in the Rogers's apartment as items used in the robbery. A police detective testified that it took about five minutes to drive from Check X-Change to Lisa's place of employment. Defendant's fingerprint was found on the inside of the door handle (a push bar) of Check X-Change.

Lisa Rogers testified that she and defendant married in August 1999, but defendant lived in Oakland with either his sister or his ex-wife Sheena while he did odd jobs there. Defendant had spent the Sunday night before the robbery with Lisa, and at that time he was driving Sheena's maroon Nissan Sentra. Sheena had called Lisa that Sunday afternoon and said she had left her father's gun in the car; she asked Lisa to remove it. Lisa put the gun in defendant's fanny pack but forgot to tell him about it.

At approximately 9:00 o'clock the morning of the robbery, defendant came to Lisa's place of employment to get money to buy a used car. He was dressed in blue and white. Lisa, who made $40,000 in 2000, gave defendant approximately $2,000, mostly in $20 bills. Defendant was with Lisa about 15 minutes before he left. Lisa had purchased the Scream mask for her son Michael. Lisa identified the black clothing found in the closet of the apartment as belonging to defendant.

Between 9:00 and 9:30 a.m. on the day of the robbery, Lisa's co-worker, Amber Silva, saw defendant meet with Lisa in the parking lot where they worked.

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"). 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 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims

A. Ineffective Assistance of Trial Counsel

Petitioner raises numerous claims of ineffective assistance of trial and appellate counsel. By way of background to these claims, petitioner explains that he had three (3) attorney's at three different times to represent him. First, the court appointed Frank Larry Willis, Jr., who represented petitioner at a preliminary hearing and filed a defected [sic] motion to suppress evidence on March 2, 2000. (citations omitted.) Second, petitioner retained counsel Jodea Foster who also filed several motion, to exclude evidence and to dismiss, based on the fact prior counsel Willis had provided ineffective assistance, and Foster appeared at several penal code §1538.5 hearings. (citations omitted.) And thirdly, petitioner had retained trial counsel Grady Davis for his actual jury trial.

(Points and Authorities attached to Am. Pet. (P&A), at 9.) In addition, petitioner had counsel on appeal. Petitioner's ineffective assistance of counsel claims are directed at the actions of his three pre-trial and trial attorneys and his appellate counsel.

Petitioner raised his ineffective assistance of counsel claims, as well as several claims that had been raised on appeal, in a petition for a writ of habeas corpus filed in the Butte County Superior Court. (Resp't's Lodged Doc. 7.) The Superior Court denied the petition by checking boxes on a form order indicating that petitioner's allegations were too "vague, unsupported, and conclusionary" to permit "intelligent consideration," and that "issues resolved on appeal cannot be reconsidered on habeas corpus." (Resp't's Lodged Doc. 8.) Petitioner raised his ineffective assistance of counsel claims again in a petition for a writ of habeas corpus filed in the California Court of Appeal for the Third Appellate District. (Resp't's Lodged Doc. 9.) The California Court of Appeal summarily denied that petition. (Resp't's Lodged Doc. 10.) Petitioner raised the claims again in two petitions for a writ of habeas corpus filed with the California Supreme Court. (Resp't's Lodged Docs. 11, 12, 13.) The California Supreme Court summarily rejected those petitions. (Resp't's Lodged Doc. 14.)

Under these circumstances, this court analyzes the Butte County Superior Court's decision as the relevant state-court determination because the California Supreme Court and the state appellate court denied petitioner's petitions for a writ of habeas corpus without opinion. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002) (the habeas court must review the "last reasoned decision" by a state court); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (same). It appears that the Superior Court did not reach the merits of petitioner's claims of ineffective assistance of counsel, but rejected them on the grounds that they were too conclusory "to allow for intelligent consideration." (Resp't's Lodged Doc. 8.) Because the Superior Court did not reach the merits of these claims, this court will evaluate the claims de novo. Nulph, 333 F.3d at 1056.

1. Applicable Legal Standards

The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. 466 U.S. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).

In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).

2. Failure of Attorney Willis to Call Witnesses at the Motion to Suppress Hearing (claim one)

Petitioner alleges that the police search of his wife's apartment in Chico was unlawful. He claims that he did not reside with his wife and was not listed on the apartment lease and that, therefore, the search could not be justified as a valid search of the residence of a parolee. (P&A at 19-23.) Petitioner asserts that he was actually paroled to the residence of his former wife, Sheena Moore (Rogers), and "this had been petitioner's address for 18 months." (Id. at 21.)

The state court record reflects that on March 2, 2000, petitioner's then-counsel Willis filed a motion to suppress evidence. (Clerk's Transcript on Appeal (CT) at 10-15.) The motion indicated that counsel was challenging the search of petitioner's wife's apartment in Chico, petitioner's detention, petitioner's arrest, and the vehicle stop and subsequent search of petitioner's vehicle. (Id.) A hearing was held on that motion in the Butte County Superior Court on May 4, 2000. (Id. at 22, et seq.) At the hearing, attorney Willis called Sheena Moore as a witness. (Id. at 94-97.) Ms. Moore testified that she loaned petitioner her vehicle and gave him approximately $2,000 to buy a car just prior to the time petitioner was detained for the robbery. (Id. at 94-97.) She also testified that petitioner did not visit her very often, but that he was staying at her apartment because he "didn't have a place to stay" at that time. (Id. at 102.) At the end of the hearing, attorney Willis informed the trial court that his motion to suppress was limited to the search of the Chico apartment. (Id. at 111-14.) In this regard, defense counsel stated that he had "no legal basis to object to either the search of [petitioner's] person or vehicle he was driving." (Id. at 111.) Counsel requested the opportunity to file supplemental points and authorities in support of his motion to suppress. (Id. at 111-14.) Although the trial judge granted this request, a supplemental brief was not filed. (Id.)

Subsequently, petitioner retained new counsel, Jodea Foster, who filed another motion to suppress evidence. That motion sought to suppress: (1) evidence seized from petitioner's person and from the Chico apartment; (2) all statements made by petitioner subsequent to his arrest; and (3) evidence that resulted from an "in-field show-up." (Id. at 127-46.) Attorney Foster also filed a subpoena duces tecum seeking rental applications under the name of Lisa Elliott (Rogers), to establish that petitioner did not reside with Ms. Rogers. (Id. at 171-72.)

A hearing was held on attorney Foster's suppression motion on September 14, 2000. (Reporter's Transcript on Appeal (RT) at 1, et seq.) At the beginning of the hearing, the parties and the trial judge discussed whether petitioner could present additional evidence relevant to the search of Lisa Roger's Chico apartment. (Id. at 1.) Counsel Foster expressed his understanding that he was barred from presenting additional evidence "as to any issue that Mr. Willis' motion had raised." (Id. at 3.) The trial court agreed that "the state of the law is we don't do any new evidence on 1538."*fn3 (Id. at 4.) Accordingly, the judge declined to accept any new evidence on the legality of the search at the Chico apartment. (See CT at 181.) After hearing argument on petitioner's challenges to the traffic stop and to the search of the Chico apartment, the trial court ruled on both of those issues separately, rejecting both challenges. (RT at 14-31.)

On September 19, 2000, attorney Foster filed a motion to dismiss the amended information on the grounds, among others, that attorney Willis "did not provide effective representation when he failed to investigate and offer into evidence relevant documents and testimony on the issue of the search of 57B Cobblestone Drive, Chico, California." (CT at 176-77.) Specifically, in the motion the defense alleged: Had a proper investigation been done, the following would have been discovered: the apartment manager does not remember telling the officers that Lisa Elliott changed her name to Lisa Elliott Rogers and does not believe that she did since the application and rental contract for 57B Cobblestone are in the name Lisa Elliott in both the printed and signed portions of each document (no reason for the apartment manager to believe Lisa was using the last name Rogers); the apartment manager remembers the officers looking over the application and rental contract and believes it was before they searched; on the application for 57B Cobblestone, which was dated April 4, 1999, or seven months before the robbery at issue, defendant was listed as one of the proposed occupants; defendant is not named as an occupant on the rental agreement, dated April 30, 1999, and defendant did not sign that agreement; per the apartment manager, all adults living in the apartment would have been listed as an occupant and required to sign the rental agreement (indicating defendant did not reside there, despite being listed on the application as a proposed occupant); per Lisa Elliott Rogers, she did not tell the officers that she resided with her husband at 57B Cobblestone, rather, the officers telephoned her from inside 57B Cobblestone and told her that since her husband resided there with her a parole search would be conducted.

Proper cross-examination of the officers would have revealed the following: because of the timing of the rental contract for 57B Cobblestone (April 30, 1999) the Chico address of 57E Cobblestone reported by defendant to DMV was about seven months old at the time of the robbery; at the time of his arrest, defendant was driving a vehicle registered to Sheena Moore and Sheena Moore's DMV driver's license printout listed her as Sheena Moore-Rogers; there was confusion by the officers as to what relationship defendant had with Lisa Elliott and Sheena Moore-Rogers; Sheena Moore-Rogers had an address in the Bay Area; defendant told the officers he was living in the Bay Area; the officers believed there was "some connection" between defendant and Lisa Rogers.

The investigation and cross-examination that should have been conducted reveals a very different set of facts on the issue of the reasonableness of the search of 57B Cobblestone and there is a reasonable probability that issue would have been decided differently.

(Id. at 184.) In support of the motion to dismiss, attorney Foster also filed his own declaration, in which he stated that he interviewed Dee Thomlinson, apartment manager for 57B Cobblestone Drive, and that she related to him that petitioner had not signed the rental agreement. (Id. at 186.) Mr. Foster further declared that Lisa Elliott had told him that she did not tell officers that she lived at 57B Cobblestone with defendant. Rather, Lisa told me that the officers told her that because defendant lived at that address with her they were going to search the apartment pursuant to defendant's parole status.

(Id. at 187.)

The trial court held a hearing on petitioner's motion to dismiss on October 31, 2000. (RT at 90-103.) The sole issue before the court at that hearing was whether, pursuant to California Penal Code § 1538.5(i), additional evidence could be introduced with respect to petitioner's challenge to the search of Lisa Roger's Chico apartment. Attorney Willis was called by the prosecutor as a witness. (Id. at 93.) He testified that he spoke with Lisa Rogers and that it was his recollection that she was petitioner's wife and that she was residing in Chico. (Pet., Ex. C, page marked "95.") Mr. Willis also testified that Lisa Rogers told him prior to the hearing on his suppression motion that petitioner did not reside in the Chico area. Counsel knew that petitioner was not listed on the rental agreement. (Id. at pages marked "95" and "96.") Mr. Willis further testified that he did not talk to the manager of the Chico apartment complex. (Id. at page marked "97.") He did not remember whether his investigator spoke to the manager or not. (Id.) After hearing the testimony of Mr. Willis, The trial court issued the following ruling:

All right, it does appear that based upon testimony of Mr. Willis, he had spoken with Lisa Rogers. He had also reviewed the rental agreement from which one could infer the identity of the landlord and or the property manager.

So the Court will find that the evidence proposed or presented, could reasonably have been presented at the preliminary hearing.

Therefore, any request to present that evidence is denied based upon the language of 1538.5(i). (Id. at page marked "100.") The trial judge declined to rule on whether Mr. Willis had rendered ineffective assistance at the preliminary hearing, explaining that:

I think any claim of incompetent counsel is premature at this point because Mr. Rogers has not been convicted of any offense. I'm not saying that it may not endure or be viable at a later point but I don't think it's something that -- right now my sole inquiry was whether or not the evidence could have reasonably been presented at the preliminary hearing and I made that finding. . . I'm not making a finding on it, I just don't think it's appropriate at this point for that to be raised. Later down -- because for example, Mr. Rogers may go to trial and be found not guilty. Then, you know, it doesn't matter what did or didn't happen along the way.

(Id. at pgs. marked "101" to "102.")

Petitioner claims in the instant petition that attorney Willis rendered ineffective assistance by failing to properly investigate whether the search of the Chico apartment was a valid parole search. He specifically faults his counsel for failing to call three additional witnesses in support of the motion to suppress: petitioner's parole agent Fran Bradley; Lisa Elliott Rogers, petitioner's wife; and Dee Tomlinson, the apartment manager of the complex where Lisa Rogers resided. (P&A at 10, 11-12.) Petitioner suggests that Ms. Bradley could have testified that if she had been contacted by Chico Police she would have informed them of petitioner's parole status and the fact that his legal address was in Alameda County, thereby calling into question whether a proper parole search could be conducted at the Cobblestone apartment in Chico. (Id. at 11.) Petitioner argues that Lisa Elliott Rogers would have "la[id] a foundation that she is entitled to privacy against warrantless search and seizure, she was not on parole or probation and that petitioner had no legal residence at her home." (Id.) Finally, he argues that the apartment manager would have provided crucial information upon the detective interview, and whether it was known to the officers that petitioner was not on the rental agreement prior to their search, and whether Ms. Tomlinson accompanied the detectives to the apartment since she was the manager on site and did she witness the entry into Mrs. Rogers home by the detectives, and to testify if the door was unlocked as the detective claimed it to be, and whether the phone call to Mrs. Rogers at her job site was before or after the entry of her home.

Counsel could have explored the possibility of the apartment owner policy concerning search or seizures that may require a warrant, especially like in this case, where a warrantless search was executed.

(Id. at 11-12.) Petitioner contends that "the core issue is whether the parole search was proper to a home where he did not live." (Id. at 12.)

Petitioner argues that the failure of attorney Willis to call these witnesses, and therefore to preserve their testimony, prevented attorney Foster from calling them as witnesses at the hearing on Foster's suppression motion. (Id.) He contends that attorney Willis' deficient performance was "fatal to new counsel 'Foster' performance thus rendering him ineffective at the §1538.5 hearing." (Id. at 18.) Petitioner also argues that attorney Willis "failed to preserve the issue for further consideration on the Appellate level." (Id.)

Because petitioner was on parole at the time he was detained, he was subject to the standard parole search condition set forth in California Code Regs., tit. 15 § 2511(b)(4).

Specifically, petitioner, his residence, and any property under petitioner's control could be searched without a warrant at any time by any agent of the Department of Corrections or any law enforcement officer. (Id.) Petitioner does not argue that the police did not have cause to search his residence, nor could he. A search of a parolee without any particularized suspicion is proper. People v. Sanders, 31 Cal. 4th 318, 333 (2003); People v. Reyes, 19 Cal. 4th 743, 753-54 (1998).*fn4 In this instance the police also suspected that petitioner was involved in the robbery of Check X-Change. Accordingly, there were two possible purposes for the search.*fn5 Petitioner's argument centers on whether the search of the Chico apartment was a search of his residence or whether it constituted an unlawful warrantless search of the residence of Lisa Rogers. Petitioner claims that if counsel Willis had called Lisa Rogers, Dee Williamson, and Fran Bradley as witnesses at the hearing on his motion to suppress, their testimony would have convinced the trial judge that the Chico apartment was not petitioner's "residence." For the following reasons, the court concludes that attorney Willis' failure to call these three witnesses would not have resulted in the suppression of the evidence discovered in the Chico apartment.

Whether the search of the Chico apartment was proper turns on whether the police reasonably suspected that petitioner was sharing a residence with his wife, as opposed to being merely a casual visitor. People v. Woods, 21 Cal. 4th 668, 681-682 (1999. See also Motley v. Parks, 432 F.3d 1072, 1078-79 (9th Cir. 2005) ("Where a law enforcement officer's observations support 'a reasonable belief' that a parolee resides at a particular address, this 'provide[s] a reasonable basis for [a parole] search'") (quoting United States v. Dally, 606 F.2d 861, 863 (9th Cir. 1979)). The police officers who conducted the search of the Chico apartment testified at the hearing on the suppression motion filed by attorney Willis. In this regard, officer Lara testified that he "ran a records check" on petitioner and "was able to determine that he had a California identification card and listed a Chico address, 59E Cobblestone in Chico." (CT at 61.) When he and three other officers arrived at the apartment complex, the apartment manager advised them that "a female named Lisa Rogers and the suspect had moved from 59E to 57B." (Id. at 62.) Officer Moore testified that, prior to the search of the apartment, apartment manager Tomlinson informed him that "at 59E, Lisa Elliot had registered but had recently moved to 57B and when she filled out that new application she listed her name as Lisa Rogers." (Id. at 83-84.) Moore telephoned Lisa Rogers and she told him that she lived at 57B Cobblestone and that petitioner was her husband. (Id. at 84-85.) Lisa Rogers did not object when Officer Moore told her that he was going to search her apartment on the grounds that the terms and conditions of petitioner's parole allowed law enforcement to make unannounced visits and searches of his residence. (Id. at 86.)

At trial, Officer Moore testified that, prior to the search, he determined petitioner was married to Lisa Rogers and that petitioner's DMV records indicated that he lived on Cobblestone Drive in Chico. (RT at 359.) Moore called the apartment and was told there was no tenant with petitioner's name living in the complex but that Lisa Elliott Rogers lived in apartment 57B. ...


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