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Fulcher v. Martel

July 13, 2009

NOLAN JAMES FULCHER, PETITIONER,
v.
MATT MARTEL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER ADOPTING REPORT AND RECOMMENDATION and DENYING WRIT OF HABEAS CORPUS

On October 8, 2008, Nolan James Fulcher ("Petitioner"), a California prisoner proceeding pro se, filed a First Amended Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the sufficiency of evidence supporting his transportation of cocaine charge, and challenging a denial of his right to effective assistance of counsel by denying his request for a continuance. (Doc. No. 6.) On December 16, 2008, Matt Martel ("Respondent"), filed his Answer with a Memorandum of Points and Authorities. (Doc. No. 9.) Petitioner did not file a Traverse to the Answer, nor has Petitioner requested additional time to file one. On March 23, 2009, the Magistrate Judge filed a Report and Recommendation, recommending that this Court deny the Petition for writ of habeas corpus. (Doc. No. 16.) Petitioner has not filed an Objection to the Report and Recommendation.

For the reasons set forth below, the Court ADOPTS the Report and Recommendation, and DENIES the Petition for writ of habeas corpus.

Background

A. Procedural History

On August 18, 2006, a jury convicted Petitioner of one count of possession of cocaine base and one count of possession of cocaine in violation of Cal. Health & Safety Code § 11350(a), and two counts of transportation of cocaine in violation of Cal. Health & Safety Code § 11352(a). (Lodgment 1 at 121-26.) Petitioner admitted the truth of three prior convictions, three prior prison terms, and one prior strike. (Lodgment 1 at 192.) The trial court sentenced Petitioner to a ten-year prison term. (Lodgment 1 at 192.) The California Court of Appeal affirmed the judgment on February 20, 2008. (Lodgment 6.) The California Supreme Court denied review without comment or citation on April 30, 2008. (Lodgment 8.) On July 7, 1008, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. No. 1). This Court dismissed that petition for failure to state a cognizable federal claim. (Doc. No. 3.) On October 8, 2008, Petitioner filed the First Amended Petition in this Court. (Doc. No. 6.)

B. Factual History

The California Court of Appeal summarized the facts of Petitioner's offense as follows:

At a preliminary hearing held on June 5, 2006, Chula Vista Police Officer Michael Varga testified as follows: On February 19, 2006, at approximately 11:00 p.m., he was at the Traveler's Inn Hotel located on Woodland Avenue, which is a high crime area known to the police for narcotics, gangs and weapons. Fulcher drove past him. Approximately two minutes later, Varga was leaving the hotel and saw Fulcher's vehicle wrongly parked in a spot marked for handicapped drivers. Fulcher was standing outside the vehicle, which did not have license plates identifying the user as handicapped. Varga asked him about his parking, and Fulcher said he was picking up laundry from a nearby laundromat. Varga ascertained Fulcher was on probation and started to search him. Fulcher ran from Varga, who caught him ten yards away and arrested him. Varga found in Fulcher's pocket a baggie containing 39 rock-like substances and a baggie containing a white powdery substance; the contents of both bags later tested presumptively positive for cocaine base.

On August 14, 2006, trial proceedings began, and the People filed an amended information alleging one count of possession/purchase of cocaine base for sale and one count of possession for sale of a controlled substance. The next day, the prosecutor moved to file a second amended information adding two counts of transporting controlled substances under section 11352, subd. (a), and two additional enhancements under section 11370.2, subd. (a). The trial court granted the motion to amend the information ... Fulcher moved for a continuance, arguing the addition of the transportation charge required a different strategy, and "we might want to seek out and find ... additional witnesses" to prepare an adequate defense. The trial court denied the motion. (Lodgment 6 at 2-3; People v. Fulcher, unpub. op., Cal. Ct. App., 4th Dist., Div. 1, February 20, 2008.)

Discussion

A. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended 28 U.S.C. § 2254(d) to provide the following standard of review applicable to state court decisions:

(d) 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 ...


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