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Hector v. Poulos

August 17, 2009

EDWYN O. HECTOR, AKA EDWYN ONGLEY HECTOR, AKA EDWYN OMAR HECTOR, PETITIONER,
v.
M.E. POULOS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge

OPINION AND ORDER

On March 25, 2009, petitioner Edwyn O. Hector, aka Edwyn Ongley Hector, aka Edwyn Omar Hector, proceeding pro se, filed his initial habeas corpus petition under 28 U.S.C. § 2254, and on March 27, 2009, the Court determined petitioner had failed to name the proper respondent and failed to sign and verify his petition, as required by Rules 2(a) and (c) of the Rules Governing Section 2254 Cases in the United States District Court, and dismissed the petition with leave to amend. On April 9, 2009, petitioner filed an amended habeas corpus petition, and on April 22, 2009, petitioner filed a supporting memorandum of points and authorities with numerous exhibits. On April 9, 2009, petitioner also filed a motion to stay and hold in abeyance the amended petition, and this Court denied that motion on April 10, 2009, finding petitioner had failed to identify any new claims he wanted to exhaust. On June 9, 2009, respondent filed an answer to the amended petition, and on July 27, 2009, petitioner filed his reply.

In the amended habeas corpus petition, petitioner raises the claims that defense counsel was ineffective for: (1) "not challenging relevant omissions and misstatements in the affidavit for search warrant"; and (2) "not challenging the face of the search warrant as being general and lacking particularity."*fn1 Amended Petition at 5.

BACKGROUND

On June 28, 2006, in Riverside County Superior Court case no. BAF004751, the People filed an information charging petitioner with one count of being a felon in possession of a firearm in violation of California Penal Code ("P.C.") § 12021(a)(1) (count 1), one count of wilfully and unlawfully possessing a short barrel twelve gauge shotgun in violation of P.C. § 12020(a)(1) (count 2), and one count of being a felon in possession of ammunition in violation of P.C. § 12316(b)(1) (count 3),*fn2 and further charging petitioner with two prior strikes under California's Three Strikes law, P.C. §§ 667(c), (e)(2)(A) and 1170.12(c)(2)(A). CT 42-43. On May 3, 2007, pursuant to a written plea agreement, petitioner pleaded guilty to, and was convicted of, all three counts, and petitioner admitted the two prior strikes. CT 123-26; Reporter's Transcript ("RT") 50:6-52:18. On June 19, 2007, the trial court struck one of petitioner's prior strikes, and sentenced petitioner to the total term of eight years and eight months in state prison. CT 165-68; RT 53:3-72:8.

The petitioner appealed his sentence to the California Court of Appeal,*fn3 CT 169, which, in an unpublished opinion filed April 18, 2008 and modified on May 12, 2008, remanded the matter to the trial court for resentencing, finding the imposition of sentence on count 2 must be stayed under P.C. § 654, and in all other respects affirmed the Judgment. Lodgment nos. 3-9, 16. The petitioner did not seek review from the California Supreme Court. Amended Petition at 3.

On August 25, 2008, the trial court resentenced petitioner to seven years and four months in state prison. Lodgments A at 2, 5-6; Lodgments B-D. The petitioner appealed the resentencing to the California Court of Appeal, Lodgment A at 4, 7; however, the appeal was dismissed at petitioner's request on March 16, 2009. Lodgments FH.

DISCUSSION

I.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed. 2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed. 2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:

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.

28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The California Supreme Court reached the merits of petitioner's claims when it denied his habeas corpus petition without comment or citation to authority. Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir. 2005), amended by, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007). Since no state court has provided a reasoned decision addressing the merits of petitioner's claims, this Court must conduct "'an independent review of the record'" to determine whether the California Supreme Court's decision to deny the claim was contrary to, or an unreasonable application of, clearly established federal law. Musladin v. ...


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