The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.
On March 13, 2006, the Stanislaus County District Attorney filed a first amended information charging Petitioner, in count one, with possession of heroin (California Health & Saf. Code § 11350) and in count two with misdemeanor driving under the influence in violation of California Vehicle Code section 23152, subdivision (a). It was further alleged that Petitioner had suffered three prior "strike" serious felony convictions pursuant to California Penal Code section 667, subdivision (d) and five prior prison terms pursuant to California Penal Code section 667.5, subdivision (b). (CT 15-16.)
Petitioner waived a jury trial and a bench trial was conducted on May 9, 2006, on both counts. (CT 56.) The following day, the trial court found Petitioner guilty of both counts and found true the allegations pursuant to California Penal Code sections 667 and 667.5. (CT 57.)
Petitioner filed a timely notice of appeal. The California Court of Appeal, Fifth Appellate District affirmed the judgment on July 30, 2007. (Lodged Doc. No. 4.) On October 17, 2007, the California Supreme Court denied review without comment. (Lodged Doc. No. 10.)
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court in Case No. S167199 on October 1, 2008. (Lodged Doc. No. 11.) The petition was denied on March 25, 2009. (Lodged Doc. No. 12.)
Petitioner filed the instant federal petition for writ of habeas corpus in this Court on November 10, 2008. (Court Doc. 1.) On May 19, 2009, the Court directed Respondent to file a response to the petition. (Court Doc. 13.) Respondent filed an answer to the petition on August 17, 2009. (Court Doc. 21.) Petitioner did not file a traverse.
On October 24, 2005, California Highway Patrolman Vincent Villegas pulled Petitioner's vehicle over because he was not wearing a seat belt. (RT 59.) Officer Villegas followed Petitioner for two blocks prior to stopping him and noticed he was weaving. (RT 61.)
As Officer Villegas approached the vehicle, he noticed a hypodermic syringe lying on Petitioner's right leg. Villegas asked for Petitioner's driver's license and registration and Petitioner indicated he not have a license. Petitioner's speech was slurred. (RT 62.) Believing that Petitioner was intoxicated, Villegas asked him to step out of the vehicle and performed a series of field sobriety tests. Villegas concluded that Petitioner was under the influence of a narcotic and Petitioner was placed under arrest. (RT 68.) Petitioner was transported to the CHP office and was given his Miranda rights which he waived. (RT 14-16.) Officer Chris Reeves, a certified drug evaluation expert, interviewed Petitioner who told him that over the course of the day he had taken heroin, Vicodin, and Valium. (RT 16.) The heroin was ingested around noon or 1:00 p.m. (RT 17.) Petitioner mumbled and slurred his words during the interview. (RT 35.)
Petitioner admitted that he had been using heroin on and off for approximately 35 years. determined that Petitioner was under the influence of a narcotic. (RT 9, 11-14, 18-31, 69.) Reeves noticed that Petitioner had fresh needle injection marks on his arms and legs. (RT 19- 20.) After performing various tests, Officer Reeves concluded Petitioner was under the influence of narcotics. A urine sample was taken from Petitioner, and he was then transported to the Stanislaus County jail. (RT 69.) As Petitioner was being booked into the jail, the officer removed Petitioner's shoes and asked him to remove his socks. (RT 70.) Officer Villegas saw Petitioner "flick" his sock off and a small object wrapped in plastic flew over Villegas' shoulder and landed next to him. The substance was a "small plastic wrapped bundle of a brown sticky substance." Officer Villegas asked Petitioner what it was and he said, "looks like heroin." (RT 71.)
Jesse Tovar of the Stanislaus Drug Enforcement Agency testified as an expert witness on the issue of what constitutes a usable amount of a illegal narcotic. (RT 42-43.) Tovar stated that as little as .01 grams of heroin could constitute a usable amount, and .11 grams of actual heroin would obviously be a usable amount. (RT 44-45.)
Nancy Seger a criminalist for the Department of Justice performs drug testing and had conducted thousands of tests in over 1,000 drug cases. (RT 55.) She testified that she was given a substance from Officer Villegas regarding Petitioner for an offense that occurred on October 24, 2005. She was provided with Petitioner's driver license number of CAP06556358. (RT 48-49.) The substance was determined to be .11 grams of heroin. (RT 49-50.)
Petitioner did not present any evidence in support of his defense and only challenged the sufficiency of the prosecution's evidence.
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 Stanislaus 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 ...