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Lopez v. Kernan

November 30, 2009

ROBERT LEE LOPEZ, PETITIONER,
v.
SCOTT KERNAN, WARDEN, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1997 conviction on charges of transportation and possession of a controlled substance and false personation, and the sentence of two consecutive indeterminate terms of twenty-five years to life in prison imposed thereon. (Resp'ts' Motion to Dismiss, Ex. A.) Petitioner also received a four-year term for prior convictions pursuant to California Penal Code § 667.5(b). Petitioner raises two claims in his second amended petition, filed November 8, 2007, that his prison sentence violates the Constitution.

FACTS*fn1

On February 17, 1996, Police Officer Elmer Marzan was on patrol, when he saw [petitioner] driving a beige Ford Escort and not wearing a seat belt. The officer turned his motorcycle around and observed [petitioner] pulling into a driveway. Officer Marzan stopped in front of the driveway as [petitioner] got out of his vehicle. Marzan informed [petitioner] that he was going to write him a ticket for not wearing a seat belt. He asked for [petitioner's] driver's license and registration. [Petitioner] replied that his license was suspended.

Officer Marzan then requested [petitioner's] name and birth date. [Petitioner] replied that his name was Francisco Lopez, Jr., and his birth date was August 15, 1946. The officer ran a check on this name and found a valid driver's license with no prior convictions. Marzan thought this suspicious because [petitioner] had told him that his license had been suspended for driving under the influence. Officer Marzan again asked him what his real name was, and [petitioner] stated, "Okay. My name is Alfred Maisonet," and gave his birth date as June 23, 1949. Running a check on this new information, the officer again found a valid license with no prior convictions.

In response to further questioning, [petitioner] insisted he was Maisonet. Marzan asked [petitioner] if he had a wallet, and [petitioner] said he did not. When [petitioner] reached for something under his shirt, the officer instructed him to keep his hands out in front of him. He patted [petitioner] down, and something fell to the ground from [petitioner's] pant leg. It was a wallet. There was no identification inside the wallet, but there was a small baggy with white powdery residue which the officer believed to be methamphetamine. At this point, [petitioner] fled on foot. Officer Marzan gave pursuit and took [petitioner] into custody.

In custody, the officer inventoried [petitioner's] property that was on [petitioner's] person. One item recovered was a small purse with a wadded up dollar bill concealing two rock-like substances, later determined to be methamphetamine. During his booking at the county jail, [petitioner] gave police the following information: name - Frank Lopez, Jr.; birth date - August 15, 1947; and social security number - 564-62-6015.

A certified Soundex and the Department of Motor Vehicles driving record established that there is a Francisco Lopez, with a birth date of August 15, 2946, living in La Jolla, California. Francisco Lopez, who was born on August 15, 1947, is [petitioner's] half brother. Alfred Maisonet is also [petitioner's] brother.*fn2

(People v. Lopez, slip op. at 2-4.)

ANALYSIS

I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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 ...


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