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Johnson v. Horel

November 30, 2009

JAMES EDWARD JOHNSON, PETITIONER,
v.
ROBERT HOREL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Fred Van Sickle Senior United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

THIS MATTER comes before the Court on Petitioner's Petition For Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Ct. Rec. 5). Petitioner is proceeding pro se. Respondent is represented by Marcia A. Fay, a Deputy Attorney General for the State of California.

BACKGROUND

At the time his petition was filed, Petitioner was in custody at Pelican Bay State Prison pursuant to his March 8, 2005, conviction in Yolo County Superior Court for selling cocaine base and having a prior narcotics conviction, having served a prior prison term, and having a prior serious felony conviction. The court sentenced Petitioner to a 12-year prison term. Petitioner challenges his sentence.

I. Factual History

The California Court of Appeal, Third Appellate District, described the facts of this case as follows:

On October 19, 2004, Agent Jonathan Wayne Updegraff, an investigator for the Yolo County District Attorney's Office, was working as an undercover agent for the Yolo County Narcotic Enforcement Team at the Old Town Inn, a motel on 826 West Capitol Avenue. Agent Updegraff was part of a larger operation aimed at determining which rooms were involved in the sale of controlled substances and apprehending the major dealers.

The agent stayed in room 33 and left the door open. At around 8:00 p.m., defendant approached room 33 and said something unintelligible to Agent Updegraff. The agent asked defendant if he was Bobby, telling him, "I was waiting for Bobby to get me some stuff." Defendant did not respond, so Agent Updegraff asked him if he had any "white," a reference to rock cocaine. Defendant asked if that meant cocaine, and Agent Updegraff answered, "yes." Defendant then asked the Agent if he was a cop. Agent Updegraff said no, and told defendant that he wanted a $20. Defendant said that he could get the agent a better deal for $30, but Agent Updegraff said that he only wanted a $20. The agent then asked defendant "if he had it with him." Defendant said, "no, he had to go get it." Agent Updegraff then handed a $20 bill to defendant.

Defendant then went to an apartment south of room 33, stayed there for about a minute, went to another motel room, staying there for a minute, and then came out, meeting a woman in the motel parking lot. As defendant and the woman approached the room, Agent Updegraff closed the door, not wanting to have them in his room. His concern was that an undercover officer normally does not "want to deal two on one," and that his cover units were not close by. Defendant knocked on the door, insisting that they had to enter. Agent Updegraff then opened the door and let the couple in.

Defendant "had a glass rock cocaine pipe in one hand and a piece of rock cocaine in the other." He and the woman said they wanted to see Agent Updegraff smoke some cocaine. The agent said no, he did not want to be using right now because his girlfriend was coming over. Agent Updegraff then reached over and took the cocaine from defendant's hand. The agent was concerned that arresting defendant in the motel room could compromise the entire operation, so he tried to get defendant and the woman out of the room. The cover agent then sent a plain-clothed officer to the complex to knock on the door and tell defendant and the woman to leave. The $20 bill was never found.

During the encounter, the woman noticed that Agent Updegraff was wearing something under his coveralls. Agent Updegraff was wearing his service weapon and some ammunition, so he brushed her hand away as she reached over. The woman also noticed the agent's tape recorder and cell phone, but Agent Updegraff demonstrated to the woman that neither device was on. Agent Updegraff was concerned that his cover would be exposed at the time he took the cocaine.

The prosecutor submitted certified copies of documentary evidence of defendant's prior convictions and prison sentence in order to prove the enhancements at the bifurcated hearing. Defense counsel did not object to their admission.

People v. Johnson, 2006 WL 1645229 at *1-2 (Cal. App. 3 Dist. 2006).

II. Procedural History

Petitioner was convicted following a jury trial of one count of selling cocaine base (Cal. Health and Safety Code § 11352(a)). In bifurcated proceedings, the trial court found true the prior narcotics conviction enhancement (Cal. Health and Safety Code § 11370.2(a)), the prior serious felony conviction enhancement (Cal. Penal Code § 667(c), (d), and (e)(1)) and one of the two prior prison term enhancements (Cal. Penal Code § 667.5(b)). Petitioner was sentenced to state prison for a term of 12 years on March 8, 2005.

Petitioner appealed from his conviction and sentence to the California Court of Appeal, Third Appellate District. On June 15, 2006, the California Court of Appeal affirmed Petitioner's judgment and sentence. Johnson, 2006 WL 1645229 at *1.

Petitioner thereafter sought review by the California Supreme Court. The California Supreme Court denied Petitioner's request for review on August 30, 2006.

On March 26, 2007, Petitioner filed a petition for writ of habeas corpus asking for federal review. (Ct. Rec. 5). Respondent's answer was filed on July 16, 2007 (Ct. Rec. 13) and Petitioner filed a traverse on August 6, 2007 (Ct. Rec. 15).

Petitioner's petition (Ct. Rec. 5) is now before the Court.

ISSUES

Petitioner presents the following grounds for relief:

1. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT FINDING THAT PETITIONER SOLD COCAINE BASE THEREBY DENYING THE RIGHTS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.

2. THE MODIFIED JURY INSTRUCTION PERTAINING TO DRUG SALES VIOLATED PETITIONER'S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.

3. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON LESSOR-INCLUDED OFFENSES DEPRIVED PETITIONER OF HIS SIXTH AMENDMENT RIGHT TO A JURY TRIAL.

4. THE USE OF DOCUMENTARY EVIDENCE TO PROVE PRIORS DENIED PETITIONER HIS RIGHT OF CONFRONTATION UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND CRAWFORD V. WASHINGTON. (Ct. Rec. 5).

DISCUSSION

I. Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief if a state court adjudication 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 resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 399, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "Clearly established federal law" consists of "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Anderson v. Terhune, 516 F.3d 781, 798 (9th Cir. 2008) (citing Lockyer v. Andrade, 538 U.S. 63, 70-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A decision is "contrary to" clearly established federal law in two circumstances. First, a state court decision is contrary to clearly established federal law when "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 405, 120 S.Ct. at 1519, 146 L.Ed.2d at 425. Second, a state court decision is "contrary to" clearly established federal law when the state court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 412-413, 120 S.Ct. at 1523, 146 L.Ed.2d at 430. A state court unreasonably applies clearly established federal law when it applies the law in a manner that is "objectively unreasonable." Id. at 409. "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) - whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law." Lockyer, 538 U.S. at 71.

Furthermore, habeas relief is warranted only if a constitutional error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); Bains v. Cambra, 204 F.3d ...


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