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Meitzenhemier v. Almager

December 1, 2009

CLAUDE MEITZENHEMIER, PETITIONER,
v.
V.M. ALMAGER, RESPONDENT.



The opinion of the court was delivered by: John M. Dixon United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ORDER DIRECTING CLERK OF COURT TO ENTER JUDGEMENT

ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

Clause Meitzenhemier ("Petitioner") is a State prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation at Centinela State Prison, pursuant to a judgement of the Kern County Superior Court. (Pet. at 2). Petitioner was convicted by a jury in December 2005, of possession of methamphetamine while armed with a loaded, operable firearm (Cal. Health & Safety Code § 11370.1(a)), possession of methamphetamine for sale (Cal. Health & Safety Code § 11378), felony possession of ammunition by a person prohibited from having ammunition (Cal. Penal Code §§ 12021 or 12021.1 and 12316), and possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)). (Lod. Doc. 3 at 2). The trial court further found that Petitioner had three prior felony convictions within the meaning California Penal Code sections 667(c)-(j) and 1170.12(a)-(e). (Id. at 2-3). Petitioner was sentenced to a term of twenty-five years to life. (Answer at 3). Petitioner appealed his conviction to the California Court of Appeal, Fifth Appellate District. (Lod. Doc. ). The appellate court issued a reasoned opinion on February 22, 2007, rejecting Petitioner's claims. (See Lod. Doc. 3).

Subsequently, Petitioner filed a petition for review and a petition for writ of habeas corpus to the California Supreme Court. (Lod. Docs. 8, 10). The California Supreme Court summarily denied both petitions. (Lod. Docs. 9, 11). On July 29, 2008, Petitioner filed the instant federal petition for writ of habeas corpus. On February 26, 2009, Respondent filed a response to the petition. On March 23, 2009. Petitioner filed a reply to the answer.

Consent to Magistrate Judge Jurisdiction

On September 2, 2008, Petitioner consented, pursuant to Title 18 U.S.C. section 636(c)(1), to have a magistrate judge conduct all further proceedings, including the entry of final judgment. (Court Doc. 10). Respondent consented to the jurisdiction of a magistrate judge on October 20, 2009. (Court Doc. 16). On October 28, 2009, the case was reassigned to the undersigned for all further proceedings. (Court Doc. 34).

FACTUAL BACKGROUND*fn1

On September 2, 2005, a drug enforcement team composed of Kern County Sheriff's Deputies, Kern County Probation Officers, and Bakersfield Police served search warrants on two apartments in an apartment complex located in Bakersfield. The search warrants covered apartments one and nine. Officers entered apartment nine, which was the residence of the apartment manager, Rhonda Tapp. Melissa Heydt was inside the apartment. She was searched and 0.20 grams of methamphetamine were found in her possession. Heydt told the arresting officers that it was about a quarter gram, that it was hers, and that she had purchased it for $20 from appellant in apartment one.

At trial, Heydt testified that she had known appellant for a year or less and that she had contact with him about four times. Heydt denied that she had purchased the methamphetamine from appellant. Heydt agreed with the deputy district attorney's characterization of appellant as a "pretty large man" and testified that she was not intimidated by appellant and had no reason to feel afraid of him. On cross-examination, she admitted that she may have given officers appellant's name because they threatened to take her child away from her. At the time of her arrest, Heydt also told officers that Allen Cockren had rented apartment one and was there every day for a couple of hours. At trial, Heydt testified apartment one was rented to a woman named Michelle*fn2 FN1 and that she had seen Michelle only once, when Michelle filled out a rental application. Heydt also testified she had seen Allen Cockren go in or come out of apartment one a couple of times.

The group of officers who went to apartment one knocked on the door, loudly announced "Sheriff's Department" and "search warrant," and demanded entry. There was no answer from inside the apartment, although the officer who knocked heard a loud banging noise as if someone was leaving the room. The officer again knocked and demanded entry. After receiving no response, an officer used a ram to force the door open. The officers entered the apartment. Some of the officers went through the living room, entered a hallway, and saw Allen Cockren. They ordered him to the ground and took him into custody. Deputy Sheriff Jared Kadel saw appellant lying on the floor in a bathroom that was off to the left of the hallway. Deputy Kadel placed appellant in handcuffs, searched him, and located a $302 roll of cash in his right front pocket. The officers then searched the entire apartment and located evidence in the northeast bedroom, the southeast bedroom and the kitchen. The door to the northeast bedroom was open. A couch and computer were located in the northeast bedroom. Deputy Kadel found a key ring with six keys on it in the middle of the bedroom's floor. A closet in the northeast bedroom contained a bullet resistant vest and a gray safe, about 18 by 24 inches, that had a broken door. The gray safe contained three boxes of ammunition and some loose ammunition. The northeast bedroom also contained four cell phones, some loose ammunition in a coffee can, gun parts, a box of sandwich bags, and a desktop charger with two walkie-talkie radios in it. The door to the southeast bedroom was locked. The officers forced the door open.

Later, the officer learned that a key on the key ring found in the northeast bedroom opened the lock on the southeast bedroom. In the closet of the southeast bedroom, the officers found two locked safes. One safe was black and silver; the other safe was blue. Deputy Kadel and another officer used the keys found in the northeast bedroom to open the two safes. The black and silver Brinks safe contained a loaded Colt .22 semiautomatic handgun. An officer racked the slide of the weapon and it appeared to operate properly. The black and silver safe also contained a digital scale, methamphetamine, bundles of cash that totaled $5,006, some marijuana, and rolling papers. The closet where the safes were located also contained additional methamphetamine. The methamphetamine from the safe and closet consisted of seven packets totaling approximately 29.6 grams, which is more than one ounce. The packets ranged in weight from 0.23 grams to 23.4 grams. The closet also contained clothing that fit someone with a large frame. Deputy Sheriff Mark Warren testified that the clothing belonged to "someone who had [a] large pant size and shirt size." Because Cockren had a slender build, weighed about 140 pounds and was approximately five feet six inches tall, Deputy Warren concluded that the clothes were consistent with appellant's frame and inconsistent with Cockren's frame.

Deputy Warren did not ask either man to try on the clothes. The blue Century safe contained a nine-millimeter Norinco semiautomatic handgun with a loaded magazine and no round in the chamber. The officer who found that gun stated it appeared to be in working order. The blue safe also contained some ammunition. The southeast bedroom contained an air mattress, a blanket, sheets, pillows, a television on the floor, and a chair. In addition, Officer Christina Abshire searched the southeast bedroom and found a box that contained a piece of notebook paper that appeared to be a pay and owe sheet. The box also contained a roll of change, other papers, a phone charger, and a phone battery. Officer Abshire also searched the kitchen of apartment one. She found a black, long-barreled .22 Ruger handgun in the top right hand drawer directly next to the stove. She also found a glass methamphetamine smoking pipe with black burn marks and white residue inside it. The pipe was on the middle shelf of a cupboard above the stove on the right hand side. Another pipe was located on the counter directly below where the first pipe was found. Next to the pipe on the counter was a yellow notebook. In a drawer to the left of the stove, Officer Abshire located white plastic grocery bags that had the corners torn off. The condition of the bags was relevant because small quantities of methamphetamine are packaged for sale by placing the methamphetamine in the corner of the bag, tearing the corner off, and twisting it to hold the drug. Officer Abshire found a black digital gram scale on top of the refrigerator. She also found a propane torch that could be used to make methamphetamine smoking pipes.

Appellant's $29 state tax refund check was found on the bottom shelf of the overhead cupboard to the right of the stove.*fn3 The address on the check was Cockren's address. Defense Case Appellant contends that the key ring found in the northeast bedroom was not his. The key ring contained two car keys, one of which was to a maroon Oldsmobile that belonged to Allen Cockren. Officers searched the car and found several items belonging to Debbie Cockren, Allen's mother. Appellant testified in his own defense. He denied that (1) the drugs and guns found in apartment one belonged to him, (2) he had the right to sell or control any items in the residence and (3) he had any clothes in the apartment. There were no bills found in apartment one to show who rented the apartment or paid the utilities. Appellant testified that he was at the apartment complex that day because he was trying to rent an apartment. When he first arrived, he went to apartment nine to meet with the apartment manager about renting an apartment. He entered apartment one while waiting to see the manager. He brought the tax refund check as proof of income and brought the money to put down on the apartment. Appellant placed the check and a beer down on the kitchen counter; he did not place the check in the cupboard.

Appellant explained that Cockren's address was on the tax refund check because he needed an address to use while he was in prison. (Lod. Doc.3 , Opinion of the California Court of Appeal, Fifth Appellate District, at 3-7).

DISCUSSION

I. Jurisdiction and Venue

A person in custody pursuant to the judgment of a state court may petition a district court for relief by way of a writ of habeas corpus if the custody is in violation of the Constitution, 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 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. While Petitioner is currently incarcerated in Centinela State Prison,*fn4 Petitioner's custody arose from a conviction in the Kern County Superior Court. (Pet. at 2). As Kern County falls within this judicial district, 28 U.S.C. § 84(b), the Court has concurrent jurisdiction over Petitioner's application for writ of habeas corpus. See 28 U.S.C. § 2241(d) (vesting concurrent jurisdiction over application for writ of habeas corpus to the district court where the petitioner is currently in custody or the district court in which a State court convicted and sentenced Petitioner if the State "contains two or more Federal judicial districts").

II. ADEPA Standard of Review

On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for a writ of habeas corpus filed after the statute's enactment. Lindh v. Murphy, 521 U.S. 320, 326-327 (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 (1997), overruled on other grounds by Lindh, 521 U.S. 320 (holding AEDPA only applicable to cases filed after statute's enactment)). The instant petition was filed in 2008 and is consequently governed by the provisions of the AEDPA, which became effective April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Thus, the petition "may be granted only if [Petitioner] demonstrates that the state court decision denying relief was 'contrary to, or involved an ...


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