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Gutierrez v. Yates

March 8, 2010

SALATIEL GUTIERREZ, PETITIONER,
v.
JAMES A. YATES, RESPONDENT.



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

[Doc. 1]

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. Local Rule 305(b).

RELEVANT HISTORY

Following a jury trial in the California Superior Court, County of Kings, Petitioner was convicted of possession of heroin in state prison. It was also found true that he suffered three prior serious or violent convictions. (Lodged Doc. No. 1, at 35-40.)

On August 6, 2007, Petitioner was sentenced to a term of twenty-five years to life. (Id. at 87-88, 108.)

Petitioner filed a timely notice of appeal. On December 9,2008, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (Lodged Doc. No. 9.)

On January 21, 2009, Petitioner filed a petition for review in the California Supreme Court. (Lodged Doc. No. 10.) The petition was summarily denied on February 25, 2009. (Lodged Doc. No. 11.)

Petitioner filed the instant petition for writ of habeas corpus on November 17, 2009. (Court Doc. 1.) Respondent filed an answer to the petition on January 7, 2010, and Petitioner filed a traverse on February 8, 2010. (Court Docs. 10, 14.)

STATEMENT OF FACTS*fn1

On December 3, 2006, [Petitioner's] wife came to visit him in the visiting room at Avenal State Prison. When the visit ended, a correctional officer searched [Petitioner] for contraband and found a condom in one of [Petitioner's] socks. The condom contained three bindles of suspected heroin, one bindle of tobacco, and rolling papers. The three bindles of suspected heroin collectively weighed over 26 grams. The officer that received the bindles and sent them to the laboratory for testing opined that 26 grams is a usable amount of heroin. A criminalist selected one of the three bindles at random for testing. The bindle weighed 7.99 grams and contained heroin. The criminalist opined that 7.99 grams would yield about 160 usable amounts of dosage units of heroin. (Lodged Doc. No. 9, Opinion, at 2.)

DISCUSSION

A. Jurisdiction

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 Kings 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 cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

B. Standard of Review

Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show ...


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