The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) ORDER DIRECTING THE CLERK TO ENTER JUDGMENT IN FAVOR OF RESPONDENT ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis 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 to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on September 2, 2009, and on behalf of Respondent on October 5, 2009.
Plaintiff is in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kings, of conviction following jury trial of transporting a controlled substance (cocaine base) (Cal. Health & Saf. Code § 11352(a)); possession of a controlled substance (cocaine base) (Cal. Health & Saf. Code § 11350(a)); and four misdemeanors, including evasion of a peace officer (Cal. Veh. Code § 2800.1(a)), possession of paraphernalia used for smoking a controlled substance (Cal. Health & Saf. Code § 11364), driving with a suspended license (Cal. Veh. Code § 14601.1(a)), and driving without a valid license (Cal. Veh. Code § 12500(a)). (LD CT 74-75.)*fn1 Plaintiff had admitted that he had suffered two prior felony convictions of first degree burglary and assault (Cal. Pen. Code §§ 1170.12, 667, 459, 245(a)(2)). (LD CT 74.) On February 21, 2008, Plaintiff was sentenced to twenty-five years to life in prison. (LD CT 157.)
Petitioner timely appealed to the California Court of Appeal, Fifth Appellate District, where on January 6, 2009, the judgment was affirmed. (LD 4, op. p. 6.) Petitioner filed a petition for writ of habeas corpus in the Supreme on February 23, 2009 (LD 12, pet. p. 1), which was denied on July 15, 2009, in a single sentence unaccompanied by any explanation. (LD 13, dock. p. 1).
Plaintiff filed the petition before the Court on August 14, 2009. Respondent filed an answer on November 6, 2009, admitting that the petition was timely and the claim appeared to be exhausted. Petitioner filed a traverse on December 18, 2009.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000).
Plaintiff's sole claim is that he suffered a violation of his Sixth and Fourteenth Amendment rights to the effective assistance of counsel because his trial counsel failed to object to evidence that at the time of the offenses in question, Petitioner was wanted by law enforcement for an unrelated offense and had previously served time in jail. Plaintiff seeks reversal of his convictions of the felonies of transportation and possession of cocaine base as well as the misdemeanor of possessing paraphernalia. Thus, a violation of the Constitution is alleged.
Further, the conviction challenged arises out of the Kings County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).
Accordingly, this Court has jurisdiction over this action.
Hanford Police Officer Cory Mathews testified that on May 3, 2007, at approximately 4:00 p.m., he received a dispatch regarding a "wanted" subject. Mathews saw a Ford Expedition and driver matching the description of the vehicle and driver described in the dispatch, so Matthews made a U-turn. Mathews followed the Expedition and activated his overhead lights, alternating headlights, and siren, but the Expedition continued traveling for approximately one-half mile before parking in a driveway.
Mathews got out of his patrol car and ordered the driver, Horn, out of the car. Horn got out and was taken to Mathews's patrol car where he was handcuffed and placed in the back seat. Mathews ordered the passenger, Nelson Lewis, out of the Expedition and took him into custody for officer safety reasons.
Mathews spoke with Horn and asked him why he did not stop. Horn replied that he got scared and drove to his father's house because the Expedition belonged to his girlfriend and he did not want it to be towed. While Mathews spoke with Horn, Officer Dale Williams gave Mathews a plastic baggie containing .11 grams of cocaine base that Williams found in the passenger's cup holder that was molded into the Expedition's center console. Mathews looked in the car and found a crack pipe in the same location. When Mathews asked Horn about the cocaine base and pipe found in the Expedition, he admitted they belonged to him. Horn also stated that he was wanted by the police and did not want to go back to jail. A urine sample provided by Horn tested positive for cocaine.
Officer Stefanie Reese searched Lewis and found a crack pipe on him.
Lewis testified he was Horn's uncle. According to Lewis, after Horn stopped the car in the driveway, the police did not take him or Horn out of the car. Instead, Horn got out and walked up to the front door of his father's residence. Lewis got out of the car and was immediately told by the officers to put his hands up. However, before getting out, Lewis put the cocaine base and one of two glass pipes he had that day in one of the cup holders in the center console. Lewis wanted to report to the police that the cocaine and pipe found in the console belonged to him, but he never did. Lewis was impeached with four convictions for resisting arrest.
Officer Mathews testified in rebuttal that Horn did not exit the car until Mathews ordered him out ...