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Smith v. Schwartz

May 13, 2010

MAURICE SMITH, PETITIONER,
v.
T. SCHWARTZ, WARDEN, ET AL., RESPONDENTS



The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge

ORDER

Pending before the court is Petitioner Maurice Smith's (Smith) application for a writ of habeas corpus (Petition). For the reasons noted below, Smith's Petition is DENIED.

I.

On July 11, 2003, a Sacramento Superior Court jury convicted Smith of: (1) possession of cocaine base for sale (Cal. Health & Safety Code § 11351.5); (2) transportation of cocaine base (Cal. Health & Safety Code § 11352(a)); and being a felon in possession of a firearm (Cal. Penal Code § 12022(a)(1)). The jury also found that Smith committed the drug offenses personally armed with a firearm (Cal. Penal Code § 12022(c)).

In his petition, Smith challenges (1) the sufficiency of the evidence to establish his possession of the firearm, and (2) the trial court's refusal to give the defense-requested instruction on after-acquired knowledge of the presence of the firearm. Petition at 4.

A.

Smith filed a direct appeal of his conviction in the California Court of Appeal, Third Appellate District. In its decision affirming the judgment and sentence, the Court of Appeal summarized the relevant facts as follows:

About 8:00 p.m. on March 5, 2002, defendant left a midtown apartment, got into the driver's seat of a sport utility vehicle (SUV), and drove off with first one and then several undercover narcotics task force officers in separate cars in pursuit. Defendant had been seen driving the SUV earlier that day. After following defendant for about 15 minutes, the officers activated their lights and sirens and stopped the SUV, observing a front seat passenger, Anthony Edwards, in the process. About 15 seconds passed between the officers' turning on the sirens, defendant's pulling over, and defendant's getting out of the SUV. The officers had not seen Edwards and defendant exchange any objects after activating their sirens and lights.

A search of Edwards revealed only a crack cocaine smoking pipe in his pants pocket. A search of defendant revealed 5.71 grams of cocaine base in two sandwich baggies in his jacket pocket as well as $20.39. In the fanny pack defendant was wearing, officers found defendant's driver's license, social security card, credit cards, and thirty-six $1 bills, twenty-three $5 bills, twenty-nine $10 bills, forty-seven $20 bills, five $50 bills, six $100 bills, and 52 quarters, totaling $2,244. Officers found no drug paraphernalia on defendant or in the SUV.

A search of the SUV revealed an Avis rental agreement for the SUV, signed by defendant, for the period of March 4, 2002, through March 7, 2002, and another rental agreement for another vehicle, signed by defendant, for the period of February 23, 2002, through March 2, 2002, both in the driver's side door pocket. The glove box contained nothing of evidentiary value. A cellular telephone was found on the passenger's seat. A hook used to attach the cell phone to a belt was found in defendant's fanny pack. A drug-sniffing dog showed interest in the closed center console/armrest between the front seats. An officer opened the console, lifted a tray inside, and found a loaded .38-caliber revolver underneath a towel. No fingerprints were found on the rounds. Only one fingerprint was found on the gun, on the trigger guard, but it matched neither defendant nor Edwards.

An expert testified that the 5.71 grams of cocaine base contained between 28 and 57 doses for sale at $10 or $20 apiece at street level and that a firearm plays an important role in the sale of cocaine base at the street level. Based on the amount of cocaine base with no paraphernalia, the amount of cash and the variety of denominations, especially forty-seven $20 bills, and the loaded firearm, the expert opined that the cocaine base was possessed for sale at street level to midlevel.

Lodged Doc. 5 at 2--4.

B.

On June 10, 2004, the California Court of Appeal affirmed Smith's judgment of conviction on his direct appeal. Lodged Doc. 5 at 1-- 2. On July 13, 2004, Smith sought review in the California Supreme Court. Lodged Doc. 6. The California Supreme Court ...


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