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Ganner v. Hill

September 1, 2010

LARRY GANNER, PETITIONER,
v.
RICK M. HILL, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). In 2009, petitioner pled guilty to possession of cocaine base, heroin, a firearm and ammunition. Petitioner raises four claims in his petition, filed April 27, 2010, all of which are based on petitioner's argument that his conviction was tainted by evidence resulting from an allegedly unreasonable search or seizure in violation of the Fourth Amendment.

II. Procedural History

Respondent concedes petitioner has exhausted the claims raised herein as they renew the same factual allegations raised in the California Court of Appeal on direct appeal.

III. Facts*fn1

In the afternoon of October 26, 2006, Stockton Police Officer Eric Azarvand stopped at a red light at an intersection on March Lane*fn2 in Stockton. Officer Azarvand was in the left turn lane, [petitioner's] minivan was in the right lane, and another vehicle was in between Officer Azarvand's patrol car and [petitioner's] minivan.

Officer Azarvand testified "[t]he light turned green and the van immediately accelerated--I heard the engine accelerate, the front tires broke traction."*fn3 Officer Azarvand did not see smoke coming from [petitioner's] vehicle and he did not know how fast [petitioner] was driving. Officer Azarvand testified, however, "I do know that it was [petitioner's] vehicle that broke traction. He was the only vehicle moving from where [[petitioner] was] at."

At the motion to suppress, defense counsel confronted Officer Azarvand about his "chirping" remark at the preliminary hearing. Officer Azarvand replied, "If that's what [the transcript] says, that's what [petitioner] said. [The minivan] still broke traction, either way." The defense cross-examined Officer Azarvand about what "chirping" meant. Officer Azarvand answered, "The engine revved up, the wheels broke traction, you could hear it break traction, and it continued down the road." Whether the sound Officer Azarvand heard [petitioner's] tires make is characterized as "chirping" or "breaking traction," our analysis is the same.

At the hearing on the motion to suppress, the trial court ruled the traffic stop was lawful. The court reasoned as follows: "While your tires are making sounds, they are not in connection with the road, so if you don't have traction with the road, you are not steering, you don't have the capacity to start or stop.... So I think it's a legitimate reason for the officer to be pulling people over and giving them tickets for starting too quickly here to the point where they lose traction or break traction." (People v. Ganner, slip op. at 2-3.)

IV. Standards for a Writ of Habeas Corpus

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citation omitted) A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be used to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v.Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...


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