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Berry v. Ryan

September 14, 2010

FRANK K. BERRY, PETITIONER,
v.
STUART J. RYAN, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 1999 judgment of conviction entered against him in Placer County Superior Court on charges involving the possession and possession for sale of narcotics and paraphernalia. Petitioner was sentenced to sixty-four years to life in state prison pursuant to California's Three Strikes Law. He seeks relief on the grounds that: (1) his trial and appellate counsel rendered ineffective assistance; (2) the trial court violated his right to due process when it admitted evidence of prior uncharged conduct; (3) the trial court violated his right to due process when it failed to appoint a "drug expert;" (4) the prosecutor committed misconduct by failing to disclose exculpatory evidence to the defense and by using knowingly false testimony; and (5) he was erroneously convicted of both a greater and a lesser included offense for the same crime. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Procedural and Factual Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1, the California Court of Appeal for the Third Appellate District provided the following factual summary:

During a probation search, police officers discovered defendant Frank King Berry in possession of methamphetamine and drug paraphernalia. An amended information charged defendant with possession of methamphetamine for sale (Health & Saf.Code, § 11378); possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)); possession of marijuana for sale (Health & Saf.Code, § 11359); maintaining a place for selling or using controlled substances (Health & Saf.Code, § 11366); possession of more than 28.5 grams of marijuana (Health & Saf.Code, § 11357, subd. (c)); possession of an injection device (Health & Saf.Code, § 11364); and unauthorized possession of a hypodermic needle or syringe (Bus. & Prof.Code, § 4140).

Following a jury trial, the court sentenced defendant to 64 years to life. Defendant appeals, contending: (1) the court erred in admitting evidence of a prior conviction, (2) defendant's conviction for possession of more than one ounce of marijuana is barred as a lesser included offense, (3) the prosecution failed to prove defendant's prior convictions in Oregon constituted strikes under California law, and (4) defendant's sentence constitutes cruel and unusual punishment.

In a previously filed opinion (People v. Berry (Aug. 5, 2002, C034405) [nonpub. opn.]), we agreed with defendant that the prosecution had failed to prove his prior Oregon convictions constituted qualifying strikes under California's "three strikes" law. (Pen. Code, §§ 667, subds. (b)-(I), 1170.12.) Subsequently, the Supreme Court granted review and on October 23, 2002, transferred the case back to us with directions to vacate our decision and reconsider the issue in light of People v. Avery (2002) 27 Cal.4th 49 (Avery). On reconsideration, we conclude the trial court correctly found defendant's prior Oregon convictions qualify as strikes. However, consistent with our prior decision, we shall conclude that, pursuant to Penal Code section 654, defendant's conviction for possession of 28.5 grams of marijuana should be stayed. In all other respects, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A neighbor of Michael Jay Douglas noticed a daily stream of visitors, who stopped briefly at the Douglas residence and then drove away in their cars. On March 2, 1999, police officers conducted a probation search of the residence.

The officers knocked on the door and heard whispering inside announcing their arrival. The officers heard footsteps and the sound of furniture being moved inside the residence. Following a second knock, Douglas opened the door, appearing very nervous. The officers entered the residence and found several individuals, including defendant, inside. During the search, officers found various containers of usable quantities of methamphetamine and approximately 125 grams of marijuana. The officers also uncovered glass "crank" pipes, marijuana pipes, baggies, a scale, Vitablend, "pay/owe" sheets, and syringes.

As the officers searched the premises, three individuals arrived at the residence. One of the arrivals, upon entering the house, possessed a bag containing methamphetamine residue. She admitted purchasing the methamphetamine from defendant earlier that day and that she had returned to purchase more. She identified defendant as "Bud."

The telephone rang many times during the search. Six times, the callers asked for "Bud." One of the officers involved in the search knew defendant as "Bud." Outside the residence, officers found a backyard covered with dozens of shallow holes six to 12 inches in depth.

Defendant admitted ownership of a red box containing methamphetamine, syringes, and plastic baggies containing powdery residue. He told police he was "just crashing" at the residence. Officers had searched the residence within the past three months, when Douglas was the only resident. No contraband was found during the prior search.

An amended information charged defendant with possession of methamphetamine for sale, possession of methamphetamine, possession of marijuana for sale, maintaining a place for selling or using controlled substances, possession of more than 28.5 grams of marijuana, possession of an injection device, and unauthorized possession of a hypodermic needle or syringe. The information also alleged two prior serious felony convictions within the meaning of Penal Code section 667, subdivisions (b) through (I); three prior narcotics convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a); six prior prison terms within the meaning of Penal Code section 667.5, subdivision (b); and that defendant was statutorily ineligible for probation pursuant to Penal Code section 1203, subdivision (e)(4).

A jury trial followed. Defendant admitted the prior prison term and prior conviction allegations. The jury found defendant guilty on all counts and found true the prior felony strike allegations.

The trial court sentenced defendant to 64 years to life: 25 years to life for possession for sale of methamphetamine; a consecutive term of 25 years to life for possession of methamphetamine, stayed pursuant to Penal Code section 654; a consecutive term of 25 years to life for possession of marijuana for sale; a concurrent term of 25 years to life for maintaining a place where drugs were sold or used; concurrent terms of six months each for possession of more than 28.5 grams of marijuana, possession of an injection device, and unauthorized possession of a hypodermic needle or syringe; plus three consecutive three-year enhancements for prior narcotics convictions (Health & Saf.Code, § 11370.2) and five consecutive one-year enhancements for prior prison terms (Pen.Code, § 667.5, subd. (b)). The court ordered defendant to pay a restitution fine of $10,000 pursuant to Penal Code section 1202.4 and a $10,000 restitution fine pursuant to Penal Code section 1202.45. Defendant filed a timely notice of appeal.

After his conviction was affirmed by the California Court of Appeal, petitioner filed a petition for review in the California Supreme Court. Resp.'s Lodg. Doc. 8. Therein, he claimed, among other things, that the trial court violated his right to due process when it admitted evidence of prior uncharged conduct and that he was erroneously convicted of a both a greater and a lesser included offense for the same crime. Id. The petition for review was summarily denied by order dated May 14, 2003. Lodg. Doc. 9.

On January 2, 2004, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, in which he claimed that: (1) his trial and appellate counsel rendered ineffective assistance; (2) the trial court violated his right to due process when it failed to appoint a drug expert; and (3) the prosecutor committed misconduct by failing to disclose exculpatory evidence to the defense and by using knowingly false testimony. Lodg. Doc. 10. That petition was summarily denied by order dated February 26, 2004. Lodg. Doc. 11. On March 22, 2004, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising the same claims. Lodg. Doc. 12. That petition was summarily denied by order dated February 16, 2005. Lodg. Doc. 13.

The instant federal habeas petition was filed on May 9, 2005.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established

United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

B. Petitioner's Claims

1. Admission of Evidence of Prior Uncharged Conduct

Petitioner's co-defendant Michael Jay Douglas (Douglas) entered into a plea agreement prior to trial, leaving petitioner as the sole remaining defendant. Because Douglas was no longer involved in the trial, the prosecutor did not introduce evidence of Douglas' prior uncharged acts. Petitioner claims that the admission into evidence at trial of his own "uncharged crimes," in the absence of evidence of Douglas' prior acts, violated his rights to "due process and a fundamentally fair trial." Pet. at 7-8, 101-04; Traverse at 9-11.*fn2 While the logic of this assertion is not clear, petitioner reasons that because the jury was not presented with Douglas' prior crimes, which were very similar to the current offenses, the evidence introduced at trial made it appear as if only petitioner was involved in illegal activities at the Douglas residence. Pet. at 14-16; Traverse at 20, 25, 41-44. Petitioner notes the prosecutor intended to introduce evidence of Douglas' prior crimes if he had gone trial, and that he intended to argue petitioner and Douglas were in business together to sell narcotics. Pet. at 5, 7-8. According to petitioner, after Douglas entered into a plea agreement the focus shifted to petitioner and Douglas' involvement was unfairly minimized. Id. Petitioner argues that this situation "allow[ed] the focus of all the evidence in Douglas' home to be directed at petitioner." Traverse at 44.

Petitioner also argues that there was no evidence his prior uncharged acts were sufficiently similar to the instant offense; i.e., had the same distinctive "signature," to have any relevance at his trial. Pet. at 3-8; Traverse at 15, 19, 25-26. On the contrary, according to petitioner, there were many substantial differences between his prior acts and the current offenses. Traverse at 19-20.

The California Court of Appeal rejected these claims. The court reasoned as follows:

Defendant contends the court erred in admitting evidence concerning a 1997 arrest for possession of methamphetamine for sale. The evidence was admitted under Evidence Code section 1101, subdivision (b). Defendant also argues the evidence should have been excluded under Evidence Code section 352.

A. Facts

In August 1997 police officers searched defendant in his motel room. The motel room was filled with methamphetamine smoke, and officers found defendant in possession of three ounces of packaged methamphetamine, crank pipes, a scale, packaging materials and a mirror. Officers found pay/owe sheets in a vehicle associated with another occupant of the room, in a bag owned by defendant.

Defendant admitted purchasing one-quarter pound of methamphetamine, selling one ounce, and possessing the remaining three ounces. He also informed officers of cash and additional drugs buried behind the motel although a subsequent search failed to uncover any drugs or cash. Several of the same names were listed on both 1997 and 1999 pay/owe sheets.

Prior to trial in the present case, defendant's counsel objected to the introduction of evidence of defendant's 1997 prior conviction for possession of methamphetamine for sale. Counsel argued the evidence bore no relevance to the current charges and was unduly prejudicial.

The court overruled the objection, finding "[p]rimarily the relevance would be with regard to intent." The court further found the probative value of the prior conviction outweighed any prejudice. The prosecution presented the evidence of the 1997 arrest and conviction.

B. Law

Under Evidence Code section 1101, evidence of uncharged misconduct is inadmissible to prove the criminal disposition of a defendant. However, such evidence is admissible to prove some relevant fact such as identity or common design, plan, or scheme. The admission of uncharged misconduct lies within the trial court's discretion. The trial court must weigh the probative value of the evidence against its prejudicial effect. The trial court, in reviewing the admissibility of evidence of other offenses, must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the proffered evidence to prove or disprove the fact, and (3) the existence of any policy or rule requiring exclusion despite relevance. (People v. Daniels (1991) 52 Cal.3d 815, ...


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