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Moore v. Evans

October 21, 2010



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. In March 2007, petitioner was convicted on charges of possession of methamphetamine for sale (Cal. Health & Saf. Code §11378 (count 1)); possession of methamphetamine with a firearm (Cal. Health & Saf. Code § 11370.1, subd. (a) (count 2)); possession of a firearm by a convicted felon (Cal. Penal Code § 12021, subd. (a)(1) (count 3)); and possession of an injecting or smoking device (Cal. Health & Saf. Code § 11364, subd. (a) (count 4)). In April 2007, petitioner pled guilty to possession of methamphetamine (Cal. Health & Saf. Code, § 11377; count 1) and possession of a hypodermic needle or syringe (Cal. Bus. & Prof. Code § 4140; count 3). Petitioner was subsequently sentenced in both cases to a term of fourteen years, four months.

Petitioner raises two claims in his petition filed October 1, 2009: (1) the trial court erred in denying a motion brought by petitioner pursuant to People v. Marsden, 2 Cal.3d 118 (1970), and (2) his prison sentence violates the Fifth, Sixth and Fourteenth Amendments.


Case No. 05F06431

In August 2005, law enforcement officers from a joint task force conducted a warrant search at the Shasta County residence of Pattye Galba. [Petitioner] and Galba were found asleep in an upstairs bedroom. A pat-down search of [petitioner] yielded a needle syringe in his right front pocket. A search of the bedroom yielded six new syringes inside a pocket of a man's flannel shirt. The shirt was hanging in an area above a dresser approximately four feet from the bed. The shirt appeared to be consistent with [petitioner]'s size and build. He was the only man found in the bedroom. Galba, the female found at that location, was smaller in stature than [petitioner].

Next to the bed, approximately three feet away, officers located a black bag. Inside the bag were four separate quantities of methamphetamine, three of which were in separate baggies. The other quantity of methamphetamine was a large shard. Two of the quantities were analyzed; one weighed 3.92 grams, and the other weighed 0.66 grams. Also in the bag were two wallets containing $994 in U.S. currency. Documents identifying [petitioner] were located in both wallets. These included a Blockbuster ID card with [petitioner]'s name printed on it and a handwritten receipt on a preprinted form made out to [petitioner].

A second black bag, located about three feet from [petitioner], contained indicia in the name of a woman, several baggies, a cellular telephone, hydrocodone pills, marijuana, pay-owe sheets, plastic containers with white residue, and two digital scales with methamphetamine residue.

Officers located a.380 caliber semi-automatic handgun on a dresser approximately five feet from the bed. The handgun was functional and contained a magazine with five unexpended rounds. [Petitioner] admitted that the handgun belonged to him.

Also on the dresser in the bedroom was a functional radio scanner capable of monitoring law enforcement communications. A third digital scale with white residue was found underneath the mattress in the bedroom.

Based on the scales, the scanner, the amount of U.S. currency, the packaging, the pay-owe sheets, and the quantities of methamphetamine, two members of the search team opined that [petitioner] and Galba possessed the methamphetamine for the purpose of sale.

Case No. 06F10441[these facts were obtained from the probation officer's report]

On an afternoon in November 2006, two Redding police officers were dispatched to a suspicious occupied vehicle parked in front of a residence. Upon arrival, the officers found [petitioner] sleeping in the driver's seat. It took several seconds to awaken him. He was disoriented and groggy, and he had difficulty unlocking the car door. As [petitioner] left the car, an officer observed a baggie of marijuana sticking out of [petitioner]'s jacket pocket. The baggie weighed 7.5 grams. A hypodermic needle containing methamphetamine was found in a jacket pocket. [Petitioner] admitted that he used methamphetamine intravenously and that he had smoked it the previous evening. (People v. Moore, slip op. at 3-5.)


Petitioner timely appealed to the California Court of Appeal, Third Appellate District. The state appellate court affirmed petitioner's conviction and sentence on February 11, 2009. (Lodgment C.)

Petitioner timely petitioned the California Supreme Court for review. Review was denied on April 22, 2009. (Lodgment E.)

On October 1, 2009, petitioner filed a petition for writ of habeas corpus in this court. On December 7, 2009, respondent filed an answer. On December 29, 2009, petitioner filed a traverse. This matter is before the undersigned based on the consent of the parties.


I. 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 different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing 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 ...

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