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Larimore v. Yates

November 19, 2010


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 11), and petitioner's reply (Doc. 13).


A. Facts*fn1

The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

Around 1:30 a.m. on December 1, 2003, Roseville Police Department Sergeant Troy Bergstrom stopped a red Isuzu Rodeo for traffic violations. Defendant was the driver. When asked his name, defendant told Sergeant Bergstrom his name was John Montoya.

Sergeant Bergstrom conducted a pat-down search of defendant and found a large wallet or checkbook in his back left pocket. A backup officer searched the wallet and found several identification cards, credit cards, and other items with different names on them, including defendant's. The VIN on the Isuzu, which did not match the license plates, came back as a stolen vehicle.

The Isuzu was then searched. Among the numerous items found in the search were: completed checks from various accounts made out to several different identifies; several checkbooks, again in various names; false identification cards in various stages of completion; laminated paper used for making identification cards; several credit card and driver's license applications; and a hotel bill from the Circus Circus in Reno bearing the name of the registered owner of the stolen Isuzu. Officers also found a checkbook in the name of Liquita Crouch containing 12 counterfeit bills.

A glass pipe for smoking drugs was found in the front pocket of a shirt on the front seat of the Isuzu. The Isuzu also contained a black bag with various paperwork, including a check register, checks, a mutual fund statement for Lisa Thinger, a registration for a 1969 Ford; title to both a 1994 Plymouth and a 1989 Ford; a seller's permit from the Board of Equalization for Stephen Pegram and Harold Simms; and a community college completion certificate for Brian Charles.

Officers also found a folder containing: counterfeit money; uncompleted counterfeit money; copies of checks made to different persons and companies; a registration for an officer's class on narcotics; another folder with information on Lisa Thinger; an identification card for Gary Junior Freena; a piece of paper with what appeared to be credit card numbers; and an invoice from a golf club.

An expert in identify theft testified that, in his opinion, the Isuzu was a "mobile identity theft lab," and defendant was pretending to be other persons in order to avoid being caught. Some of the identity cards were possessed for the purpose of sale.

A computer monitor, printer, scanner, and a laptop computer were found in the back of the Isuzu. Secret Service Special Agent Nicole Pfeiffer, an expert in genuine currency and counterfeiting apparatus, testified that the computer gear and counterfeit currency seized from the Isuzu were sufficient to allow the manufacturing of counterfeit money.

Defendant testified on his own behalf. According to defendant, when he was arrested he had been working as a confidential informant for an undercover agent named Carlos Ruiz and a Drug Enforcement Agency agent named Robert Palimino. Except for the methamphetamine pipe, which was defendant's, all of the items found in the Isuzu had been placed there by Manny Olguin, who manufactured false identifications and counterfeit money, and whom defendant had been trying to set up for an arrest.

B. Procedural History

Petitioner was convicted following a jury trial of: unlawfully driving or taking a vehicle; displaying false license plates; false imprisonment; two counts of possession of a forged driver's license; possession of another's identifying information; possession of a completed check with intent to defraud; two counts of possession of another's access card information with intent to use it fraudulently; three counts of possessing a blank check with the intent to defraud; forgery or counterfeiting of a public seal; making, uttering, or passing counterfeit paper; possession of a counterfeiting apparatus; acquiring four or more access cards with the intent to defraud; and possession of a methamphetamine pipe. Petitioner admitted five prior serious or violent felony convictions. The trial court denied petitioner's motion to dismiss the prior strikes and petitioner was sentenced to an indeterminate term of 75 years to life in state prison.

On direct appeal, petitioner argued that his sentence constitutes cruel and unusual punishment. The California Court of Appeal rejected petitioner's argument and affirmed the conviction and sentence. The California Supreme Court denied direct review without comment or citation. Prior to the completion of direct review, petitioner filed a state post-conviction habeas action in the Placer County Superior Court. That petition was denied with the following comment by the court: "The petition consists entirely of a combination of unintelligible and conclusory allegations and thus fails to state a prima facie claim for relief." Petitioner then filed a second habeas petition in the Placer County Superior Court, which the court denied in a reasoned decision. Petitioner then filed a third petition in the Placer County Superior Court, which was also denied in a reasoned decision. State post-conviction petitions filed in the California Court of Appeal and California Supreme Court were both denied without comment or citation.

According to respondent, a number of the claims raised in the instant federal petition are unexhausted. Without waiving this defense, respondent urges this court to deny relief on such claims because they are clearly meritless. See 28 U.S.C. § 2254(b)(2) (stating that meritless claims can be denied even though such claims are unexhausted).


Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.

Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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.

Under § 2254(d)(1), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412) . "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 549 U.S. at 74.

In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 ...

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