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November 29, 2010


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


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. Petitioner challenges his 1998 conviction for possession of heroin in a state prison with a true finding as to six prior convictions and a prior prison term, and the sentence of twenty-five years to life in prison imposed thereon under California's Three Strikes Law.

In the May 23, 2007 amended petition, petitioner claims that his rights under the Fifth and Fourteenth Amendment were violated by the admission at trial of statements taken from him without warning pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Petitioner also claims trial counsel rendered ineffective assistance of counsel under the Sixth and Fourteenth Amendments during the hearing on the motion to suppress petitioner's un-Mirandized confession. Finally, petitioner claims that his sentence violates the Eighth Amendment.

After review of the entire record, amended petition, answer, traverse and supplemental briefing, and for the reasons set forth below, the undersigned recommends that the petition be denied.

II. Procedural History

1. Petitioner appealed his conviction. On March 27, 2000, the California Court of Appeal, Third Appellate District, affirmed the conviction in a reasoned opinion. (Respondents' Lodged Document ("LD") 3.)

2. On May 2, 2000, petitioner filed a petition for review in the California Supreme Court. (LD 4.) The California Supreme Court denied the petition on July 12, 2000. (LD 5.)

3. On October 11, 2000, petitioner filed the original petition in this court. (Dkt. No. 1.) Petitioner raised two claims: (a) that his Fifth Amendment right to remain silent and his Fourteenth Amendment right to due process were violated by the admission of statements taken from him in prison by a correctional officer investigating an alleged crime, in violation of Miranda; and (b) that his sentence violates the Eighth Amendment proscription against cruel and unusual punishment. Id. On December 13, 2000, respondents filed an answer. On September 29, 2005, petitioner's motion to stay this case pending his return to state court to exhaust state court remedies was granted.

4. On October 28, 2005, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 6.) On February 21, 2007, the petition was denied by the California Supreme Court in a one-line opinion. (LD 9.)

5. On March 23, 2007, petitioner filed an amended petition herein. (Dkt. No. 40.) Petitioner raised his initial two claims and added an ineffective assistance of counsel claim. Respondents filed an answer to the amended petition on August 20, 2007. (Dkt. No. 32.) Petitioner filed a traverse on October 19, 2007. (Dkt. No. 37.)

6. On April 18, 2008, the court granted in part petitioner's motion to take discovery and ordered respondent to lodge documents with the court. (Dkt. No. 44.)

7. On September 13, 2010, the court ordered supplemental briefing. (Dkt. No. 52.) Both parties filed supplemental briefs. (Dkt. Nos. 53 and 54.)

III. Facts*fn1

On June 26, 1997, [petitioner] was an inmate at the California State Prison, Sacramento. That day, correctional officer David Prasinos searched a cell occupied by [petitioner] and another inmate and discovered, on the top shelf of the lower shelving unit, two cellophane balls containing a total of eight wrapped pieces of paper with a "brown tarry substance" on them. Each piece of paper contained .01 grams of heroin. Prasinos also found [petitioner's] state identification card and letters addressed to [petitioner] on the same shelving unit.

An internal administrative proceeding was initiated against [petitioner] for a prison infraction. In connection with such proceedings, the Department of Corrections assigns an "investigating employee" to gather information to be presented to a hearing officer. Typically, the investigating employee interviews the inmate to assist in obtaining witnesses and gather evidence on the defendant's behalf. However, the inmate has the option of rejecting the investigating employee assigned to the matter, in which case a new investigating employee is selected. (Only one such rejection is permitted.)

Correctional Officer Clarence Callahan was designated the investigating employee for the administrative proceedings initiated against [petitioner]. Callahan interviewed [petitioner] on July 23, 1997. At the time, [petitioner] was being housed in the administrative segregation section of the prison because of the charges against him.

Callahan came to [petitioner's] cell and informed [petitioner] he had been assigned as the investigating employee. Callahan remained outside the cell while [petitioner] either squatted or sat just inside the cell door. They communicated through a "food tray port." [Petitioner] was informed he had a right to reject Callahan, but [petitioner] declined to do so. [Petitioner] retrieved some paperwork regarding the administrative charges and read them for two or three minutes. Callahan then asked: "Were the drugs found by Officer Prasinos on the top shelf of the lower shelving unit belonging to you?" [Petitioner] responded: "I admit that I had possession of the drug, but I was not trafficking in it."

In all, the interview lasted 25 to 30 minutes. [Petitioner] did not identify any witnesses he wanted Callahan to interview in connection with the charges but asked that correctional officers Prasinos and Okray be present at the hearing in connection with [petitioner]'s personal property.*fn2 [Petitioner]'s primary concern at the time was the protection of his property from theft by other inmates in the event of his transfer to a secure housing unit at either the Corcoran or Pelican Bay prisons. [Petitioner] testified that the only reason he agreed to be interviewed by Callahan was to secure help in protecting his property. He further testified the only reason he admitted possession of the drugs while denying trafficking was to avoid being sent to a secure housing facility.

[Petitioner] was charged in the present matter with two counts of being in possession of heroin in a state prison and six prior serious felony convictions and one prior prison term. At the commencement of trial, he moved to suppress his confession because of Callahan's failure to advise [petitioner] of his Miranda rights. A hearing was conducted and the motion was denied. [Petitioner] was thereafter convicted by a jury on one of the two counts and the prior conviction charges were found true.

(LD 3 at 2-4.)


I. 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 court proceedings unless the 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). See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

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 ...

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