The opinion of the court was delivered by: Alex Kozinski Chief Circuit Judge Sitting by designation
Based on the testimony of a police informant, a jury convicted Ryan Burgess of possessing marijuana for sale and selling marijuana on two separate occasions. The jury also convicted Burgess of possessing marijuana for sale on a third occasion after law enforcement officers executed search warrants on two properties owned by Burgess and found large amounts of marijuana at each. Burgess now seeks habeas relief, arguing that his trial and appellate counsel rendered unconstitutionally deficient assistance.
Agent Phil Johnston sent Gordon Staser-a police informant-on two "controlled buys" to purchase marijuana from Burgess at his home. On each occasion, Agent Johnston used a standard procedure where he would search Staser, give him money to purchase the drugs, have officers watch him enter the home and wait for him return with marijuana. Agent Johnston decided not to have Staser wear a wire because he believed Burgess might be able to detect it.
Based on these purchases, law enforcement officers obtained a search warrant and searched Burgess's home. During the search, they found video cameras, a police scanner, triple-beam scales, $2,500 in cash, numerous firearms and an ice-chest containing 114.7 grams of marijuana. They also found a map highlighting a path from Burgess's home to the Wildwood area of California. Officers subsequently obtained a search warrant for a property Burgess co-owned in Wildwood. Inside a trailer on the property, officers discovered 409 marijuana plants and a plastic bag containing 119 grams of marijuana. Burgess's fingerprints were on two light ballasts and one grow light found in the trailer.
At trial, Burgess had an explanation for everything. He called a friend who testified that the map had been marked up to plan for a vacation. Another friend testified that Burgess inherited the gun collection as part of Burgess's father's estate. A third friend testified that the marijuana found at his home was hers, and that Burgess was merely holding it for her. A fourth friend testified that on the date that Burgess allegedly sold Staser marijuana, Burgess was helping him move all day. Yet a fifth friend testified that, on the date of the second controlled buy, Burgess was helping him work on his car all day at his house. This friend also testified that Burgess installed the video cameras the officers found at his house to watch his children play outside. Burgess called Staser's brother to testify that Staser is known as "a thief and a liar." Burgess testified that he's never sold marijuana and that his fingerprints got on the lights when he helped Wilkey, the co-owner of the Wildwood property, move in.
The jury convicted Burgess of three counts of possession of marijuana for sale under California Health and Safety Code § 11359, two counts of sale of marijuana under California Health and Safety Code § 11360(a) and one count of possession of more than 28.5 grams of marijuana under California Health and Safety Code § 11357(c), but did not find the special enhancement for being armed in the commission of a felony to be true.*fn1 The court sentenced Burgess to state prison for four years and eight months.
Burgess exhausted his direct appeals. He then filed a petition for state collateral review, which the superior court summarily denied because: (1) the statement of "facts" was not by declaration; (2) the petition was "largely unintelligible" under In re Swain, 34 Cal. 2d 300, 302 (1949); (3) many of Burgess's claims would be "an appropriate subject for appeal and not a Writ of Habeas Corpus"; and (4) Burgess failed to meet the criteria to support a claim of "incompetency of counsel." The California Court of Appeal and California Supreme Court summarily denied Burgess's petition.
This court has jurisdiction to consider a petition for writ of habeas corpus under 28 U.S.C. § 2254. "On habeas review, we look through unexplained state court decisions . . . to the last reasoned state court decision to address the claim at issue." Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc). Here, Burgess has exhausted his claims, despite the state court's citation to In re Swain, because after independently reviewing the petition, the court finds that Burgess has "fairly presented his federal claims to the Supreme Court of California." Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). Further, this court is not precluded from reviewing Burgess's petition on procedural grounds because the state court denied his petition "both on the merits and by applying the state's procedural bar rule." Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000).
A district court may entertain a petition for a writ of habeas corpus challenging a state court conviction "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 (2002). Under AEDPA, a habeas writ will not issue unless the adjudication of the claim "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 "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).
Should the court not find a sufficient basis for granting his petition on this record, Burgess requests an evidentiary hearing on his claims. AEDPA "now substantially restricts the district court's discretion to grant an evidentiary hearing." Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir. 1999). When presented with a request for an evidentiary hearing, the court "must determine whether a factual basis exists in the record to support the petitioner's claim." Id. at 1078. Even before AEDPA, "[a]n evidentiary hearing [was] not required on allegations that are 'conclusory and wholly devoid of specifics.'" Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994) (en banc) (quoting Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970)); see also Bragg v. Galaza, 242 F.3d 1082, 1089--90 (9th Cir. 2001). Nor is an evidentiary hearing required on issues that can be resolved by reference to the state court record. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998).
Burgess claims he was denied effective assistance of counsel because his attorneys (1) failed to challenge the search warrants; (2) failed to raise vindictive prosecution and due process claims; and (3) failed to investigate and raise a marijuana care provider defense. To succeed on an ineffective assistance of counsel claim, "[p]petitioner must establish both (1) that counsel's performance was so deficient that it fell below an 'objective standard of reasonableness' and (2) that the deficient performance rendered the results of his trial unreliable or fundamentally unfair." Cox v. Ayers, 613 F.3d 883, 892--93 (9th Cir. 2010) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). While "[j]udicial scrutiny of counsel's performance must [always] be highly deferential," Wong ...