The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Petitioner is a California parolee proceeding with counsel with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. On November 15, 2006, petitioner was convicted following a jury trial in Placer County of several offenses related to driving while under the influence of alcohol and driving while his driver's license was suspended. Petitioner challenges his convictions.
On direct appeal, the California Court of Appeal summarized the evidence presented at petitioner's trial as follows:
About 1:45 a.m. on May 25, 2006, a white car pulled up to a gas pump at an AM/PM gas station located in Roseville. The station's cashier, Ronald Gilpin, saw the car arrive. The car was 20 to 30 yards away but Gilpin could not see the driver. He saw no activity whatsoever around the car after it pulled up. Gilpin saw no one get in or out of the car nor did he see anyone pump any gas. He saw no one and no other cars near the white car. After 2:00 a.m., Gilpin became concerned when the white car was still parked at the pump. He thought something might be wrong plus a fuel truck was scheduled to arrive to deliver fuel around 2:00 a.m. or 2:15 a.m. and the white car was in the way. About 2:15 a.m., the fuel truck arrived.
At 2:24 a.m., Gilpin called 911, reporting that a white car had been sitting at the station for almost one-half hour, something may be wrong with the driver who may be asleep, and that the fuel truck could not deliver fuel.
Roseville Police Officer Brent Northrup went to the station to investigate a reported driver slumped over the wheel. When he arrived, he saw only one car near the gas pumps at the station and no one else near the car. The white car was registered to defendant. Officer Northrup walked up to the driver's window which was all the way up and saw defendant slumped in the driver's seat without a seatbelt and with his head down towards his chest. The car radio was on and very loud. The engine and headlights were off but the engine lights on the dashboard were on. The keys were in the ignition. Officer Northrup watched defendant breathe for about 30 seconds and then knocked on the driver's window. Defendant did not respond. Officer Northrup opened the driver's door and the dome light went on. Defendant woke up, reached towards the keys in the ignition and pushed the gear shift towards park but it was already in park. Officer Northrup asked defendant to turn the music down and he did so. The officer asked defendant to get out and when he did so, he was very unsteady. Officer Northrup smelled the odor of alcohol on defendant. Defendant had red, bloodshot and glassy eyes. When asked, defendant denied having had anything to drink but later said he had been drinking at various places in Sacramento and was going home. He denied feeling the effects of alcohol. At first, he claimed he was diabetic and then said he was not. He also claimed he had neck and back problems but never said the problems would interfere with his performance of the field sobriety tests. Defendant failed several field sobriety tests and when tested twice with a preliminary alcohol screening device (PAS), his blood alcohol content registered .21 and .22 percent. Officer Northrup arrested defendant. An intoxilyzer test at 3:53 a.m. revealed .21 and .22 percent blood alcohol content. Defendant had a suspended license.
Officer Northrup testified that defendant never claimed that someone else had been driving.
Defendant testified. He drove to work that day. When he got off work as an electrician at 3:30 p.m. on May 24, 2006, he went out to dinner with friends. He then went to the Embers Bar where he played pool and drank beer from about 5:30 p.m. on May 24 to 12:45 a.m. on May 25, 2006. He denied driving thereafter because he realized he was drunk. Jeff, whose last name defendant did not know, offered to drive defendant home in defendant's car while another man whom defendant did not know offered to follow in a separate car. Defendant accepted. Along the way, the gas light on defendant's car went on. Defendant did not want to get gas in the morning so he told Jeff to stop at a gas station. At the station, Jeff got out, defendant got out and got into the driver's seat and then Jeff left with the other man in the other car. Defendant fell asleep while looking for the phone to call his parents for a ride home. Defendant claimed he told the officer that he did not know whether he was diabetic but that he might be because his parents were. He told the officer that he had knee and back problems. He said he told the officer he had been drinking. Defendant never told anyone that someone else had been driving nor did he try to find Jeff. Defendant claimed that he told the officer he had not been driving.
Defendant admitted he had previously pled to a charge of failing to stop for an officer, explaining he had been driving his father's car and did not want it towed so he drove to his parents' home. He admitted he had been driving under the influence at the time.
Resp't's Lodged Doc. #3 a t2-5.
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States.
28 U.S.C. § 2254(a). Also, 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) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn1 It is the habeas petitioner's burden to show he is not precluded from ...