The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Marion Wolfe, Jr., proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. 2254. Wolfe was discharged to parole on April 27, 2007, and is currently in the custody of the California Department of Corrections and Rehabilitation.*fn2
Respondent has filed an answer, and Wolfe has not filed a traverse.
Search Conducted February 3, 1999
On February 3, 1999, Sacramento County Sheriff's Deputies Gordon Beamer and Michael Brown, in uniform and driving a marked patrol vehicle, stopped the vehicle defendant was driving for failure to display a proper registration tag. Deputy Beamer asked defendant, the vehicle's sole occupant, for his driver's license. Defendant gave Beamer a California identification card and told Beamer he did not have a driver's license because it had been suspended. Beamer arrested defendant for driving with a suspended license and placed him in the patrol car. Notwithstanding defendant's refusal to give consent to search the vehicle, a black box or case that was in plain view on the front seat of his vehicle was searched and drug contraband was found.
Search Conducted June 4, 1999
On June 4, 1999, at approximately 11:00 p.m., Sacramento Police Officer Ernest Lockwood made contact with Shirley Farr, who was sitting with another woman on the stoop of a boarded-up house in the Oak Park neighborhood of Sacramento. The area was one of high crime in which Lockwood made numerous drug arrests. Lockwood was aware that boarded-up buildings in the area were trespassed upon for purposes of a drug use, which was his reason for contacting Farr. In speaking with Farr, he learned she was on parole, a face he verified by computer check. Farr said that she was currently staying at a residence with "John," three doors down. Lockwood, accompanied by Farr, went to "John's" residence to investigate whether Farr was involved in "any type of criminal activity."
At the residence, Officer Lockwood told one John Barnes that he was there to conduct a parole search, and Barnes made no objection. During a protective sweep of the residence, Lockwood observed defendant, who was staying with Barnes, sitting in a chair in the living room with a plate on his lap. On a coffee table, within four feet of defendant, was a rock cocaine pipe. Defendant was the only person in the living room at the time. Lockwood arrested and searched defendant, and found both cocaine and heroin on his person.
Pursuant to a consolidated information in Sacramento County Court Case Nos. 99F00996 and 99F04609, Wolfe filed a motion to suppress evidence seized by law enforcement during two separate incidents. The trial court denied the motion, and Wolfe subsequently entered a plea whereby, in exchange for a stipulated sentence of nine years and the dismissal of three drug-related offenses arising out of Case No. 99F00996, he pleaded no contest to one count of possession of cocaine and heroin originating from Case No. 99F04609, and admitted a prior strike conviction as well as service of three prior prison terms.
Wolfe appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed his conviction on June 11, 2002. Wolfe then filed a petition for writ of mandate with the California Supreme Court. The court treated the filing as a petition for review and denied it on November 28, 2001. Subsequently, Wolfe has filed several petitions for habeas corpus with the California Supreme Court along with a petition for review, all of which were denied.
On September 9, 2002, Wolfe filed a federal petition for a writ of habeas corpus which he has supplemented and amended several times. On September 25, 2003, a Magistrate Judge issued a findings and recommendations report recommending that the district court stay the proceedings pending the exhaustion of state remedies with respect to claims 11 and 16 and dismiss claims 14, 17 and 19. On October 24, 2003, the district court adopted the Magistrate Judge's findings and recommendations. After several other filings, Wolfe filed his second amended petition for habeas corpus. Respondent has replied, Wolfe has not filed a traverse and the petition is ripe for decision. Respondent asserts that Claims 1 and 6 are procedurally barred, claims 14, 17 and 19 are non-cognizable and that claim 22 has been excluded from federal review.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn9 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn10 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn11 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn12
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn13 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn14 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn15 This is considered as the functional equivalent of the appeal process.*fn16 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn17 This presumption applies to state trial courts and appellate courts alike.*fn18
When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must assume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn19 The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams .. . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn20
"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn21
In his second amended petition Wolfe raises 22 grounds for relief. Respondent has raised affirmative defenses to claim numbers 1, 6, 14, 17, 19, and 22. For the purpose of clarity and continuity, this Court will address those claims first.
In claim 1, Wolfe alleges that he was not properly arraigned after his arrest on June 3, 1999. In claim 6, Wolfe argues that law enforcement lacked probable cause to arrest him on June 3, 1999. Both of these claims were raised by Wolfe in a state petition for writ of habeas corpus filed with the California Supreme Court on October 22, 2001. The Court cited In re Dixon, 41 Cal.2d 756 (1953), and rejected both claims as procedurally barred. Respondent asserts the imposition of this procedural bar forecloses consideration of the claim by this Court.
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn22 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn23 "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."*fn24
Under California law, contentions that could have been raised during direct appeal, but were not, generally cannot be renewed in a petition for habeas corpus.*fn25 "The only exception to this rule are petitions which allege facts which, if proven, would establish that a fundamental miscarriage of justice occurred as a result of the proceedings leading to conviction and/or sentence."*fn26 "[F]or purposes of the exception to the procedural bar against successive or untimely petitions, a "fundamental miscarriage of justice" will have occurred in any proceeding in which it can be demonstrated: (1) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which the petitioner was convicted; (3) that the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the trial error or omission no reasonable judge or jury would have imposed a sentence of death; (4) that the petitioner was convicted or sentenced under an invalid statute."*fn27
Wolfe does not dispute the fact that he did not raise claims 1 and 6 to either the California Court of Appeals or the California Supreme Court. Because Wolfe's failure to raise these claims on direct appeal was not excused by the California Supreme Court, Wolfe's failure to raise them on appeal constitutes a state law ground that is independent of any federal question ...