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Fred Dwayne Gilbert v. Gary Swarthout

March 14, 2011

FRED DWAYNE GILBERT, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



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

ORDER

I. Introduction

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction for possession of cocaine base for sale (Cal. Health & Saf. Code § 11351) and petty theft with a prior (Cal. Penal Code § 666). Petitioner is serving a sentence of seven years.

This action is proceeding on the original petition filed October 16, 2009.

Petitioner raises two claims: 1) alleged violation of the Fourth Amendment; and 2) alleged violation of Brady v. Maryland, 373 U.S. 8 (1963).

Both parties have consented to the jurisdiction of the undersigned. After carefully considering the record, the undersigned orders the petition denied.

II. Standards for a Writ of Habeas Corpus

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). 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).

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).

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 arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations omitted) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85 (2011). That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record.

"Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief. Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. Id. at 786.

III. Factual Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein:

On August 20, 2007, Officer August Johnson, a member of the bicycle patrol unit of the Sacramento Police Department, received a phone call from an off-duty probation officer named Josh Paris. Paris informed Officer Johnson that he was at the corner of 4th Street and K Street, witnessing a man pushing a bicycle eastbound through Westfield Plaza who had just unscrewed a bicycle light from the handlebars of another bicycle that was locked to a bicycle rack and then attached the light to the handlebars of the bicycle he was pushing. Paris described the man as "a male Black adult in his 40s wearing a straw hat, a white T-shirt, and short blue jeans shorts ... [with] a purple backpack on." Officer Johnson, while on the phone with Paris, rode his patrol bicycle westbound through the mall and quickly spotted defendant, who matched the description.

Officer Johnson cut off defendant's path with his patrol bicycle and told him to stand next to the Gap store window; defendant complied. Johnson then asked defendant if he had any weapons. Defendant responded that he had "something in his backpack." As defendant started to put his hands in his front pockets, Officer Johnson told him to keep his hands out of his pockets and slid the backpack off defendant's back and placed it on the ground. Defendant was speaking rapidly and again tried to put his hands in his pockets. Believing defendant to be a potential danger to himself and others walking through the mall, Officer Johnson placed defendant in handcuffs and conducted a frisk for weapons.

As Officer Johnson patted down the outside of defendant's right front shorts pocket, he felt "a ping-pong ball size[d] object ... [with] small pea size[d] hard objects ... [that] rolled off each other like they were covered with some sort of plastic." Based on his training and experience, including over 200 hours of narcotics training and experience in over 50 investigations involving possession of cocaine base for sale, Officer Johnson believed the object in defendant's pocket to be cocaine base. Officer Johnson asked defendant what was in his pocket; defendant responded, "some cocaine," and explained that he had "relapsed last night." Johnson retrieved the object, a clear plastic baggie containing 21 individually wrapped pieces of cocaine base, from defendant's pocket. Officer Johnson then ran defendant's name and discovered that he was on searchable probation. A search of the remainder of defendant's belongings revealed three cell phones, a wallet containing $107, two screwdrivers, a flashlight, and an open box containing 47 sandwich baggies.

Probation Officer Paris arrived as Officer Johnson was talking to defendant. Paris confirmed that the bicycle light on defendant's bicycle was the same light that had been removed from the locked bicycle on 4th and K. After defendant was formally arrested, Officer Johnson went to the victim's bicycle and placed a Sacramento Police Department information card on the handlebars. Later in the ...


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