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Lance Arman Cromwell v. K. Prosper

March 17, 2011




Petitioner, a state prisoner, proceeds pro se with a third amended petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. The matter is submitted for decision and the parties have consented to jurisdiction by a United States Magistrate Judge.


Petitioner was charged by information in the Shasta County Superior Court, case number 03F4527, with one count of being a felon in possession of a firearm and one count of misdemeanor driving without a license. On the eve of trial, petitioner admitted the misdemeanor charge and filed a motion pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), to exclude incriminating statements he made to the investigating officer concerning possession of the firearm. In response, the court held an evidentiary hearing pursuant to section 402 of the California Evidence Code.

At the hearing, Shasta County Deputy Sheriff John Kropholler testified he was in uniform and driving a marked patrol vehicle in a rural residential are of Shasta County at approximately 12:30 a.m. on the morning of November 10, 2001, when he observed a blue Toyota without a front license plate going in the opposite direction. Kropholler, who was accompanied that night by a uniformed but unarmed training cadet, made a U-turn and activated the patrol vehicle's overhead lights. The Toyota turned into a driveway in a residential neighborhood and came to a stop. Kropholler alighted and approached the Toyota, which had two occupants: petitioner, the driver, and Debra Ripley, petitioner's girlfriend, the front seat passenger. Petitioner appeared nervous and could not produce a driver's license. He gave Kropholler his true name but denied being on parole. Kropholler returned to his patrol vehicle and ran a records check, which disclosed petitioner was on active parole and subject to a parole search condition. Kropholler returned to the Toyota, informed petitioner he was subject to a parole search condition, and asked petitioner to step out of the Toyota while he conducted the search. After frisking petitioner for weapons, he noticed petitioner continued to act nervously and was glancing about, leading Kropholler to believe petitioner was a flight risk. Kropholler escorted petitioner to the patrol vehicle and asked him to sit in the back seat while he conducted the search. He did not handcuff petitioner and told petitioner that he was not under arrest and that his request was made for "officer safety."

Kropholler closed the back door of the patrol vehicle, which locked the back doors. When he opened the trunk of the Toyota, he saw an unloaded shotgun.

Kropholler showed the gun to Ripley, who was standing between the two vehicles. Ripley responded "[t]hat they had just picked it up from [petitioner's] parents' house just a little bit ago, and petitioner was going to use it to go shooting with his boss the next day."

Kropholler returned to the patrol vehicle, put the gun in the trunk, and opened the rear passenger door. In Kropholler's words, "I just opened the passenger side to my patrol car, and as I sat there,*fn2 that's when I asked him about if he knew anything about the gun that was in the car." "First, he told me he had no idea about the gun at all." And when I confronted him with what Ms. Ripley had told me, he told me that he borrowed the gun from- I believe his mother's boyfriend so that he could go shooting with his boss the next day." Kropholler asked petitioner whether he knew he could not possess weapons, and petitioner replied that he knew he could not. Kropholler then arrested petitioner.

When asked about petitioner's demeanor, Kropholler responded: "Again, I would say it wasn't adversarial at all. He was very nervous due to the fact that I located his gun and then I confronted him with it and the fact that his girlfriend said that they just picked it up. Other than that, there wasn't anything out of the ordinary." Kropholler did not give a Miranda warning prior to his questioning.

Petitioner's mother testified that the Toyota belonged to her and that she lent it to petitioner on the night he was arrested. Petitioner testified that the stop was invalid because the front license plate was visible. He also testified that he was handcuffed before being placed in the back seat of the patrol car.

The trial court found Kropholler's testimony more credible as to the disputed issue whether petitioner was handcuffed before being placed in the patrol car. Since the amount of time petitioner spent in the back of the patrol car was not unnecessarily prolonged, the trial court reasoned, the restraint was not equivalent to that of formal arrest. The trial court denied the Miranda motion, finding that petitioner was not in custody when he made the incriminating statement.

At trial, the jury heard Kropholler's testimony about the statements petitioner made while seated in the police car. Kropholler additionally testified at trial that he did not find any ammunition in the Toyota, but that he did notice a significant number of clothes and personal items. Petitioner's mother testified that the Toyota belonged to her, the gun belonged to her boyfriend, and that she did not tell petitioner the gun was in the trunk when he and his girlfriend borrowed the car.

On February 19, 2004, the jury found petitioner guilty of being a felon in possession of a firearm. On February 24, 2004, the trial court found true the allegation of a prior 1993 conviction for two counts of first degree burglary and a 1996 conviction for possessing methamphetamine for sale, and further found that those offenses qualified as prior strikes under California's three strikes law. (See Cal. Penal Code §§ 667.5 & 1170.12) On May 12, 2004, petitioner's motion to dismiss a prior strike was denied, and he was sentenced to an indeterminate term of 27 years to life.

Petitioner appealed his convictions to the California Court of Appeal, Third Appellate District; the judgment was affirmed in an unpublished opinion, People v. Cromwell, No. C046933. A petition for review to the California Supreme Court was denied.

Petitioner sought habeas corpus relief in the Shasta County Superior Court; his petition was denied in a brief reasoned decision dated October 24, 2006. The California Court of Appeal, Third District, and the California Supreme Court likewise denied petitioner's claims presented on state habeas corpus, but without written explanation.


The petition presents four grounds for relief. Petitioner claims:

(A) the trial court erred in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966) when it admitted his statements to Kropholler;

(B) the trial court erred in violation of his due process rights when it denied his motion brought pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 (1996);

(C) a sentence of twenty seven years to life constitutes cruel and unusual punishment under the United State Constitution and the California Constitution;

(D) application of California's "three strikes" law at sentencing breached the terms of petitioner's prior 1993 plea agreement for unrelated offenses; and

(E) trial counsel rendered ineffective assistance of counsel by failing to investigate or discover the terms of his prior 1993 plea agreement.


An application for writ of habeas corpus by a person in custody under 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); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).


A. Statements to ...

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