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Kevin Michael Fisk v. State of California

March 23, 2011

KEVIN MICHAEL FISK, PETITIONER,
v.
STATE OF CALIFORNIA, RESPONDENT.



ORDER

Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is serving a sentence of 25-years-to-life for possession methamphetamine for sale. He challenges his conviction and sentence.

I. Background

On direct appeal, the California Court of Appeal summarized the facts presented at trial and the trial court proceedings as follows:

One afternoon in May 2007, Officer William Niethammer of the Citrus Heights Police Department was on patrol with another officer in a marked patrol car when he saw several people (including defendant) standing on a sidewalk. The sidewalk was near a business that had a "no loitering" sign. As Officer Niethammer drove toward the group, two people from the group left; defendant remained on the sidewalk holding his bicycle. Officer Niethammer did not activate his sirens on his patrol car. He parked in a parking space in front of defendant and walked up to the defendant while the other officer stayed with the patrol car. He never commanded defendant to stop, and neither officer had his weapon drawn. It took Officer Niethammer roughly 10 seconds to walk up to defendant.

Officer Niethammer greeted defendant and asked him, "how's it going." Defendant responded, "fine." When Officer Niethammer asked defendant if he was on probation or parole, defendant said he was on parole for robbery. At one point, defendant gave Officer Niethammer his California ID card. When Officer Niethammer asked if he could pat defendant down for weapons, defendant replied, "no problem." The other officer then took defendant's bicycle and placed it to the side.

As a result of the search, Officer Niethammer found several "baggies" in defendant's coin pocket: eight had a white crystalline substance later found to be methamphetamine and nine were empty. Defendant had over four grams of methamphetamine capable of getting someone "high" for 400 hours. The eight baggies with methamphetamine had a street value of approximately $400 to $480. Defendant had no money or drug paraphernalia with him, and he was never tested for any drugs he might have consumed. At the police station, defendant told Officer Niethammer he had information on "several large drug dealers [who] he would like to give up."

An amended information charged defendant with possession of methamphetamine for sale. It also alleged defendant was convicted of robbery in 1993 and 1997 and that these convictions were prior serious felonies. The information further alleged defendant served a prior prison term for each robbery and served prison terms for a 1991 conviction of possession of a controlled substance and a 1987 conviction of possession of a controlled substance for sale.

Defendant moved to suppress evidence from the police encounter. The trial court denied the suppression motion. After defendant was convicted, the trial court found at bifurcated proceedings that four of the five enhancement allegations were true.

The court declined to strike any prior serious felonies under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, declined to place defendant on probation and sentenced him to 25 years to life in state prison. Answer, Ex. A at 2-3.

II. Standard For Relief

Under 28 U.S.C. § 2254 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).*fn1 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

The "contrary to" and "unreasonable application" clauses of ยง 2254(d)(1) are different. As the ...


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