FINDINGS AND RECOMMENDATIONS
Petitioner Curtis Collier, a state prisoner, proceeds through appointed counsel with a third amended petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Collier attacks his conviction in the Yuba County Superior Court, case number CRF-01-723, for various methamphetamine related offenses. Based on a thorough review of the record and applicable law, it is recommended that the petition be granted solely as to petitioner's claim that insufficient evidence supported the conviction for Count III, a violation of section 11366.5(a) of the California Health and Safety Code Section, and denied as to all remaining claims.
II. FACTUAL AND PROCEDURAL BACKGROUND
The following statement of facts is taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review of petitioner's convictions. These facts have not been rebutted with clear and convincing evidence and therefore are presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004).
On July 11, 2001, Ted Smith and John Montoya, employees of Pacific Gas and Electric Company (PG & E), went to a house at 2777 Hooper Road to investigate possible power theft. Service in the name of Langley and/or his spouse had been disconnected in May 2001 for nonpayment but was reportedly back on. Montoya spoke with Langley who was outside working on a pickup. Langley identified himself, producing his California driver's license, and admitted living at the house. Smith went to the meter, which was upside down and removed it, placing a security ring over the top of it to disconnect service. Montoya noticed a black Camaro at the Hooper Road property, a car he had seen a few days earlier at 2386 Highway 20.
On July 17, 2001, after Langley had not made payment to have service reconnected, Smith and Montoya returned to the Hooper Road property. Upon arrival, a boat and trailer were parked at the house, which Smith and Montoya had seen at 2386 Highway 20. Smith and Montoya found that the security ring had been removed from the meter and battery cables had been connected to bypass the meter. They noticed a very distinctive odor near the meter, which was located at the back of the house near an attached shed. When Collier answered their knock on the front door, they noticed the same odor.
After Smith and Montoya identified themselves, Collier identified himself. They asked for identification and whether Collier was an occupant. Collier denied that he lived there, refused to provide identification, became very agitated and started swearing upon learning they were with PG & E. Smith and Montoya stated they would call law enforcement. Collier said, "Go ahead. I want you to call law enforcement. I'll explain to them what's going on." After Smith and Montoya retreated to their vehicle, Montoya called for assistance from the Yuba County Sheriff's Department. Collier repeatedly approached their vehicle and told them to "call the police." While Smith and Montoya were waiting for law enforcement to arrive, Cal Sutton, Collier and possibly a third person (not Langley), tried to jump-start a car but were unsuccessful. Sutton went back inside the house.
Yuba County Deputy Sheriff Christopher Simpson arrived and spoke with Montoya. Collier, no longer agitated, exited the house and approached, asking Deputy Simpson why he was there. Collier denied living at the house and claimed he was only there working on a car. After Deputy Wendell Anderson arrived, Deputy Simpson escorted Montoya and Smith to the meter located adjacent to a small shed and noticed a strong chemical odor he associated with methamphetamine labs. Deputy Anderson went to the meter and also noticed the strong chemical odor. Because the deputies were told someone (Sutton) was in the house, the deputies knocked on the door but no one answered. The door was locked so they forced entry into the residence by kicking the door. Inside, the deputies smelled the same strong chemical odor that permeated the two-story house. While searching for Sutton, Deputy Anderson noticed blister packs of cold pills and white powder on the kitchen counter and a can of acetone on top of the garbage can. Deputy Anderson heard footsteps on the second floor. Deputy Simpson found Sutton lying on a bed in an upstairs bedroom. The three left the house.
A search warrant was obtained and members of the Yuba-Sutter Narcotic Enforcement Team (Net-5) searched the Hooper Road property, which included the two-story, three-bedroom house that had a strong chemical odor, a carport, an attached shed filled with smoke and another shed. Both sheds had a strong chemical odor. The search revealed numerous items associated with the manufacture of methamphetamine.
In the kitchen in the house, officers found: pieces of aluminum foil, one with an off-white powder substance, a pile of off-white powder, a plate with white powder residue and a blister pack of red pills or pseudoephedrine on the counter, several glass beakers, funnels and other glassware in the sink, an empty can of acetone in the wastebasket, other powder substances and a coffee filter with residue in a cabinet, a coffee grinder next to a bowl with a white milky residue, and a bag of tan- and a bag of pink-colored substances in a closed cupboard above the stove.
In the downstairs bedroom, officers found a condensing column in plain view on a shelf in the closet.
In the upstairs southwest bedroom, officers found a letter dated April 28, 2001, addressed to Langley at the Hooper Road property, a line of white powder, a pen, a lighter and an ashtray on the dresser, a butane torch next to the bed, and a glass pipe and plastic baggie with an off-white powder substance under the sheets.
In the upstairs northeast bedroom, officers found three envelopes and two PG & E bills addressed to Collier at 2386 Highway 20 on a shelf in the closet, lots of clothing on the floor, a few items of clothing in the closet, and a mattress on the floor.
In the carport, officers found two propane tanks modified to be used as hydrochloric acid gas generators.
In the attached shed, which was padlocked, officers found a bucket with amber liquid, a water bottle with a dark liquid, a strainer, a can of organic solvent, coffee filters, aluminum foil, a fan, a modified propane tank, a glass pan with white powder residue, a gallon jug with a dark substance, plastic tubing, a glass jar, Red Devil Lye, rock salt, and organic solvent containers. No key to the padlock on the attached shed was found on Collier.
In the other shed, officers found an acetone can, a plastic bucket with a funnel, Red Devil Lye, muriatic acid, aluminum foil, cans of organic solvent, a 12-liter flask, a baggie of red powder, beakers, tubing, condenser columns, a separatory funnel, iodine crystals used in the hydriodic-acid-ephedrine-production method, a coffee grinder, and a box of Ziploc plastic baggies.
Officers did not find any scales, pay/owe sheets, a cutting agent or receipts or records for the boxes of pseudoephedrine, red phosphorus, iodine or condensing columns found on the premises.
An expert analyzed several samples and found methamphetamine at various stages. He explained how methamphetamine is produced with cold tablets, the use of the other items found at the Hooper Road property and the odors of a methamphetamine lab. Specifically, the expert analyzed four and one-half gallons of a bilayered solution containing methamphetamine, an intermediate step in the manufacturing process, 170.5 grams net weight of a chunky, pink substance containing an ephedrine or pseudoephedrine with triprolidine, and 8.85 grams net weight of methamphetamine.FN
FN. The expert also analyzed a tan-colored substance that contained an ephedrine or triprolidine (exh. 69-C), but was not asked on the record about its weight. In closing argument, the prosecutor referred to both exhibits 69-B and 69-C, the exhibits containing the pink- and tan-colored substances of ephedrine, respectively. The prosecutor commented that one weighed 170.5 grams and the other weighed 127.1 grams, totaling 297.6 grams of a substance containing ephedrine.
A neighbor had seen a lot of traffic going in and out of Langley's house on a regular basis after Langley's spouse moved out two or three months before the search and had heard Langley's voice on a daily basis since then. Another neighbor had seen Collier at the Hooper Road property two or three times a week.
California Highway Patrol Net-5 Agent Larren Nelson testified that at about 2:20 p.m. on July 17, 2001, he interviewed Collier who was seated in the rear of a deputy sheriff's patrol car. Having waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Collier explained that he had lost his home on Highway 20, had been living with Langley at the Hooper Road property for approximately two weeks and planned to live with Langley long enough to get his own place. Agent Nelson further testified that Collier denied knowing anything about a methamphetamine lab, claiming he had not used methamphetamine for some time.
On July 22, 2001, when Langley was stopped for a vehicle infraction by a Marysville police officer, he claimed his name was "Chuck Seaton" but had no identification. A record check on the name failed to provide a match and Langley was arrested. The officer found a $5 bill rolled up with 0.99 grams of methamphetamine on [Langley]'s person and Langley's wallet and driver's license in the car. While in the patrol car, Langley broke a window and claimed to be having a seizure.
Neither defendant testified. In his defense, Collier recalled Deputy Anderson to testify. Deputy Anderson interviewed Collier at about noon on July 17, 2001. Deputy Anderson testified that Collier claimed he did not live at the Hooper Road property but did not specifically say where he was residing.
People v. Curtis Byron Langley, et al., No. C041733, slip op. at 4-10, (Ca. Ct. of App., Third App. District July 20, 2005).
On March 26, 2002, a jury found Collier guilty of manufacturing methamphetamine that exceeded three gallons of liquid by volume, possession of methamphetamine for sale, maintaining a place for production of methamphetamine and possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine. (Reporter's Transcripts ("RT") at 622-27.) On June 24, 2002 the trial judge sentenced Collier to a term of 18 years in prison. (RT at 671.)
On July 19, 2005, the California Court of Appeal affirmed the judgment but remanded the matter back to the trial court for re-sentencing of a one-year enhancement. People v. Langley, et al., supra, slip op. at 20. Collier then filed a petition for review in the California Supreme Court. That petition was summarily denied on September 30, 2005.
After re-sentencing, Collier filed a petition for writ of habeas corpus in the Yuba County Superior Court. That petition was denied without prejudice on December 19, 2006. Collier filed a second petition in the Yuba County Superior Court. That petition was denied on April 30, 2007.
On May 25, 2007, Collier filed a petition for writ of habeas corpus in the California Court of Appeal. That petition was denied on August 16, 2007. On September 25, 2007, Collier filed a habeas petition in the California Supreme Court. Before that petition was decided, Collier filed a second petition in the California Supreme Court on November 30, 2007. The California Supreme Court denied both petitions on March 19, 2008, in separate summary decisions.
Collier's third amended petition raises three claims:*fn1
A. There is insufficient evidence that petitioner possessed methamphetamine for sale, possessed ephedrine, manufactured meth., or had control of the space where meth. was manufactured;
B. Petitioner received ineffective assistance of trial and appellate counsel; and
C. Petitioner was denied his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments because he was sentenced based on findings not proven to a jury beyond a reasonable doubt.
IV. APPLICABLE STANDARD FOR FEDERAL HABEAS CORPUS
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 is also 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 ...