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Juan Ignacio Lopez v. S.M. Salinas

May 6, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).


Following a jury trial in the Madera County Superior Court, Petitioner was conviction of one count of possession of methamphetamine for sale (Cal. Health & Safety Code § 11378) with an enhancement for having a prior conviction for the same offense (Cal. Health & Safety Code § 11370.2, subd. (a)), and the court found he violated probation.

On January 5, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment. The California Supreme Court denied review on March 10, 2010.

Petitioner filed the instant petition for writ of habeas corpus on November 23, 2010. Respondent filed an answer to the petition on February 15, 2011. Petitioner did not file a traverse.


Defendant, Juan Ignacio Lopez, was convicted after a jury trial of one count of possession of methamphetamine for sale (Health & Saf. Code, [N.1] § 11378) with an enhancement of having a prior conviction for the same offense (§ 11370.1, subd. (a)), and the court found he violated probation. He was sentenced to six years with an additional eight-month term for violating probation in his previous felony case.

N. 1 All further statutory references are to the Health and Safety Code unless otherwise indicated.

On appeal, defendant contends the court improperly instructed the jury with CALCRIM No. 361 as to the defendant's failure at trial to explain or deny evidence against him. He also contends the prosecutor committed prejudicial misconduct during her examination of the arresting officer, cross-examination of defendant, and closing argument, and defense counsel was prejudicially ineffective for failing to object. We will affirm.


On the evening of May 14, 2007, Los Banos Police Officer Cortez was on foot patrol in an area known for frequent drug activity. He was walking toward the front yard of a duplex and encountered Francisco Monroy on the street. Monroy shouted in Spanish that Cortez was approaching. Cortez kept walking toward the duplex and saw defendant standing inside the front yard fence. Cortez knew defendant from prior contacts, and he had arrested defendant for methamphetamine sales in November 2005 when he found defendant in possession of individually-wrapped bindles of methamphetamine. [N.2]

[N.2] The court granted the prosecution's request and took judicial notice that defendant had a prior conviction for the sale of methamphetamine.

Officer Cortez testified that as he approached the front yard, defendant's back was toward him and defendant was bending over "like he was attempting to conceal something." When defendant saw Cortez, he straightened up and walked to the officer. Cortez asked defendant if he could search his person and defendant consented. Cortez found defendant in possession of a cell phone and $740. The cash included seventeen $20 bills.

After searching defendant, Officer Cortez walked to the area of the yard where defendant had been bending over. Cortez found a plastic bag which contained 12 individually wrapped baggies of methamphetamine. Each baggie weighed approximately .33 to .36 grams and could be sold on the street for $20 each, for a total street value of $240. Cortez testified that as soon as he found the narcotics, defendant "voluntarily" and "immediately" said "he was selling drugs because he had a lot of bills and court fees."

Defendant was arrested and transported to the police department. Cortez advised defendant of his constitutional rights, defendant waived his rights, and Cortez conducted a tape-recorded interview. Cortez asked defendant "if he had told me that he was selling narcotics to pay his bills and court fees, and he stated no." Defendant told Cortez he never made that statement and denied he was selling drugs. Defendant said the cash was from working in the fields.

Defense Evidence

Defendant testified at trial and admitted he previously pleaded guilty to possession of drugs and possession of drugs for sale. Defendant testified he was a farm labor foreman, and he also earned money by driving laborers to work. He drove six people to the fields "all over" the county on a daily basis, and they paid him $7 for gasoline. Defendant testified he had $740 because he had recently been paid for both jobs.

Defendant testified that he had been walking in the area and stopped in the front yard to urinate and told Cortez what he was doing. After Cortez searched him and found the cash, defendant asked Cortez "if he would take my money again because the other time he took away $2000 from me, and it was never returned to me." Defendant testified he never told Cortez that he was selling drugs. Defendant testified that when Cortez conducted the tape-recorded interview, defendant told him to turn off the tape-recorder "because the other time he had recorded me, and I was not selling anything, and I had told him that I had given it away to someone else, and he said that was sales."

On cross-examination, defendant was asked to identify his employers: "Q. Who were you working for? "A. I worked with a man whose name was--I don't recall his name, but I have it on my check stubs. It's a farm labor contractor.

"Q. And you don't recall his name? "A. Because I wouldn't speak with him. It was the other gentleman that would talk to me. What's his name? I don't recall the name."

Defendant had worked for that person over one year but he was not sure how many checks he received from that person. On further questioning, defendant testified he spoke to "Benjamin" about his job, but he did not know the man's last name or telephone number. Defendant testified "Benjamin" and "Nora" would tell him where to work, but he was unable to provide their last names and thought one person's name might be "Torres." Defendant could not identify any ranches where he worked or drove the farm laborers and said there were "a lot of ranches."

Also on cross-examination, defendant acknowledged that Officer Cortez previously arrested him for selling drugs but denied telling Cortez that he was selling drugs at that time. Defendant again claimed Cortez seized $2,000 from him during the earlier arrest, he insisted the cash was from work, and he denied the money was forfeited as drug proceeds. As for the money in this case, defendant testified he had cashed paychecks for $460, he received the balance in cash from the farm laborers he drove to work, and laborers primarily paid him in $20 bills.


Officer Cortez testified he previously arrested defendant for selling drugs at the same location where he arrested him in this case. Cortez was "100 percent positive" that when he arrested defendant in this case, defendant said he was selling drugs to pay his bills. (People v. Lopez, No. F055895, 2010 Cal.App. Unpub. LEXIS 133, at *1-6 (Jan. 5, 2010).)


I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court.28 U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Standard of Review

Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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). "Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of [the Supreme] Court." Harrington v. Richter, U.S. , 131 S.Ct. 770, 785 (2011) (citing 28 U.S.C. § 2254(d)(1) and Williams v. Taylor, 539 U.S. 362, 412 (2000). Habeas relief is also available if the state court's decision "involved an unreasonable application" of clearly established federal law, or "was based on an unreasonable determination of the facts" in light of the record before the state court. Richter, 131 S.Ct. 785 (citing 28 U.S.C. § 2254(d)(1), (d)(2)). "[C]learly established ... as determined by" the Supreme Court "refers to the holdings, as opposed to the dicta, of th[at] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412. Therefore, a "specific" legal rule may not be inferred from Supreme Court precedent, merely because such rule might be logical given that precedent. Rather, the Supreme Court case itself must have "squarely" established that specific legal rule. Richter, 131 S.Ct. at 786; Knowles v. Mirzayance, __ U.S. __, 129 S.Ct. 1411, 1419 (2009). Moreover, the Supreme Court itself must have applied the specific legal rule to the "context" in which the Petitioner's claim falls. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 737 (2011). "A state court's determination that a claim lacks merits precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 131 S.Ct. at 786.

"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of ยง 2254 apply to ...

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