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Christopher Whisenant v. G. Swarthout

August 28, 2011



Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims his Fourth Amendment rights were violated when the trial court denied his motion to suppress, and his Eighth Amendment rights were violated when the trial court declined to strike one or both of his prior convictions. Petitioner argues that the sentence imposed constitutes cruel and unusual punishment.


Petitioner was convicted by a jury on September 26, 2007 of possession of a firearm (in violation of Cal. Pen. Code § 12021(a)(1)*fn1 ); and possession of ammunition (in violation of § 12316(b)(1)). See Clerk's Transcript ("CT") at 250-51. With an enhancement for two prior convictions, the trial court sentenced petitioner on February 8, 2008 to two concurrent indeterminate terms of twenty-five years to life with the possibility of parole and a concurrent two-year determinant term. CT at 71-72.

Petitioner appealed to the California Court of Appeal, Third Appellate District. See Lodgment ("LD"), Appellant's Opening Br.*fn2 In an unpublished opinion filed on February 9, 2010, the appellate court affirmed the judgment and sentence. Ans., Ex. A.

On March 22, 2010, petitioner filed a petition for review in the California Supreme Court. LD, Pet'r's Pet. for Review, Cal. Supreme Ct. On April 28, 2010, the California Supreme Court summarily denied the petition. LD, Order Den. Pet. for Review, Cal. Supreme Ct.

Petitioner did not file any petitions for post-conviction relief in the state courts. Petitioner initiated this action on March 14, 2011. Respondent filed an answer on June 21, 2011. Petitioner filed a traverse on August 22, 2011.


On the night of April 2, 2005, Bush, [petitioner] and Benny Ramos, not a party to this appeal, were in a Chevrolet Blazer that was pulled over after a sheriff's deputy heard gunshots, then saw the Blazer coming from the direction of the gunshots. The Blazer contained a ballistic vest, or "body armor," and a load pistol magazine. Three loaded pistols of different calibers were found by the road along the route between where the deputy began following the Blazer and where he stopped it. Five bullets of unusual caliber were found in the patrol car Bush had been in, and they fit one of the guns found by the roadside. The magazine found in the vehicle fit a different gun found by the road. All three men had felony convictions.


I. Standards for a Writ of Habeas Corpus

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, 405-406 (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) (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.'") 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).

II. Petitioner's Claims

1. Ground One

In ground one, petitioner claims that the trial court violated his Fourth Amendment rights by improperly denying his motion to suppress.

The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal:

B. Facts from Suppression Hearing

Sacramento County Deputy Sheriff Jason Harris was the only witness at the hearing [on the motion to suppress]. He had been a patrol deputy for over six years. On April 2, 2005, at about 11:20 p.m., he was parked near Kiefer Boulevard and Happy Lane, by Mather Air Force Base, doing paperwork. It was a remote, industrial area, "mostly just an open area," although there were a few residences. No businesses were open and he saw no vehicles in the 10 minutes he was there.

Deputy Harris then heard at least two gunshots from the south, "very close. Within a couple of hundred yards at the most." He had been in the U.S. Army for six years, and through that experience and his duties as a deputy, he was very familiar with the sound of gunshots and was certain he heard gunshots. A Chevrolet Blazer with tinted rear windows then passed him, coming from the south, about 10-15 seconds after the gun shots, "And from the sound of it, it was accelerating" but it had not yet reached the speed limit. Deputy Harris could see at least two people inside, who looked at him as the Blazer passed by. Because that was the only vehicle he had seen in the remote area since he had been there, he followed it. He paced it going 60 miles per hour in a 45 mile-per-hour zone. He pulled the Blazer over close to a "fairly secluded" area. He stopped the Blazer because of the speeding and to investigate the gunshots.

Deputy Harris saw there were three people in the car and he "request[ed] identification from all three[,]" which they gave. When he checked and learned all three men had violent felony convictions, including for murder, assault with a deadly weapon and "Things like that[,]" he called for backup. Backup arrived within five minutes. Out of concern about weapons in the car, the officers drew their guns, called the occupants out one by one, patted each down and placed them in separate patrol vehicles. [Petitioner] and Bush had been passengers; Ramos had been driving.

Deputy Harris testified that when the men were extracted, he saw a ballistic vest on the back seat.

Because the occupants were felons, Deputy Harris correctly believed it was illegal for any of them to possess a ballistic vest. (See Pen. Code, § 12370, subd. (a).) [Footnote omitted.] Therefore, he believed he had probable cause to arrest them and impound the Blazer. He saw an open alcohol container, and then looked in the glove box, where he found a loaded pistol magazine. His subjective reason to search was because he did not want to leave a firearm in the Blazer.

Deputy Harris testified the entire encounter between stopping the Blazer and searching the vehicle was 8-10 minutes. It usually takes him less than 10 minutes to stop a vehicle and write a traffic citation.

The trial court denied the motion. C. Analysis

The claims on appeal can be grouped into four categories: First, defendants were improperly detained because only a "hunch" connected the Blazer to gunshots. Second, it was improper for Deputy Harris to obtain their identification. Third, their detention was excessive, and was transformed into an arrest without probable cause. Fourth, the search of the Blazer was unlawful.

We disagree with each of these claims. 1. Detention of Passengers

Defendants contend that as passengers in a car pulled over for a speeding violation, their detention was unreasonable. They assert Deputy Harris had only a "hunch" to connect them to the gunshots. We disagree. FN 3.

FN 3. Defendants contend all of the tangible evidence against them should have been suppressed. But the guns (and the ammunition inside them, which the prosecutor argued could support the ammunition charge) were found abandoned by the road and were not suppressible. (See People v. Tuck (1977) 75 Cal.App.3d 639, 646; U.S. v. McLaughlin (9th Cir. 1975) 525 F.2d 517, 519-520.)

"A suspect may be detained if an officer has a reasonable suspicion that criminal activity is afoot and that the suspect is connected with it. [Citation.] The officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant"' his action. [Citation.] This is a totality of the circumstances evaluation, in light of the officer's training and experience." (People v. Osborne (2009) 175 Cal.App.4th 1052, 1058 (Osborne).) "Law enforcement officers may 'draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person." [Citations.]'" (People v. Hernandez (2008) 45 Cal.4th 295, 299.) But "officers are not entitled to rely on mere hunches." (Ibid.)

Deputy Harris had more than a hunch about the Blazer's connection to the gunshots, he had a reasonable suspicion. He had been parked in a remote area late at night for 10 minutes and had not seen any cars. Within 10-15 seconds of the moment he heard two gunshots nearby, the Blazer came from the direction of those gunshots, accelerating. Given the totality of the circumstances, we agree with the trial court's observation that Deputy Harris "would be derelict in his duty if ...

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