The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a California state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2007, petitioner pled no contest to one count of attempted murder with admissions of criminal street gang and firearm use enhancements, and one count of conspiracy to sell methamphetamine, and received a 29 year sentence on the convictions.
Petitioner now claims that the trial and appellate courts violated his Sixth Amendment right to the assistance of counsel at a critical stage in the proceedings and Fourteenth Amendment right to due process when they reviewed in camera affidavits based on information provided to the affiant from a confidential informant, and made in support of the state's applications for warrants to place wiretaps on two of petitioner's phones and to place a global positioning service (GPS) device on petitioner's car. Respondent has filed an answer to the petition, arguing that petitioner's no contest plea bars review of petitioner's claims under Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct 1602, 1608 (1973). After carefully considering the record, the undersigned recommends that the petition be denied.
The following facts are taken from the Opinion of the Court of Appeal of the State of California, Third Appellate District:
On April 18, 2006, pursuant to a search warrant, Detective Kevin Steed installed a GPS (global positioning system) satellite tracking device on a Lexus automobile used by [petitioner]. The unsealed portion of the affidavit established that Steed began investigating [petitioner] in January 2006 based on information provided to him by a confidential informant that [petitioner] was distributing large quantities of methamphetamine throughout the Sacramento area. During four controlled buys, surveillance teams, who were attempting to learn of [petitioner's] sources, were thwarted in their efforts to follow defendant because of his "counter surveillance techniques," namely, his aggressive driving, which made it impossible for the teams to follow him. Hence, the GPS device was necessary. On May 16, 2006, Steed obtained a wiretap warrant for two of [petitioner's] cell phones along with an order sealing a portion of the supporting probable cause affidavit. The unsealed portion of the affidavit essentially repeated the efforts made by law enforcement to discover [petitioner's] sources so that law enforcement could dismantle the distribution organization of which [petitioner] was a part.
The issuing courts ordered that portions of Det. Steed's warrant affidavits remain under seal. CT 0508, RT 28.
Petitioner was subsequently charged with, among other things, attempted murder, conspiracy to commit murder, and conspiracy to sell methamphetamine. Lodged Doc. No. 2 at 1-2. On June 13, 2007, petitioner, through counsel, moved to unseal the sealed portion of the wiretap warrant affidavit. CT 435. According to counsel for the petitioner, counsel sought to review the sealed information in order to attack the underlying search warrant. See RT 2 - 5; 15-16.
Counsel for the petitioner did not file a separate motion to unseal the affidavit filed in connection with the GPS warrant. Lodged Doc. No. 2 at 7; RT 28.
On August 16, 2007, after two hearings, the trial court issued an amended order denying petitioner's motion to unseal the sealed portions of the wiretap warrant:
Defendant Andrew Xavier Moncada filed a "Motion to Unseal Search Warrant Affidavit" with the court. Thereafter, it was the understanding of the parties and the court, that the court was to undertake an in camera review of the sealed portion of the affidavit in support of the wiretap warrant, only to determine whether within the four corners of the sealed and unsealed portions of the affidavit there is probable cause in support of the issuance of the wiretap warrant, including a determination of whether the affidavit supports the magistrate's finding of the necessity for the issuance of the wiretap warrant and the existence of a conspiracy involving sales or transactions of three pounds or more of methamphetamine.
The court has undertaken the agreed-upon review, and determined that together, the sealed and unsealed portions of the affidavit contain sufficient probable cause in support of the issuance of the wiretap warrant, including necessity for the issuance of the wiretap warrant and the existence of a conspiracy involving sales or transactions of three pounds or more of methamphetamine.
The order does not preclude the defendant from seeking other relief not related to challenging the sufficiency of the probable cause in support ...