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La Carl Dow v. Tim Virga

December 5, 2011

LA CARL DOW, PETITIONER,
v.
TIM VIRGA, WARDEN, CALIFORNIA STATE PRISON, SACRAMENTO, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

La Carl Dow, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Dow is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Sacramento. Respondent has answered, and Dow has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Dow is currently serving a determinate sentence of fifteen years as a result of his December 2003 conviction in the San Mateo County Superior Court for Robbery, Cal. Penal Code § 212.5(c), with serious felony priors and under California's "three-strikes" law. Dow does not challenge that conviction or sentence in this proceeding.

In July 2007 Dow was found in possession of illegal substances in a prison facility. Dow was issued a CDC 115 Rules Violation Report ("RVR") charging him with the specific act of Possession/Controlled Substance/Distribution. The internal prison disciplinary proceedings were stayed and held in abeyance pending referral to the District Attorney for prosecution under the Penal Code. The District Attorney obtained an indictment in the Solano County Superior Court charging Dow with one count of Possession of Illegal Substances in a Prison Facility in violation of California Penal Code § 4573.6, a felony.*fn1 Dow entered a no contest plea in the Solano County Superior Court.*fn2 Upon completion of the criminal proceedings in the Solano County Superior Court, the internal disciplinary proceedings were reinstated. After a hearing before a Senior Hearing Officer ("SHO"), Dow was found guilty of Possession of a Controlled Substance for Distribution, a Division "A-2" Offense,*fn3 and assessed 151 days of loss of behavioral credits.*fn4

After exhausting his administrative appeal rights,*fn5 Dow filed a petition for habeas relief in the Solano County Superior Court, which was denied in an unreported, reasoned decision. The California Court of Appeal summarily denied Dow's petition for habeas relief, and the California Supreme Court summarily denied relief without opinion or citation to authority on September 9, 2009. Dow timely filed his Petition for relief in this Court on July 23, 2010.

The factual basis underlying Dow's conviction, as recited in the RVR, is as follows:

On Monday, July 2, 2007, Officers C. Stiltner and A. Alcaraz approached cell 11-128 and removed DOW and SMITH who were assigned to the cell. During an unclothed body search of Dow, Officer Alcaraz discovered numerous bindles of suspected controlled substances. Inmate SMITH was also searched with negative results. Officer J. Whitfield arrived on the scene with his Narcotic Detection Dog, "Slue-Zen" and searched cell 11-128. The dog alerted to the scent of narcotic by scratching at the lower left corner of the top shelf and to the mattress taken from the lower bunk. Officer Stiltner physically searched these areas and recovered what appeared to be marijuana and heroin. Officer Alcaraz assisted in the search and recovered a razor blade in the lower bunk area and a small digital scale.

On Thursday, July 5, 2007, field test results were received from CSP-Solano Security and Investigations Officer D. Howard who tested eleven (11) bindles collected from cell 11-128, assigned to inmates DOW, V-22401 and SMITH, V09846 on July 2,2007. The bindles were labeled 1-11 and the results were as follows: #1=0.29 Marijuana #2=0.89 Heroin #3=0.89 Heroin #4=0.49 Heroin #5=0.59 Marijuana #6=0.89 Heroin #7=0.89 Heroin #8=4.39 Marijuana #9=5.89 Heroin #10=0.89 Marijuana #11 =0.49 Heroin (all weights inclusive of packaging)*fn6

II. GROUNDS RAISED/DEFENSES

In his Petition, Dow raises a single ground: that the evidence is insufficient to support his conviction of possession with intent to distribute as defined in the California Code of Regulations. Respondent asserts no affirmative defense.*fn7

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn8 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn9 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn10

Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn11 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn12 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state court determination was incorrect.*fn13 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn14 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or ...


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