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Michael Calvin Wanless v. R.E. Barnes

December 13, 2011

MICHAEL CALVIN WANLESS, PETITIONER,
v.
R.E. BARNES, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction on charges of possession of methamphetamine for purpose of sale, and the finding that petitioner committed the crime while released on bail, after suffering 14 prior serious felony convictions, and serving three prior prison terms. (Clerk's Transcript ("CT") at 393.) Petitioner was sentenced to 25 years to life in prison, plus two years for the prior prison terms. Petitioner alleges claims of ineffective assistance of counsel, and one claim alleging cumulative error. After careful review of the record, this court recommends that the petition be denied.

II. Procedural History

Petitioner filed a timely appeal to the California Court of Appeal, Third Appellate District. The judgment was affirmed by the Court of Appeal on February 4, 2009. (Dkt. No. 1 at 33.) Petitioner filed a petition for review in the California Supreme Court. (Respondent's Lodged Document ("LD") D.) The California Supreme Court denied review on May 13, 2009. (Dkt. No. 1 at 32.)

On September 21, 2009, petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court. (LD E.) On October 22, 2009, the Shasta County Superior Court denied the petition in a reasoned decision. (LD F.)

On November 12, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeals, Third Appellate District. (LD G.) On November 19, 2009, the Court of Appeals denied the petition without comment. (LD H.)

On December 9, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD I.) On July 14, 2010, the petition was denied by the California Supreme Court, without comment. (LD J.)

Petitioner filed the instant petition on August 20, 2010. (Dkt. No. 1.)

III. Facts*fn1

The opinion of the California Court of Appeal contains the following factual summary of petitioner's offenses.

Parole Agent Larry Welch received a telephone call from Deputy Sheriff Wes Collette wanting [petitioner's] address because [petitioner] was a suspect in a bank robbery. Welch determined that [petitioner] was not on parole.

The following morning, Welch and Agent Dianna Day went to a motel room to arrest a parolee named Jeffrey Hankins and to search his room because he had recently tested positive for methamphetamine. When Hankins opened the door, Welch saw there were four people in the room -- Hankins, his wife, and two adult males, one whom was later determined to be [petitioner].

[Petitioner] got up from the side of the bed where he had been sitting, said he was a "prior parolee," claimed Welch knew him, and stated he wanted to leave. Welch, not having "a clue" who [petitioner] was, requested his name and identification. [Petitioner] gave his name, which Welch recognized as the name of the robbery suspect about whom Deputy Collette inquired. Welch told [petitioner] he could not leave until he was identified. [Petitioner] became upset and repeatedly put his hands in and out of his pockets, even though Welch told him to keep them in plain view. Eventually, [petitioner] said he had a knife and gave it to Welch.

A hypodermic needle was found near the bed in the area where [petitioner] had been sitting, and he was arrested. [Petitioner] was searched, and 12 baggies containing methamphetamine were found on him. (People v. Wanless, Dkt. No. 1 at 33-34.)

IV. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a

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). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

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 yet arrives at a different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (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.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

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). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

V. Background re Motion to Suppress

At trial, petitioner filed a motion to suppress, claiming he had been unlawfully detained, and that the warrantless arrest and search violated the Fourth Amendment. (CT at 64-68.) The Shasta County Superior Court denied the motion to suppress and found that petitioner was lawfully detained by Parole Agents Welch and Day. (Reporter's Transcript ("RT") at 143-46.) After petitioner was convicted, he filed a motion for new trial, claiming ineffective assistance of trial counsel based on counsel's failure to obtain impeachment evidence. Specifically, petitioner argued that the failure to obtain Parole Agent Day's parole records referencing petitioner, deprived petitioner of an opportunity to impeach Day's testimony that she did not know petitioner and that petitioner was not assigned to Day's caseload. Petitioner contended that this impeachment evidence would have allowed petitioner to call into question Day's testimony as to other facts, including petitioner's actions. (CT at 353-54.) The Shasta County Superior Court denied the motion for new trial, and found that petitioner's detention was justified by officer safety. (RT at 530.)

In his appeal, petitioner again claimed he was illegally detained, and that the motion to suppress was denied in error. (Dkt. No. 1 at 33.) The Court of Appeals addressed this claim as follows:

[Petitioner] contends the search and seizure were the product of an unlawful detention and, thus, the trial court erred in denying [petitioner's] motion to suppress evidence. We disagree. . . .

Citing People v. Harvey (1958) 156 Cal.App.2d 516 (hereafter Harvey), and People v. Madden (1970) 2 Cal.3d 1017 (hereafter Madden), [petitioner] contends the information provided by Deputy Collette to Agent Welch -- that [petitioner] was a suspect in a bank robbery -- cannot be considered in determining whether the detention was lawful. Harvey and Madden "require that when the first officer passes off information through 'official channels' that leads to arrest, the officer must also show [the] basis for his probable cause. In other words, the so-called 'Harvey-Madden rule' requires the basis for the first officer's probable cause must be 'something other than the imagination of an officer who does not become a witness.'" (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553; People v. Lazanis (1989) 209 Cal.App.3d 49, 61 [Harvey-Madden rule applies to detentions as well as to arrests] .) FN1

FN1. In the trial court, [petitioner] raised a

Harvey-Madden objection in his written suppression motion, again during the presentation of ...


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