The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
BACKGROUND AND STATEMENT OF FACTS*fn1
On February 25, 2008, Fresno Police Officer Vanita Schell-Route was on duty patrolling the southwest portion of the city. At around 2:00 p.m. she was in her patrol car turning from G street onto California Street when she saw [Petitioner] standing on the corner of the intersection, holding his penis and urinating in public. [Petitioner] had his back to G street, but as Schell-Route turned onto California Street she could see him holding his penis with both hands and a stream of urine flowing.
By the time Schell-Route parked her vehicle, [Petitioner] had finished urinating and was walking toward her. She stopped [Petitioner] and explained that he was being detained because she had seen him urinating on a public street. [Petitioner] acknowledged he had been urinating in public, but seemed irritated and annoyed at being detained.
Schell-Route asked to see [Petitioner's] identification. When he did not produce a valid identification, she placed him under arrest. Schell-Route handcuffed [Petitioner] for officer safety purposes because she was by herself. After arresting [Petitioner], Schell-Route conducted a search incident to arrest. She found an off-white substance in [Petitioner's] jacket pocket, which she believed to be rock cocaine. Schell-Route informed [Petitioner] that additionally he was being arrested for possession of rock cocaine. It was subsequently confirmed that the off-white substance was cocaine base in a usable quantity.
On March 6, 2008, [Petitioner] filed a motion to suppress, claiming there was no valid basis for his detention and the rock cocaine was seized as a result of an unreasonable warrantless search. The People opposed the suppression motion, contending that the officer had probable cause to arrest [Petitioner] based upon his violation of Fresno Municipal Code (hereafter FMC) section 9-2512 for urinating in public. At the March 26 hearing on the suppression motion, the trial court denied the motion.
On April 8, 2008, [Petitioner] was charged in count 1 with possession of cocaine base and in count 2 with giving false information to a police officer, a violation of Penal Code section 148.9, subdivision (a). [FN 3] It also was alleged that he had two strike priors for robbery and had served four prior prison terms. The count 2 charge was dismissed on the People's motion and [Petitioner] pled not guilty to the count 1 offense.
FN3. All further statutory references are to the Penal Code unless otherwise specified.
On May 14 and 19, 2008, the trial court denied [Petitioner's] Marsden motions.
On May 27, 2008, defense counsel requested a competency determination. The trial court suspended criminal proceedings and appointed two psychologists to conduct evaluations of [Petitioner]. One found [Petitioner] competent; the other did not. The trial court appointed a third psychologist, who found Oliver competent to stand trial. On September 2, 2008, based upon the evaluations, the trial court found [Petitioner] competent to stand trial.
On October 8, 2008, jury selection for the trial commenced. On October 9, the trial court denied another of [Petitioner's] Marsden motions and also denied his Faretta motion.
At trial, the People presented testimony regarding two prior incidents to establish [Petitioner's] knowledge of cocaine base. In one incident he had a crack pipe in his possession. In the second incident, [Petitioner] had a crack pipe in his possession that had burn markings, residue, and condensation, indicating it recently had been used.
[Petitioner] testified in his own defense and denied urinating in public. He claimed he had been walking in the area when Schell-Route stopped him for no reason. He was homeless and cold and had been wearing a jacket that someone had given him. That jacked had rock cocaine in the pocket, which he told the officer was not his.
The jury convicted [Petitioner] of the count 1 offense. [Petitioner] previously had waived his right to a jury or court trial on the priors and now sought to withdraw his waiver; the trial court denied the request.
On November 13, 2008, the trial court declined to strike the prior convictions and sentenced [Petitioner] to a term of 29 years to life in prison.
Petitioner filed a timely notice of appeal. On May 13, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (Ex. A, to Answer.)
On May 23, 2010, Petitioner filed a petition for rehearing. The Court denied the petition on June 3, 2010, along with a modification of its prior opinion. (Ex. B, to Answer.)
Petitioner filed a petition for review in the California Supreme Court, which was denied on July 21, 2010.
Petitioner did not file any state post-conviction collateral petitions.
Petitioner filed the instant federal petition for writ of habeas corpus on July 11, 2011. Respondent filed a timely answer to the petition on November 10, 2011, and Petitioner filed a traverse on December 6, 2011.
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 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 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, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
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). Under § 2254(d)(1), review is limited to the record that was before the state court adjudicated the claim on the merits. Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398 (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 § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784.
III. Challenge to Warrantless Detention, Seizure and Search
In Ground One, Petitioner contends the warrantless detention, seizure and search was not supported by probable cause because there was no evidence of a "necessary element" of the alleged crime for which he was arrested.
Respondent initially argues that this claim is not exhausted because it was not presented to the California Supreme Court.
In order to exhaust a habeas claim, the petitioner must provide the highest state court with an opportunity to rule on the merits of the claim. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982). The claim must be "fairly presented," and the petitioner must present "the state courts with the same claim he urges upon the federal courts. Picard v. Connor, 404 U.S. 270, 276 (1971); see also Duncan v. Henry, 513 U.S. 364 (1995) (per curiam).
Petitioner did not present this claim in his petition for review submitted to the California Supreme Court. Petitioner only presented this issue on direct appeal to the California Court of Appeal. However, the claim was not repeated in his petition for review in the California Supreme Court, nor did he file a state habeas petition in the California Supreme Court asserting the issue. Accordingly, Petitioner has failed to satisfy the exhaustion requirement and the claim is subject to dismissal. Nonetheless, for the reasons explained below, the claim is clearly without merit and must be denied. 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406 F.3d 623-624 (9th Cir. 2005).
A federal district court cannot grant habeas corpus relief on the ground that evidence was obtained by an unconstitutional search and seizure if the state court has provided the petitioner with a "full and fair opportunity to litigate" the Fourth Amendment issue. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052 (1976); Woolery v. Arvan, 8 F.3d 1325, 1326 (9th Cir. 1993), cert denied, 511 U.S. 1057 (1994). The only inquiry this Court can make is whether petitioner had a fair opportunity to litigate his claim, not whether petitioner did litigate nor even whether the court correctly decided the claim. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); see also Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (holding that because Cal. Penal Code § 1538.5 provides opportunity to challenge evidence, dismissal under Stone was necessary).
The policy behind the Stone Court's analysis is that the exclusionary rule is applied to stop future unconstitutional conduct of law enforcement. Stone, 428 U.S. at 492. However, excluding evidence that is not untrustworthy creates a windfall to the defendant at a substantial societal cost. See Stone, 428 U.S. at 489-90; Woolery, 8 F.3d at 1327-28. Thus, the Ninth Circuit has described the rationale for this rule by saying:
The holding is grounded in the Court's conclusion that in cases where a petitioner's Fourth Amendment claim has been adequately litigated in state court, enforcing the exclusionary rule through writs of habeas corpus would not further the deterrent and educative purposes of the rule to an extent sufficient to counter the negative effect such a policy would have on the interests of judicial efficiency, comity and federalism.
Woolery, 8 F.3d at 1326; see also Stone , 428 U.S. at 493-494.
California provides defendants such an opportunity in the trial court through California Penal Code section 1538.5. Petitioner in fact filed a suppression motion and the trial court held a hearing and considered the evidence but denied the motion. Because the state court provided Petitioner with a "full and fair opportunity to litigate" his Fourth Amendment issue, the claim must be denied. Stone, 428 U.S. at 494.
IV. Ineffective Assistance of Counsel Claims
In Ground Two, Petitioner raises the following five claims of ineffective assistance of counsel: (1) counsel failed to develop and argue at the suppression hearing that the deserted nature of the area of G and California Street rendered Petitioner not guilty of violating the municipal code section for which he was arrested; (2) counsel failed to show Petitioner's actions did not indicate that he committed any felony warranting an investigation; (3) counsel failed to follow Petitioner's request to test the drug "without 'traces or debris'"; (4) counsel failed to investigate and perform at the 1368 hearing; and (5) counsel failed to present any mitigating argument or evidence at the sentencing hearing.
As with Ground One, Respondent argues that his ineffective assistance claims are not exhausted because the claims were not presented to the California Supreme Court. Notwithstanding the lack of exhaustion, for the reasons explained below the claims are plainly without merit. 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406 F.3d at 623-624.
In addressing Petitioner's related suppression motion claim in conjunction with the ineffective assistance of counsel claim, the state appellate court held as follows:
[Petitioner] contends the trial court erred in denying his motion to suppress the evidence. Specifically, [Petitioner] argues the warrantless detention, search, and seizure were unsupported by probable cause because all necessary elements of the offense were not established. The People claim this issue is forfeited because [Petitioner] failed to raise this specific point in his moving papers filed with the trial court.
We decline to treat the issue as forfeited. When a defendant has been subjected to a warrantless search or seizure, he or she is not required to anticipate the People's justification for proceeding without a warrant. "Therefore, defendants who do not know, and hesitate to guess, what justification the prosecution might offer can simply await the prosecution's argument and evidence, and then respond with specific objections. [Citation.]" (People v. Williams (1999) 20 Cal.4th 119, 136, 83 Cal.Rptr.2d 275, 973 P.2d 52.) Under Williams, [Petitioner] was not required to assert with specificity in his moving papers the grounds for objecting to a warrantless search and seizure.
When reviewing the denial of a motion to suppress, we employ a two-prong standard of review. We begin by viewing the record in a light favorable to the ruling and "defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729 (Glaser).) We then exercise our independent judgment to determine "whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment." (Ibid.)
The warrantless detention, search, and seizure were valid. Section 1538.2 governs motions to suppress evidence obtained as a result of a search or seizure. Section 1538.5, by its terms, authorizes a motion to suppress if "The search or seizure without a warrant was unreasonable." (People v. Cutley (1970) 12 Cal.App.3d 732, 746, 90 Cal.Rptr. 783, quoting § 1538.5, subd. (a).) "The clear implication of the subsection is that the evidence need not be suppressed, if the seizure was reasonable. To state the implication positively: a warrantless seizure of evidence may be valid if reasonable cause for the seizure exists." (Ibid.)
Here, Schell-Route stopped [Petitioner] after she observed him urinating on a public street. The officer testified she arrested him for this offense, which is a misdemeanor set forth in FMC section 9-2512. Following [Petitioner's] arrest, Schell-Route conducted a search incident to arrest, during which she discovered the baggie with crack cocaine.
The Fourth Amendment allows a police officer to make a custodial arrest, even for minor offenses. (Atwater v. Lago Vista (2001) 532 U.S. 318, 323, 121 S.Ct. 1536, 149 L.Ed.2d 549 [arrest for violation of seatbelt law upheld].) Atwater upheld a custodial arrest for a violation of Texas's seatbelt law, an offense punishable by a fine of not less than $25 or more than 450. (Ibid.) Under Atwater, all that is needed to justify a custodial arrest is a showing of probable cause. "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." (Id. at p. 354.)
There "is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense. [Citation.]" (People v. McKay (2002) 27 Cal.4th 601, 607, 117 Cal.Rptr.2d 236, 41 P.3d 59 (McKay).) In McKay, the defendant was arrested because he failed to produce a driver's license or other identification when requested by an officer. (Id. at p.606, 117 Cal.Rptr.2d 236, 41 P.3d 59.)
[Petitioner] contends, however, that Schell-Route did not have probable cause to arrest him. FMC section 9-2512 provides:
"No person shall commit a nuisance in any public place, or upon any private property, or in any place where there are other persons to be offended or annoyed thereby. The phrase 'commit a nuisance' as used in this section shall mean evacuate the bowels or bladder at a place not provided for that purpose."
[Petitioner] argues there was no one present to be annoyed or offended by his urinating in public because the street corner was deserted; consequently, there was no probable cause ...