The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both petitioner and respondent have consented to the jurisdiction of the undersigned. (Dkt. Nos. 4, 11.)
Petitioner challenges his 2009 conviction for sale of cocaine base (Cal. Health & Saf. Code § 11352(a)), with one prior serious felony conviction and two prior prison terms (Cal. Penal Code §§ 667(b)-(i) and 667.5(b)). Petitioner is serving a sentence of nine years.
This action is proceeding on the original petition filed May 11, 2011. Petitioner raises the following claims: 1) prosecutorial misconduct; and 2) ineffective assistance of counsel. After carefully reviewing the record, the undersigned orders the petition denied.
II. 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.
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, 405-06 (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)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
The opinion of the California Court of Appeal contains a factual summary of petitioner's offense. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein:
In April 2008, detectives from the narcotics suppression unit conducted an undercover buy-bust operation in the area of 44th Avenue and Martin Luther King, Jr. Boulevard, an area known for high drug and gang activity. In the operation, an undercover officer is given prerecorded funds to make a buy. Once the buy is made, the undercover officer relays the information to the case agent through a one-way monitoring device. He describes the subjects for the arrest team. The arrest team takes a picture of each subject for the undercover officer to identify.
Brandon Luke served as the undercover officer. He drove down 44th Avenue and saw two Black males on bikes, defendant and Raymond Weber. He asked them "What's up with it?" Defendant asked Luke what he wanted and Luke replied, "a dub of cream," which is street slang for $20 worth of rock cocaine.
Defendant said he did not have it on him, but his "kid" did and then said, "there goes my son." Defendant rode his bike up to and around Anthony Blake, who handed defendant something. Defendant rode his bike to a driveway. Weber directed Luke to the driveway where defendant was waiting. Defendant took out a rock and put it in Luke's hand. Luke gave defendant a $20 prerecorded bill.
As defendant and Weber went to Blake's location, Luke advised the monitoring case agent over the transmitter that the transaction was complete. The rock defendant gave Luke was .36 grams of cocaine base.
Anthony Turnbull, on the arrest team, got the information that the buy was completed and a description of the suspect. He saw defendant and approached. Blake began to walk away. Defendant was sitting on some stairs; when Turnbull identified himself as an officer, defendant stood and dropped money between the steps. Turnbull retrieved the money; it was a $20 bill that matched the serial number of one of the prerecorded bills.
Luke met with the case agent for the operation and viewed photographs of the three men detained, defendant, Blake and Weber. He identified them as the men involved in the buy. He identified defendant as the seller at trial.
Blake testified for the defense, claiming he was the sole responsible party for the drug sale. That day he was in the area of 44th Avenue selling drugs, specifically rock cocaine. He met defendant and gave him a cigarette and "some love." Then, Blake sold drugs to a man in a car. Blake was vague about the transaction; he could not recall how exactly it happened. He could not remember if the buyer handed him money or if he (Blake) had other money. Blake did not address disposing of the recorded $20 bill. He claimed the buyer said nothing; Blake just knew he wanted drugs. Defendant was on or near the stairs when the sale took place.
In a declaration that Blake had signed earlier, Blake stated the buyer walked up to defendant and said something. At trial, Blake claimed that was incorrect.
Blake had met defendant when he was young, 11, 12, or 13 years old. He was 19 at the time of the sale. When Blake got out of a group home at age 18, defendant lent him some money to help him out; defendant gave Blake his number and told Blake he would look out for him. Blake did not come forward earlier because he was ashamed he had lied to defendant about selling drugs and he was scared. Blake explained that when he got out of custody, "I was referred that I should call the number and say what happened, say what really happened." He called and was later told to come to the office of defendant's counsel.
The prosecutor asked Blake about his case being dismissed and if he understood that the district attorney could not file charges against him. Blake testified he did not know charges could not be filed and he thought that was what was happening now, determining whether he would go to jail. He replied yes when asked if he was willing "to ...