The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner was convicted by jury of misdemeanor driving under the influence of alcohol and driving with a blood alcohol level of .08% or more, and was sentenced to jail time and probation. Petitioner now proceeds with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition, arguing that it is untimely. Petitioner has opposed the motion. For the reasons outlined below, the motion to dismiss is granted.
On November 21, 2008, a jury found petitioner guilty of violating: (1) section 23152(a) of the California Vehicle Code, willfully and unlawfully driving a vehicle while under the influence of an alcoholic beverage; and (2) section 23152(b) of the California Vehicle Code, willfully and unlawfully driving a vehicle while having a 0.08% or more by weight of alcohol in his blood. See Lodged Doc. No. 1 at 258. The jury also found true the additional allegation that petitioner did willfully and unlawfully drive a motor vehicle with a concentration of alcohol in his blood of 0.15% or more by weight, within the meaning of section 23578 of the California Vehicle Code. Id.
Petitioner admitted a prior conviction as to each count, see id. at 260-61, and was sentenced to summary probation for three years, and to 15 days in jail. Id. at 267-68.
Petitioner appealed his conviction to the Appellate Division of the Superior Court. See Doc. No. 1, Application for Writ of Habeas Corpus, at 2. On December 18, 2009, in light of new Supreme Court law governing the introduction of testimony in support of blood alcohol lab results, the Appellate Division reversed the judgment as to petitioner's conviction for driving with a blood level in excess of 0.08%, and as to the high blood alcohol allegation, and affirmed as to the conviction for driving under the influence of alcohol:
After [petitioner's] trial, the United States Supreme Court found that lab certificates analyzing drugs and prepared for trial are "testimonial" under Crawford v. Washington, (2004) 541 U.S. 36, and violate criminal defendants' Confrontation Clause rights if admitted over timely objection, and without testimony from the forensic analyst who conducted the tests, unless the analyst was unavailable, and defendant had a prior opportunity for cross-examination. (Melendez-Diaz v. Massachusetts (2009), 557 U.S. -, 129 S. Ct. 2527, 2532).
The California Supreme Court has granted review, and is currently considering granting review in several Court of Appeal cases addressing whether Melendez-Diaz affects People v. Geir (2007) 41 Cal.4th 555, which authorizes an analyst's supervisor to testify about lab results, in place of the lab analyst who conducted the tests and obtained the results. Here, the record on appeal establishes that over trial counsel's timely Confrontation Clause objections, the trial court admitted [petitioner's] blood alcohol lab report, and testimony regarding the lab results.
However, the analyst who tested [petitioner's] blood did not testify at trial. Instead, the analyst's supervisor, who did not observe the analyst as she tested [petitioner's] blood, testified. The People claimed that the analyst who tested [petitioner's] blood was unavailable because she had moved to another state. However, it was undisputed that [petitioner] had not had the opportunity to cross-examine her. And, because the People offered the lab report and results into evidence, the Confrontation Clause imposed the burden on the People to present its witnesses, not on the defendant to bring those adverse witnesses into court. (Melendez-Diaz, supra, 129 S. Ct. 2540.) As such, the panel finds that the lab report and the results should not have been admitted into evidence. [Petitioner] did not perform any field sobriety tests. His blood alcohol concentration was therefore significant evidence in established that his blood alcohol exceeded .08%. Because the lab result evidence was admitted over [petitioner's] timely confrontation clause objections, the judgment is reversed as to his conviction for violating vehicle Code section 23152(b), and as to the high blood level alcohol allegation. However, after considering all the evidence at trial, the panel finds that there was overwhelming evidence that [petitioner] drove while intoxicated. For instance, [petitioner] stopped abruptly and irregularly for a red light, drove abnormally slow, turned abruptly, smelled of alcohol, mumbled, admitted consuming alcohol, had red, watery eyes, was slow and unsteady on his feet, and had difficulty walking. In addition, the criminalist, an expert, testified that such symptoms are consistent with intoxication. Therefore, after careful consideration of the record, the Panel finds that with regard to [petitioner's] conviction for violating Vehicle Code section 23152(a), the error in admitting the blood test results was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) As such, the judgment is affirmed as to [petitioner's] conviction for violating vehicle Code section 23152(a).
See Lodged Doc. No. 2 at 1-2.
On January 19, 2010, the appellate division denied petitioner's request for certification of the matter to the court of appeal. See Doc. No. 1 at 3. On February 11, 2010, the Court of Appeal, Third Appellate Division, denied petitioner's request for a transfer of the matter to the Court of Appeal under California Rule of Court 8.1008. See id.; see also Lodged. Doc. No. 3.
On April 7, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which petition was denied on June 17, 2010. See Lodged Doc. Nos 4, 5.
Petitioner filed the current petition on August 10, 2011. See Doc. No. 1. Petitioner argues that he was denied his right to confrontation when the trial court allowed the state to use in evidence a report whose author was not available to testify at petitioner's trial, and that he was prejudiced by the state's use of the report, resulting in a conviction for driving under the influence. See Doc. No. 1-1. Petitioner further argues that the state court erred in finding that admission of the ...