The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Buck Boswell, is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-two years after being found guilty by a jury of possession of methamphetamine for sale, sale of methamphetamine, maintaining a place for the sale or use of methamphetamine, possession of marijuana for sale and possession of methamphetamine while armed with a loaded firearm. Petitioner raises several claims in his federal habeas petition; specifically: (1) ineffective assistance of counsel at Petitioner's suppression hearing ("Claim I"); (2) false evidence was used to convict Petitioner ("Claim II"); (3) the prosecutor failed to disclose evidence to the defense ("Claim III"); (4) the prosecutor denied Petitioner reciprocal discovery ("Claim IV"); (5) the State destroyed exculpatory evidence ("Claim V"); (6) outside aspects of Petitioner's trial improperly influenced the jury ("Claim VI"); (7) Petitioner's conviction resulted from uncorroborated accomplice testimony ("Claim VII")*fn1 ; (8) trial court error in failing to instruct the jury that two witnesses were accomplices as a matter of law ("Claim VIII"); (9) prosecutorial misconduct ("Claim IX"); (10) ineffective assistance of counsel at trial ("Claim X"); (11) ineffective assistance of appellate counsel ("Claim XI"); and (12) Petitioner was improperly sentenced to the upper term on his convictions ("Claim XII"). For the following reasons, Petitioner's federal habeas petition should be denied.
II. FACTUAL BACKGROUND*fn2
On November 12, 2005, co-defendant Susan Ray-Bailey rented room 413 at the Holiday Inn Express in Corning. She paid cash each day. She refused maid service, stating her husband was ill. The manager noticed about 15 visitors to the room over the course of four or five days.
Law enforcement officers (the Tehama and Glenn County Methamphetamine team or TAGMET) received information of possible drug activity in room 413.
On November 16, 2005, TAGMET conducted surveillance of room 413 from 9:00 a.m. to 1:00 p.m. The officers did not see defendant. They saw three people leave the room, one of which they recognized as John Osbourne, who was known to frequent locations associated with narcotics but who had never been arrested in Corning for drug offenses. Osbourne left the room about 9:30 a.m. and went to a car in the parking lot. A man in the car removed a two-foot by two-foot metal box. Osbourne, unable to fit the box into a backpack, moved the contents of the box into the backpack and returned to room 413. In addition to Osbourne, two females visited the room and stayed less than 30 minutes. Shortly after hotel staff saw Osbourne in the hotel laundry room, a hotel guest complained of finding marijuana stems and leaves in the laundry room dryer. However, an officer who went to check found nothing.
TAGMET tried to use an informant to make an undercover buy from room 413, but the informant was unable to gain access to the room.
Police obtained a search warrant, entered room 413, and found defendant, co-defendant Carrie Smith, and Carrie Moon. The officers found 51.7 grams of methamphetamine, individually packaged (about 500 doses), plus 157.6 grams of marijuana, hypodermic needles, methamphetamine smoking pipes, two scales, drug packaging materials, a calculator, $4,453 in cash, a notebook of encrypted notations, four police scanners, a notebook listing police radio frequencies, several cellular telephones, a loaded .357 magnum revolver, a .9 millimeter semi-automatic gun with four 15-round clips, and other caliber ammunition. The .9 millimeter gun was in plain sight on top of the coffee table. The revolver was in a drawer. The officers also observed surveillance equipment in the room -- video cameras aimed out the windows, a monitor, binoculars, and night vision goggles. There were no women's clothes in the room, only menswear.
Moon initially told an officer that she was there to return some videos or DVDs. She then said that methamphetamine found in her purse was hers, and she got it from defendant with an understanding that he would be compensated in some way. She also had a glass pipe in her purse.
Smith had methamphetamine in her purse but denied possessing any other items found in the room. Her purse contained keys to a van parked in the hotel parking lot and keys to a metal safe in the van. The metal safe contained marijuana, methamphetamine, and syringes.
Other than his presence, nothing connected defendant to the room or van or anything found in the room or van.
In the parking lot, the police saw and questioned Ray-Bailey, who said she rented the room but denied knowledge of any illegal items. When the officer asked what percentage of her statements were true, she indicated about 90 percent.
The officer testified to his opinion that the narcotics were possessed for sale and the hotel room was being used to distribute drugs.
At trial, Moon testified she went to room 413 to return DVDs her cousin had borrowed. She testified she pled guilty to felony possession of the methamphetamine in her purse. She denied buying the drugs from defendant and denied telling the officer that she bought the drugs from defendant. She testified she spoke with defendant by phone on her way to the hotel, and he said he was there waiting for a ride to Redding. Moon admitted she did not want to testify but denied telling her probation officer that she had been threatened.
Defendant Ray-Bailey presented her "defense" case. No incriminating items were found on her person or in her vehicle. She testified (in narrative form) that she had a bad methamphetamine habit and was having marital problems when she rented the hotel room to store property she planned to sell to raise money to move back to Texas. The men's clothing belonged to her husband. She bought guns at a flea market. She traded drugs for equipment she could sell to raise money. None of the items in the hotel room belonged to defendant. The drugs were hers. She did not obtain any drugs from defendant.
Ray-Bailey said she lied when she told the police that she agreed to rent the room for defendant and provide him food and laundry services, ostensibly because he was a client of her in-home supportive services business. She told the police that she was "in and out" of the room and set up defendant's computer equipment, which she thought was work-related to his construction business. She testified defendant was not staying in the room but, because he was there during the police raid, she told the police that he was staying in the room. When asked on cross-examination if she was afraid of defendant, Ray-Bailey said no. She said she lied to the police because she was scared.
Defendant then put on his defense case. An officer testified room 413 does not look out onto the parking lot, but rather South Avenue and Interstate Highway 5 (which assertedly diminished the usefulness of the room as a place for distribution of drugs). John Osbourne testified there were no males in room 413 during any of his visits, including the day of the raid. Osbourne went to the room that day to bring Ray-Bailey a safe for her to keep property, but the safe was too bulky to carry up the stairs. Osbourne was arrested that day and was convicted of possessing a deadly weapon and methamphetamine.
Prior to trial, Petitioner's trial counsel filed a motion to unseal the search warrant affidavit, to quash the search warrant and to suppress the evidence seized during the raid on the hotel room. (See Clerk's Tr. at p. 41-60.) In that motion, Petitioner argued that the search warrant should be unsealed to protect Petitioner's due process rights to discovery. (See id. at p. 45.) Petitioner also argued that the evidence obtained via the search warrant should be suppressed because the search warrant was not supported by probable cause. (See id. at p. 45-47.) Finally, Petitioner argued that the police's knock and announce was inadequate. (See id. at p. 47-49.)
On January 23, 2006, the state court conducted a People v. Hobbs, 7 Cal. 4th 948, 30 Cal. Rptr. 2d 651, 873 P.2d 1246 (1994) hearing regarding the confidentiality of the informant's identity. Subsequently, the state court found that there was a reasonable likelihood that a motion to suppress might be granted and ordered that the confidential portion of the search warrant be disclosed and opened. (See Clerk's Tr. at p. 95.)
On February 10, 2006, Petitioner filed supplemental points and authorities in support of his motion to quash and traverse the warrant and to suppress evidence. (See id. at p. 75-92.) Petitioner also attached an affidavit from Osbourne to his supplemental points and authorities. (See id. at p. 84-85.) Petitioner argued in his supplemental filing that the attached Osbourne affidavit contradicted portions of the search warrant. (See id. at p. 77.) He further argued that Osbourne's affidavit thereby created a lack of "independent corroboration to the third hand assertions of the untested confidential informant." (See id.) Counsel also asserted that the information from an untested confidential informant was uncorroborated and therefore was insufficient to find probable cause for the search warrant. (See id. at p. 78-79.) Additionally, Petitioner's counsel asserted that a reasonable law enforcement officer could not harbor a good faith reliance on a search warrant so lacking in indicia of probable cause. (See id. at p. 80-82.)
On February 16, 2006, the state court conducted a hearing on the motion to quash the search warrant and to suppress evidence. (See Reporter's Tr. at p. 51-114.) Ultimately, the state court found as follows:
[A] general outline is we do not have an anonymous informer. We have an informer who has previous contacts, that is the information that was just unsealed as to that informer . . . .
What the informant heard was a conversation with someone named Buck about a drug buy then in conversation asked and was told Buck was at 413 and room 413 in the Holiday Inn. There was conversation about there being a pound of crystal meth there and possible guns there and that this person had purchased before. Further, the informant I think it is with Ms. Weilmunster . . . . I don't know if that is the way to pronounce it and they put her in a control situation that is while they put a monitor on her after talking with Cadotte. They gave her money. She took that money and give it to Ms. Cadotte. They then drove together and Ms. Cadotte took evasive action at the time, which by itself is not, a lot of these facts by themselves are not probable cause but I am adding them together. She took evasive action while going down to the hotel. Why they did drop the informant off, the money was exchanged, the officers watched her go into the Holiday Inn. She returned with the drugs. She showed the drugs to the informant. This is all on a taped encounter.
Switching over to what was happening in a parallel scene, people working with the Red Bluff Police Department and TAGMET, specifically including Officer Norwood had the Holiday Inn under surveillance, specifically room 413. They determined that the guest in 413 who is one of these defendants was registered there, that that guest was receiving calls and visitors in excess of normal, what would be normal. The guest also was found to live in Corning on Fig Avenue. I am not required to block out of my mind the fact that I work in Corning everyday and that means that this guest at 413 in the Holiday Inn was renting a room from just a short drive from where she lived. This is known to be a drug practice and so stated or sales practice. They then saw a John Osbourne exit room 413, they know him to be a person who frequents places where drugs are and are being sold. They see him walking to the parking lot and contact another male removing a large safe from the truck attempting to get it into a canvas bag, ultimately unable to do that removing the contents and putting them in a bag. They are looking nervous, looking around, attempting to conceal their stuff and then go back to 413 and the officer believes this is part of drug traffic.
On that day, I believe it was 9:43, defendant Bailey exited room 413 and went to the front desk where she renewed for a night and made an unusual request that she did not want anyone in that room quote and got her own bed sheets. That is another fact by itself not probable cause but certainly consistent with the observations and conclusions drawn by the officer.
Furthermore, we have staff reports that Osbourne was in the laundry room and he was there. 45 minutes later, the guests were complaining of the smell of marijuana and they found marijuana seeds and stems from where he had been in the laundry room.
And when you add all of these things together I am finding that there was probable cause and I am denying that portion of the motion. (Reporter's Tr. at p. 67-69.)
After Petitioner was convicted and sentenced by the trial court, he appealed to the California Court of Appeal. Among the issues that Petitioner raised in his direct appeal were the following: (1) the search warrant affidavit incorporating by reference an unsworn statement of probable cause violated the Fourth Amendment; (2) there was a lack of corroboration with respect to the accomplice testimony; (3) the trial court erred in failing to instruct the jury that Ray-Bailey and Moon were accomplices as a matter of law; (4) prosecutorial misconduct by using an unsupported insinuation that Moon and Ray-Bailey were afraid of Petitioner; (5) prosecutorial misconduct during closing argument; (6) the Petitioner had the right to be present during re-sentencing; and (7) the imposition of the upper term in sentencing Petitioner violated the Sixth Amendment. The California Court of Appeal affirmed the judgment on August 21, 2007. Next, Petitioner filed a petition for review to the California Supreme Court. The California Supreme Court summarily denied the petition for review on November 14, 2007.
Petitioner filed a petition for writ of habeas corpus in the Tehama County Superior Court on November 18, 2008. Petitioner raised twenty claims in that state habeas petition; specifically, Petitioner asserted the following: (1) evidence used to convict Petitioner was the product of an unconstitutional search and seizure (argument 1); (2) evidence used to convict Petitioner was seized on the basis of a facially invalid warrant (argument 2); (3) the suppression hearing judge was not neutral (argument 3); (4) Petitioner's conviction resulted from the admission of accomplice testimony that was uncorroborated (argument 4); (5) four claims of insufficiency of the evidence (arguments 5 through 8); (6) Brady violation when the prosecutor failed to file a report of Moon's exculpatory statement that she gave to the prosecutors (argument 9); (7) Brady violation by failing to disclose exculpatory information provided to the prosecutors by Osbourne (argument 10); (8) denial of reciprocal discovery (argument 11); (9) destruction of exculpatory evidence (argument 12); (10) the prosecutor misrepresented the facts when he told the jury that only men's wear was found in the hotel room (argument 13); (11) hearsay/confrontation clause violation when the agent testified that the only clothes found in the hotel room were men's wear (argument 14); (12) co-defendant's confession improperly used (argument 15); (13) improper outside influences on the jury (argument 16); (14) prosecutorial misconduct (argument 17); (15) ineffective assistance of counsel (argument 18); (16) ineffective assistance of appellate counsel (argument 19); (17) the evidence that only men's wear was found in the hotel room which was used to convict Petitioner was false (argument 20).
In January 2009, the Superior Court issued a written decision denying the state habeas petition. It denied arguments one, two, three, four, five, six, seven, eight, thirteen, fourteen, fifteen and seventeen by relying on People v. Senior, 33 Cal. App. 4th 531, 41 Cal. Rptr. 2d 1 (1995) and stating that these arguments could have been raised on direct appeal. With respect to the remaining arguments, the Superior Court denied them as follows:
Ground Nine: The declaration of Defendant/Petitioner is not sufficient to establish the facts alleged. Defendant/Petitioner has no personal knowledge regarding the allegations. Simply including it in a petition is not sufficient. Furthermore, even if the Court assumes that the allegations are true, the fact that the prosecution may have failed to disclose exculpatory evidence is not, in and of itself, sufficient to warrant relief. For example, in this case, it is not at all clear from the petition that Defendant/Petitioner did not already know the information that Defendant/Petitioner alleges the prosecution failed to disclose at or before the time of trial. If Defendant/Petitioner already knew the information, failure to disclose had no bearing on Defendant/Petitioner's right to a fair trial. Finally, again assuming that the allegations are true, the allegations of the petition are insufficient for the Court to even conclude that the non-disclosed information was exculpatory. Ground Ten: Evidently, the alleged Brady violation had to do with the issuance of a search warrant. As such, it cannot be a "Brady violation," because such a violation bears upon exculpatory evidence. The issuance of a search warrant has no relationship to guilt or innocence. Furthermore, as an exhibit, there was included a declaration from a John Osbourne, which Defendant/Petitioner alleges supports his claim. Since the declaration is dated February 9, 2006, it indicates that Defendant/Petitioner was aware of the facts allegedly withheld prior to the time of trial, and it further indicates that this issue could have been raised on appeal. Ground eleven is an allegation that reciprocal discovery was denied. Assuming the allegation is true, failure of the prosecution to provide discovery, in and of itself, does not warrant issuance of either a writ, or an order to show cause. The facts alleged in the petition are simply insufficient for the Court to determine what, if any, bearing this may have had on the ability of Defendant/Petitioner to present a defense at trial.
Ground twelve is an allegation that the prosecution destroyed exculpatory evidence, specifically what could have been women's clothing. As Defendant/Petitioner points out, the exculpatory nature had to be evident at the time of its destruction. Actually, this is not a case of destroying exculpatory evidence, it is a case more appropriately alleged as a failure to maintain exculpatory evidence. The problem with the allegation is that whether or not it's exculpatory, taken all of the allegations in their best light would depend on whether, in fact, there was women's clothing that was observed by the officers. The only evidence is that there was not. The allegations of the petition merely allege that there could have been. Such an allegation without any indication that, in fact, there was women's clothing that was not maintained as evidence is mere speculation and is insufficient to warrant relief.
Ground Sixteen: Assuming the truth of the allegations, it is mere speculation what, if any, impact this may have had on members of the jury and, therefore, the allegations are insufficient to warrant relief.
Ground Eighteen: All but one of the allegations are matters of record which could have been raised on appeal and, therefore, are procedurally barred. The one allegation that is not is that defense counsel failed to do adequate investigation. However, there is no evidence other than Defendant/Petitioner's mere claim not based upon any allegation of personal knowledge that, in fact, defense counsel failed to investigate. Therefore, relief is not warranted. Ground Nineteen: Defendant/Petitioner alleges ineffective assistance of appellate counsel. The recurring problem of allegations of this nature is that the trial court, specifically this Court, does not have a complete record of appellate court proceedings. In other words, this Court does not know what arguments were made, or positions were taken by appellate counsel. Mere allegations in the petition of what appellate counsel did, or did not do are simply not sufficient to warrant granting relief by way of a writ or order to show cause in this court. Ground Twenty: Generally speaking, whether evidence is true or false is for determination of the trier of fact in the trial court. Unless there is a demonstration in a petition for writ of habeas corpus that any false evidence is such that it unerringly points to a petitioner's innocence and undermines the entire case of the prosecution, it is insufficient to warrant writ relief. [In re Weber (1974) 11 Cal.3d 703, 724.] The allegations of this petition do not meet that criteria. (Resp't's Answer Ex. B at p. 2-4.)
Petitioner then filed a state habeas petition in the Court of Appeal which denied the petition. Petitioner then filed a state habeas petition in the California Supreme Court. Petitioner raised the twenty arguments he previously raised in the Superior Court along with two additional arguments. Specifically, Petitioner asserted in argument twenty-one that appellate counsel was ineffective by failing to raise a confrontation clause argument when Moon's statement that she made to police that she received the drugs from Petitioner was included at trial. In argument twenty-two, Petitioner argued that his counsel was ineffective at the suppression hearing. The California Supreme Court denied Petitioner's state habeas petition on January 13, 2010.
Petitioner subsequently filed the instant federal habeas petition. Respondent answered the petition on October 27, 2010. On February 1, 2011, Respondent filed a traverse.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009). When no state court has reached the merits of a claim, de novo review applies. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005).
As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
V. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner raises multiple ineffective assistance of counsel claims arising out of the suppression hearing. Petitioner argues that counsel was ineffective by: (1) failing to read the transcript of a hearing that was conducted to determine the identity of an informant pursuant to Hobbs, 7 Cal. 4th 948, 30 Cal. Rptr. 2d 651, 873 P.2d 1246, thereby prejudicing the Petitioner by failing to use the information in that transcript at the suppression hearing; (2) failing to object to the judge at the suppression hearing who was the same judge who issued the search warrant; (3) failing to argue that the drug enforcement agents did not know where Cadotte went in the hotel, what Cadotte showed the informant and where she got the stuff she showed the informant; (4) failing to argue that the informant could only hear Cadotte's side of a telephone conversation she had with an individual named "Buck"; (5) failing to move to exclude the sealed portion of the search warrant affidavit; (6) failing to argue that Osbourne was no longer in the subject hotel room because he had been detained and questioned by officers and that Osbourne offered statements to the agents that were helpful to Petitioner; (7) failing to object to agent's assertion that Osbourne frequents places associated with narcotics; (8) failing to investigate a videotape of Osbourne in the hotel parking lot; (9) failing to attack the assertion that an excessive number of visitors frequented the subject hotel room; (10) failing to bring to the court's attention that requesting linens and asking to not be disturbed at a hotel are not unusual requests; and (11) failing to raise issue to the court that Osbourne denied being in the laundry room.
Respondent argues in his answer that some of the arguments within Claim I are procedurally defaulted. Specifically, he argues that Petitioner's arguments that his attorney failed to effectively cross-examine the drug agents at the suppression hearing (to the extent it is included within Claim I) was procedurally defaulted based on the Superior Court's ruling on Petitioner's state habeas petition. Respondent also argues that two other arguments are procedurally defaulted within Claim I; specifically that the judge was biased and that counsel failed to raise the issue of where Cadotte went within the hotel. These are the only three issues that Respondent argues are procedurally defaulted within Claim I. However, in the interests if judicial economy, and because all of Petitioner's arguments within Claim I are without merit, the procedural default argument raised by Respondent within Claim I will not be addressed.
See Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same.").
The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id.at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. See id. "[C]counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.
Second, a petitioner must affirmatively prove prejudice. See id.at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.at 694. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Id."The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, __ U.S. __, 131 S.Ct 770, 792, 178 L.Ed.2d 624 (2011). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697). When analyzing a claim for ineffective assistance of counsel where a state court has issued a decision on the merits, a habeas court's ability to grant the writ is limited by two "highly deferential" standards. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011). "When § 2254(d) applies the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. (internal quotation marks and citation omitted); see also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) ("Under § 2254(d)'s 'unreasonable application' clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Stricklandincorrectly. Rather, it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.") (citations omitted).
i. Failure to read Hobbs transcript
Petitioner first argues that his counsel was ineffective when he
failed to read the transcript of the Hobbs hearing prior to the
suppression hearing. Petitioner claims that the judge at the Hobbs
hearing "clearly found that there was no probable cause to issue the
search warrant." (Pet'r's Pet. at p. 3.) First, Petitioner is mistaken
that the judge who conducted the Hobbs hearing "clearly found" that
there was no probable cause to issue the search warrant. Rather, the
judge at the Hobbs hearing was only determining whether there was a
reasonable probability whether or not the motion to quash the search
warrant could be granted in the context of determining whether to
disclose the sealed search warrant affidavit. (See Pet'r's Pet. Ex. F
at p. 32 ("Counsel, first understand that I'm not finding whether or
not a Motion to Quash should be granted, I'm only finding whether
there is a reasonable probability that one could be granted.").)
Second, Petitioner's assertions regarding whether or not his counsel's
conduct fell below an objective standard of reasonableness by failing
to review the Hobbs hearing transcript are conclusory.*fn3
Conclusory allegations do not warrant granting federal habeas
relief. See James v.
Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which
are not supported by a statement of specific facts do not warrant
habeas relief."). Accordingly, this argument should be denied.
ii. Failure to object to same judge conducted suppression hearing that issued search warrant Next, Petitioner argues that trial counsel was ineffective for failing to object to the same trial judge conducting the suppression hearing that issued the search warrant. However, under California law, a motion to suppress evidence should first be heard by the judge who issued the search warrant. See Cal. Penal Code § 1538.5(b). Petitioner comes forward with nothing concerning the state judge's biasness aside from the fact that he issued the search warrant. Thus, had Petitioner's counsel objected to the same judge conducting the suppression hearing, it would have been denied. An attorney's failure to make a meritless objection does not constitute ineffective assistance of counsel. See Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009) (concluding counsel's failure to object to testimony on hearsay grounds not ineffective where objection would have bene properly overruled); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("[T]he failure to take a futile action can never be deficient performance . . . ."). Accordingly, Petitioner is not entitled to federal habeas relief on this argument.
iii. Failure to argue that the agents did not know where Cadotte went in the hotel, what Cadotte showed the informant and where Cadotte got the stuff she showed the informant Petitioner argues that counsel was ineffective because he did not argue that the agents did not know where Cadotte went inside the Holiday Inn to get the drugs. Furthermore, Petitioner argues that counsel should have objected at the suppression hearing that there was nothing to establish what Cadotte showed the informant nor where she got the stuff that Cadotte showed the informant. However, as noted by the Respondent, Petitioner's counsel did in fact argue that there was nothing to show that Cadotte had ever actually been inside room 413 of the Holiday Inn. (See Reporter's Tr. at p. 70 ("There is nothing, for example, to show that Ms. Cadotte had ever been in the room . . ."). Additionally, Petitioner's counsel argued the following in his supplemental brief before the suppression hearing was held:
The police gave this informant money to buy drugs. The informant goes on a car ride with someone purportedly to make the drug buy.
Three hundred and ten dollars of the buy money disappear during the during the course of this car trip and, in the end, the informant is unable to produce any drugs for her police paymasters. (Clerk's Tr. at p. 79.) Accordingly, based on these arguments that Petitioner's counsel actually made, Petitioner has failed to show that trial counsel's performance fell below an objective standard of reasonableness.
iv. Failure to object that the informant could not hear the other side of the phone call Cadotte had with "Buck"
In his next argument, Petitioner argues that counsel was ineffective for failing to object to the fact that the informant could only hear one side of the conversation that Cadotte was having with "Buck." Contrary to Petitioner's argument, counsel did challenge the fact that the informant could only hear one side of the conversation. (See Clerk's Tr. at p. 79 ("There is no explanation in the affidavit as to how Weilmunster could hear both sides of the conversation but the affidavit clearly states her information in those terms."). Accordingly, Petitioner failed to show that counsel's performance fell below an objective standard of reasonableness because he did in fact make this argument.
v. Failure to move to exclude the sealed portion of the search warrant affidavit
Petitioner argues that counsel was ineffective for not moving to have the sealed portion of the affidavit excluded from the determination of whether there was probable cause to obtain the search warrant. However, Petitioner's counsel did argue that the sealed portion of the affidavit was not credible and therefore could not be the basis of probable cause to support the search warrant. (See Clerk's Tr. at p. 79 ("To call this credible information upon which to base probable cause is to take a step toward the ridiculous.").) Accordingly, Petitioner fails to show that counsel's actions fell below an objective standard of reasonableness because he did make this argument.
vi. Failure to argue that Osbourne was no longer in the subject hotel room because he had been detained and questioned by officers and that Osbourne offered statements to the agents that were helpful to Petitioner
Petitioner also argues that counsel was ineffective regarding several of his arguments with respect to Osbourne and relevant evidence from him. Petitioner's trial counsel attached an affidavit from Osbourne to his supplemental brief in which Osbourne stated the following:
3. On November 16, 2005 at approximately 9:00 a.m. I was in and about the premises commonly known as the Holiday Inn Express Hotel, Corning, California.
4. While at the Holiday Inn I was in possession of a metal safe which was my personal property.
5. I had the metal safe while I was in the parking area of the hotel.
6. The metal safe was completely empty at all times that I was present at the hotel.
7. After unsuccessfully attempting to place the safe in a bag, I left the parking lot adjacent to the hotel and went inside to Room 413.
8. I was admitted to Room 413 and remained there for about one hour.
9. While I was inside Room 413 there were only two other people inside the room. Susan Ray-Bailey and another female.
10. Buck Edward Boswell was not present while I was inside Room 413.
11. I never entered or used the laundry facilities within the Holiday Inn Hotel.
12. At approximately 3:30 p.m. on November 16, 2005 I was detained by Corning Police Department Officer David Pryatel.
13. Officer Pryatel took me to the Corning Police Department.
14. While at the Corning Police Department I was shown a video tape recording of myself in the parking area of the Holiday Inn Hotel made by Agent Norwood.
15. I was shown a photograph of a James Palmer and asked by Agent Norwood if Palmer was in Room 413 when I was there.
16. I told Agent Norwood that I only saw Susan Ray-Bailey and another female in the room while I was there.
17. I was asked if there was a male in Room 413 with firearms.
18. I told Agent Norwood that I had no knowledge of a male with firearms in Rome 413. (Clerk's Tr. at p. 84-85.) Petitioner's counsel presented the state court with Osbourne's affidavit in an attempt to undercut the probable cause of the search warrant. In fact, counsel made this explicit argument in his supplemental brief. (See Clerk's Tr. at p. 77.) Accordingly, Petitioner failed to show that his counsel's actions/inactions regarding using information from Osbourne fell below an objective standard of reasonableness. Petitioner's trial counsel used and relied on Osbourne's affidavit attached to his supplemental brief in attempting to show that the search warrant lacked probable cause. Thus, Petitioner failed to show that counsel was ineffective.
vii. Failure to object to agent's assertion that Osbourne frequents places associated with narcotics
Petitioner next asserts that counsel was ineffective for failing to object to the narcotic agent's assertion in the search warrant affidavit that Osbourne is known to frequent places associated with narcotics. In support of this argument, Petitioner asserts that the agent testified at trial that neither he nor any other officer that he knows had ever arrested Osbourne for drugs. (See Pet'r's Pet. at p. 15.) At trial, the agent testified that he could not recall whether he had any recollection of whether Osbourne had been arrested for narcotics. (See Reporter's Tr. at p. 160.) However, the point that the officer could not recall whether Osbourne had been arrested does not establish that the agent's statement in the search warrant affidavit that Osbourne frequented places with narcotics was false. Rather, it only indicates that Osbourne may have never been arrested for drugs based on what the officer could recall, not that he never frequented places that were known to have narcotics. Thus, Petitioner fails to show that he is entitled to federal habeas relief on this ineffective assistance of counsel argument as he fails to show to a reasonable probability that the outcome of the proceeding would have been different had the objection been made.
viii. Failure to view videotape of Osbourne in the parking lot Next, Petitioner argues that counsel was ineffective for not viewing the videotape of Osbourne in the parking lot. Petitioner argues that this would have shed light on whether Osbourne ever emptied anything out of the safe as the agents claim, or whether Osbourne's statements in his affidavit that he was trying to simply put the safe in a duffel bag was truthful. Petitioner fails to show what in fact this videotape showed or how, to a reasonable probability it would have changed the outcome of the suppression hearing. As indicated by the judge at the suppression hearing, a totality of circumstances led to the finding of probable cause to support the search warrant. Viewing Osbourne's actions in the parking lot was but one small piece of a much larger puzzle which gave rise to the finding of probable cause. Petitioner's allegation that his counsel was ineffective for failing to view the videotape does not merit federal habeas relief as it fails to show to a reasonable probability that the outcome of the proceeding would have been different.
ix. Failure to investigate the number of visitors into Room 413 Petitioner asserts the following in his petition:
The statement of probable cause states that the agents received information that the guests in Room 413 were receiving numerous guests and phone calls in excess of the normal business traveler and this was also another fact that was used by the judge at the suppression hearing to uphold the search warrant. Yet had counsel investigated that, he would have learned that it was false. In the six hours the agents had the room under surveillance no one guest arrived and the motel manager testified at trial that there was no unusual amount of phone calls to the room and all counsel had to do was interview the manager and he would have learned that again the agents misstated even more facts to obtain the search warrant and the motel manager also testified at trial that there was only a little bit more traffic than the normal business traveler. (Pet'r's Pet. at p. 20-21.) Petitioner fails to show that he is entitled to federal habeas relief on this argument. The hotel manager testified at trial that the amount of foot traffic going in and out of Room 413 was more than the norm in that Room 413 had about fifteen visitors. (See Reporter's Tr. at p. 139.) Therefore, Petitioner failed to show that this statement about the unusual number of visitors was false. Petitioner failed to satisfy the requisite Strickland prejudice standard.
x. Failure to bring to the court's attention that requesting linens and asking to not be disturbed at a hotel are not unusual requests
Petitioner next argues that:
The next fact listed by the Judge at the hearing is the fact that Mrs. Bailey went to the front desk to pay for another night and request clean sheets but asked not to be disturbed by maid service and that Judge stated that that was an unusual request and counsel was ineffective for not investigating that fact and bringing it to the court's attention that it is not an unusual request as the Court stated, but is so common that all hotel rooms come with a "Do Not Disturb" sign that the occupants of the room can hang on the door so they will not be disturbed by maid service.
(Pet'r's Pet. at p. 26-27.) Presumably, Petitioner's argument appears to be that had his counsel made the argument listed above at the suppression hearing, the search warrant would have been invalidated for lack of probable cause and the evidence seized during the searched would be suppressed. Assuming arguendo that Petitioner's counsel should have made this argument, Petitioner failed to show that he was prejudiced. As previously indicated, the suppression hearing judge examined many factors in their totality in determining that there was probable cause for the search warrant. (See Reporter's Tr. at p. 67-69.) In light of the other evidence cited by the suppression hearing judge, Petitioner failed to show to a reasonable probability that his motion to quash the search warrant would have been granted had Petitioner's counsel made this argument at the suppression hearing.
xi. Failure to raise the issue to the court regarding the purported marijuana stems found in the hotel laundry room
Petitioner's next ineffective assistance of counsel claim arising from the suppression hearing is as follows:
The next fact listed by that Judge at that hearing that is false is the allegation about Mr. Osbourne being in the laundry room and approximately forty five minutes later some one said they smelled marijuana and the judge at the hearing states some stems and seeds where [sic] found where he had been in the laundry room and counsel was ineffective for not objecting and raising the issue in the court that Osbourne swears under oath that he was never in the laundry room and doesn't even know where it is and it is unknown what was found in the laundry room because hotel staff threw it away. Furthermore counsel was ineffective for not raising the issue in the court that that fact is irrelevant as it boils down to some unknown person told some unknown staff at the hotel that some unknown substance smelled in the laundry room.
(Pet'r's Pet. at p. 27-28.) However, Petitioner's counsel did attach Osbourne's affidavit in making his motion to quash the search warrant and suppress evidence. Additionally, Petitioner's counsel highlighted the fact that Osbourne stated in his affidavit that he had not been in the laundry room in his supplemental brief. (See Clerk's Tr. at p. 76 ("Mr. Osbourne also told the officers that he had not been in the laundry area of the hotel which directly contradicts statements in the affidavit that hotel personnel had seen him there."). Thus, Petitioner's counsel was not ineffective because he did in fact did argue that Osbourne was not in and around the laundry area of the Holiday Inn. Accordingly, Petitioner is not entitled to habeas relief on this argument.
In Claim II, Petitioner argues that his conviction was based on evidence known to be false by the prosecutor. In support of his argument, Petitioner asserts that the prosecutor presented false testimony when "both Agent Beeman and the Prosecutor told the jury that only men's wear was found in the room." (Pet'r's Pet. at p. 36.)
The last reasoned decision on this Claim was from the Superior Court which stated as follows:
Generally speaking, whether evidence is true or false is for determination of the trier of fact in the trial court. Unless there is a demonstration in a petition for writ of habeas corpus that any false evidence is such that it unerringly points to a petitioner's innocence and undermines the entire case of the prosecution, it is insufficient to warrant writ relief. [In re Weber (1974) 11 Cal.3d 703, 724.] The allegations of this petition do not meet that criteria. (Resp't's Lodged Doc. 5 at p. 4.)
At the outset, to the extent that the Petitioner bases this Claim on California law, it does not merit federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating that "it is not the province of a federal habeas court to re-examine state-court determinations of state-law questions"). However, the prosecutor's knowing use of false or perjured testimony violates a criminal defendant's due process rights. See Napue v. Illinois, 360 U.S. 264, 269 (1959); see also United States v. Bagley, 473 U.S. 667, 680 n. 9 (1985) ("a conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury's verdict"); Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) ("The due process requirement voids a conviction where the false evidence is known to be such by representatives of the State.") (internal quotation marks and citation omitted). "The same result obtains when the State, although not soliciting the false evidence, allows it to go uncorrected when it appears." See Napue, 360 U.S. at 269. However, mere inconsistencies in the evidence do not constitute the knowing use of perjured testimony by the prosecutor. See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002). Rather, it is within the province of the jury to resolve the disputed testimony. See id. A factual basis for attributing knowledge to the government that the testimony was perjured must be established. See Morales, 388 F.3d at 1179 (rejecting a due process violation claim where petitioner "sets out no factual basis for attributing any misconduct, any knowing presentation of perjury, by the government"). Thus, to prevail on a false evidence claim, "the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony [or evidence] was actually false, and (3) that the false testimony [or evidence] was material." See Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010), cert. denied, 131 S.Ct. 2093 (2011).
Petitioner has failed to show that the evidence was actually false. During the course of the trial, the following colloquy took place between Agent Beeman and the prosecutor:
Q: During the course of your search of the room, did you locate anything that indicated a female was staying there on a regular basis?
A: Not to my recollection.
Q: The clothing that you did locate, what gender did it belong to?
A: It appeared to be all male's clothing.
A: They appeared to be men's tennis shoes. (Reporter's Tr. at p. 312-13.) Subsequently, on the re-cross of Beeman, the following colloquy took place:
Q: And you were asked about male or female clothing. You had a picture there that indicated the closet area of the room?
Q: Did you take any of that clothing when you collected evidence? A: No.
Q: You left it all behind?
Q: Did you take those bags and open them all up and go through and identify what is in each bag?
A: We searched each bag, yes.
Q: What did the search consist of?
A: Various men's clothing.
Q: Did you just open the zipper, kind of rifle through it and call it good?
A: I don't recall. I -- I recall searching one of the bags personally. The other bags, I don't know. I know mine, I pulled each item out and searched through each item of clothing. I find nothing, I place everything back in the bag.
Q: So you don't know what happened with the other bag?
Q: And you didn't take any of that clothing with you?
(Id. at p. 315-16.) Petitioner has not shown that the testimony that only men's wear was found in Room 413 was false. Therefore, he is not entitled to federal habeas relief on Claim II.
In Claim III, Petitioner argues that:
The State failed to disclose evidence favorable to the accused. This violated Petitioner's right to due process of law as guaranteed by Amendments 5 and 14 to the U.S. Constitution. Specifically, the prosecutor office and the case agent in this case, Agent Beeman, withheld the exculpatory statements of Ms. Moon to them at Petitioner's hearing on the illegal search and seizure.
(Pet'r's Pet. at p. 42.) Petitioner asserts that Ms. Moon told the prosecutor that she never obtained the drugs found in her possession from Petitioner and that the prosecutor failed to turn over this evidence to Petitioner. (See id. at p. 42-43.) The last reasoned decision on this Claim was from the Superior Court which decided Petitioner's state habeas petition. That court analyzed this Claim as follows:
The declaration of Defendant/Petitioner is not sufficient to establish the facts alleged. Defendant/Petitioner has no personal knowledge regarding the allegations. Simply including it in a petition is not sufficient. Furthermore, even if the Court assumes that the allegations are true, the fact that the prosecution may have failed to disclose exculpatory evidence is not, in and of itself, sufficient to warrant relief. For example, in this case, it is not at all clear from the petition that Defendant/Petitioner did not already know the information that Defendant/Petitioner alleges the prosecution failed to disclose at or before the time of trial. If Defendant/Petitioner already knew the information, failure to disclose had no bearing on Defendant/Petitioner's right to a fair trial. Finally, again assuming that the allegations are true, the allegations of the petition are insufficient for the Court to even conclude that the non-disclosed information was exculpatory. (Resp't's Lodged Doc. 5 at p. 2.)
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule, and the prosecutor is obliged to disclose both, even in the absence of a specific discovery request. See Bagley, 473 U.S. at 676-77. "There are three components to a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that the evidence must have been suppressed by the State, either willfully or inadvertently, and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
The prejudice element of a Brady inquiry is also described as "materiality," i.e., that "the suppressed evidence must be material to the guilt or innocence of the defendant." United States v. Jernigan, 492 F.3d 1050, 1053 (9th Cir. 2007) (en banc). Evidence is considered material under Brady only if there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (internal quotation marks and citation omitted). A "reasonable probability" means a probability "sufficient to undermine confidence in the outcome" of the trial. Bagley, 473 U.S. at 682. Furthermore, materiality under Brady requires that the undisclosed information or evidence be admissible or lead to admissible evidence. See Wood v. Bartholomew, 516 U.S. 1, 5-7 (1995) (per curiam) (holding that polygraph test rests were not material under Brady because the results were inadmissible under state law and therefore were not "evidence," and because the polygraph results would not have led to any additional admissible evidence).
Petitioner is not entitled to federal habeas relief on this Claim. At trial, the following colloquy took place between Moon and Petitioner's trial counsel on cross-examination:
Q: Now, prior to coming here and testifying were you contacted by any members of law enforcement or the district attorney's office regarding your potential testimony?
A: I was subpoenaed last month and I came here and it was a different D.A. and I am not sure of his name that I spoke with the officer that is sitting there, and I advised that D.A., and I think it was his name Colby or something, I don't know, but I told him the exact conversation I had with the officer and I told him that what was in the police report was not what, that was not the conversation that took place and --
Q: So, ma'am, what did you tell this other district attorney when you this had [sic] conversation?
A: I told him that the officer asked me if I bought methamphetamine from Mr. Boswell and I said no, and he asked me if he gave it to me and I said no, and he goes, "Well, then, you must have been over here giving him sexual favors for it," and I said, "Fuck you," ...