The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER SUBSTITUTING MATTHEW CATE AS RESPONDENT ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (DOC.1) AND DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in writings signed by the parties or their representatives and filed by Petitioner on June 17, 2010 (doc. 9), and by Respondent on December 16, 2010 (doc. 17). Pending before the Court is the petition, which was filed on May 21, 2010, and transferred to this Court on June 1, 2010. Respondent filed an answer to the petition with supporting documentation on February 3, 2011. Petitioner filed a traverse on February 28, 2011.
I. Jurisdiction and Substitution of Respondent Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Constitutional rights. The challenged judgment was rendered by the Kern County Superior Court (KCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).
A petitioner who seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 must be in custody at the time the petition is filed, or the Court lacks jurisdiction over the proceeding. 28 U.S.C. §§ 2241(c)(3), 2254(a); Maleng v. Cook, 490 U.S. 488, 490 (1989). A prisoner who has been released on parole is still "in custody" under his unexpired sentence because release on parole is not unconditional. Jones v. Cunningham, 371 U.S. 236, 242 (1963). Here, Petitioner filed a change of address reflecting that as of May 26, 2011, he was released on parole (doc. 22).
When Petitioner was sentenced to a six-year term, he was advised that when he was released, he would be on parole for up to five years. (3 RT 405-06.) Respondent was served with Petitioner's notice of change of address but did not submit any indication that Petitioner's release rendered the case moot. In light of the foregoing and the provisions of Cal. Pen. Code § 3060 concerning the length of parole periods, it appears that Petitioner presently remains in custody for the purposes of this proceeding.
Respondent filed an answer on behalf of Respondent Randy Grounds, Warden at the Correctional Training Facility at Soledad, California, where Petitioner alleged he was incarcerated at the time the petition was filed. Petitioner thus named as Respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). With respect to the proper Respondent in this proceeding in light of Petitioner's release on parole, the statutes contemplate a proceeding against a person who has the immediate custody of the prisoner and the power to produce the body of the prisoner.
28 U.S.C. §§ 2242, 2243; Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). Naming the California Director of Corrections in place of the warden of the institution where a petitioner is housed does not deprive the court of personal jurisdiction over the respondent where the petitioner is a state prisoner bringing a challenge to a conviction sustained within the jurisdiction of the California Department of Corrections. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894-95 (9th Cir. 1996) (warden of a California prison and California's Director of Corrections had the power to produce the prisoner; both might receive service of process; and the laws of the state put the custody of the prisoner in the director). Where a prisoner has been transferred or where his immediate custodian has otherwise been put in doubt, the Director of Corrections serves as an effective respondent and eliminates procedural roadblocks to resolution of the case on the merits. Id. at 896.
As of July 1, 2005, Cal. Pen. Code § 5050 abolished the office of the Director of Corrections and provided that any reference to the Director of Corrections in any code refers to the Secretary of the California Department of Corrections and Rehabilitation (CDCR). Accordingly, the Court therefore concludes that Matthew Cate, Secretary of the CDCR, is an appropriate respondent in this action, and pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of Respondent Randy Grounds. The Court will order the substitution.
Petitioner raises claims relating to pre-trial and trial proceedings.
Petitioner was charged with having possessed cocaine base for sale on or about June 19, 2006, in violation of Cal. Health & Saf. Code § 11351.5. He had multiple prior felony convictions within the meaning of Cal. Pen. Code §§ 667 and 1170.12, and had served multiple separate prior prison terms within the meaning of Cal. Pen. Code § 667.5(b). (CT 20-22.) Trial commenced on March 12, 2007, and concluded on March 13, 2007. (CT 117-22, 158-60.) Petitioner was acquitted of possession for sale but was convicted of the lesser included offense of possession in violation of Cal. Health & Saf. Code § 11350(a). (Id. at 160.) The trial court found that some of the allegations concerning prior convictions and prison terms were true. (Id. at 162.) Petitioner was sentenced to six years in prison on April 17, 2007. (Id. at 209.)
Petitioner filed a timely appeal from the judgment on April 19, 2007. (Id. at 215.) In an opinion filed on July 30, 2008, in People v. Joel Lamar Wyrick, case number F052721, the Court of Appeal of California, Fifth Appellate District (CCA) ordered the abstract of judgment amended to reflect conviction of simple possession of a controlled substance but otherwise affirmed the judgment. (Ans., doc. 18, 26-30.) There is no indication that Petitioner petitioned for review of the CCA's decision in the California Supreme Court.
Petitioner filed a petition for writ of habeas corpus in the KCSC on January 6, 2009, which was denied. The court 1) found Petitioner's claim of admission of evidence obtained by an illegal search and seizure was not subject to review on habeas corpus but, in any event, was not meritorious; 2) concluded that Petitioner's claim regarding insufficiency of the evidence to support a finding of guilt of possession of cocaine base was not cognizable on habeas corpus in view of the CCA's rejection of it on appeal and its determination that there was sufficient evidence of the chain of custody of the cocaine after its seizure and until its receipt at the laboratory; 3) ruled that Petitioner did not state a claim regarding misconduct of the prosecutor and the trial court with respect to the identification of the substance seized from Petitioner; and 4) rejected Petitioner's claims concerning trial counsel's conflict of interest, failure to investigate, and omissions concerning suppression of evidence, objections to testimony, and motions for acquittal, concluding that Petitioner had not shown any ineffectiveness, let alone prejudice. (LD 4-5.)
Petitioner filed a petition for writ of habeas corpus in the CCA on April 17, 2009. The CCA denied the petition, rejecting as not cognizable in habeas proceedings Petitioner's claims concerning evidentiary rulings, search and seizure, sufficiency of the evidence, chain of custody, and any claims that could have been raised on appeal. Petitioner's remaining claims were determined to be conclusional. (LD 7.)
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court (CSC) on August 14, 2009. It was denied without a statement of reasoning or authority on February 3, 2010. (LD 9.)
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). The following factual summary is taken from the opinion of the California Court of Appeal, Fifth Appellate District, in People v. Wyrick, case number F052721, filed on July 30, 2008. See, Galvan v. Alaska Dep't. Of Corrections, 397 F.3d 1198, 1199 n.1 (9th Cir. 2005) (setting forth a factual summary from the state appellate court's decision).
On June 19, 2006, Officers Eric Lantz and Patrick Mara were on patrol in an area known for drugs and prostitution. The officers turned on their emergency lights and stopped a vehicle because its license plate light was out and there were objects hanging from the rear view mirror. As they were following the vehicle, Lantz noticed the driver lean forward to his left and could see him moving his shoulder as if he was either sticking something into the seat or retrieving something. The vehicle eventually pulled over, and the officers approached the car. Lantz recognized the driver, appellant, as an individual he knew was on parole, so he searched him. Mara pat searched the female passenger, Felisha Wallace, and searched the car, but found nothing. Mara walked Wallace about 30 to 40 feet away, and positioned her so she was facing away from Officer Lanz and appellant.
While Officer Lantz was searching appellant, he noticed that the elastic waistband on one side of appellant's underwear was folded under and, based on his training and experience, Lantz believed appellant was hiding narcotics in his buttocks. Lantz told appellant of his suspicions, and appellant reached into the back of his pants and removed a plastic bag containing what appeared to be cocaine base. Lantz told appellant he would release him without filing charges if appellant informed him of other criminal activity in the area, so appellant was initially released. However, appellant failed to uphold his end of the bargain, and was eventually charged with possession of cocaine base for sale.
Lantz gave Mara the bagged substance he recovered from appellant. Mara placed the substance in a "k-pack" and locked it in the trunk of the police car. Later that night, Mara booked the evidence into the property room. The evidence was sent to the Kern County Regional Criminalistics Laboratory, where it tested positive for cocaine base. (Ans. doc. 18, 26, 28.)
IV. Standard of Decision and Scope of Review Title 28 U.S.C. § 2254 provides in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
Clearly established federal law refers to holdings, as opposed to dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. at 71-72.
A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but applies it to a new set of facts in an objectively unreasonable manner, or 2) extends or fails to extend a clearly established legal principle to a new context in an objectively unreasonable manner. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.
A state court's determination that a claim lacks merit precludes federal habeas relief as long fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id. To obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state-court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S. Ct. at 1398. Habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, ---U.S.--, 132 S.Ct. 1195, 1199 (2012).
In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness.
In determining the appropriate deference to be given to a state court decision, it must be determined whether the decision was on the merits within the meaning of 28 U.S.C. § 2254(d), which limits habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings...." A state has adjudicated a claim on the merits within the meaning of § 2254(d) when it decides the petitioner's right to relief on the basis of the substance of the constitutional claim raised, rather than denying the claim because of a procedural or other rule precluding state court review of the merits. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, where the California Supreme Court denies a habeas petition without citation or comment, a district court will "look through" the unexplained decision of that state court to the last reasoned decision of a lower court as the ...