The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Gordon James Wright, is proceeding pro se with apetition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted on two felony counts, one count of transporting methamphetamine (Cal. Health & Safety Code § 11379(a)) and one count of possessing methamphetamine for sale (Id. § 11378), and two misdemeanor counts, one count of possessing drug paraphernalia (Id. § 11364) and one count of possessing less than 28.5 grams of marijuana (Id. § 11357(b)).
In his amended petition for habeas corpus, Petitioner raises thirteen grounds for relief. By previous order, the court dismissed claims one, two, four, eight, ten, eleven, and thirteen for failure to exhaust state court remedies. See Docket Nos. 39 & 43. Thus, Petitioner has six remaining claims for relief; specifically: (1) the trial court erred in allowing the hearsay testimony in violation of Petitioner's right to confront the witnesses against him ("Claim III");
(2) his trial counsel was ineffective for failing to challenge
Petitioner's arrest on the basis that the arresting officers lacked
probable cause ("Claim V"); (3) his trial counsel was ineffective for
failing to seek suppression of the evidence seized as a result of the
allegedly unlawful arrest ("Claim VI"); (4) his trial counsel was
ineffective for failing to obtain records from the California
Department of Motor Vehicles and doctor's reports which would have
shown that the arrest was lacking in probable cause ("Claim VII"); (5)
his trial counsel was ineffective for failing to file a motion to
dismiss and for failing to file a peremptory challenge against the
trial judge ("Claim IX"); and, (6) his appellate counsel was
ineffective for failing to raise Claim III on direct appeal*fn1
("Claim XII"). For the reasons stated herein, the federal
habeas petition should be denied.
On September 8, 2004, a task force of law enforcement officers were performing probation and parole searches in and around Redding, California. Rep.'s Tr. at 88. Members of the task force went to a local apartment complex to search for a wanted individual. Id. The target individual was not at the location, and some officers moved away from the area to set up surveillance in case the wanted individual returned to the apartment. Id. Officer Joseph Jones sat in his vehicle in the apartment complex's parking lot. Id. at 91. After several minutes, Officer Jones watched as a red Ford Tempo entered the parking lot and parked about twenty to thirty feet away from him. Id. Petitioner exited the vehicle and began walking towards the apartment that was under investigation. Id. at 97.
Officer Jones went to speak with Petitioner and concluded, based on his observation and interaction with Petitioner, that Petitioner was under the influence of drugs or alcohol. Id. at 98. Officer Jones requested assistance from other officers who were at the scene as he checked Petitioner's history on his computer. One of the officers who responded was Special Agent Supervisor Dan Callahan, who was assigned to the Bureau of Narcotics Enforcement at the California Department of Justice. Like Officer Jones, Callahan believed Petitioner was under the influence of a controlled substance, and Petitioner was placed under arrest. Id. at 121, 124.
After placing Petitioner under arrest, officers performed a search of Petitioner's vehicle. Inside a bag resting on the passenger seat, officers discovered methamphetamine, syringes, marijuana, and a pipe. Id. at 143.
Petitioner was charged with transporting methamphetamine, possession of methamphetamine, possession of drug paraphernalia, possession of less than 28.5 grams of marijuana, being under the influence of a controlled substance, and driving under the influence of a controlled substance. See Lodged Doc (Appellant's Petition for Review to California Supreme Court, Ex. A [Court of Appeal's Opinion]) at 1-2. The jury found petitioner not guilty of being under the influence of a controlled substance and a mistrial was declared as to the driving under the influence charge. Id. Petitioner was convicted on the remaining counts. Id.
II. 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. 1993); 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); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).
III. ANALYSIS OF PETITIONER'S CLAIMS
In Claim III, Petitioner asserts that he was denied his opportunity to confront the witnesses against him guaranteed under the Sixth Amendment. Petitioner also claims that the testimony that was received into evidence violated state evidentiary law as it was inadmissible hearsay. Based upon the portions of the record attached as exhibits to the petition, it appears Petitioner is complaining about the testimony of Agent Rudd, who was present during the search of the vehicle.
Agent Rudd, who was the officer in charge of the investigation, testified as follows:
Q (by defense counsel): Yeah. Was the pouch in the larger fishing bag ...