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Odis Wiley, Jr v. James D. Hartley

July 13, 2012

ODIS WILEY, JR.,
PETITIONER,
v.
JAMES D. HARTLEY,
RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 1]

Petitioner is proceeding pro se 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. Local Rule 305(b).

PROCEDURAL BACKGROUND

Following a jury trial in the Kern County Superior Court, Petitioner was found guilty of transporting cocaine base (Cal. Health & Saf. Code,*fn1 § 11352(a); count 1), three counts of possession of cocaine base for sale (§ 11351.5; counts 2, 4 & 6), and seven counts of selling or offering to sell cocaine base (§ 11352(a); counts 3, 5, 9, 10, 11, 12 & 13). Petitioner was sentenced to a total term of 10 years and four months. (LD*fn2 1.)

Petitioner filed a timely notice of appeal. The California Court of Appeal for the Fifth Appellate District affirmed the judgment. The California Supreme Court denied review.

Petitioner filed three state post-conviction collateral petitions in the Kern County Superior Court, and all three were denied.

On February 9, 2011, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The petition was denied on May 19, 2011.

On June 10, 2011, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied on October 19, 2011.

Petitioner filed a second petition for writ of habeas corpus in the California Supreme Court on February 6, 2012, which is still pending in that court.

Petitioner filed the instant petition for writ of habeas corpus on January 31, 2012. Respondent filed an answer to the petition on May 14, 2012, and Petitioner filed a traverse on June 11, 2012.

STATEMENT OF FACTS

Counts 9 and 10

On February 15, 2008, DEA agents intercepted phone calls between Shirley Sanders and [Petitioner], and between Bridget Vaughn and [Petitioner]. Vaughn said she was "tryin[g] to see some [] CDs." Sanders asked for "DVDs." No specific CD or DVD was mentioned. The DEA case agent opined CD and DVD were coded talk for cocaine base. [Petitioner] arranged to meet Vaughn and Sanders at a fitness club/gym.

DEA agents and Bakersfield police officers then set up surveillance of the location. They observed the following: [Petitioner] exits the gym; Vaughn drives up and parks next to the gym; [Petitioner] gets into [his] car and stays inside for about 30 seconds to a minute, then, he gets out and goes back inside the gym. About five to 10 minutes after Vaughn left, the surveillance team observed the following: Sanders drives up and parks by the gym; [Petitioner] exits the gym and walks to Sander's car; [Petitioner] reaches into his waistband and removes an object; he then gets into Sander's car; after a few minutes, he gets out.

A marked Bakersfield police vehicle stopped Sanders's car though no drug was found, Sanders later admitted-after being arrested on July 13, 2007-that she ate the plastic baggie of cocaine base prior to the officer walking up to her car during the February 15, 2008, stop. She also admitted buying user quantities of cocaine base from [Petitioner] for about one year.

A DEA agent recalled Vaughn's car was stopped as well, but no drugs were found in her possession.

Count 12

On February 20, 2008, DEA agents intercepted phone calls between Shabazz Muhammed and [Petitioner]. [Petitioner] asked Muhammed if he wanted "one of them movies." Muhammed said he wanted "two." No specific movie was mentioned. The DEA case agent opined "movies" was coded talk for cocaine base. [Petitioner] arranged to meet Muhammed at the fitness club/gym.

DEA agents and Bakersfield police officers then set up surveillance of the location. They observed the following: [Petitioner] arrives in his truck; he gets out and walks into the gym; Muhammad arrives in his car; Muhammed gets out and walks into the gym; a few minutes later, Muhammed exits the gym and gets back into his car and drives off.

A marked Bakersfield police vehicle stopped Muhammed's car. No drugs were found on Muhammed or in his car.

Count 11

On February 23, 2008, DEA agents intercepted phone calls between Donte White and [Petitioner]. [Petitioner] asked White, "how many of them outfits your trying to get?" White said, "two of them." No specific type of outfit was mentioned. The DEA case agent opined "outfits" was coded talk for cocaine base. [Petitioner] arranged to meet White at a Wing Stop fast food restaurant.

DEA agents then set up surveillance of the location. They observed White's car drive into the restaurant parking lot. As [Petitioner's] truck approached the area, DEA agents intercepted another phone call wherein [Petitioner] and White changed the meeting place to a nearby McDonald's. The surveillance team followed White's car. DEA agents observed [Petitioner's] truck parked in the McDonald's parking lot. White pulled into the parking lot. White then got out of his car, walked to [Petitioner's] truck, opened the passenger side door, and got into the truck. A few minutes later, White got out of the truck and walked back to his car and drove away.

Due to unavailability then of a marked police vehicle, White's car was not stopped.

Count 13

DEA agents intercepted phone calls between Misty Garcia and [Petitioner]. [Petitioner] asked Garcia if she wanted "that same outfit." Garcia replied, "Yea, yea, yea." Again, the reference to outfit was nonspecific. On February 24, 2008, they agreed to meet at the Valley Plaza Mall.

DEA agents and Bakersfield police officers set up surveillance of the location. They observed [Petitioner's] truck parked in the mall parking lot. Garcia walked toward and got into the truck. About five minutes later, she got out of the truck and went back into the mall.

A uniformed Bakersfield police officer stopped and searched Garcia. Though no drugs were found on her, inside her purse were a scale and a large sum of money.

Counts 3 and 4

On February 25, 2008, DEA agents intercepted phone calls between Milton Harling and [Petitioner]. Harling said to [Petitioner], "[S]ee I don't want to spend it, that's what I'm saying, I'm ready for you . . ." the DEA case agent explained that Harling was indicating that he had money to spend for cocaine base, that he did not want to spend the money on anything else but the drug, and that he wanted the drug now. [Petitioner] arranged to meet Harling at a car shop.

DEA agents and Bakersfield police officers set up surveillance of the location. They observed Harling's car arrive. Harling got out and walked to [Petitioner's] truck. He went into the truck. About 10 to 15 seconds later, Harling got out and got back into his car. Harling then drove away.

A marked Bakersfield police vehicle stopped Harling's car. The officers approached, and then asked Harling to step out of the car. The officers searched Harling and located a small amount of marijuana. When the officers tried to arrest Harling, Harling put something into his mouth. A struggle ensued. The officers saw a substance inside Harling's mouth, and a white film ...


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