The opinion of the court was delivered by: Dennis L. Beck 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 CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner 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).
Following a jury trial in the Superior Court of Madera County, Petitioner was convicted of possession of a controlled substance and possession of drug paraphernalia. Petitioner was sentenced to nine years in state prison.
On September 1, 2009, the California Court of Appeal for the Fifth Appellate District affirmed Petitioner's convictions. The California Supreme Court denied review.
On February 17, 2010, Petitioner filed a petition for writ of certiorari in the United States Supreme Court. On April 26, 2010, the Supreme Court denied the petition.
On April 27, 2010, Petitioner filed a petition for writ of habeas corpus in the Madera County Superior Court. On January 3, 2011, the court denied the petition.
On April 4, 2011, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On September 14, 2011, the court denied the petition.
On February 17, 2011, Petitioner filed the instant federal petition for writ of habeas corpus in this Court. Respondent filed an answer to the petition on January 30, 2012, and Petitioner filed a traverse on June 25, 2012.
City of Madera Police Officer Juan Villegas testified that on Sept 28, 2005, while investigating a report of "[a] subject ... probably looking over fences," he encountered [Petitioner] in an alley. The officer made contact with [Petitioner] and, as the officer "patted [Petitioner] down for weapons," the officer "asked [Petitioner] at the same time if he had any weapons or drugs or if he used any ...." [Petitioner] responded that he did not have any drugs in his possession but that "he does use drugs"; he "used two days ago" and "he only has a pipe in his pocket ...." As he admitted having the pipe, [Petitioner] "immediately pulled it out ...."
The officer "felt something, felt like a pipe" as he was patting [Petitioner] down. The officer felt the pipe at "pretty much . the same time" [Petitioner] stated he had the pipe. The officer did not remember if, when he felt the object, he asked [Petitioner] what it was. The questioning described by the officer and the pat search took "a couple of seconds."
Officer Jason Gutknecht arrived on the scene as [Petitioner] was conducting the pat search. The pipe was handed over to him.
At no time did Officer Villegas place [Petitioner] under arrest or advise him of his rights under Miranda.
Officer Gutknecht testified that as he arrived on the scene, Officer Villegas was "speaking with [Petitioner]." Officer Villegas had "detained" [Petitioner] but had not arrested him. Officer Villegas "told [Petitioner] that he believed he had a glass pipe in his pocket and at that time [Petitioner] reached in his pocket and pulled it out." [Petitioner] handed the pipe [to] Officer Gutknecht.
"Officer Villegas searched the immediate area and [Officer Gutknecht] continued to speak with [Petitioner]. Just, I guess, small talk, why we were there ...."
Approximately "[a] minute or two after" [Petitioner] produced the pipe, he stated he had smoked methamphetamine approximately 30 minutes prior to Officer Gutknecht's arrival.
Asked if he "ask[ed] [Petitioner] any questions to elicit that statement," Officer Gutknecht responded, "No, not really. It was just small talk. I didn't ask him any specific questions, when did he smoke it last or anything like that, no." The officer was "just basically talking to [Petitioner], telling him why [the officer was] there." He did ask [Petitioner] "why he would be there at that time, stuff like that."
At some point after [Petitioner] stated he had smoked methamphetamine 30 minutes previously, Officer Gutknecht, who placed a call to police dispatch by means of the police radio attached to his uniform to determine if [Petitioner] was on parole, learned that [Petitioner] was subject to a parole hold. A "split second" later, Officer Villegas found a quantity of methamphetamine. At that point, after Officer Villegas found the methamphetamine and approximately two to three minutes after first making contact with [Petitioner], Officer Gutknecht handcuffed [Petitioner] and placed him under arrest. DISCUSSION
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Madera County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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 ...