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Steven Bella Perez v. R. Lopez

September 7, 2012

STEVEN BELLA PEREZ, PETITIONER,
v.
R. LOPEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDINGS

On January 6, 2011, Steven Bella Perez ("Petitioner"), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 ("Petition"). On April 4, 2011, Warden R. Lopez ("Respondent") filed an Answer. On July 11, 2011, Petitioner filed a Traverse. The parties have consented to proceed before the Magistrate Judge.

The matter is ready for decision. For the reasons set forth below, the Court concludes that the Petition should be denied and the case dismissed with prejudice.

BACKGROUND

On September 25, 2006, a Riverside County Superior Court jury found Petitioner guilty of transportation of heroin (Cal. Health & Saf. Code § 11352(a)), possession of heroin with intent to sell (Cal. Health & Saf. Code § 11351), being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)), and being a felon in possession of ammunition (Cal. Penal Code § 12316(b)(1)). (Respondent's Lodged Document ("LD") 1, Clerk's Transcript ("CT") 154, 156, 158, 159.) The jury found that Petitioner was personally armed with a firearm during the commission of the drug offenses. (CT 155, 157.) On February 23, 2007, Petitioner admitted that he had sustained nine prior convictions within the meaning of California's Three Strikes Law (Cal. Penal Code § 667(c) &(e)(20) (A), § 1170.12(c)(2)(A)) and had served four prior prison terms (Cal. Penal Code § 667.5(b)). (CT 181-82.) On February 1, 2008, the trial court sentenced Petitioner to state prison for a term of 32 years to life. (CT 257-58.)

Petitioner filed an appeal in the California Court of Appeal. (LD 3-5.) On March 19, 2009, the California Court of Appeal issued an unpublished decision affirming the judgment. (LD 6.) Petitioner filed a petition for review in the California Supreme Court. (LD 7.) On June 10, 2009, the California Supreme Court summarily denied the petition for review. (LD 8.)

Petitioner filed a petition for a writ of habeas corpus in the Riverside County Superior Court. (LD 9.) On November 23, 2009, the Superior Court denied his petition for failure to state a prima facie factual case. (LD 10.) Petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. (LD 11.) On February 23, 2010, the Court of Appeal summarily denied the petition. (LD 12.) Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (LD 13.) On October 27, 2010, the California Supreme Court summarily denied the petition. (LD 14.)

SUMMARY OF EVIDENCE AT TRIAL

Based on its independent review of the record, the Court adopts the following factual summary from the California Court of Appeal's unpublished opinion as a fair and accurate summary of the evidence presented at trial:

On November 17, 2005, Riverside County Deputy Sheriff Sam Morovich was on patrol in Perris, California when he drove by a house and saw an unfamiliar car (Firebird) stopped at the home. The deputy was familiar with the house because he had previously made and assisted in felony arrests at that location. [Petitioner] was sitting in the car conversing with a man standing beside the car. As the deputy drove by, he observed there was no front license plate on the car. When the vehicle drove off, the deputy turned around and followed the car. The deputy stopped the car a short distance away.

When Deputy Morovich asked [Petitioner] for his driver's license, [Petitioner] stated his license had been suspended. After the deputy verified the suspension with dispatch, [Petitioner] was detained for driving without a license. In a patdown search of [Petitioner], the deputy found a large amount of cash in [Petitioner]'s wallet.

After the deputy placed [Petitioner] in the back of his patrol unit, the deputy conducted an inventory search of the car and found more cash in the car, which, with the cash found in [Petitioner]'s wallet, totaled over $1,300. A loaded revolver, bullets, two pieces of heroin, four syringes, a digital scale, a glass pipe, and a bottle cap with heroin[] residue in it were also found in the vehicle. The car was registered to a Luis Gonzalez of Thermal, California.

Deputy Morovich showed the heroin and gun to [Petitioner], and asked [Petitioner] where he had obtained the items. [Petitioner] had initially, "most likely," denied knowing the gun and drugs were in the car, but then [Petitioner] initiated the conversation by asking, "[H]ey, what if I told you where the items came from?" Deputy Morovich speculated that [Petitioner] wanted something in return for his cooperation. [Petitioner] gave the officer the identity of the owner of the car and stated the gun and heroin belonged to the owner.

[Petitioner] was upset and claimed that he had to stay out of jail to be with his dying father. He also stated that he was selling the heroin because he needed the money to pay for his father's funeral.

Deputy Morovich drove [Petitioner] to the police station where he read [Petitioner] his constitutional rights pursuant to Miranda v. Arizona[, 384 U.S. 436 [1966)] (Miranda). [Petitioner] waived those rights and agreed to speak with the deputy. Deputy Morovich asked [Petitioner] about the source of the gun and heroin. [ Petitioner] said the car and the heroin came from two brothers who lived in Thermal, who sold the car to him, and admitted that he was going to sell the heroin to make money for his father's funeral. [Petitioner] also admitted that he was a heroin user.

[Petitioner] continued to offer information to law enforcement. Deputy Morovich contacted the Southwest Narcotics Task Force and Deputy Theodore Peterson, who was working as an undercover narcotics officer in November 2005, came to speak with [Petitioner] at the police station.*fn1 After speaking with [Petitioner], Deputy Peterson opined the information [Petitioner] provided was of no interest to his unit. [Petitioner] appeared somber and disappointed but did not mention his dying father. Deputy Peterson opined [Petitioner] was a user and dealer of heroin based on the amount of heroin found together with the gun, scale, money, and needles.

[Petitioner] testified that he had bought the Firebird from a friend in Thermal, to resell for a profit, about two weeks before his arrest. The day he was arrested a woman had called him about the car and he drove to the location of the house where he encountered a man claiming the woman was not home. He confirmed that he had been pulled over by Deputy Morovich and informed the officer that his license was suspended. He stated that he had followed the deputy's directives and in a brief conversation, the deputy had asked him who the gun and drugs belonged to. [Petitioner] denied owning the gun or knowing it was in the car; he also denied the heroin belonged to him.

[Petitioner] further testified that on the drive to the police station Deputy Morovich said [Petitioner] could get a long time in prison and that [Petitioner] needed to say who owned the drugs. [Petitioner] claimed that the deputy said the deputy could make [Petitioner]'s charges go away, "if [[Petitioner]] could tell [him] where the drugs came from, that he would allow [[Petitioner]] to be with [his] father." [Petitioner] explained that it was "possible" he told the deputies about the drugs, but it was so important for him not to go to jail at that time, that he "might have said anything to keep [himself] out of jail"; he might even have lied to the deputies. [Petitioner] agreed with the prosecutor that it was a total coincidence that there was heroin in the car and he was under the influence of heroin that day. [Petitioner] admitted that he had used drugs in the past and also admitted to having a past criminal record.

[Petitioner]'s fiancee testified that she had seen about $1,500 in [Petitioner]'s wallet on the morning of his arrest and that [Petitioner] had visited his ailing father everyday in Perris.*fn2 She believed that [Petitioner] was going to use the money for his father's funeral. (LD 6 at 2-5.)

PETITIONER'S CONTENTIONS

1. The trial court erred when it failed to exclude statements made by Petitioner during pre-Miranda questioning and statements he made shortly after receiving Miranda advisements.

2. Petitioner's statements were involuntary. 3. Petitioner was denied effective assistance of counsel because trial counsel failed to preserve the Miranda and voluntariness issues for appeal.

4. The trial court's denial of Petitioner's motion to suppress violated his Fourth, Sixth and Fourteenth Amendment rights.

5. Petitioner's Three Strikes sentence violates due process because his prior convictions involved negotiated plea agreements that specified the allowable future uses of the convictions.

6. Petitioner's Three Strikes sentence violates the Eighth Amendment prohibition against cruel and unusual punishment.

7. Trial counsel rendered ineffective assistance, in violation of the Sixth Amendment, because she failed adequately to prepare for trial.

(Petition at 5-6, attached petition ("Attach.") at 5-7.)

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the Court's consideration of Petitioner's cognizable federal claims. 28 U.S.C. § 2254(d), as amended by AEDPA, states:

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.

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court held that a state court's decision can be contrary to federal law if it either (1) fails to apply the correct controlling authority, or (2) applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at 405-06. A state court's decision can involve an unreasonable application of federal law if it either (1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Id. at 407-08. The Supreme Court has admonished courts against equating the term "unreasonable application" with "clear error." "These two standards . . . are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Instead, in this context, habeas relief may issue only if the state court's application of federal law was "objectively unreasonable." Id. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, __ U.S. __, __, 131 S. Ct. 770, 786 (2011).

Under AEDPA, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412 ("§ 2254(d)(i) restricts the source of clearly established law to this Court's jurisprudence"); Andrade, 531 U.S. at 71. If there is no Supreme Court precedent that controls a legal issue raised by a habeas petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam); see also Carey v. Musladin, 549 U.S. 70, 76-77 (2006). A state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); see also Bell v. Cone, 543 U.S. 447, 455 (2005) (per curiam).

Petitioner raised Grounds One, Two and Three on direct appeal. (LD 3.) The California Court of Appeal denied these claims in a reasoned decision and the California Supreme Court denied them summarily. (LD 6, 8.) The Court looks through the California Supreme Court's silent denial to the Court of Appeal's reasoned decision and reviews that decision under the AEDPA standards. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (the federal court looks through the unexplained California Supreme Court decision to the last reasoned lower court decision to determine the basis for the state court's judgment).

Petitioner presented Grounds Four through Seven to the state courts by habeas petition and the state courts denied these claims summarily. (LD 9-14.) The AEDPA standard applies even if no state court issued a decision explaining the reasons for its denial of the federal claim. Harrington, 131 S. Ct. at 784-85. In the absence of a reasoned decision, however, the federal court must independently review the record to determine whether the state court was objectively unreasonable in its application of clearly ...


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