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Keith Schultz v. Gary Swarthout

November 14, 2012

KEITH SCHULTZ, PETITIONER,
v.
GARY SWARTHOUT,*FN1 WARDEN, CALIFORNIA STATE PRISON, SOLANO, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

I. BACKGROUND/PRIOR PROCEEDINGS

Schultz was convicted by a Yolo County Superior Court jury of transportation of methamphetamine (Cal. Health & Safety Code § 11379(a)) and possession of methamphetamine for sale (Cal. Health & Safety Code § 11378). The jury also found that Schultz had been previously convicted of a serious felony (Cal. Penal Code § 667(e)(1)). In September 2009, the trial court sentenced Schultz to an aggregate prison term of twelve years. The California Court of Appeal, Third Appellate District, affirmed Schultz's conviction in an unpublished decision,*fn2 and the California Supreme Court denied review on January 12, 2011. Schultz timely filed his Petition for relief in this Court on February 11, 2011. Because the facts underlying Schultz's conviction are not relevant to the issues presented on appeal, they are not recited here.

II. GROUNDS RAISED/DEFENSES

In his Amended Petition Schultz raises two grounds: (1) the trial court erred in allowing the prosecution's drug expert to testify on the ultimate issue of whether Schultz possessed the methamphetamine for sale; and (2) cumulative error. Respondent does not assert any affirmative defenses.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn3 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn4 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn5 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn6 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn7 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn8 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn9 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn10 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn11

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn12

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn13 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn14 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn15

To the extent that Schultz raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding.*fn16 It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn17 "[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."*fn18 A federal court errs if it interprets a state legal doctrine in a manner that directly conflicts with the state supreme court's interpretation of the law.*fn19 It does not matter that the state supreme court's statement of the law was dictum if it is perfectly clear and unambiguous.*fn20 A determination of state law by a state intermediate appellate court is also binding in a federal habeas action.*fn21 This is especially true where the highest court in the state has denied review of the lower court's decision.*fn22

A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn23 "[The Supreme Court has] long recognized that a mere error of state law is not a denial of due process."*fn24 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn25 "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension."*fn26

IV. DISCUSSION

Ground 1: Expert Testimony

During trial a drug expert called by the prosecution testified that in his opinion Schultz possessed the methamphetamine with the intent to sell it. Schultz contends that admission of this testimony was error because it was based upon the specific facts of Schultz's case, not upon hypothetical facts. As a backup, in the event that this ground is deemed forfeited on the basis that it was not objected to at trial, Schultz contends his trial counsel was ineffective for failing to renew the objection at trial. The California Court Appeal, although agreeing that the expert's testimony was presented in an improper form, held that the error was nonetheless harmless and rejected his accompanying ineffective assistance of counsel claim.

Testimony Of The Prosecution's Drug Expert

[Schultz] next contends that the trial court erred in allowing the prosecution's drug expert to testify that [Schultz] possessed the methamphetamine for sale. In the alternative, [Schultz] claims counsel rendered ineffective assistance in failing to preserve the issue. We find no prejudicial error.

[Schultz] moved in limine to exclude "[t]estimony of any law enforcement officer regarding the issue of whether [[Schultz]] ultimately possessed methamphetamine for the purpose of sale, as charged in count two." [Schultz] stated two grounds: "First, any such conclusion is a legal judgment, based on a factual determination of the evidence, which is within the realm and duty of the jury. Second, in the absence of any foundational evidence regarding the police officer's education, training, experience, or other qualifications to testify as an expert witness on the issue, any such testimony is simply inadmissible lay opinion evidence, and should be excluded under Evidence Code sections 352, 720, 801."

The court ruled that if an adequate foundation was presented, the opinion of an expert witness based on a hypothetical set of facts would be admissible. The prosecutor acknowledged that the expert opinion was admissible so long as it was based on a hypothetical.

Defense counsel signed a "requested stipulation" that the motions in limine would be considered objections made at trial. The prosecutor did not sign the stipulation.

West Sacramento Police Officer Eric Angle who had been assigned to the Yolo County narcotics enforcement team testified and explained his training and experience with respect to the identification, sale, and methods of ingestion of methamphetamine. On voir dire, defense counsel questioned Officer Angle about the officer's personal experience in possessing, selling, and using methamphetamine. Without objection, the court ruled Officer Angle was qualified to testify as an expert for purposes of identification of methamphetamine, sale of such drug, and the methods of ingesting the same.

Officer Angle testified generally about the factors he considered which would indicate that a person possessed methamphetamine for sale, the quantities typically used as a single dose, and the cost of different quantities. The prosecutor asked about the facts of the current case, including the seizure of $2,192 in cash.

"[Prosecutor]: And you reviewed the facts of this case with myself, and I think you reviewed them with Officer Lang at the time of the arrest?

"[Officer Angle]: Yes. "[Prosecutor]: Based on the fact that a person possessed 3.82 grams of methamphetamine, would you be able to form an opinion, in your expert opinion, whether or not that ...


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