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 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Andrew Jeffrey Fishkin, Esq. 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 Kern County Superior Court, Petitioner was convicted of possession of methamphetamine with intent to sell in violation of California Health and Safety Code Section 11378. Petitioner was sentenced to two years imprisonment.*fn1
Petitioner filed a timely notice of appeal. On August 8, 2011, the California Court of Appeal, Fifth Appellate District affirmed the judgment.
On November 2, 2011, the California Supreme Court denied the petition for review. On September 28, 2011, Petitioner filed a state petition for writ of habeas corpus in the Kern County Superior Court. The petition was denied in a reasoned decision on November 3, 2011.
On December 8, 2011, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The petition was summarily denied on February 16, 2012.
On March 13, 2012, Petitioner filed a petition for review in the California Supreme Court. After directing Respondent to file an answer to the petition, the Court summarily denied the petition on May 9, 2012.
Petitioner filed the instant federal petition for writ of habeas corpus on June 8, 2012. Respondent filed an answer to the petition on October 4, 2012, and Petitioner filed a reply on October 25, 2012.
On December 18, 2008, City of Bakersfield Police Officer Eric Shimon and other officers assigned to the Kern County Narcotics enforcement team went to a hotel in Bakersfield for the purpose [of] conducting an investigation of [Petitioner's] activities. Upon arriving the officers learned that [Petitioner] had rented room 235 (the room). The officer thereupon conducted a surveillance of the hotel, during which they observed the following: Nombrano left the room. Shortly thereafter, he unlocked a Ford Mustang automobile (the car) that was parked in the parking lot. The officers were aware from a check of police records that on several occasions police had made contact with [Petitioner] when she was driving the car. Nombrano entered the car on the driver's side, placed some items in the passenger compartment of the car, and then placed other items in the trunk. He then returned to the room. Some time later, [Petitioner] and Nombrano left the room together.
At that point, Officer Schimon identified himself as a police officer, and told [Petitioner] he wanted to talk to her about narcotics transactions at the hotel. [Petitioner] walked over to the officer, and he told her he suspected her of being involved in narcotics transactions at the hotel. He asked [Petitioner] for proof of identity and, while [Petitioner] was looking in her purse, asked her if he could search the purse. [Petitioner] handed it to him.
Inside the purse, Officer Schimon saw a small black velvet bag with a cinched top. He removed the velvet bag from the purse, at which point [Petitioner] stated, "that's my medicine." The officer asked "what kind of medicine." [Petitioner] responded that it was "just my medicine." Inside the velvet bag, Officer Schimon found three plastic baggies containing what the officer recognized as methamphetamine. Later, he found $733.00 in currency in the purse, and in a search of the trunk of the car he found another purse containing $9,300.00 in currency.
Officer Schimon testified that at the point he began handling the velvet bag, Nombrano, who was standing with another officer, approximately 15 feet away, stated "that stuff mine." Officer Schimon testified further that later that same day, he questioned Nombrano, and Nombrano stated that the drugs found in the velvet bag were not his and he "didn't know where they came from."
Nombrano, testifying on his own behalf, on direct examination testified to the following: He saw Officer Schimon open [Petitioner's] purse and remove from the purse "a little velvet Baggie." When he saw the "Baggie," he said, "that belongs to me." This was not true. He only said so because he had a "relationship" with [Petitioner], he did not want [Petitioner] to "get in trouble," and he wanted to "protect her." He did not know what was in the velvet bag until Officer Schimon "took it out." He did not put anything in [Petitioner's] purse.
Nombrano was asked on cross-examination by [Petitioner's] counsel: "You were told that if you testified and your testimony was the same as what was in the police report that they were going to dismiss your case. Correct?" Nombrano answered, "Yes."
[Petitioner] did not testify.
In support of her motion for new trial, [Petitioner] submitted the declaration of her trial counsel, Joe W. Whittington, in which Whittington averred, in relevant part, as follows: "After the conclusion of the trial, it came to my attention that Mr. Nombrano was a defendant in a misdemeanor action (BM749107A) in which he entered nolo pleas to forgery (Penal Code section 470[,] [subd.] (d), possession of controlled substance paraphernalia (Health & Safety Code section 11364 and destroying or concealing evidence"; [FN1] court records showed that the complaint in the case was filed April 1, 2009, and Nombrano entered his pleas on July 28, 2010; and "[h]ad I known of these charges ..., I would have impeached Mr. Nombrano as two of these misdemeanors are crimes of moral turpitude."
FN1. Counsel's reference to "destroying or concealing evidence" is an apparent reference to Penal Code section 135, which provides: "Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor."
At the hearing on the motion, the court took judicial notice that "at the time of the trial in this case there was pending charges against Mr. Nombrano in BM749107A, which accused him of crimes of moral turpitude." [FN2]
FN2. The court also took judicial notice of what is apparently a single document related to the pending charges. This document has not been made part of the record on appeal. (Court of Appeal Opinion, Ex. A at 2-5.)
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 she suffered violations of her rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Kern 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 presented in the State court proceeding.
28 U.S.C. § 2254(d). "Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of [the Supreme] Court." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011) (citing 28 U.S.C. § 2254(d)(1) and Williams v. Taylor, 539 U.S. 362, 412 (2000). Habeas relief is also available if the state court's decision "involved an unreasonable application" of clearly established federal law, or "was based on an unreasonable determination of the facts" in light of the record before the state court. Richter, 131 S.Ct. 785 (citing 28 U.S.C. § 2254(d)(1), (d)(2)). "[C]learly established ... as determined by" the Supreme Court "refers to the holdings, as opposed to the dicta, of th[at] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412. Therefore, a "specific" legal rule may not be inferred from Supreme Court precedent, merely because such rule might be logical given that precedent. Rather, the Supreme Court case itself must have "squarely" established that specific legal rule. Richter, 131 S.Ct. at 786; Knowles v. Mirzayance, __ U.S. __, 129 S.Ct. 1411, 1419 (2009). Moreover, the Supreme Court itself must have applied the specific legal rule to the "context" in which the Petitioner's claim falls. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 737 (2011). Under § 2254(d)(1), ...