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Claude Nugent v. B. Pahel

March 13, 2013

CLAUDE NUGENT,
PETITIONER,
v.
B. PAHEL, ASSOC. WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I.

SUMMARY OF PROCEEDINGS

On March 16, 2009, a Los Angeles County Superior Court jury convicted petitioner of the sale, transportation, or offer to sell a controlled substance (Cal. Health & Safety Code § 11352(a)). (Reporter's Transcript ("RT") 1501, 1507-09; Clerk's Transcript ("CT") 108, 111-12, 149). Petitioner admitted that he had prior convictions, and was sentenced to a term of eight years in state prison. (RT 1504-06, 2401, 2418-19; CT 109-10, 147-49).

Petitioner filed a direct appeal. On December 8, 2010, the California Court of Appeal affirmed the conviction. (Lodgment Nos. 4, 9). On February 16, 2011, the California Supreme Court denied review. (Lodgment Nos. 10, 11).

On March 8, 2011, petitioner filed a habeas petition in the Los Angeles County Superior Court, which was denied on March 18, 2011. (Lodgment Nos. 12, 13). On July 5, 2011, petitioner filed a habeas petition in the California Court of Appeal, which was denied on July 19, 2011. (Lodgment Nos. 14, 15). On August 3, 2011, petitioner filed a habeas petition in the California Supreme Court, which was denied on December 21, 2011. (Lodgment Nos. 16, 17).

On May 1, 2012, petitioner filed his Petition in this Court, and consented to have the undersigned Magistrate Judge conduct all further proceedings in this matter. On July 12, 2012, respondent filed an Answer and Return, and also consented to have the undersigned Magistrate Judge conduct all further proceedings. On September 13, 2012, petitioner filed a Reply to the Answer.

This matter has been taken under submission, and is ready for decision.

II.

STATEMENT OF FACTS

On the evening of December 9, 2008, Officer Romeo Rubalcava of the Los Angeles Police Department was working as an undercover narcotics officer in the area of San Pedro Street and Sixth Street in Los Angeles. (RT 615-17, 670-71). Rock cocaine (cocaine base) was the predominant drug sold in the area, followed by heroin, and the corner of San Pedro and Sixth Street was known for drug activity. (RT 619, 628-29, 636). Officer Rubalcava had been a police officer for 10 years, and he had worked as an undercover narcotics officer for 6.5 years. He had personally arrested over 450 individuals for narcotics offenses, and had been involved in more than 6,000 drug-related "operations." (RT 615-17).

While Officer Rubalcava was standing on the southwest corner at the intersection of San Pedro and Sixth Street, petitioner called out, "Hey, hey." (RT 620). The officer turned and saw petitioner sitting in front of the Midnight Mission and looking in his direction. Petitioner asked, "You looking for something?" (RT 620-21). Based on Officer Rubalcava's training and experience, he formed the opinion that petitioner was asking if he was looking for narcotics. The officer approached petitioner and asked "if he could do a 20," which was street vernacular for $20 worth of narcotics. (RT 622). Petitioner replied, "Yeah, I got it. Sit down and give me the money. You know, the police are rolling around here." (RT 622).*fn1

Officer Rubalcava sat down next to petitioner and handed him a "prerecorded" $20 bill, which petitioner accepted.*fn2 (RT 622-23). Petitioner told the officer to wait for him and said he was going across the street. (RT 624). Before petitioner left, he told Officer Rubalcava that he was leaving his blanket as collateral. (RT 625).

Officer Rubalcava watched petitioner cross the street and approach three separate individuals who were standing on the sidewalk about 15 to 20 feet apart from each other. With each individual, it appeared that petitioner made eye contact and engaged in a brief conversation. Officer Rubalcava knew from his experience that rock cocaine sellers frequented the side of the street where these three individuals were located. (RT 626-29, 636-38).

After petitioner spoke to the third person, he walked north to Seventh Street and proceeded eastbound until Officer Rubalcava momentarily lost sight of him. (RT 638-39). Five to ten minutes later, the officer regained sight of petitioner as petitioner was crossing the street in the area of Seventh and Towne Streets. Petitioner then continued walking back in the general direction of Sixth and San Pedro. Officer Rubalcava testified that, along the route petitioner took, the "drug of choice" was rock cocaine. When petitioner reached the southwest corner of Seventh and San Pedro, he boarded a bus that left the area. (RT 639-45, 662). Other officers stopped the bus and arrested petitioner. The prerecorded $20 bill was recovered from petitioner's pocket, and no drugs were found. (RT 915-17, 947-53).

III.

PETITIONER'S CONTENTIONS*fn3

1. Ground One: Petitioner's trial counsel rendered ineffective assistance. (Petition at 5).

2. Ground Three: There was insufficient evidence to sustain the conviction. (Petition at 5-6).

3. Ground Four: The trial court committed error. (Petition at 6).

IV.

STANDARD OF REVIEW

The Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA"). Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of this action. See Lindh v. ...


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