The opinion of the court was delivered by: Ralph Zarefsky United States Magistrate Judge
MEMORANDUM AND ORDER DENYING HABEAS PETITION
The parties have stipulated that the undersigned Magistrate Judge may decide this Petition for Writ of Habeas Corpus. See 28 U.S.C. § 636(c). For the following reasons, the Court will deny the petition and dismiss the action with prejudice.
I. BACKGROUND AND CLAIMS PRESENTED
After a bench trial in Santa Barbara County Superior Court, Petitioner Michael John Rea was convicted of battery on a peace officer, trafficking in methamphetamine and numerous other crimes. See Lodgment 6 at 1-2. The California Court of Appeal affirmed in all respects pertinent here, see id., and the California Supreme Court denied further direct review. Pet. ¶ 4. Having withdrawn the second of the two claims he initially presented, Petitioner now asserts only the following claim:
The trial court, having earlier granted Petitioner's Faretta waiver of his right to be represented by counsel, erred in denying Petitioner's motion two days before trial to revoke his self-represented status. In the alternative, Petitioner argues, the court erred in denying him a continuance for trial preparation in pro per.
The Court assesses the Petition under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2254(d). To resolve Petitioner's claim, the Court will examine the decision of the California Court of Appeal rejecting it on direct review, rather than the California Supreme Court's subsequent "silent" denial of further direct review. This is because "where there has been one reasoned state court judgment rejecting a federal claim, [federal habeas courts should presume that] later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991).
In affirming, the California Court of Appeal summarized the underlying factual findings. Petitioner has failed to rebut these findings with clear and convincing evidence. The findings therefore are presumed to be correct. 28 U.S.C. § 2254(e)(1); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001) (presumption applies to findings of state appellate courts as well as trial courts). That summary is as follows:
On March 27, 2010, in the early afternoon, Santa Barbara Deputy Sheriff Charles Anderson was in uniform, driving a marked patrol car through Los Olivos. He noticed appellant driving without a front license plate and stopped his car. Appellant spoke very rapidly, his hands were shaking, and he was fidgety. Anderson returned to the patrol car to check the Department of Motor Vehicles records, and noticed appellant shifting around in his seat.
Anderson returned to appellant's car, and asked him to remove his sunglasses, tilt his head back, and close his eyes. He complied. Anderson noticed that appellant had an "extreme amount of eyelid tremors," and might be under the influence of methamphetamine. Appellant said he had smoked marijuana several hours earlier.
Anderson returned to the patrol car, called and waited for back-up. At about 1:45 p.m., Santa Barbara Deputy Sheriff Robert Samaniego arrived, and Anderson asked appellant to step out of his car. He initially refused but complied. While taking him to a shady spot for field sobriety testing, Anderson noticed a crumbly, green substance that looked like marijuana on the front of appellant's shirt. During the sobriety testing, appellant had a very high pulse rate. Anderson concluded that he was under the influence of methamphetamine and marijuana, and told appellant he was arresting him. As he tried to handcuff him, appellant's fist or elbow struck Anderson's forehead, above his right eye.
Samaniego testified that appellant spun around when Anderson tried to arrest him. When Samaniego tried to assist, all three men fell to the ground, where appellant continued struggling and resisting. The deputies struggled with him for approximately four to six minutes before they could restrain him. During that time, they instructed him to give them his hands. Appellant said, "No," and managed to stand. After trying twice without success to restrain appellant with a taser, Samaniego struck him once on his left thigh with a baton. Using the taser, Samaniego managed to get appellant to the ground, where he and Anderson handcuffed him.
Two bystanders, Joseph Hoage and Sandra Clary, observed the struggle and testified at trial. Hoage recalled that just after Anderson asked him to place his right hand behind his back, appellant punched Anderson in the head. Anderson looked dazed. When Samaniego rushed over to help, Hoage said that a "full on brawl" broke out with appellant "100 percent resisting" because he did not want to be handcuffed. Hoage saw appellant fight with the deputies and ignore their orders. Clary testified that appellant failed to comply with the deputies' verbal orders and struggled with them.
After handcuffing appellant, Samaniego and other deputies searched his car. They recovered 2.41 grams of methamphetamine, some marijuana, plastic baggies, two digital scales, a book about marijuana cultivation, two cell phones, a pipe for smoking methamphetamine, and cigarette rolling paper. The seized methamphetamine would provide 24 usable doses with a total value of about $240.
Based upon the quantity of methamphetamine, the presence of scales and baggies, and the contents of some text messages on the cell phones, Santa Barbara Deputy Sheriff Neil Gowing, a member of the narcotics unit, opined that appellant possessed the methamphetamine and the marijuana for purposes of sale.
Samaniego sustained bruises on his knees and right hands from struggling with appellant. Anderson suffered more serious injuries. He traveled from the scene of the incident to the hospital, by ambulance, and was discharged that evening. The initial blow to his forehead "dazed" him, made him "black out" and caused a concussion, with extreme swelling and vomiting. The day after the incident, his entire body was extremely sore, with multiple cuts and abrasions. The concussion affected his memory of the incident. His knees remained sore for about three months. At the time of trial, over eight months after the incident, he still had some swelling and numbness around his right eye.
Prior Resisting Arrest Incident
Grover Beach Police Sergeant Jerry Cornwell testified that on Christmas Day in 2008, he and two other uniformed officers spoke with appellant outside his front door. An officer advised him that they were arresting him and directed him to turn around and place his hands behind his back. Appellant failed to comply and moved toward his house. The three officers grabbed him and took him to the ground, where appellant physically resisted and failed to comply with the officers' repeated orders to put his hands behind his back.
Appellant testified that he was surprised when Anderson tried to handcuff him on March 27, 2010. He did not intend to attack anyone that day. He was "high on meth and on marijuana" at the time of the incident, and did not remember what happened after Anderson first grabbed him. He did remember pulling away from Anderson. Appellant admitted that he resisted Grover Beach Sergeant Cornell during a 2008 incident.
Defense investigator Ron Rose testified that he formerly worked as a police officer. He explained that a person typically draws inward when reacting to a surprise. Rose believed that appellant resisted ...