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Jackson v. Spearman

United States District Court, C.D. California

November 26, 2014

M.E. SPEARMAN, Warden, Respondent

Tony Rene Jackson, Petitioner, Pro se, Soledad, CA.

For M. E. Spearman, et al, Respondent: Seth Patrick McCutcheon, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.



This Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.



On July 3, 2014, Tony Rene Jackson (" Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 (" Petition") (Docket Entry No. 1). The Petition raises three grounds for habeas relief. (See Pet. 5-6.) On September 12, 2014, Respondent filed a Motion to Dismiss the Petition (Docket Entry No. 10). On October 15, 2014, Petitioner filed an Opposition to Respondent's Motion to Dismiss (Docket Entry No. 15). For the reasons discussed below, it is recommended that the Petition be DENIED, and that this action be DISMISSED with prejudice.



On May 7, 2012, in Los Angeles County Superior Court, Petitioner pled no contest to, and was convicted of, one count of possession of a firearm by a felon, in violation of California Penal Code (" P.C.") § 12021(a)(1).[1] (Lodgment 5, at 324-25.) On the same day, Petitioner admitted to committing a prior strike offense, and was sentenced to four years in prison, pursuant to P.C. § § 667 and 1170.12. (Lodgment 5, at 325.)

On July 2, 2012, Petitioner appealed his conviction and sentence to the California Court of Appeal, which affirmed the judgment in a reasoned opinion on May 6, 2013. (Lodgment 1.) On June 17, 2013, Petitioner filed a petition for review in the California Supreme Court.[2] (Lodgment 2.) On July 24, 2013, the California Supreme Court denied review. (Lodgment 3.)

On July 3, 2014, Petitioner filed the instant Petition.[3]



The following facts are taken from the California Court of Appeal's decision on direct review and have not been rebutted with clear and convincing evidence; thus they are presumed to be correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

Joe Cummings had known [Petitioner] for several years. Cummings believed [Petitioner] was angry with him for an incident that occurred at the funeral of Cummings' mother. Cummings did not allow [Petitioner] to bring a gun into the funeral.
Cummings made a police report about the incident that occurred on March 25, 2011, when he encountered [Petitioner] at a store. [Petitioner] approached Cummings and said, " I got my gun with me tonight." [Petitioner] left the store and waited in the parking lot, and Cummings saw that [Petitioner] was armed with a gun. Store employees called [the] police, and [Petitioner] fled. When the police arrived, Cummings provided the officers with some information about [Petitioner]. The officers attempted to pursue and apprehend [Petitioner], but were unsuccessful. The officers returned to the store, but Cummings had already gone.
On March 26, 2011, Cummings was in front of his home when he saw [Petitioner] driving a silver or gray Chrysler 300. [Petitioner] stopped in front of Cummings' home and said while holding a gun, " Nigga I'm gonna kill your punk ass!" Cummings was in fear and called the police.
On April 26, 2011, Cummings went to the police station. It appears he officially reported the March 25, 2011 incident at this time. On June 14, 2011, Cummings returned to the police station and met with Los Angeles Police Detective Patrick Flaherty.
On August 4, 2011, a magistrate approved Detective Flaherty's search warrant and affidavit. The transcript of the preliminary hearing shows that Detective Flaherty obtained and served a search warrant at [Petitioner's] home on August 10, 2011, and found a loaded .25-caliber semiautomatic pistol.

(Lodgment 1 at 2-3.)



The Petition raises the following claims for federal habeas relief:

Ground One: The trial court erred in denying Petitioner's motion to suppress evidence because the warrant lacked probable cause.
Ground Two: The good faith exception to the exclusionary rule does not apply because the warrant affidavit was so lacking in probable cause that any belief that the warrant was sufficient was unreasonable.
Ground Three: The trial court should have suppressed the evidence that was found during the search.

(Pet. 5-6, 28-34.)[4]



In Grounds One through Three, Petitioner alleges that the evidence used against him during the state criminal proceedings ( i.e., the .25-caliber semiautomatic pistol) should have been suppressed by the trial court because it was seized in violation of the Fourth Amendment. Petitioner claims, as he did at the hearing on his motion to suppress evidence before the trial court, and in his state appellate proceedings, that the search warrant was invalid because the information in the affidavit was stale and inherently unreliable and that the good faith exception did not apply. (See Lodgment 1 and 5 at 303-311.) Petitioner also asserts that the trial court erred in denying his motion to suppress. (Pet. 6, 33-34; Lodgment 1.) As set forth below, Petitioner is not entitled to habeas relief on these claims.

" [W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see Villafuerte v. Stewart, 111 F.3d 616, 627 (9th Cir. 1997). " The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). If a petitioner has been afforded such an opportunity, then the benefits of applying the exclusionary rule are outweighed by the " substantial societal costs." See Stone, 428 U.S. at 494-95.

" Under California law, a defendant can move to suppress evidence on the basis that it was obtained in violation of the [F]ourth [A]mendment." Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990); P.C. § 1538.5. Here, Petitioner was permitted to, and did in fact file, a pre-trial motion to suppress pursuant to P.C. § 1538.5. (Lodgment 4, Bates Nos. 43-61.) On May 5, 2012, the trial court held a hearing on the motion. Petitioner's trial counsel argued that the information in the warrant was stale, the affidavit lacked probable cause and that the good faith exception to the exclusionary rule did not apply. (Lodgment 5 at 303-04.) The trial court denied the motion, finding that, " based on the totality of what was presented to the magistrate with regard to seeing whether or not there was probable cause, I think that the nature of the case, the nature of the item in question, and how it was presented in the affidavit, I believe the magistrate had sufficient grounds to deem there was probable cause." Id., at 309. The trial court also found that, " in the alternative, I do believe that the good faith exception applies." Id.

Furthermore, Petitioner also raised his Fourth Amendment claims in his direct appeal to the California Court of Appeal (Lodgment 6 at 6-17). The Court of Appeal rejected those claims in a reasoned decision, finding that " [t]he warrant was not invalidated by stale information, despite the lapse of time between the last sighting of defendant with the gun and the request to search." (Lodgment 1 at 6.) " If an individual brandishes or uses a firearm, the most logical places to look for that firearm are on his person, in his home, or in his car. This constitutes a reasonable inference rather than 'speculation and conjecture' as defendant alleges." Id. The Court of Appeal also rejected petitioner's argument about the reliability of the information reported by the citizen informant, that finding that, " in determining probable cause, an informant's reliability must be reviewed under a totality of the circumstances test" and " even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case." Id., at 9. The Court of Appeal also rejected petitioner's contentions regarding the warrant application's inclusion of a summary of the affiant's background as a gang officer, noting that this information was not included in the statement of probable cause or offered for the evidentiary nexus between the location to be searched and probable cause for the search, but was a permissible and necessary component of the totality of the circumstances. Id., at 10. Accordingly, the Court of Appeal held that, " viewing the totality of the circumstances, we agree with the trial court's conclusion that the affidavit established a fair probability that firearms would be found at defendant's residence or inside his vehicle." Id., at 11. Based on this finding, the Court of Appeal found it unnecessary to address petitioner's claim that the good faith exception to the exclusionary rule was inapplicable. Id.

Petitioner also raised his Fourth Amendment claims in his petition for review in the California Supreme Court. (Lodgment 2.) The California Supreme Court summarily denied review. (Lodgment 3.)

As set forth above, Petitioner received, and fully availed himself of, a full and fair opportunity to litigate his Fourth Amendment claims in the state courts.[5] See Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990) (California Penal Code section 1538.5 provides a defendant with a " full and fair" opportunity to litigate a Fourth Amendment search and seizure claim in state court). " All Stone v. Powell requires is the initial opportunity for a fair hearing." Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986) (citation omitted). " Such an opportunity for a fair hearing forecloses this court's inquiry, upon habeas corpus petition, into the trial court's subsequent course of action. . . ." Id. (citations omitted).[6]

Because Petitioner has failed to demonstrate that he did not receive a full and fair opportunity to litigate his Fourth Amendment claims in state court, Stone v. Powell bars this Court's consideration of the grounds raised in the Petition.[7]



For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation, (2) denying and dismissing the Petition with prejudice.

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