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Sherman v. Miller

United States District Court, C.D. California

February 5, 2015

TERAL SHERMAN, Petitioner,
v.
A. MILLER, Warden, Respondent

Teral Sherman, Petitioner, Pro se, Imperial, CA.

For A. Miller, Warden, Respondent: David C Cook, Susan S Kim, LEAD ATTORNEYS, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HON. KENLY KIYA KATO, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to the provisions of 28 U.S.C. ยง 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

SUMMARY OF RECOMMENDATION

Petitioner Teral Sherman, a California state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus (" Petition") pursuant to 28 U.S.C. § 2254, challenging his convictions for burglary and robbery. Petitioner claims his Fourth Amendment rights were violated, he was wrongfully denied a suppression hearing, and his pre-trial counsel and appellate counsel were both ineffective. For the reasons that follow, the Petition should be denied.

II.

PROCEDURAL HISTORY

On August 7, 2012, following a jury trial in Los Angeles County Superior Court in which Petitioner represented himself, he was convicted of two counts of second-degree burglary, in violation of Cal. Penal Code § 459, and one count of second-degree robbery, in violation of Cal. Penal Code § 211. Lodged Document (" Lodg.") 5 at 1, 3.[1] On September 10, 2012, the trial court sentenced Petitioner to an aggregate term of 15 years in state prison. Id. at 4.

In a brief dated August 2, 2013, Petitioner appealed his conviction to the California Court of Appeal. Lodg. 3. Petitioner's appellate counsel found no legitimate issues to appeal and filed the brief pursuant to People v. Wende, 2 Cal.3d 436 (1979), asking the court to independently review the record for valid claims. Lodg. 3 at 9; see also Hebbe v. Pliler, 627 F.3d 338, 340 n.1 (9th Cir. 2010). Petitioner filed a pro se supplemental brief and pro se state petition for writ of habeas corpus, both of which were dated August 28, 2013. Lodgs. 4, 8.

On September 10, 2013, the California Court of Appeal summarily denied the state habeas petition. Lodg. 9. On January 15, 2014, the court denied Petitioner's appeal and affirmed his conviction in an unpublished opinion. Lodg. 5.

Petitioner then filed a pro se petition for review, dated February 11, 2014, in the California Supreme Court. Lodg. 6. In addition, on February 26, 2014, Petitioner filed a pro se state petition for writ of habeas corpus in the California Supreme Court. Lodg. 10.

On March 26, 2014, the California Supreme Court summarily denied the petition for review. Lodg. 7. On May 14, 2014, the court summarily denied the state habeas petition. Lodg. 11.

On May 30, 2014, Petitioner filed the instant Petition. On November 21, 2014, Respondent filed an Answer to the Petition. On December 22, 2014, Petitioner filed a Traverse. This matter is now ready for decision.

III.

FACTUAL BACKGROUND

For a summary of the facts, this Court relies on the California Court of Appeal's opinion:[2]

On October 8, 2011, at approximately 6:00 p.m., Oscar Iniguez was working in the ice cream department of a Rite-Aid store in the City of Lynwood. The store was equipped with surveillance cameras that recorded activity at the store's entrance and in the ice cream department. Appellant entered the store wearing sunglasses that sat on his forehead and a white T-shirt with a logo in the middle. Appellant ordered ice cream from Iniguez. When the ice cream was ready, appellant came around the counter to the area restricted to employees only. Appellant punched Iniguez in the face and told him to open the cash register. Appellant's sunglasses fell to the floor behind the counter. Iniguez did not know how to open the cash register and moved to the far end of the ice cream department. Appellant dropped the cash register onto the floor, breaking it open. He then grabbed some bills that had fallen from it and left the store.
Los Angeles County Deputy Sheriff Andrew Wyse arrived at the Rite-Aid store and recovered the sunglasses from the floor behind the counter in the area restricted to employees. The sunglasses were submitted to the crime lab for DNA analysis. Salvador Silva told Deputy Wyse that appellant pointed a handgun at Silva when he tried to stop appellant from leaving the area after the robbery.
On December 11, 2011, at approximately 5:00 p.m., Los Angeles Police Department Officer Cody Halchishak and his partner Officer Juan Martinez, responded to a burglary in progress at a 7-Eleven store. The store was boarded up with plywood and was not open for business. The officers saw that a piece of plywood had been pried open. Officer Halchishak looked inside and saw appellant placing cigarettes and alcohol inside two black trash bags. The officers set up a perimeter outside the store and saw appellant exit the store where the plywood had been pried away. Appellant was arrested and approximately 15 cartons of cigarettes and 25 to 30 bottles of alcohol were recovered from the black trash bags.
In January 2012, the DNA extracted from the sunglasses found behind the Rite-Aid counter was entered into the Combined DNA Index System (CODIS), and appellant's name was returned as a matching profile. Detective Boisvert arrested appellant outside appellant's mother's home. A T-shirt with writing resembling the T-shirt worn by the perpetrator in the Rite-Aid surveillance video was among the items recovered during a search of the residence. Iniguez did not select appellant's photograph when shown a photographic lineup consisting of six photographs. At trial, when shown the surveillance video of the robbery he identified appellant as the perpetrator. Christopher Lee is a senior criminalist with the sheriff's department. He conducted a technical review of the DNA analysis performed in this case. The DNA profile developed from appellant was compared with the DNA profile obtained from the sunglasses recovered from the Rite-Aid store. Lee opined that the two profiles matched with a random match probability of one in 33 quadrillion.
. . .
On January 5, 2012, an information charged appellant with one count of second degree commercial burglary, in case No. BA391680.[3] In case No. TA121872 appellant was charged with one count of second degree commercial burglary and one count of second degree robbery.[4] On May 8, 2012, appellant filed a " Notice of Motion to Suppress Evidence" in case No. TA121872. After the trial court granted the People's motion for joinder, an amended information was filed on May 31, 2012, that combined case No. BA391680 and case No. TA121872. On July 27, 2012, the trial court relieved defense counsel as counsel of record and granted appellant's request to proceed in pro. per.
On August 2, 2012, a jury was selected and testimony commenced the following day. On August 3, 2012, appellant's motion to suppress evidence was denied. On August 7, 2012, the jury returned guilty verdicts on all three counts. On September 7, 2012, appellant filed a " Motion for a New Trial." Appellant alleged that he was " denied his due process right to a full litigated suppression hearing on illegally obtained evidence from an (sic) warrant/illegal search." On September 10, 2012, the trial court denied appellant's motion for new trial and sentenced appellant to a total aggregate term of 15 years in state prison. On October 11, 2012 appellant filed a timely Notice of Appeal from the judgment.

Lodg. 5 at 2-3.

The Court will discuss additional facts as they relate to each of the Petition's claims for relief.

IV.

PETITIONER'S CLAIMS FOR RELIEF

Petitioner asserts five claims for habeas relief: (1) the search of Petitioner's mother's home, and the admission of evidence found during that search, violated his Fourth Amendment rights; (2) the trial court improperly failed to conduct a hearing before denying Petitioner's motion to suppress; (3) Petitioner's appellate counsel was ineffective for failing to argue the trial judge erroneously denied the motion to suppress; (4) Petitioner's pre-trial counsel was ineffective because he caused Petitioner to be denied a suppression hearing; and (5) Petitioner's pre-trial counsel was ineffective for failing to investigate whether Petitioner's " DNA could have [come] from a [cigarette butt]." ECF No. 1 at 5-6.

V.

STANDARD OF REVIEW

A federal court may review a habeas petition by a person in custody under a statecourt judgment " only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal habeas relief is not available for state-law errors. Swarthout v. Cook, 562 U.S. 216, 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011) (per curiam).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless the adjudication:

(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).

" Clearly established federal law" means federal law that is clearly defined by the holdings of the Supreme Court at the time of the state-court decision. See, e.g., Cullen v. Pinholster, U.S., 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011). Although only Supreme Court law is binding, " circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citation omitted).

The AEDPA standard requires a high level of deference to state courts, such that a state court's decision will be upheld if " fairminded jurists could disagree as to whether it was correct." Gulbrandson v. Ryan, 738 F.3d 976, 990 (9th Cir. 2013) (citation and internal quotation marks omitted); see also Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (noting the " presumption of regularity accorded state convictions") (citation and internal quotation marks omitted). Even if this Court finds a state-court error of clear constitutional magnitude, habeas relief is not available unless the error " had substantial and injurious effect or influence in determining the jury's verdict." Fry v. Pliler, 551 U.S. 112, 116, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (citations and internal quotation marks omitted).

Where, as here, the California Supreme Court denies a petitioner's claims without comment, the state high court's " silent" denial is considered to be " on the merits" and to rest on the last reasoned decision on these claims. See Ylst v. Nunnemaker, 501 U.S. 797, 803-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). In the case of the instant claims, the last reasoned decision is that of the California Court of Appeal in its decision on direct review.

VI.

DISCUSSION

A. Claims One and Two

In Claim One of the Petition, Petitioner argues his Fourth Amendment rights were violated when the police searched his mother's home. ECF No. 1 at 5. In Claim Two, Petitioner argues the trial court erred in failing to conduct a hearing before denying his motion to suppress. Id.

1. Background

a. Trial Court Proceedings

On May 8, 2012, Petitioner filed a motion to suppress (" Motion") in case number TA121872, i.e., the case relating to the Rite-Aid incident. Lodg. 1 at 81. The Motion argued Petitioner " did not consent to the search of the residence" and was " illegally detained" during the search. Id. at 83. Presumably, " the residence" the Motion referred to was Petitioner's mother's house, where a t-shirt resembling the one " worn by the perpetrator in the Rite-Aid surveillance video was among the items recovered." Lodg. 5 at 3.

Following the joinder of Petitioner's cases, on August 2, 2012, Petitioner told the trial judge the Motion was " supposed to be heard" but had not yet been decided. Lodg. 2 at 2. The prosecutor objected to " having the Motion heard, " explaining he was " ready for trial." Id. at 4. The trial judge denied a formal hearing on the Motion and the trial commenced. Lodg. 1 at 153.

On August 3, 2012, Petitioner's mother, Carolyn Sherman, testified before the jury. According to Ms. Sherman's testimony, Petitioner was arrested outside her house on February 1, 2012, and Detective Boisvert then searched her home. Lodg. 2 at 99-100. Ms. Sherman suggested Detective Boisvert conducted the search without her consent. See id. (testifying Detective Boisvert entered her home under the pretense that he would explain why Petitioner had just been arrested, but then failed to provide an explanation and said he " need[ed] to look for any items"). Ms. Sherman also testified she told Detective Boisvert that Petitioner did not live at her house. Id.

Detective Boisvert subsequently testified. Id. at 102. The California Court of Appeal summarized Detective Boisvert's testimony as follows:

Detective Boisvert informed Ms. Sherman that he wanted to conduct a protective sweep of her house. She gave him permission to do so. Ms. Sherman told Detective Boisvert that appellant stayed at her house " consistently since he bonded out." She told him that appellant kept clothing items in the closet in her bedroom. Ms. Sherman walked Detective Boisvert into her bedroom. She removed a blanket and pointed to the clothing items in the closet. Detective Boisvert observed a white T-shirt and khaki slacks in the closet that resembled the T-shirt and slacks worn by the suspect in the Rite-Aid surveillance video. Detective Boisvert called two other detectives to come to the location and remain there while he obtained a search warrant to recover the items. Detective Boisvert subsequently swore out the affidavit in support of the search warrant. The search warrant was obtained[5] and the clothing, appellant's driver's license, and some mail in his name were removed from Ms. Sherman's residence.

Lodg. 5 at 6.

After Detective Boisvert testified, the trial judge conducted, outside the presence of the jury, a hearing on Petitioner's motion to suppress. See Lodg. 2 at 160. Petitioner argued there was no probable cause to support the search warrant Detective Boisvert obtained. Id. The judge asked Petitioner to explain why probable cause did not exist. Id. Petitioner responded, " [I]t wasn't confirmed that I stayed at [Ms. Sherman's] address." Id. The judge noted Detective Boisvert's search warrant affidavit stated -- and " we just heard him testify" -- that during the course of his investigation, " it was revealed suspect Sherman's currently residing at [his mother's house]." Id. at 161. Petitioner responded that the affidavit " misstate[d]" what his mother said. Id. The judge asked Petitioner whether he would like to make any other point regarding " the lack of probable cause in the warrant." Id. Petitioner answered, " No." Id.

Petitioner also argued Detective Boisvert's search warrant affidavit contained material misrepresentations. Id. at 162. For example, Petitioner said, Detective Boisvert failed to state in the search warrant affidavit that " he had already" seized the items for which he was seeking a warrant. Id. At the end of Petitioner's argument, the trial judge asked whether he wished to say " [a]nything else." Id. Petitioner answered, " No." Id.

After the colloquy, the trial judge ruled Detective Boisvert's affidavit was sufficient to justify the issuance of the search warrant, and there were no other " grounds to suppress evidence." Id. at 163.

b. California Court of Appeal Proceedings

In his pro se supplemental brief on direct appeal, Petitioner challenged the trial court's denial of the motion to suppress. See Lodg. 4 at 4-5. Specifically, Petitioner argued the protective sweep of his mother's home was unlawful, and the search warrant obtained by Detective Boisvert was not supported by probable cause. Id.

The California Court of Appeal upheld the denial of the Motion. Lodg. 5 at 6-7. The court held the protective sweep was lawful, and stated it was required to " defer to the trial court's factual finding that Detective Boisvert's testimony was credible." Id.

2. Discussion

" A Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (citation omitted). " 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." Id. (citations omitted). In deciding whether a petitioner had a full and fair opportunity to litigate a Fourth Amendment claim, courts should consider " the extent to which the claims were briefed before and considered by the state trial and appellate courts." Terrovona v. Kincheloe, 912 F.2d 1176, 1178-79 (9th Cir. 1990) (citation omitted).

Here, Petitioner was permitted to file a motion to suppress, to fully argue the Motion in court, and to appeal the denial of the Motion. Moreover, when Petitioner argued the Motion, he did not ask to present witnesses or otherwise suggest the judge had insufficient information to decide the Motion. Indeed, each time the trial judge asked Petitioner whether he wished to say anything else, Petitioner answered " no." Cf. Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (" Whether or not [petitioner] did in fact litigate [his] fourth amendment claim in state court, he did have the opportunity to do so."). Petitioner received reasoned decisions from both the trial court and the California Court of Appeal. Thus, Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim.

Thus, because Petitioner had a full and fair opportunity to litigate the Motion, Claim One of the Petition -- i.e., Petitioner's Fourth Amendment rights were violated -- is not cognizable in this proceeding. In addition, because Petitioner received a hearing on the Motion, Claim Two of the Petition -- i.e., Petitioner was improperly denied a hearing on his suppression motion -- lacks merit.

B. Claim Three

In Claim Three of the Petition, Petitioner argues his appellate counsel was ineffective for failing to argue on direct appeal that the motion to suppress was improperly denied. ECF No. 1 at 6.

1. Background

On direct appeal, Petitioner's appellate counsel filed a " no issue" Wende brief.[6] Lodg. 3. Petitioner then filed a pro se supplemental brief arguing the trial court improperly denied his motion to suppress. Lodg. 4 at 4-5. Petitioner also filed a pro se state habeas petition arguing his appellate counsel was ineffective for failing to challenge the trial judge's denial of the Motion. Lodg. 8 at 3.

The California Court of Appeal rejected Petitioner's claim that the trial court improperly denied the Motion. See supra Section VI.A.1.b. The court also summarily denied the state habeas petition. Lodg. 9.

2. Relevant Law

Criminal defendants have a constitutional right to the effective assistance of counsel, both at trial and on appeal. Hurles v. Ryan, 752 F.3d 768, 785 (9th Cir. 2014); Sechrest v. Ignacio, 549 F.3d 789, 815 (9th Cir. 2008). Under the Supreme Court's " Strickland test, " to establish ineffective assistance of counsel, a defendant must show (1) trial counsel's " performance fell below an objective standard of reasonableness, " and (2) " the performance prejudiced his defense." Deere v. Cullen, 718 F.3d 1124, 1163 (9th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a strong presumption that counsel's conduct fell within " the wide range of reasonable professional assistance." Id. (citation and internal quotation marks omitted). To establish prejudice, a defendant " must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (citation and internal quotation marks omitted). The failure " to raise meritless argument on appeal does not constitute ineffective assistance of counsel." Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (citation omitted).

Under AEDPA, this Court's review of an ineffective assistance of counsel claim is " doubly deferential, " since the Court must give " both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, U.S., 134 S.Ct. 10, 13, 187 L.Ed.2d 348 (2013) (citation and internal quotation marks omitted). Thus, Petitioner must not only demonstrate counsel's performance was incompetent and prejudicial, but that it was " necessarily unreasonable" for the state courts to find otherwise. Cullen, 131 S.Ct. at 1403.

3. Discussion

Petitioner raised the very claim before the California Court of Appeal that he argues his appellate counsel should have raised -- namely, that his motion to suppress was improperly denied. The California Court of Appeal found this claim meritless, and there is no reason to think it would found otherwise had Petitioner's appellate counsel raised the claim instead. Simply put, Petitioner's appellate counsel was not ineffective for failing to raise a " meritless argument." Wildman, 261 F.3d at 840. Thus, Petitioner cannot satisfy either prong of the Strickland test. At a minimum, it was not " necessarily unreasonable" for the California Court of Appeal to reject Petitioner's claim that appellate counsel was ineffective. Cullen, 131 S.Ct. at 1403. Thus, Claim Three of the Petition lacks merit.

C. Claims Four and Five

In Claim Four of the Petition, Petitioner argues his pre-trial counsel was ineffective because he failed to subpoena " officers who were present during the illegal search" of Ms. Sherman's home, which caused Petitioner to be denied a suppression hearing. ECF No. 20 at 16; see also ECF No. 1 at 6. In Claim Five, Petitioner argues his pre-trial counsel was ineffective for " fail[ing] to investigate DNA evidence from a cigarette butt that could have led to cross-contam[ination] of evidence." ECF No. 20 at 16; see also ECF No. 1 at 6.

1. Background

The claims in Claims Four and Five were raised in Petitioner's state habeas petition, which the California Court of Appeal summarily denied. See Lodg. 8 at 4; Lodg. 9.

2. Relevant Law

As previously stated, a criminal defendant must satisfy the Strickland test to establish ineffective assistance of counsel. See supra Section VI.B.2. Defense counsel has a " duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Murray v. Schriro, 745 F.3d 984, 1011 (9th Cir. 2014) (citation and internal quotation marks omitted). " [A] lawyer who fails adequately to investigate, and to introduce into evidence, evidence that demonstrates his client's factual innocence, or that raises sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance." Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir. 2003) (citations and internal quotation marks omitted).

As in Claim Three, the ultimate question on habeas review is not whether Petitioner's pre-trial counsel was ineffective, but whether it was " necessarily unreasonable" for the California Court of Appeal to reject the claim he was ineffective. Cullen, 131 S.Ct. at 1403.

3. Discussion

In Claim Four, Petitioner fails to explain how his pre-trial counsel's failure to subpoena certain police officers caused him to be denied a suppression hearing. Petitioner also fails to explain -- or to provide any evidence that shows -- how the testimony of those officers would have supported his motion to suppress. See Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (denying ineffective assistance claim based on alleged failure to call witnesses, in part because there was no evidence the witnesses would have given favorable testimony). In addition, when Petitioner argued the motion to suppress, he did not ask to present witnesses or suggest the judge had insufficient information to decide the Motion. See Lodg. 2 at 160-63. For these reasons, assuming arguendo Petitioner's pre-trial counsel improperly failed to subpoena certain police officers, Petitioner has not demonstrated he was prejudiced by that failure, the second prong of the Strickland test. See supra Section VI.B.2. At a minimum, it was not " necessarily unreasonable" for the California Court of Appeal to reject Petitioner's claim of ineffectiveness. Cullen, 131 S.Ct. at 1403. Thus, Claim Four of the Petition lacks merit.

In Claim Five, Petitioner argues the police's DNA tests " could have" been contaminated by a cigarette butt, and that his pre-trial counsel was ineffective for failing to investigate whether such contamination occurred. ECF No. 1 at 6. The notion that contamination occurred in this case is entirely speculative, as even Petitioner appears to recognize by stating it merely " could have" occurred. " Such speculation . . . is insufficient to establish prejudice, " the second prong of the Strickland test. Wildman, 261 F.3d at 839 (citation omitted); see also Osumi v. Giurbino, 445 F.Supp.2d 1152, 1163 (C.D. Cal. 2006). At a minimum, it was not " necessarily unreasonable" for the California Court of Appeal to reject Petitioner's claim of ineffectiveness. Cullen, 131 S.Ct. at 1403. Thus, Claim Five of the Petition lacks merit.

VII.

RECOMMENDATION

IT IS THEREFORE RECOMMENDED the District Court issue an Order (1) accepting this Report and Recommendation; (2) denying the Petition; and (3) dismissing this action with prejudice.


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