United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF THE PETITION
SANDRA M. SNYDER, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. On August 22, 2014, this Court screened the petition and, without addressing the merits, concluded that it was not plain from the allegations that Petitioner is not entitled to relief and directed Respondent to file a response. Doc. 9. Respondent filed an answer addressing the merits of the petition, and Petitioner filed a traverse. Docs. 18, 24. For the following reasons, the Court recommends that the petition be denied.
On November 30, 2009, a City of Parlier police officer conducted a vehicle check after seeing Petitioner swerve in his lane and pull off the roadway. The officer testified in Petitioner's jury trial that he asked Petitioner to step outside of the vehicle and Petitioner failed to comply with the officer's multiple requests to maintain his hands above his head. The officer testified that he saw a glass methamphetamine pipe fall to the ground. The officer caused Petitioner to fall to the ground and told him he was under arrest. As Petitioner began to stand up, he fired a single shot from a black revolver in his left hand over his left shoulder towards the officer's face. Petitioner ran away, into an orchard, and raised his left arm. The officer fired at him. Plaintiff was arrested without incident about an hour later.
Officers found a plastic bag of ammunition in the open area of the vehicle's center console. They found a plastic bag of marijuana and a loaded pistol inside the center console of the vehicle. Another round of ammunition was found under the passenger's seat, and more marijuana was found in the vehicle's body molding for the wheel well. No firearm was found on Petitioner's person or when officers retraced his steps from the vehicle to the location of arrest and searched a swatch on either side. No gunshot residue was found on Petitioner's hands or clothing.
After a jury trial in the Superior Court of Fresno County, Petitioner was convicted of seven felony offenses: 1) attempted murder of a peace officer; 2) assault with a firearm upon a peace officer; 3-4) possession of a firearm by a convicted felon; 5) possession of ammunition by a convicted felon; 6) possession of marijuana for sale; and 7) transportation of more than 28.5 grams of marijuana. He was also convicted for one misdemeanor. On August 24, 2011, Petitioner was sentenced to a prison term of life with the possibility of parole plus a consecutive twenty-one years' imprisonment.
Petitioner pursued a direct appeal of the sentence on the grounds that the judge failed to instruct the jury of the unanimity requirement, and that he could not be sentenced to concurrent sentences for possession of a firearm and possession of ammunition pursuant to California Penal Code Section 654. The California Court of Appeals affirmed the judgment, and the California Supreme Court denied review.
Petitioner also applied for a writ of habeas corpus in the state court on the grounds that there was insufficient evidence to convict him of attempted murder of a police officer, and that the officer lacked probable cause to remove him from his vehicle. The California Supreme Court denied the petition.
Petitioner filed the pending federal petition for habeas corpus on June 9, 2014. Petitioner re-alleges the arguments made in his direct appeal and state habeas proceedings.
II. APPLICABLE LAW
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner 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 ...