United States District Court, E.D. California
ORDER DENYING SECOND AMENDED PETITION FOR WRIT OF
HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Julie Condon is a state prisoner, represented by counsel,
proceeding with a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In her second amended petition for
writ of habeas corpus, Petitioner raises the following claims
for relief: (1) prosecutorial misconduct; (2) unlawful search
and seizure; (3) ineffective assistance of counsel; (4) false
testimony of a prosecution witness; (5) judicial bias; and
(6) jury misconduct.
reasons discussed herein, the Court finds that denial of the
second amended petition for writ of habeas corpus is
2011, Petitioner was convicted after a jury trial in the
Tuolumne County Superior Court of possession of heroin for
sale (count I), transportation of heroin (count V), and
transportation of methamphetamine (count VI). Petitioner also
was convicted of the lesser included offenses of possession
of methamphetamine (count II), possession of hydrocodone,
morphine, and codeine (count III), and possession of diazepam
(count IV). In a bifurcated proceeding, Petitioner admitted
the allegations that she had three prior drug offense
convictions. Petitioner was sentenced to an aggregate
imprisonment term of fifteen years, eight months. People
v. Condon, No. F062801, 2012 WL 3222660, at *1
(Cal.Ct.App. Aug. 9, 2012).
August 9, 2012, the California Court of Appeal, Fifth
Appellate District, affirmed the judgment. Condon,
2012 WL 3222660, at *4. The California Supreme Court denied
Petitioner’s petition for review on November 14, 2012.
3, 4). Thereafter, Petitioner filed a state petition for writ
of habeas corpus in the Riverside County Superior Court,
which transferred the petition to the Tuolumne County
Superior Court (LDs 5, 6). The petition was denied on May 8,
2013. (ECF No. 18 at 5). Petitioner then filed a state habeas
petition in the California Court of Appeal, Fifth Appellate
District, which denied the petition on September 18, 2013.
(LDs 7, 8). Finally, Petitioner filed a state habeas petition
in the California Supreme Court, which summarily denied the
petition on February 11, 2014. (LDs 9, 10).
April 5, 2013, Petitioner initiated federal habeas
proceedings in the Sacramento Division of the Eastern
District of California. On May 24, 2013, the matter was
transferred to this Court. (ECF No. 11). On July 25, 2013,
the Court granted Petitioner’s request to stay the case
pending exhaustion of claims in state court. (ECF No. 17). On
March 26, 2014, the stay was lifted, and Petitioner filed her
second amended petition on April 23, 2014. (ECF Nos. 22, 26).
Respondent filed an answer to the second amended petition and
Petitioner filed a traverse. (ECF Nos. 35, 41). On July 21,
2015, the Court appointed counsel for Petitioner. (ECF No.
55). On January 19, 2016, a supplemental traverse with
respect to the ineffective assistance of counsel claim was
filed. (ECF No. 65). On March 21, 2016, Respondent filed a
reply. (ECF No. 69). The parties have consented to the
jurisdiction of a United States magistrate judge to conduct
all proceedings in this case pursuant to 28 U.S.C. §
636(c). (ECF Nos. 14, 45).
The trial court denied defense counsel’s motion to
unseal the search warrant because there was no exculpatory
evidence. On May 4th, just prior to the commencement of the
trial, defense counsel raised a discovery issue to the trial
court. Defense counsel sent a discovery letter to the
prosecutor on February 17th. The prosecutor replied on
February 25th, explaining that defense counsel had received
everything he was supposed to receive.
On April 14th, the prosecutor sent defense counsel a copy of
a police report setting forth law enforcement surveillance
activity that occurred on January 27th. The day before trial
started, the prosecutor sent a witness list that included
Kyna Kulp. In response to defense counsel’s query
concerning the identity of this witness, the prosecutor
explained that Kulp was mentioned in the police report
produced on April 14th.
In an exchange of emails just before trial, defense counsel
asked the prosecutor whether Kulp had a rap sheet. Defense
counsel conceded that he had received information regarding
the surveillance of Condon by officers from the police report
produced on April 14th. The prosecutor replied that Kulp had
no rap sheet and she agreed to truthfully testify against
Condon in exchange for not having charges brought against
her. The first time that defense counsel learned that Kulp
had a deal from the prosecution was at the beginning of the
trial. The trial court ruled that there had been no
withholding by the prosecutor of exculpatory evidence and
denied the defense motion to continue the trial for further
On January 27th, the Tuolumne County Sheriff’s Office
Narcotics Team was conducting surveillance of Condon after
receiving information that she was selling heroin. Detective
Jarrod Pippin was part of the surveillance team. Pippin saw
several transactions occur, and later contacted the people
who had met with Condon in the parking lot of the post
office, which was located directly across the street from
During the January 27th surveillance, a small silver sedan
drove into the post office parking lot. Matthew Klunis and
Kyna Kulp were seated in the car. Condon exited her home and
walked toward the front of the post office. Klunis made the
arrangements to meet with Condon to purchase heroin from her.
When Condon left her home, Klunis exited his car and walked
to the front of the post office, which was out of the view of
Pippin and Kulp. After two minutes, Condon returned to her
home and Klunis returned to his car. Klunis told Kulp that he
had purchased heroin.
Pippin learned from the dispatcher that the license plate to
Klunis’s car had expired so he initiated a traffic
stop. Klunis told Kulp to hide the heroin. Kulp was scared
and put the heroin in her pants. After Pippin asked for the
heroin several times, Kulp handed it to him. Pippin arrested
Kulp and told her that if Kulp testified against Condon the
case would be over that night. Kulp did not discuss her
agreement with Pippin with anyone in the district
Pippin obtained a search warrant on Condon and her residence.
On February 3rd, he saw Condon driving a white Volvo sedan
and pulled her over in a parking lot. Pippin told Condon that
he was going to search her because he had a search warrant.
Condon exited the car and Pippin conducted a search. Pippin
asked Condon if she had any needles. She replied that she was
not sure if she had needles, but she did have heroin inside
her bra. Pippin asked Condon to reach up her shirt, pull her
bra away from her person, and let the contents fall out.
Condon did so and several items fell from her shirt,
including a large chunk of what appeared to be brown to black
heroin, several packages of what appeared to be heroin, and a
small, coin-sized baggie containing what appeared to be
Later testing showed that Condon had 18.7 grams of heroin in
these packages with a street value of $1, 870. The large
chunk of heroin alone weighed 15.2 grams. There was a small
baggie that contained 1.9 grams of methamphetamine with a
street value of $340. Both of these drugs were usable
quantities. Another baggie contained a number of pills that
were later identified as morphine sulfate, codeine,
hydrocodone, and diazepam.
After her arrest, Pippen read Condon her Miranda
rights. Pippen told Condon that she had a large quantity of
drugs and he knew she had been dealing drugs. Pippen invited
Condon to tell him about it. Condon replied that she had a
history of controlled substance abuse, had been in a
Proposition 36 program, and had been selling drugs, including
heroine, methamphetamine, and pills. Condon would purchase a
“piece, ” also known in the narcotics trade as a
“Mexican piece, ” which is approximately just
less than an ounce of heroin (25 grams), worth about $800.
Condon also purchased an eight ball of methamphetamine at a
time, or 3.5 grams, for $100.
Condon justified herself, saying that she was trying to take
care of her family and she was a good person. Pippen replied
that she was a “no-good piece of trash” who sold
drugs to kids. Condon responded that the people she sold
drugs to were already addicted to them.
Pippin testified that he believed Condon possessed heroin for
sale not just based on the quantity alone, but also because
of the packaging that she used. Pippin also believed that
Condon possessed methamphetamine for sale based on the
quantity in her possession. Pippin explained that drug
dealers often maintain businesses to recycle and protect
profits from drug trafficking, or maintain bank deposit
profits for the storage of profits from drug trafficking.
Pippen found no evidence of cash deposit boxes or sales
records for her narcotics activity. Condon also did not have
packaging materials or scales in her possession. Pippin
stated that heavily addicted heroin addicts consume no more
than 2.5 grams of heroin a day.
Condon testified that she was using at least six grams of
heroin a day and also used methamphetamine. Condon denied
selling either drug. She had purchased a piece of heroin the
day before her arrest for $800. Condon’s possession of
both drugs was for her personal use. Condon denied selling
any drugs to anyone and had no intention to sell drugs to
anyone. Condon also denied telling Pippin that she sold
heroin, methamphetamine, or pills.
Condon, 2012 WL 3222660, at *1-3 (footnotes
STANDARD OF REVIEW
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution or laws or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 (2000). Petitioner asserts that she suffered
violations of her rights as guaranteed by the United States
Constitution. The challenged convictions arise out of the
Tuolumne County Superior Court, which is located within the
Eastern District of California. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(d).
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499
(9th Cir. 1997) (en banc). The instant petition was filed
after the enactment of the AEDPA and is therefore governed by
the AEDPA, relitigation of any claim adjudicated on the
merits in state court is barred unless a petitioner 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;
(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); Davis v. Ayala, 135 S.Ct.
2187, 2198 (2015); Harrington v. Richter, 562 U.S.
86, 97-98 (2011); Williams, 529 U.S. at 413. Thus,
if a petitioner’s claim has been “adjudicated on
the merits” in state court, the “AEDPA’s
highly deferential standards” apply. Ayala,
135 S.Ct. at 2198. However, if the state court did not reach
the merits of the claim, the claim is reviewed de
novo. Cone v. Bell, 556 U.S. 449, 472 (2009).
ascertaining what is “clearly established Federal law,
” this Court must look to the “holdings, as
opposed to the dicta, of [the Supreme Court’s]
decisions as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412. In
addition, the Supreme Court decision must
“‘squarely address the issue in th[e]
case’ or establish a legal principle that
‘clearly extend[s]’ to a new context to the
extent required by the Supreme Court in . . . recent
decisions”; otherwise, there is no clearly established
Federal law for purposes of review under AEDPA and the Court
must defer to the state court’s decision. Moses v.
Payne, 555 F.3d 742, 754 (9th Cir. 2008) (alterations in
original) (quoting Wright v. Van Patten, 552 U.S.
120, 125, 123 (2008)).
Court determines there is clearly established Federal law
governing the issue, the Court then must consider whether the
state court’s decision was “contrary to, or
involved an unreasonable application of, [the] clearly
established Federal law.” 28 U.S.C. § 2254(d)(1).
A state court decision is “contrary to” clearly
established Supreme Court precedent if it “arrives at a
conclusion opposite to that reached by [the Supreme Court] on
a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams,
529 U.S. at 413. A state court decision involves “an
unreasonable application of clearly established Federal
law” if “there is no possibility fairminded
jurists could disagree that the state court’s decision
conflicts with [the Supreme Court’s] precedents.”
Richter, 562 U.S. at 102. That is, a petitioner
“must show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
Court determines that the state court decision was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, ” and the error is
not structural, habeas relief is nonetheless unavailable
unless it is established that the error “had
substantial and injurious effect or influence” on the
verdict. Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (internal quotation mark omitted) (quoting
Kotteakos v. United States, 328 U.S. 750, 776
AEDPA requires considerable deference to the state courts.
The Court looks to the last reasoned state court decision as
the basis for the state court judgment. See Brumfield v.
Cain, 135 S.Ct. 2269, 2276 (2015); Johnson v.
Williams, 133 S.Ct. 1088, 1094 n.1 (2013); Ylst v.
Nunnemaker, 501 U.S. 797, 806 (1991). “When a
federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles
to the contrary.” Richter, 562 U.S. at 99.
Where the state court reaches a decision on the merits but
provides no reasoning to support its conclusion, a federal
habeas court independently reviews the record to determine
whether habeas corpus relief is available under §
2254(d). Walker v. Martel, 709 F.3d 925, 939 (9th
Cir. 2013). “Independent review of the record is not
de novo review of the constitutional issue, but
rather, the only method by which we can determine whether a
silent state court decision is objectively
unreasonable.” Himes v. Thompson, 336 F.3d
848, 853 (9th Cir. 2003). The federal court must review the
state court record and “must determine what arguments
or theories . . . could have supported, the state
court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of [the Supreme] Court.”
Richter, 562 U.S. at 102.
REVIEW OF CLAIMS
first claim for relief, Petitioner asserts that the
prosecution engaged in misconduct by failing to disclose
exculpatory evidence under Brady v. Maryland, 373
U.S. 83 (1963), and by the late disclosure of a police report
and the fact that a prosecution witness would be testifying
for immunity. (ECF No. 26 at 5, 10). Respondent argues that
the state court’s denial of this claim was reasonable
under controlling Supreme Court precedent. (ECF No. 35 at
claim was raised on direct appeal to the California Court of
Appeal, Fifth Appellate District, which denied the claim in a
reasoned opinion. (LDs 1, 2). The claim was also raised in
the petition for review, which was summarily denied by the
California Supreme Court. (LDs 3, 4). Generally, federal
courts “look through” summary denials and review