Condon v. Hughes

          ORDER DENYING SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

         Petitioner 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.

         For the reasons discussed herein, the Court finds that denial of the second amended petition for writ of habeas corpus is warranted.

         I. BACKGROUND

         In 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).

         On 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. (LDs^[1] 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).^[2] 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).

         On 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).

         II.

         STATEMENT OF FACTS^[3]

         Pretrial

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 discovery.

         Trial

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 Condon's home.

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 attorney's office.

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 methamphetamine.

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 omitted).

         III. STANDARD OF REVIEW

         Relief 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).

         On 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 its provisions.

         Under 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; 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); 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).

         In 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)).

         If the 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.

         If the 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 (1946)).

         The 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.

         IV. REVIEW OF CLAIMS

         A. Prosecutorial Misconduct

         In her 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 16).

         This 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 ...