United States District Court, E.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO
ISSUE CERTIFICATE OF APPEALABILITY
is a state prisoner, represented by counsel, proceeding with
a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner and Respondent have consented to the
jurisdiction of the United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). (ECF Nos. 7, 8).
August 2, 2013, Petitioner was convicted after a jury trial
in the Tuolumne County Superior Court of manufacturing a
controlled substance and possession of methamphetamine for
sale. (CT 121-22). Petitioner admitted various prior
conviction allegations and was sentenced to an imprisonment
term of twenty-three years. (CT 59-60, 123). On February 29,
2016, the California Court of Appeal, Fifth Appellate
District affirmed the judgment, but remanded the matter to
permit the trial court to address a custody credits issue.
People v. Anderson, No. F068293, 2016 WL 778168, at
*1 (Cal.Ct.App. Feb. 29, 2016). The California Supreme Court
denied Petitioner's petition for review on May 11, 2016.
on August 21, 2015, Petitioner filed a state habeas petition
in the California Court of Appeal, Fifth Appellate District,
which denied the petition on April 21, 2016. (LDs 12, 15).
The California Supreme Court denied Petitioner's petition
for review on June 22, 2016. (LDs 16, 17).
21, 2017, Petitioner filed the instant federal petition for
writ of habeas corpus. (ECF No. 1). In the petition,
Petitioner raises the following claims for relief: (1) the
prosecutor's improper comment on Petitioner's
exercise of his right not to testify; (2) the trial court
erroneously permitting the prosecutor to argue a lower burden
of proof for a guilty verdict; (3) ineffective assistance of
counsel; and (4) cumulative error. Respondent has filed an
answer, and Petitioner has filed a traverse. (ECF Nos. 12,
STATEMENT OF FACTS
Tuolumne County Sheriff's Detective Victor Serrano, Jr.,
testified that, during a search of a house owned by Anderson,
he found 97 grams of methamphetamine, a digital scale, $60 in
$1 bills, and two $20 bills, all of which he found indicative
of sale of methamphetamine. Although Anderson was not home at
the time of the search, the items were found in a bedroom
apparently occupied by Anderson. Anderson's wallet
containing his driver's license was found in the bedroom.
It appeared someone had slept in the bed. In the kitchen of
the residence Serrano found a glass jar with methamphetamine
residue in it, as well as a can of denatured alcohol. These
items were indicative of a chemical process used to either
clean “dirty” methamphetamine or to recrystalize
diluted or “cut” methamphetamine. In both
situations, the process was used to increase the value of the
Five individuals were inside the house when entry was made by
police officers, although Anderson was not present. Serrano
recognized three of the five individuals-Sarah Geisdorff,
Eric Bailey, and Richard Garris. The record established that
Glenna Hunter also was at the residence. At least three of
the individuals had a significant drug history.
Serrano also noticed there were two video surveillance
cameras on the property, both pointing toward the driveway
and down to the road. A television monitor for the cameras
was found inside the bedroom apparently occupied by Anderson.
If someone had been in the bedroom, he or she would have seen
the officers approach the house on the monitor.
Small bags of methamphetamine were found in a second bedroom
that was occupied by Lotty Bailey.
Criminalist Berkley Akutagawa confirmed the weight of the
substance found in Anderson's bedroom and that the
substance confiscated contained methamphetamine. She also
confirmed the jar contained 3.24 grams of methamphetamine.
Hunter testified she was at the house with her stepdaughter,
Geisdorff (also referred to as Sarah Jo Foster), to do
laundry. They had been there only a few minutes before the
police arrived. No. one was home when Hunter and Geisdorff
arrived at the house. Hunter did not enter Anderson's
bedroom. Another man arrived at the house before the police
Garris confirmed he arrived at the house with an individual
identified only as “Matt, ” shortly before the
police arrived. Garris also admitted he used to be a heroin
Defense counsel called Amber Turner who testified Anderson
had been staying with her at her home for a few days before
and after the police searched his home. Anderson was with
Turner when he received a phone call informing him the police
were searching his house.
The prosecutor argued that the only reasonable inference from
the undisputed facts was that Anderson possessed the
methamphetamine for sale, and he was manufacturing
methamphetamine within the meaning of the statute. Defense
counsel admitted the house belonged to Anderson and the
methamphetamine was found in his bedroom. Defense counsel
argued, however, that Anderson was not in possession of the
methamphetamine, pointing out Anderson was not present at the
house for several days, and five individuals, all known to be
drug users, were present when the police arrived. The only
reasonable inference from these facts, according to defense
counsel, was that one of those individuals brought the
methamphetamine to the house to sell to the other
individuals, and when the police arrived they hid the
methamphetamine in Anderson's bedroom.
Anderson, 2016 WL 778168, at *1-2.
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 he suffered
violations of his rights as guaranteed by the U.S.
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. § 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); Harrington v. Richter, 562
U.S. 86, 97-98 (2011); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 413.
threshold matter, this Court must “first decide what
constitutes ‘clearly established Federal law, as
determined by the Supreme Court of the United
States.'” Lockyer, 538 U.S. at 71 (quoting
28 U.S.C. § 2254(d)(1)). 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 other words, ‘clearly
established Federal law' under § 2254(d)(1) is the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its
decision.” Id. 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. Moses v.
Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting
Wright v. Van Patten, 552 U.S. 120, 125 (2008));
Panetti v. Quarterman, 551 U.S. 930 (2007);
Carey v. Musladin, 549 U.S. 70 (2006). If no clearly
established Federal law exists, the inquiry is at an end and
the Court must defer to the state court's decision.
Musladin, 549 U.S. 70; Wright, 552 U.S. at
126; Moses, 555 F.3d at 760.
Court determines there is governing clearly established
Federal law, the Court must then consider whether the state
court's decision was “contrary to, or involved an
unreasonable application of, [the] clearly established
Federal law.” Lockyer, 538 U.S. at 72 (quoting
28 U.S.C. § 2254(d)(1)). “Under the
‘contrary to' clause, a federal habeas court may
grant the writ if the state court 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] Court has on a set of materially indistinguishable
facts.” Williams, 529 U.S. at 412-13; see
also Lockyer, 538 U.S. at 72. “The word
‘contrary' is commonly understood to mean
‘diametrically different, ' ‘opposite in
character or nature, ' or ‘mutually
opposed.'” Williams, 529 U.S. at 405
(quoting Webster's Third New International Dictionary 495
(1976)). “A state-court decision will certainly be
contrary to [Supreme Court] clearly established precedent if
the state court applies a rule that contradicts the governing
law set forth in [Supreme Court] cases.” Id.
If the state court decision is “contrary to”
clearly established Supreme Court precedent, the state
decision is reviewed under the pre-AEDPA de novo standard.
Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
the ‘reasonable application clause, ' a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Williams,
529 U.S. at 413. “[A] federal court may not issue the
writ simply because the court concludes in its independent
judgment that the relevant state court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.”
Id. at 411; see also Lockyer, 538 U.S. at
75-76. The writ may issue only “where there is no
possibility fair minded jurists could disagree that the state
court's decision conflicts with [the Supreme Court's]
precedents.” Richter, 562 U.S. at 102. In
other words, so long as fair minded jurists could disagree on
the correctness of the state court's decision, the
decision cannot be considered unreasonable. Id. If
the Court determines that the state court decision is
objectively unreasonable, and the error is not structural,
habeas relief is nonetheless unavailable unless the error had
a substantial and injurious effect on the verdict. Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993).
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley v.
Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Robinson
v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the
last reasoned state court decision adopts or substantially
incorporates the reasoning from a previous state court
decision, this court may consider both decisions to ascertain
the reasoning of the last decision. Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc).
“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. This presumption may be
overcome by a showing “there is reason to think some
other explanation for the state court's decision is more
likely.” Id. at 99-100 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)).
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). Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“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, 336 F.3d
at 853. While the federal court cannot analyze just what the
state court did when it issued a summary denial, the federal
court must review the state court record to determine whether
there was any “reasonable basis for the state court to
deny relief.” Richter, 562 U.S. at 98. This
court “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.” Id. at 102.
first claim for relief, Petitioner asserts that the state
court erred in concluding that the prosecutor did not commit
a Griffin error by commenting on Petitioner's
exercise of his right not to testify, in violation of
Petitioner's Fifth and Fourteenth Amendment rights. (ECF
No. 1 at 9, 13). Respondent argues that Petitioner's
Griffin error claim is procedurally barred and that
the state court's alternate rejection of the claim on the
merits was reasonable. (ECF No. 12 at 19).
claim was presented on direct appeal to the California Court
of Appeal, Fifth Appellate District, which denied the claim
in a reasoned decision. The California Supreme Court
summarily denied Petitioner's petition for review. As
federal courts review the last reasoned state court opinion,
the Court will “look through” the California
Supreme Court's summary denial and examine the decision
of the California Court of Appeal. See Brumfield v.
Cain, 135 S.Ct. 2269, 2276 (2015); Johnson v.
Williams, 568 U.S. 289, 297 n.1 (2013); Ylst,
501 U.S. at 806.
denying the Griffin claim, the California Court ...