United States District Court, N.D. California
ORDER RE PETITION FOR WRIT OF HABEAS CORPUS AND
CERTIFICATE OF APPEALABILITY
JAMES
DONATO UNITED STATES DISTRICT JUDGE
Marvin
Profitt, a former prisoner and probationer, filed a habeas
petition pursuant to 28 U.S.C. § 2254. The Court ordered
respondent to show cause why the writ should not be granted.
Respondent filed an answer and a memorandum of points and
authorities in support of it, and lodged exhibits with the
Court. Profitt filed a reply. The petition is denied.
BACKGROUND
A jury
found Profitt guilty of felony driving with a blood alcohol
content of .08 or higher, misdemeanor driving with a
suspended licensed for driving under the influence
(“DUI”), misdemeanor driving with a license
suspended for driving with an excessive blood alcohol content
and misdemeanor driving with a license suspended or revoked
for other reasons. People v. Profitt, 8 Cal.App. 5th
1255, 1259 (Feb. 27, 2017). For sentencing purposes, Profitt
had three prior misdemeanor DUI convictions. Id.
Profitt was sentenced to three years in county jail, the last
year on mandatory supervision. Id. at 1262. On
February 27, 2017, the California Court of Appeal affirmed
the judgment in a partially published opinion. Id.
at 1258; Answer Exs. D-E. The California Supreme Court denied
review on June 14, 2017. Docket No. 12, Ex. E.
The
California Court of Appeal summarized the facts as follows:
The following evidence was presented at trial. On February
23, 2013, at about 10:00 p.m. in Lakeport, California Highway
Patrol Officer Ryan Erickson observed a pickup truck cross a
limit line before coming to a complete stop at a stop sign,
and later observed the truck's left tires cross over
double solid yellow lines as it proceeded down Soda Bay Road.
The truck then turned onto a residential street and Erickson
thought “perhaps [the driver] would get away with one
for the evening. He made it home and he was safe to
go.” However, the truck made a U-turn and returned to
Soda Bay Road. Erickson testified: “[T]hat immediately
alerted me to the fact that perhaps the driver's allowing
me to pass so I will no longer be following him . . . . I
recognized that as what I call a cat and mouse game.”
Erickson left the road to let the truck pass and then resumed
following the truck. “It took [Erickson] a little bit
to catch up, ” and he then saw the truck make an abrupt
left turn. Erickson activated his emergency lights and pulled
the truck over for an investigation.
Erickson walked to the driver's door and spoke to the
driver, Profitt. He noticed Profitt's eyes were red and
watery, his breath smelled strongly of alcohol, his speech
was slurred, and his demeanor was argumentative, angry or
upset. Profitt told Erickson he was on his way home from a
casino, he had drunk four Coors Light beers between 5:00 and
9:30 p.m., and his license was suspended. Erickson conducted
a number of field sobriety tests (FST's), and Profitt
displayed mental and physical impairment in all five tests.
After the FST's, Erickson gave Profitt a preliminary
alcohol screening (PAS) breath test. At 10:34 p.m., the PAS
reading of his BAC [blood alcohol content] was 0.113 percent,
and at 10:36 p.m. the reading was 0.109 percent. Erickson
concluded Profitt was too impaired to drive and placed him
under arrest. FN. 3. Profitt took an evidentiary breath test
(EPAS) at 11:00 p.m. and again at 11:04 p.m. The EPAS
registered a BAC of 0.13 percent.
FN. 3. California Highway Patrol Explorer Ryan Call, a young
volunteer who was interested in law enforcement, was a
“ride-along” with Erickson at the time of the
stop. Call testified that he stood by Erickson while Profitt
performed the FST's, and Profitt smelled of alcohol and
performed poorly on the FST's. Profitt was also wobbly, a
bit argumentative, and his [speech] was slightly slurred. He
seemed too impaired to drive safely.
Erickson's vehicle was equipped with a mobile video/audio
recording system programmed to retain recordings from one
minute prior to activation of the vehicle's emergency
lights. The recording of Profitt's traffic stop was
played for the jury.
Anthony Valerio, a senior criminalist from the California
Department of Justice with training in forensic alcohol
analysis, testified that the PAS and EPAS test results
indicated Profitt's BAC was rising during the interval
between the tests. For Profitt's BAC to have risen from a
hypothetical 0.07 percent when stopped by Erickson to the
0.13 percent EPAS measurement one hour later, Profitt would
have had to have drunk approximately three and a half beers
(42 ounces of 4.2 percent beer or an equivalent amount of
alcohol) over time to get his BAC up to 0.07 percent and then
drink the equivalent amount of alcohol all at once just prior
to driving so that much of the latter alcohol remained in his
stomach at the time of the stop. On cross-examination,
defense counsel posited that Profitt might have drunk shots
of hard alcohol just before leaving the casino. Valerio said
if Profitt did not have the alcohol equivalent of three and a
half beers in his stomach when stopped by Erickson, the
breath test results and Profitt's performance on the
FST's indicated that Profitt-prior to the stop-was too
impaired to drive.
Profitt's Department of Motor Vehicles (DMV) record was
admitted in evidence. The record disclosed a 1998 conviction
under section 23152, subdivision (a); a 2007 conviction under
section 23152, subdivisions (a) and (b); and two 2009
convictions under section 23152, subdivision (a). The court
told the jury the record was relevant only to the misdemeanor
license suspension counts and was “not to [be]
consider[ed] for any purpose as to the DUI charges, Counts 1
and 2. It has nothing to do with those.” The defense
presented expert testimony by Jeffery Louis Zehnder, a
forensic toxicologist, who opined that Profitt's reported
performance on the FST's did not conclusively show he was
impaired while driving. Only three of the FST's given
(horizontal gaze nystagmus, one-leg stand, and walk and turn)
were standardized tests accepted by the National Highway
Traffic Safety Administration. While the administered Romberg
test was supported by scientific studies and had some value,
Profitt's performance on the test did not indicate
alcohol impairment. Further, Profitt was 63 years old at the
time of the FST's and the walk-and-turn and one-leg tests
were not very useful in detecting impairment in older people,
who tend to have balance problems without alcohol
consumption. Zehnder testified that Profitt's rising BAC
level indicated he was absorbing alcohol at the time of the
tests, which would tend to overstate BAC results, and
Profitt's BAC probably was lower when he was driving than
when he was tested. Absorption rates also vary widely among
individuals and circumstances, and a person who took
“four shots of 12 ounces simultaneously” could
reach a peak BAC anywhere as long as an hour and a half
thereafter. “[E]specially with [Profitt's]
relatively good performance on the [FST's], . . .
there'' no way to conclude he was at or above an
.08” when he was stopped.
The prosecutor began his closing argument by discussing the
misdemeanor charges and Profitt's prior DUI convictions.
The court again admonished the jury that the DMV record was
not relevant to Counts 1 or 2. Regarding felony Count 2, the
prosecutor argued that for Profitt's BAC to have been
below 0.08 percent when he was driving, the jury would have
to believe Profitt had three and a half beers all at once
after already drinking three and a half beers, and then
“with all this unabsorbed booze sitting in his stomach,
he gets in his car and begins to drive . . . home . . . clear
on the other side of the lake in a ridiculous attempt to race
the alcohol home . . . . [¶] . . . [¶] . . . Is
that a drinking pattern that we see often? . . . It is much
more probable and . . . common that a person simply has one
for the road, not three and a half for the road, . . .
[¶] . . . [and] then it necessarily follows
mathematically that he was an .08 or more at the casino
before he started driving.” On Count 1, the prosecutor
reviewed the evidence that Profitt was too impaired to drive:
his Vehicle Code violations while driving, his physical
appearance and impairment, and his exercise of poor judgment
in choosing to drive after drinking and with a suspended
license.
Defense counsel began his closing argument by critiquing
three themes in the prosecution's closing: fear
(“we don't want to have those big, bad drunk
drivers on the road. Therefore, . . . [if y]ou think he's
a little bit guilty, convict him”); the misdemeanors
(“he's committed prior drunk driving offenses,
therefore he must be guilty now . . . even though the judge
has instructed you to the contrary”); and “bad
math” (“an assumption . . . that the absorption
rate is a fixed amount for every person”). Counsel
conceded guilt on the misdemeanors and repeatedly reminded
the jury that the prior DUI convictions could not be
considered with respect to the felonies. On the felony
counts, he minimized evidence of Profitt's physical
impairment during the traffic stop and faulted Erickson for
not videotaping the FST's. Counsel also emphasized
Profitt's rising BAC results, Zehnder's testimony
that absorption rates vary greatly among individuals, and the
testing devices' margins of error. He argued it was not a
crime to simply drink and drive, and the jury needed to find
beyond a reasonable doubt that Profitt was impaired or had a
BAC of 0.08 percent or greater while driving.
In rebuttal argument with respect to the misdemeanor charges,
the prosecutor encouraged the jury to look at Profitt's
DMV record to see that Profitt “was told . . . ten
times” his license was suspended, but “despite
prior warnings, [he] was out on the road again.” He
also argued, “[T]he important message that we want to
send here is the message to this defendant, ‘Don't
do this. This is dangerous. It's so dangerous, it's
criminal.'”.
Profitt, 8 Cal.App. 5th at 1258-62 (alterations and
omissions in original) (footnote omitted).
STANDARD
OF REVIEW
A
district court may not grant a petition challenging a state
conviction or sentence on the basis of a claim that was
reviewed on the merits in state court unless the state
court's adjudication of the 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). The first prong applies both to questions of law and
to mixed questions of law and fact, Williams v.
Taylor, 529 U.S. 362, 407-09 (2000), while the second
prong applies to decisions based on factual determinations,
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state
court decision is “contrary to” Supreme Court
authority only 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 Supreme] Court has on a set of
materially indistinguishable facts.” Williams,
529 U.S. at 412-13. A state court decision is an
“unreasonable application of” Supreme Court
authority if it correctly identifies the governing legal
principle from the Supreme Court's decisions but
“unreasonably applies that principle to the facts of
the prisoner's case.” Id. at 413. The
federal court on habeas review may not issue the writ
“simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly.” Id. at 411. Rather, the
application must be “objectively unreasonable” to
support granting the writ. Id. at 409.
Under
§ 2254(d)(2), a state court decision “based on a
factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding.”
See Miller-El, 537 U.S. at 340; see also Torres
v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). In
conducting its analysis, the federal court must presume the
correctness of the state court's factual findings, and
the petitioner bears the burden of rebutting that presumption
by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
The
state court decision to which § 2254(d) applies is the
“last reasoned decision” of the state court.
See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991);
Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.
2005). When there is no reasoned opinion from the highest
state court to consider the petitioner's claims, the
Court looks to the last reasoned opinion. See
Nunnemaker at 801-06; Shackleford v. Hubbard,
234 F.3d 1072, 1079 n.2 ...