Profitt v. Lake County Probation Department

          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 ...