(HC)Joel Lamar Wyrick v. Randy Grounds, No. 1:2010cv00975 - Document 23 (E.D. Cal. 2012)
Court Description: ORDER Substituting Matthew Cate As Respondent, ORDER Denying The Petition For Writ Of Habeas Corpus (Doc. 1 ) And Directing The Entry Of Judgment For Respondent, ORDER Declining To Issue A Certificate Of Appealability, signed by Magistrate Judge Sheila K. Oberto on 5/16/2012. CASE CLOSED.(Fahrney, E)
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(HC)Joel Lamar Wyrick v. Randy Grounds Doc. 23 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOEL LAMAR WYRICK, 11 12 13 14 15 16 17 ) ) Petitioner, ) ) ) v. ) ) MATTHEW CATE, Secretary of the) California Department of ) Corrections and ) Rehabilitation, ) ) Respondent. ) ) ) 1:10-cv—00975-SKO-HC ORDER SUBSTITUTING MATTHEW CATE AS RESPONDENT ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) AND DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. 22 parties have consented to the jurisdiction of the United States 23 Magistrate Judge to conduct all further proceedings in the case, 24 including the entry of final judgment, by manifesting consent in 25 writings signed by the parties or their representatives and filed 26 by Petitioner on June 17, 2010 (doc. 9), and by Respondent on 27 December 16, 2010 (doc. 17). 28 petition, which was filed on May 21, 2010, and transferred to Pursuant to 28 U.S.C. § 636(c)(1), the Pending before the Court is the 1 Dockets.Justia.com 1 this Court on June 1, 2010. 2 petition with supporting documentation on February 3, 2011. 3 Petitioner filed a traverse on February 28, 2011. 4 5 I. Respondent filed an answer to the Jurisdiction and Substitution of Respondent Because the petition was filed after April 24, 1996, the 6 effective date of the Antiterrorism and Effective Death Penalty 7 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 8 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 9 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 10 A district court may entertain a petition for a writ of 11 habeas corpus by a person in custody pursuant to the judgment of 12 a state court only on the ground that the custody is in violation 13 of the Constitution, laws, or treaties of the United States. 14 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 15 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 16 16 (2010) (per curiam). 17 the proceedings resulting in his conviction, he suffered 18 violations of his Constitutional rights. 19 was rendered by the Kern County Superior Court (KCSC), which is 20 located within the territorial jurisdiction of this Court. 21 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). 22 Lindh 28 Petitioner claims that in the course of The challenged judgment 28 A petitioner who seeks habeas corpus relief pursuant to 28 23 U.S.C. § 2254 must be in custody at the time the petition is 24 filed, or the Court lacks jurisdiction over the proceeding. 25 U.S.C. §§ 2241(c)(3), 2254(a); Maleng v. Cook, 490 U.S. 488, 490 26 (1989). 27 custody” under his unexpired sentence because release on parole 28 is not unconditional. 28 A prisoner who has been released on parole is still “in Jones v. Cunningham, 371 U.S. 236, 242 2 1 (1963). 2 that as of May 26, 2011, he was released on parole (doc. 22). 3 When Petitioner was sentenced to a six-year term, he was Here, Petitioner filed a change of address reflecting 4 advised that when he was released, he would be on parole for up 5 to five years. 6 Petitioner’s notice of change of address but did not submit any 7 indication that Petitioner’s release rendered the case moot. 8 light of the foregoing and the provisions of Cal. Pen. Code § 9 3060 concerning the length of parole periods, it appears that (3 RT 405-06.) Respondent was served with In 10 Petitioner presently remains in custody for the purposes of this 11 proceeding. 12 Respondent filed an answer on behalf of Respondent Randy 13 Grounds, Warden at the Correctional Training Facility at Soledad, 14 California, where Petitioner alleged he was incarcerated at the 15 time the petition was filed. 16 a person who had custody of the Petitioner within the meaning of 17 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 18 2254 Cases in the District Courts (Habeas Rules). 19 v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 20 Petitioner thus named as Respondent See, Stanley With respect to the proper Respondent in this proceeding in 21 light of Petitioner’s release on parole, the statutes contemplate 22 a proceeding against a person who has the immediate custody of 23 the prisoner and the power to produce the body of the prisoner. 24 28 U.S.C. §§ 2242, 2243; Rumsfeld v. Padilla, 542 U.S. 426, 434- 25 35 (2004). 26 place of the warden of the institution where a petitioner is 27 housed does not deprive the court of personal jurisdiction over 28 the respondent where the petitioner is a state prisoner bringing Naming the California Director of Corrections in 3 1 a challenge to a conviction sustained within the jurisdiction of 2 the California Department of Corrections. 3 Gomez, 81 F.3d 891, 894-95 (9th Cir. 1996) (warden of a 4 California prison and California’s Director of Corrections had 5 the power to produce the prisoner; both might receive service of 6 process; and the laws of the state put the custody of the 7 prisoner in the director). 8 or where his immediate custodian has otherwise been put in doubt, 9 the Director of Corrections serves as an effective respondent and 10 eliminates procedural roadblocks to resolution of the case on the 11 merits. 12 Ortiz-Sandoval v. Where a prisoner has been transferred Id. at 896. As of July 1, 2005, Cal. Pen. Code § 5050 abolished the 13 office of the Director of Corrections and provided that any 14 reference to the Director of Corrections in any code refers to 15 the Secretary of the California Department of Corrections and 16 Rehabilitation (CDCR). 17 concludes that Matthew Cate, Secretary of the CDCR, is an 18 appropriate respondent in this action, and pursuant to Fed. R. 19 Civ. P. 25(d), he should be substituted in place of Respondent 20 Randy Grounds. 21 II. 22 Petitioner raises claims relating to pre-trial and trial 23 24 Accordingly, the Court therefore The Court will order the substitution. Procedural Summary proceedings. Petitioner was charged with having possessed cocaine base 25 for sale on or about June 19, 2006, in violation of Cal. Health & 26 Saf. Code § 11351.5. 27 within the meaning of Cal. Pen. Code §§ 667 and 1170.12, and had 28 served multiple separate prior prison terms within the meaning of He had multiple prior felony convictions 4 1 Cal. Pen. Code § 667.5(b). 2 12, 2007, and concluded on March 13, 2007. 3 Petitioner was acquitted of possession for sale but was convicted 4 of the lesser included offense of possession in violation of Cal. 5 Health & Saf. Code 6 § 11350(a). 7 the allegations concerning prior convictions and prison terms 8 were true. 9 in prison on April 17, 2007. 10 (CT 20-22.) (Id. at 160.) (Id. at 162.) Trial commenced on March (CT 117-22, 158-60.) The trial court found that some of Petitioner was sentenced to six years (Id. at 209.) Petitioner filed a timely appeal from the judgment on April 11 19, 2007. 12 in People v. Joel Lamar Wyrick, case number F052721, the Court of 13 Appeal of California, Fifth Appellate District (CCA) ordered the 14 abstract of judgment amended to reflect conviction of simple 15 possession of a controlled substance but otherwise affirmed the 16 judgment. 17 Petitioner petitioned for review of the CCA’s decision in the 18 California Supreme Court. 19 (Id. at 215.) In an opinion filed on July 30, 2008, (Ans., doc. 18, 26-30.) There is no indication that Petitioner filed a petition for writ of habeas corpus in the 20 KCSC on January 6, 2009, which was denied. 21 Petitioner’s claim of admission of evidence obtained by an 22 illegal search and seizure was not subject to review on habeas 23 corpus but, in any event, was not meritorious; 2) concluded that 24 Petitioner’s claim regarding insufficiency of the evidence to 25 support a finding of guilt of possession of cocaine base was not 26 cognizable on habeas corpus in view of the CCA’s rejection of it 27 on appeal and its determination that there was sufficient 28 evidence of the chain of custody of the cocaine after its seizure 5 The court 1) found 1 and until its receipt at the laboratory; 3) ruled that Petitioner 2 did not state a claim regarding misconduct of the prosecutor and 3 the trial court with respect to the identification of the 4 substance seized from Petitioner; and 4) rejected Petitioner’s 5 claims concerning trial counsel’s conflict of interest, failure 6 to investigate, and omissions concerning suppression of evidence, 7 objections to testimony, and motions for acquittal, concluding 8 that Petitioner had not shown any ineffectiveness, let alone 9 prejudice. 10 (LD 4-5.) Petitioner filed a petition for writ of habeas corpus in the 11 CCA on April 17, 2009. 12 not cognizable in habeas proceedings Petitioner’s claims 13 concerning evidentiary rulings, search and seizure, sufficiency 14 of the evidence, chain of custody, and any claims that could have 15 been raised on appeal. 16 determined to be conclusional. 17 The CCA denied the petition, rejecting as Petitioner’s remaining claims were (LD 7.) Petitioner filed a petition for writ of habeas corpus in the 18 California Supreme Court (CSC) on August 14, 2009. 19 without a statement of reasoning or authority on February 3, 20 2010. It was denied (LD 9.) 21 III. 22 In a habeas proceeding brought by a person in custody Factual Summary 23 pursuant to a judgment of a state court, a determination of a 24 factual issue made by a state court shall be presumed to be 25 correct. 26 convincing evidence to rebut the presumption of correctness. 27 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 28 (9th Cir. 2004). The petitioner has the burden of producing clear and 28 The following factual summary is taken from the 6 1 opinion of the California Court of Appeal, Fifth Appellate 2 District, in People v. Wyrick, case number F052721, filed on July 3 30, 2008. 4 1198, 1199 n.1 (9th Cir. 2005) (setting forth a factual summary 5 from the state appellate court’s decision). See, Galvan v. Alaska Dep’t. Of Corrections, 397 F.3d 6 FACTS 7 On June 19, 2006, Officers Eric Lantz and Patrick Mara were on patrol in an area known for drugs and prostitution. The officers turned on their emergency lights and stopped a vehicle because its license plate light was out and there were objects hanging from the rear view mirror. As they were following the vehicle, Lantz noticed the driver lean forward to his left and could see him moving his shoulder as if he was either sticking something into the seat or retrieving something. The vehicle eventually pulled over, and the officers approached the car. Lantz recognized the driver, appellant, as an individual he knew was on parole, so he searched him. Mara pat searched the female passenger, Felisha Wallace, and searched the car, but found nothing. Mara walked Wallace about 30 to 40 feet away, and positioned her so she was facing away from Officer Lanz and appellant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 While Officer Lantz was searching appellant, he noticed that the elastic waistband on one side of appellant's underwear was folded under and, based on his training and experience, Lantz believed appellant was hiding narcotics in his buttocks. Lantz told appellant of his suspicions, and appellant reached into the back of his pants and removed a plastic bag containing what appeared to be cocaine base. Lantz told appellant he would release him without filing charges if appellant informed him of other criminal activity in the area, so appellant was initially released. However, appellant failed to uphold his end of the bargain, and was eventually charged with possession of cocaine base for sale. 23 24 25 26 Lantz gave Mara the bagged substance he recovered from appellant. Mara placed the substance in a “k-pack” and locked it in the trunk of the police car. Later that night, Mara booked the evidence into the property room. The evidence was sent to the Kern County Regional Criminalistics Laboratory, where it tested positive for cocaine base. 27 (Ans. doc. 18, 26, 28.) 28 7 1 IV. 2 Title 28 U.S.C. § 2254 provides in pertinent part: 3 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 4 5 Standard of Decision and Scope of Review 6 7 8 9 10 (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. 11 Clearly established federal law refers to holdings, as 12 opposed to dicta, of the decisions of the Supreme Court as of the 13 time of the relevant state court decision. Cullen v. Pinholster, 14 - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 15 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). 16 It is thus the governing legal principle or principles set forth 17 by the Supreme Court at the pertinent time. Lockyer v. Andrade, 18 538 U.S. at 71-72. 19 A state court’s decision contravenes clearly established 20 Supreme Court precedent if it reaches a legal conclusion opposite 21 to, or substantially different from, the Supreme Court's or 22 concludes differently on a materially indistinguishable set of 23 facts. Williams v. Taylor, 529 U.S. at 405-06. The state court 24 need not have cited Supreme Court precedent or have been aware of 25 it, "so long as neither the reasoning nor the result of the 26 state-court decision contradicts [it]." Early v. Packer, 537 27 U.S. 3, 8 (2002). A state court unreasonably applies clearly 28 8 1 established federal law if it either 1) correctly identifies the 2 governing rule but applies it to a new set of facts in an 3 objectively unreasonable manner, or 2) extends or fails to extend 4 a clearly established legal principle to a new context in an 5 objectively unreasonable manner. 6 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. 7 application of clearly established federal law is unreasonable 8 only if it is objectively unreasonable; an incorrect or 9 inaccurate application is not necessarily unreasonable. 10 Hernandez v. Small, 282 F.3d An Williams, 529 U.S. at 410. 11 A state court’s determination that a claim lacks merit 12 precludes federal habeas relief as long fairminded jurists could 13 disagree on the correctness of the state court’s decision. 14 Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). 15 Even a strong case for relief does not render the state court’s 16 conclusions unreasonable. 17 a state prisoner must show that the state court’s ruling on a 18 claim was “so lacking in justification that there was an error 19 well understood and comprehended in existing law beyond any 20 possibility for fairminded disagreement.” 21 standards set by § 2254(d) are “highly deferential standard[s] 22 for evaluating state-court rulings” which require that state- 23 court decisions be given the benefit of the doubt, and the 24 Petitioner bear the burden of proof. 25 S. Ct. at 1398. 26 ground supporting the state court decision is examined and found 27 to be unreasonable under the AEDPA. 28 132 S.Ct. 1195, 1199 (2012). Id. To obtain federal habeas relief, Id. at 786-87. The Cullen v. Pinholster, 131 Habeas relief is not appropriate unless each 9 Wetzel v. Lambert, -–U.S.--, 1 In assessing under section 2254(d)(1) whether the state 2 court’s legal conclusion was contrary to or an unreasonable 3 application of federal law, “review... is limited to the record 4 that was before the state court that adjudicated the 5 claim on the merits.” 6 Evidence introduced in federal court has no bearing on review 7 pursuant to § 2254(d)(1). 8 § 2254(e)(1) provides that in a habeas proceeding brought by a 9 person in custody pursuant to a judgment of a state court, a Cullen v. Pinholster, 131 S. Ct. at 1398. Id. at 1400. Further, 28 U.S.C. 10 determination of a factual issue made by a state court shall be 11 presumed to be correct; the petitioner has the burden of 12 producing clear and convincing evidence to rebut the presumption 13 of correctness. 14 In determining the appropriate deference to be given to a 15 state court decision, it must be determined whether the decision 16 was on the merits within the meaning of 28 U.S.C. § 2254(d), 17 which limits habeas relief with respect to “any claim that was 18 adjudicated on the merits in State court proceedings....” 19 state has adjudicated a claim on the merits within the meaning of 20 § 2254(d) when it decides the petitioner’s right to relief on the 21 basis of the substance of the constitutional claim raised, rather 22 than denying the claim because of a procedural or other rule 23 precluding state court review of the merits. Lambert v. 24 Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). Where there has 25 been one reasoned state judgment rejecting a federal claim, later 26 unexplained orders upholding that judgment or rejecting the same 27 claim are presumed to rest upon the same ground. 28 Nunnemaker, 501 U.S. 797, 803 (1991). 10 A Ylst v. Thus, where the California 1 Supreme Court denies a habeas petition without citation or 2 comment, a district court will “look through” the unexplained 3 decision of that state court to the last reasoned decision of a 4 lower court as the relevant state-court determination. 5 Nunnemaker, 501 U.S. at 803-04; Taylor v. Maddox, 366 F.3d 992, 6 998 n.5 (9th Cir. 2004). 7 overcoming or rebutting the presumption by strong evidence that 8 the presumption, as applied, is wrong. 9 10 V. Ylst v. A petitioner has the burden of Ylst, 501 U.S. at 804. Unreasonable Search and Seizure Petitioner argues that when the trial court permitted the 11 introduction of evidence obtained pursuant to an allegedly 12 unreasonable search and seizure, Petitioner’s rights under the 13 Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments were 14 violated, and he was denied due process and equal protection of 15 the laws. 16 17 A. Background The record of the trial court proceedings reflects that 18 Petitioner’s counsel filed a motion pursuant to Cal. Pen. Code 19 § 1538.5 to suppress cocaine base seized from Petitioner during 20 the traffic stop of the car Petitioner was driving and a related 21 warrantless search of his person on June 19, 2006. 22 The People filed an opposition, and a hearing was held on 23 February 9, 2007, at which Bakersfield Police Officer Lantz 24 testified on behalf of the prosecution. 25 presented and submitted, and the parties rested, the motion was 26 denied. 27 seizure claim in a full round of habeas corpus, with the KCSC and 28 CCA expressly finding that it was not cognizable on habeas (Id. at 55-103.) (CT 41-46.) After evidence was Petitioner raised the search and 11 1 corpus. 2 parole, and because the stop of the car was made because the 3 officer had observed vehicle code violations (no license plate 4 light and obstruction of the driver’s view from the rearview 5 mirror because of hanging objects), no warrant was necessary, and 6 Petitioner himself pulled the drugs out from his underwear. 7 court further found that the filing of charges and the subsequent 8 arrest of Petitioner resulted from Petitioner’s failure to keep 9 his part of an agreement to act as an informant in exchange for The KCSC further found that because Petitioner was on 10 his release. 11 B. The (LD 5.) Analysis 12 Where the state has provided the petitioner with an 13 opportunity for full and fair litigation of a Fourth Amendment 14 claim, the petitioner may not be granted federal habeas corpus 15 relief on the ground that evidence obtained in an 16 unconstitutional search and seizure was introduced at trial. 17 Stone v. Powell, 428 U.S. 465, 494 (1976). 18 In Stone, the Court did not set forth a test for determining 19 whether a state has provided an opportunity for full and fair 20 litigation of a claim. 21 Townsend v. Sain, 372 U.S. 293 (1963), which held that a federal 22 court must grant a habeas petitioner an evidentiary hearing if 1) 23 the merits of the factual dispute were not resolved in the state 24 hearing; 2) the state factual determination is not fairly 25 supported by the record as a whole; 3) the fact-finding procedure 26 employed by the state court was not adequate to afford a full and 27 fair hearing; 4) there is a substantial allegation of newly 28 discovered evidence; 5) the material facts were not adequately However, in a footnote the Court cited 12 1 developed at the state-court hearing; or 6) it appears that the 2 state trier of fact did not afford the habeas applicant a full 3 and fair fact hearing. 4 (citing Townsend v. Sain, 372 U.S. at 313). 5 include the extent to which the claims were briefed before, and 6 considered by, the state trial and appellate courts. 7 v. Kincheloe, 912 F.2d 1176, 1178-79 (9th Cir. 1990). 8 9 Stone v. Powell, 428 U.S. at 494 n.36 Other factors Terrovona Even though a petitioner may contend that the state court's factual findings concerning a search are not supported by the 10 evidence, a petitioner has nevertheless been provided a full and 11 fair opportunity to litigate his search claim where the validity 12 of the search was raised in a pre-trial motion, the trial court 13 held a hearing on the issue where the petitioner was permitted to 14 present evidence and examine witnesses, the trial court made a 15 factual finding, and there was judicial review of the trial 16 court’s decision. 17 Cir. 2005). 18 Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Here, Petitioner fully briefed and presented his claim in 19 the trial court with the assistance of counsel. 20 the subject of a hearing where the facts were fully developed in 21 the course of testimony and cross-examination. 22 determined the claim on the merits, and the facts fairly support 23 the denial of the motion to suppress. 24 judgment and had the opportunity to raise before the CCA the 25 trial court’s denial of the motion to suppress and the 26 introduction of the fruits of the search. 27 Petitioner’s opportunity to litigate his search claim are 28 analogous to those of the petitioner in Moormann v. Schriro, 426 13 His claim was The trial court Petitioner appealed the The circumstances of 1 2 F.3d 1044. As such, Petitioner was afforded a full and fair opportunity 3 to litigate his claim concerning the Fourth Amendment. 4 Therefore, he cannot receive habeas corpus relief on his Fourth 5 Amendment claim or claims in this proceeding pursuant to 28 6 U.S.C. § 2254.1 7 VI. 8 The CCA decided Petitioner’s insufficiency of the evidence 9 Insufficiency of the Evidence claim on direct appeal. In a subsequent round of state court 10 habeas, the KCSC and CCA concluded that the claim was not subject 11 to habeas review because on direct appeal, the CCA had properly 12 determined there was sufficient evidence to support the judgment; 13 thus the issue was not cognizable on habeas corpus. 14 California Supreme Court summarily denied the claims on habeas 15 corpus. 16 concerning Petitioner’s sufficiency of the evidence claim. 17 18 19 22 23 Thus, the CCA’s decision is the last reasoned decision A. Background The decision of the CCA concerning Petitioner’s sufficiency of the evidence claim is as follows: 20 21 The I. Substantial Evidence In considering appellant's claim of insufficiency of the evidence, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact 24 1 25 26 27 28 Petitioner alleged that there was deliberate deception on the part of the trial court and the prosecutor that resulted in allowing illegal evidence to be admitted, which in turn violated Petitioner’s rights to due process and equal protection, and his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. (Pet. 15, 29-30.) The claim is uncertain. However, in any event, the record does not contain evidence of deliberate deception, and Petitioner did not develop any legal argument in connection with these general allegations. Petitioner has not shown that he is entitled to relief on the claim or claim. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 could find the elements of the crime beyond a reasonable doubt. (In re George T. (2004) 33 Cal.4th 620, 630-631.) Appellant contends there is insufficient evidence to support the finding that the substance that tested positive for cocaine base was actually seized from his person. He notes that Officer Mara testified he did not see Officer Lantz seize the substance from appellant, and that Wallace testified that she watched Lantz search appellant and did not see Lantz seize anything from appellant. However, Lantz testified that he did seize the substance from appellant, and Wallace was facing away from Lantz and appellant during the search, so could not have seen the seizure. Considering the evidence in a light most favorable to the prosecution, there is sufficient evidence to uphold the jury's verdict, as a reasonable trier of fact could have relied on Lantz's and Mara's testimony and found that appellant possessed the substance. Furthermore, any doubt appellant raised regarding potential evidence tampering was properly left for the jury to weigh. (People v. Riser (1956) 47 Cal.2d 566, 580-581). Appellant also asserts there is insufficient evidence to support the finding that the substance Officer Lantz seized from him was the same substance that tested positive for cocaine base. He challenges the sufficiency of the evidence of the chain of custody of the substance from Officer Mara to the crime lab. He rests his assertion on the facts that there was no testimony the substance seized was delivered to the crime lab, that Mara and Lantz did not identify the substance in the crime lab as the same as that seized at the crime scene, that Lantz could not describe the size of the substance he seized, and that Mara, who transported the drugs from the scene to the property room, did not file a police report. 20 21 The existence of a chain of custody is an issue for the finder of fact. As People v. Catlin (2001) 26 Cal.4th 81, 134 explained: 22 23 24 25 26 27 28 “In a chain of custody claim, ‘ “[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” [Citations.]’ [Citations]” Furthermore, direct testimony is not necessary to establish every link in the chain of custody to a reasonable certainty. (People v. Catlin, supra, 26 Cal.4th at pp. 134-135 [tissue samples labeled with identification numbers at time of autopsy sufficient to establish that tissue came from the body of the deceased].) In the instant case the evidence establishing a chain of custody was sufficient. Officer Mara secured the substance in a “k-pack” and booked it into the property room. While there was no direct testimony that the same substance was moved from the property room to the crime lab, Gregory Laskowski, a supervising criminalist at Kern County Regional Criminalistics Laboratory, testified that all evidence must come to the crime lab in a sealed package with a photo of the contents taken by the submitting law enforcement agency. When the package arrives, an analyst compares the contents of the package with the photo to ensure they match up. 15 16 17 18 19 20 21 The exhibits submitted by the prosecution at trial demonstrated a chain of custody. Exhibit 3, the photo of the substance taken by the police, and exhibit 2, the photo of the substance taken by the crime lab, look substantially similar, and the package in each photo has the same crime lab number, DR06-01912-01. Exhibit 1, the crime lab report, also has the same crime lab number, lists appellant as the suspect, and has the same case number as exhibit 3, 06-126390. The crime lab report states that the description of the substance that arrived at the crime lab in a sealed envelope matches the description of the substance seized by Lantz. 22 23 24 25 26 27 28 Appellant attempts to analogize his case to several cases where the court found the evidence of chain of custody insufficient. (American Mutual Etc. Co. v. Industrial Acc. Com. (1947) 78 Cal.App.2d 493; People v. Smith (1921) 55 Cal.App. 324; McGowan v. Los Angeles (1950) 100 Cal.App.2d 386.) In these cases, the testimony given by the laboratory technicians was insufficient because there was no evidence tying the substance tested back to the scene of the crime. However, in this case, there was evidence the substance in question came from the crime scene, including the testimony of Officers Mara and Lantz, and the information from exhibits 1 through 3 identifying the 16 1 substance in the laboratory as the same substance seized from appellant. 2 3 4 5 6 7 8 9 10 Appellant also attempts to distinguish his case from People v. Bailey (1991) 1 Cal.App.4th 459, where the defendant's conviction for possession of cocaine was upheld. However, in Bailey the issue was whether the evidence showed that “rock cocaine” was “cocaine base.” (Id. at pp. 462-463.) Bailey did not consider whether the evidence was sufficient to show that the substance seized from the defendant was the same substance tested in a crime lab, and therefore has no bearing on the instant case. (Doc. 18, 28-29.) B. Analysis To determine whether a conviction violates the 11 constitutional guarantees of due process of law because of 12 insufficient evidence, a federal court ruling on a petition for 13 writ of habeas corpus must determine whether any rational trier 14 of fact could have found the essential elements of the crime 15 beyond a reasonable doubt. 16 319, 20-21 (1979); Windham v. Merkle, 163 F.3d 1092, 1101 (9th 17 Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). 18 Jackson v. Virginia, 443 U.S. 307, All evidence must be considered in the light that is the 19 most favorable to the prosecution. 20 Jones, 114 F.3d at 1008. 21 responsibility to resolve conflicting testimony, weigh evidence, 22 and draw reasonable inferences from the facts. 23 therefore, assumed that the trier resolved all conflicts in a 24 manner that supports the verdict. 25 at 319; Jones, 114 F.3d at 1008. 26 whether the evidence excludes every hypothesis except guilt, but 27 rather whether the jury could reasonably arrive at its verdict. 28 United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). Jackson, 443 U.S. at 319; It is the trier of fact’s 17 It must be, Jackson v. Virginia, 443 U.S. The relevant inquiry is not 1 Circumstantial evidence and reasonable inferences therefrom can 2 be sufficient to prove any fact and to sustain a conviction; 3 however, mere suspicion or speculation does not rise to the level 4 of sufficient evidence. 5 820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508, 514 6 (9th Cir. 1990); see, Jones v. Wood, 207 F.3d at 563. 7 must base its determination of the sufficiency of the evidence 8 from a review of the record. 9 United States v. Lennick, 18 F.3d 814, The court Jackson at 324. The Jackson standard must be applied with reference to the 10 substantive elements of the criminal offense as defined by state 11 law. 12 Further, under the AEDPA, federal courts must apply the Jackson 13 standard with an additional layer of deference. 14 Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). 15 whether the state court decision being reviewed reflected an 16 objectively unreasonable application of the Jackson standards to 17 the facts of the case. 18 Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101. Juan H. v. This Court thus asks Id. at 1275. Here, the state court articulated a standard of review 19 consistent with the Jackson standard. 20 a light most favorable to the prosecution and considered the 21 totality of the evidence and the inferences that a rational trier 22 of fact would draw. 23 application of the Jackson standard for the state court to 24 conclude that 1) the testimony of the officers was sufficient to 25 support a finding that the controlled substance was seized from 26 Petitioner’s person; and 2) testimony and other evidence of the 27 circumstances surrounding the substance’s seizure, packaging, 28 transport, identification, and labeling, including photographic It viewed the evidence in It was not an objectively unreasonable 18 1 and other documentary evidence, were sufficient to support a 2 finding of a chain of custody and that the substance seized from 3 Petitioner was the same substance analyzed in the crime 4 laboratory. 5 The state court’s decision was not contrary to, or an 6 unreasonable application of, the clearly established federal law 7 reflected in the Jackson standard. 8 entitled to relief on his claim concerning the alleged 9 insufficiency of the evidence. 10 11 12 VII. Petitioner is, therefore, not Ineffective Assistance of Counsel A. Exhaustion of State Court Remedies In the state courts, Petitioner alleged generally that he 13 was deprived of his right to conflict-free counsel, and that 14 counsel failed to perform competently at trial and made 15 unreasonable tactical decisions based on an inadequate 16 investigation. 17 (LD 6, LD 8.) These allegations were general; the only specific 18 information Petitioner cited was counsel’s alleged failure to 19 know that at the time Petitioner was detained and the cocaine was 20 discovered, his companion, Wallace, was on probation for a felony 21 conviction of possession of marijuana. 22 portions of Wallace’s trial testimony that confirmed Wallace’s 23 probation status to support these allegations. 24 However, the transcript also showed that during Wallace's direct 25 examination, defense counsel asked if she had inquired of the 26 officers if the incident involving the stop was something she 27 should report to her probation officer. 28 demonstrates that defense counsel knew Wallace was on probation. 19 Petitioner submitted (RT 243-44.) (RT 237.) This 1 In view of Wallace’s status as the sole non-law-enforcement, 2 defense witness to the seizure, and her claim that she was 3 testifying to state the truth despite being on parole and being 4 reluctant to testify, Petitioner has not shown that his counsel’s 5 ignorance of the nature of the offense for which Wallace was on 6 probation was prejudicial. 7 Petitioner raises the same generalized allegations of 8 ineffective assistance of counsel in the present proceeding. 9 (Pet. 43-46.) In his petition, Petitioner further alleges that 10 he was not advised of his Miranda rights and that his trial 11 counsel was ineffective for failing to 1) raise the Miranda issue 12 after Petitioner requested him to do so before trial; 2) 13 challenge the sufficiency of the justification for the stop or 14 argue that the stop was without probable cause; 3) raise other 15 issues not specified in the petition but referred to in his 16 motion for the substitution of counsel, including failure to 17 attempt to get a DNA or fingerprint sample from the packaging of 18 the contraband allegedly carried in Petitioner’s buttocks 19 (counsel had apparently advised that it could implicate 20 Petitioner and exonerate him), failure to obtain photographs of 21 the location, the tail lights and the dispatch tapes, and failure 22 to exclude Petitioner’s prior convictions (counsel had prepared 23 an in limine motion to exclude them). 24 13-14, 16, 18-23.) 25 court’s denial of his motion for substitution of counsel. 26 (Id. at 8.) 27 and apprehension of Petitioner, Petitioner implies that counsel 28 failed to argue inconsistencies in the officers’ testimony and to (Doc. 1-1, 1, 5-7, 10, 12- He raises related issues concerning the trial With respect to the officers’ initial observation 20 1 investigate and impeach them with evidence concerning the 2 topography of the location of the stop. 3 (Id. at 8-9.) Petitioner attempted to submit to the California Supreme 4 Court all or part of the request for judicial notice that 5 accompanies Petitioner’s present petition. 6 docket of Wyrick v. Grounds, case number S175551, reflects that a 7 request for judicial notice was received before the petition was 8 denied, but it does not appear to have been filed.2 9 also submits his correspondence with the Supreme Court after the (Doc. 1-3, 50.) The Petitioner 10 petition was denied in which a deputy clerk of the court returned 11 his motion to take judicial notice and request for 12 reconsideration, noting that the denial of petition had been 13 final forthwith and could not be reconsidered, and reassuring 14 Petitioner that the court had considered the “petition, and the 15 contentions made therein.” 16 (Doc. 1-3, 38.) The extent of the documentation and factual claims presented 17 to the California Supreme Court is unclear. 18 argues that the claim was unexhausted, Respondent also contends 19 that notwithstanding a failure to exhaust state court remedies as 20 to his ineffective assistance claims, the state court’s 21 conclusion that Petitioner failed to show that trial counsel was 22 ineffective was not objectively unreasonable. Although Respondent In view of the 23 24 25 26 27 28 2 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The address of the official website of the California state courts is www.courts.ca.gov. 21 1 uncertainty as to the record before the California Supreme Court, 2 this Court will address Petitioner’s ineffective assistance claim 3 on the merits. 4 B. Legal Standards 5 The law governing claims concerning ineffective assistance 6 of counsel is clearly established for the purposes of the AEDPA 7 deference standard set forth in 28 U.S.C. § 2254(d). 8 Moore, –U.S. –, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151 9 F.3d 1226, 1229 n.2 (9th Cir. 1998). Premo v. 10 To demonstrate ineffective assistance of counsel in 11 violation of the Sixth and Fourteenth Amendments, a convicted 12 defendant must show that 1) counsel’s representation fell below 13 an objective standard of reasonableness under prevailing 14 professional norms in light of all the circumstances of the 15 particular case; and 2) unless prejudice is presumed, it is 16 reasonably probable that, but for counsel’s errors, the result of 17 the proceeding would have been different. 18 Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d 19 344, 346 (9th Cir. 1994). 20 omissions of counsel that are alleged to have been deficient. 21 Strickland, 466 U.S. at 690. 22 that is applied on direct appeal and in a motion for a new trial. 23 Id. at 697-98. 24 Strickland v. A petitioner must identify the acts or This standard is the same standard In determining whether counsel’s conduct was deficient, a 25 court should consider the overall performance of counsel from the 26 perspective of counsel at the time of the representation. 27 Strickland, 466 U.S. at 689. 28 counsel’s conduct was adequate and within the exercise of There is a strong presumption that 22 1 reasonable professional judgment and the wide range of reasonable 2 professional assistance. 3 show “that counsel made errors so serious that counsel was not 4 functioning as the 'counsel' guaranteed the defendant by the 5 Sixth Amendment.” Id. at 688-90. The challenger must Id. at 687. 6 In determining prejudice, a reasonable probability is a 7 probability sufficient to undermine confidence in the outcome of 8 the proceeding. 9 a trial, the question is whether there is a reasonable Strickland, 466 U.S. at 694. In the context of 10 probability that, absent the errors, the fact finder would have 11 had a reasonable doubt respecting guilt. 12 must consider the totality of the evidence before the fact finder 13 and determine whether the substandard representation rendered the 14 proceeding fundamentally unfair or the results unreliable. 15 at 687, 696. 16 Id. at 695. This Court Id. Where the state court has applied the correct, clearly 17 established federal law to a claim concerning the ineffective 18 assistance of counsel, a federal district court analyzes the 19 claim under the “unreasonable application” clause of 20 § 2254(d)(1), pursuant to which habeas relief is warranted where 21 the correct law was unreasonably applied to the facts. 22 v. Middle, 215 F.3d 1058, 1062-62 (2000) (citing Williams v. 23 Taylor, 529 U.S. 362 (2000)). 24 Weighall The Supreme Court has described the high bar presented by 25 § 2254(d)(1) for prevailing on a claim of ineffective assistance 26 of counsel: 27 28 “To establish deficient performance, a person challenging a conviction must show that ‘counsel's representation fell below an objective standard of 23 1 2 3 4 5 6 7 reasonableness.’ [Strickland,] 466 U.S., at 688 [104 S.Ct. 2052]. A court considering a claim of ineffective assistance must apply a ‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable professional assistance. Id., at 689 [104 S.Ct. 2052]. The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ Id., at 687 [104 S.Ct. 2052]. “With respect to prejudice, a challenger must demonstrate ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ... 8 9 10 11 12 13 14 15 16 17 18 19 20 21 “ ‘Surmounting Strickland's high bar is never an easy task.’ Padilla v. Kentucky, 559 U.S. ----, ---- [130 S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial proceedings], and so the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690 [104 S.Ct. 2052]. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is ‘all too tempting’ to ‘second-guess counsel's assistance after conviction or adverse sentence.’ Id., at 689 [104 S.Ct. 2052]; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052. 22 23 24 25 26 27 28 “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ id., at 689 [104 S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is ‘doubly’ so, Knowles, 556 U.S., at ----, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at ---- [129 S.Ct., at 1420]. Federal habeas courts must guard against the danger of equating unreasonableness 24 1 2 3 under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” 4 Premo v. Moore, -U.S. -, 131 S.Ct. 733, 739-40 (2011) (quoting 5 Harrington v. Richter, 131 S.Ct. 770). 6 7 C. Analysis Petitioner has failed to show that counsel had a conflict of 8 interest. 9 strategic decisions have been demonstrated. Similarly, no specific unreasonable tactical or As to these general 10 allegations, a state court could reasonably have determined that 11 Petitioner had neither shown sub-standard conduct by counsel nor 12 prejudice. 13 Petitioner alleged that counsel had failed to investigate 14 and did not know Wallace was on probation for felony conviction 15 of possession of marijuana. 16 Petitioner submitted portions of Wallace’s trial testimony that 17 confirmed Wallace’s probation status. 18 transcript also showed that during his direct examination of 19 Wallace, defense counsel asked Wallace if she had inquired of the 20 officers if the incident involving the stop was something that 21 she should report to her probation officer. 22 shows that defense counsel at least knew that Wallace was on 23 probation. 24 In support of this allegation, (RT 243-44.) However, the (RT 237.) This The evidence of Petitioner’s possession of the controlled 25 substance depended on the truth of the detaining officers’ 26 testimony. 27 enforcement defense witness to the detention and seizure, and her 28 claim that she was testifying to state the truth despite his In view of Wallace’s status as the sole non-law- 25 1 parole status and reluctance to testify, Petitioner has not shown 2 that if counsel was ignorant of the nature of the offense for 3 which Wallace was on probation, Petitioner suffered any prejudice 4 as a result. 5 that counsel rationally decided to call Wallace as a witness 6 despite her probationary status. 7 The state court could reasonably have concluded Petitioner argued that his trial counsel was ineffective for 8 not raising the alleged failure of the officers to advise 9 Petitioner of his rights pursuant to Miranda v. Arizona. The 10 evidence of Petitioner’s possession of the cocaine consisted of 11 physical evidence discovered in the course of a parole search. 12 (CT 77.) 13 Petitioner to the officers, and discovery of the contraband in 14 the course of the parole search was inevitable. 15 court could reasonably have concluded that Petitioner had not 16 shown that any prejudice resulted from the failure of counsel to 17 raise a Miranda violation. 18 agreement to provide the officers with information, and he was 19 released pursuant to that agreement. 20 The search was independent of any statement by Thus, the state Indeed, Petitioner negotiated an Counsel did make a motion to suppress the evidence that was 21 disclosed during the course of the search. 22 Code § 3067(a) provides that an inmate eligible for release on 23 parole shall agree in writing to be subject to search or seizure 24 by a parole officer or other peace officer at any time of the day 25 or night, with or without a search warrant and with or without 26 cause. 27 § 3067(a) did not apply to Petitioner. 28 search of a California parolee who has given consent pursuant to However, Cal. Pen. There is no basis in the record for a conclusion that 26 It is well settled that a 1 § 3067(a) does not violate the Fourth Amendment. 2 California, 547 U.S. 843, 846 (2006). 3 reasonably have concluded that counsel was not ineffective 4 because it would have been futile for counsel to have moved to 5 suppress the evidence as the fruit of a search and seizure 6 without probable cause or justification. 7 F.3d 20, 27 (9th Cir. 1994) (failure to make a motion which would 8 not have been legally meritorious does not constitute ineffective 9 assistance of counsel). Samson v. The state court could Cf., James v. Borg, 24 10 Petitioner has not shown that the absence of a DNA or 11 fingerprint sample from the packaging of the contraband carried 12 in Petitioner’s buttocks resulted in any prejudice. 13 Petitioner shown that it was even likely that the material was 14 subject to DNA or fingerprint analysis. 15 fingerprints or DNA of others would not necessarily have 16 exculpated Petitioner; the presence of Petitioner’s fingerprints 17 or DNA would have been incriminating. 18 could reasonably have concluded that counsel made an informed 19 tactical decision not to seek the testing. Nor has The presence of the Thus, the state court 20 The state court could reasonably have concluded that no 21 prejudice resulted from any failure of counsel to obtain dispatch 22 tapes or photographs of Petitioner’s tail lights or the vicinity 23 of the detention. 24 not require probable cause or suspicion, information tending to 25 undermine a basis for suspicion would not have affected the 26 result of Petitioner’s trial. 27 materially inconsistent, and their testimony foreclosed Wallace’s 28 claim that she was able to observe the search of Petitioner and Because the parole search of Petitioner did The officers’ testimony was not 27 1 would have seen any seizure of cocaine. 2 court could have reasonably concluded that because counsel had 3 moved to exclude Petitioner’s prior convictions, no substandard 4 omission had been shown in connection with the prior convictions. 5 Likewise, the state In sum, the Court concludes that the state court decision 6 that Petitioner’s trial counsel was not prejudicially ineffective 7 was not contrary to, or an unreasonable application of, the 8 Strickland standard. 9 prejudicially ineffective, appellate counsel could not have been 10 11 Further, because trial counsel was not ineffective in failing to raise trial counsel’s omissions. Accordingly, this Court concludes that Petitioner is not 12 entitled to relief on his claim or claims concerning the 13 ineffective assistance of counsel. 14 VIII. 15 Unless a circuit justice or judge issues a certificate of Certificate of Appealablity 16 appealability, an appeal may not be taken to the Court of Appeals 17 from the final order in a habeas proceeding in which the 18 detention complained of arises out of process issued by a state 19 court. 20 U.S. 322, 336 (2003). 21 only if the applicant makes a substantial showing of the denial 22 of a constitutional right. 23 petitioner must show that reasonable jurists could debate whether 24 the petition should have been resolved in a different manner or 25 that the issues presented were adequate to deserve encouragement 26 to proceed further. 27 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 28 certificate should issue if the Petitioner shows that jurists of 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 28 A 1 reason would find it debatable whether the petition states a 2 valid claim of the denial of a constitutional right and that 3 jurists of reason would find it debatable whether the district 4 court was correct in any procedural ruling. 5 529 U.S. 473, 483-84 (2000). 6 Slack v. McDaniel, In determining this issue, a court conducts an overview of 7 the claims in the habeas petition, generally assesses their 8 merits, and determines whether the resolution was debatable among 9 jurists of reason or wrong. Id. It is necessary for an 10 applicant to show more than an absence of frivolity or the 11 existence of mere good faith; however, it is not necessary for an 12 applicant to show that the appeal will succeed. 13 Cockrell, 537 U.S. at 338. Miller-El v. 14 A district court must issue or deny a certificate of 15 appealability when it enters a final order adverse to the 16 applicant. 17 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 18 debate whether the petition should have been resolved in a 19 different manner. 20 of the denial of a constitutional right. 21 22 Petitioner has not made a substantial showing Accordingly, the Court will decline to issue a certificate of appealability. 23 IX. 24 Accordingly, it is ORDERED that: 25 1) 26 Disposition Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, is SUBSTITUTED as Respondent; and 27 2) The petition for writ of habeas corpus is DENIED; and 28 3) The Clerk is DIRECTED to enter judgment for Respondent; 29 1 and 2 3 4) The Court DECLINES to issue a certificate of appealability. 4 5 IT IS SO ORDERED. 6 Dated: ie14hj May 16, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30
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