-GSA (HC) Magana v. Cate, No. 1:2010cv02215 - Document 17 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Regarding Petition for Writ of Habeas Corpus, signed by Magistrate Judge Gary S. Austin on 7/7/11: Recommending that this action be DENIED WITH PREJUDICE; Objections due thirty (30) days after service of the Findings and Recommendations, Reply due fourteen (14) days after service of the objections. (Hellings, J)
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-GSA (HC) Magana v. Cate Doc. 17 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 RAMIRO LEMUS MAGANA, 1:10-CV-02215 AWI GSA HC 10 Petitioner, FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS 11 v. 12 13 MATTHEW CATE, 14 Respondent. / 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. BACKGROUND1 18 19 Petitioner is currently in the custody of the California Department of Corrections pursuant 20 to a judgment of the Superior Court of California, County of Kings, following his conviction by 21 jury trial on January 23, 2009, of possession of methamphetamine for sale (Cal. Health & Saf. 22 Code § 11378) and possession of marijuana for sale (Cal. Health & Saf. Code § 11359). He was 23 sentenced to serve a determinate term of 8 years and four months in state prison. 24 Petitioner filed a timely notice of appeal. On October 23, 2009, the California Court of 25 Appeal, Fifth Appellate District (“Fifth DCA”), affirmed Petitioner’s judgment in a reasoned 26 decision. (See Resp’t’s Answer, Ex. 1.) Petitioner then filed a petition for review in the 27 28 1 This information is derived from the petition and answer. 1 Dockets.Justia.com 1 California Supreme Court. The petition was summarily denied on January 13, 2010. (See 2 Petition at 3.) 3 Petitioner also filed a petition for writ of habeas corpus in the California Supreme Court. 4 The petition was denied with citation to In re Waltreus, 62 Cal.2d 218 (1965) and People v. 5 Duvall, 9 Cal.4th 464, 474 (1995). (See Petition at 4.) 6 On November 30, 2010, Petitioner filed the instant federal habeas petition. He presents 7 the following two claims for relief: 1) He claims his conviction violates the double jeopardy 8 clause of the Constitution because the state statute is so vague and standardless as to make it 9 unclear as to the conduct it prohibits; 2) He alleges he was denied the effective assistance of 10 appellate counsel. On March 11, 2011, Respondent filed an answer to the petition. On May 24, 11 2011, Petitioner filed a traverse. STATEMENT OF FACTS2 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On June 21, 2008, Hanford police officer Stephanie Reese went to the house at 940 Ambassador in Hanford to investigate a report of vandalism in progress. There, Officer Reese saw that a window screen had been removed from a window, a screen door was open, and “water [was] pouring from the garage and the backyard area.” Officer Reese went to the front door, the door opened, and she saw appellant inside; his clothes were wet and he was carrying a box containing jewelry. The officer ordered appellant to the ground but he tried to close the door. The officer drew her taser, and again ordered appellant to the ground. He complied, and Officer Reese handcuffed him, at which point Officer Dale Williams arrived. Appellant stated he lived in the house, and gave his consent to a search of his person. In one of appellant's pockets, Officer Williams found a small plastic bindle, and in another pocket he found a baggie and some foil wrapped “like the size of a burrito.” The bindle, baggie and foil contained, respectively, what was later determined to be 1.9 grams of marijuana, 23.2 grams of marijuana, and 86.8 grams of a substance containing methamphetamine. Officer Williams also found in one of appellant's pockets a wallet containing $1,327 in currency. Officers thereafter searched the house and found the following: in the master bedroom, two baggies, each containing a substance containing a white crystalline substance, weighing, respectively, 2.1 grams and 110.1 grams, and, in another bedroom, four plastic bags, each containing what appeared to be methamphetamine, weighting, respectively, 70.7 grams, 69.6 grams, 33.2 grams and 24.1 grams. Chemical tests of the two largest quantities of suspected contraband were conducted. These tests revealed that the substance in each of these bags contained methamphetamine. 26 Officers also found a digital scale and 73.4 grams of MSM, a substance that is 27 2 28 The Fifth DCA’s summary of the facts in its October 23, 2009, opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1). Thus, the Court adopts the factual recitations set forth by the Fifth DCA. 2 1 used 2 as a cutting agent in preparing methamphetamine for sale. An officer opined that both the methamphetamine and marijuana found in the house were possessed for purposes of sale. 3 (See Resp’t’s Answer, Ex. 1.) 4 DISCUSSION 5 I. Jurisdiction 6 Relief by way of a petition for writ of habeas corpus extends to a person in custody 7 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws 8 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 9 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered 10 violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises 11 out of Kings County Superior Court, which is located within the jurisdiction of this Court. 28 12 U.S.C. § 2254(a); 2241(d). 13 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 14 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 15 enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 16 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting 17 Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 18 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 19 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant 20 petition was filed after the enactment of the AEDPA and is therefore governed by its provisions. 21 II. Standard of Review 22 The instant petition is reviewed under the provisions of the Antiterrorism and Effective 23 Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 24 70 (2003). Under the AEDPA, a petitioner can prevail only if he can show that the state court’s 25 adjudication of his claim: 26 27 (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 28 3 1 (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. 2 28 U.S.C. § 2254(d); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413. 3 As a threshold matter, this Court must "first decide what constitutes 'clearly established 4 Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, 5 quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this 6 Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as 7 of the time of the relevant state-court decision." Id., quoting Williams, 592 U.S. at 412; see also 8 Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011). "In other words, 'clearly established 9 Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the 10 Supreme Court at the time the state court renders its decision." Lockyer, 538 U.S. at 71. 11 Finally, this Court must consider whether the state court's decision was "contrary to, or 12 involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 13 72, quoting, 28 U.S.C. § 2254(d)(1). “Under the ‘contrary to’ clause, a federal habeas court may 14 grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] 15 Court on a question of law or if the state court decides a case differently than [the] Court has on a 16 set of materially indistinguishable facts.” Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. 17 at 72. “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if the 18 state court identifies the correct governing legal principle from [the] Court’s decisions but 19 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. 20 “[A] federal court may not issue the writ simply because the court concludes in its 21 independent judgment that the relevant state court decision applied clearly established federal 22 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; 23 see also Harrington, 131 S.Ct. at 785. A federal habeas court making the “unreasonable 24 application” inquiry should ask whether the state court’s application of clearly established federal 25 law was “objectively unreasonable.” Williams, 529 U.S. at 409. “A state court’s determination 26 that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 27 disagree’ on the correctness of the state court’s decision.” Harrington, 131 S.Ct. at 786, quoting, 28 4 1 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Further, “it is not an unreasonable 2 application of clearly established Federal law for a state court to decline to apply a specific legal 3 rule that has not been squarely established by this Court.” Knowles v. Mirzayance, 556 U.S. __, 4 __, 129 S.Ct. 1411, 1413-14 (2009). “Under 2254(d), a habeas court must determine what 5 arguments or theories supported or, . . . could have supported, the state court’s decision; and then 6 it must ask whether it is possible fairminded jurists could disagree that those arguments or 7 theories are inconsistent with the holding of a prior decision of [the Supreme] Court.” 8 Harrington, 131 S.Ct. at 786. Only “where there is no possibility fairminded jurists could 9 disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents” may the 10 writ issue. Id. 11 Petitioner has the burden of establishing that the decision of the state court is contrary to 12 or involved an unreasonable application of United States Supreme Court precedent. Baylor v. 13 Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the 14 states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a 15 state court decision is objectively unreasonable. See Duhaime v. Ducharme, 200 F.3d 597, 600- 16 01 (9th Cir.1999). 17 AEDPA requires that we give considerable deference to state court decisions. “Factual 18 determinations by state courts are presumed correct absent clear and convincing evidence to the 19 contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a 20 factual determination will not be overturned on factual grounds unless objectively unreasonable 21 in light of the evidence presented in the state court proceedings, § 2254(d)(2).” Miller-El v. 22 Cockrell, 537 U.S. 322, 340 (2003). 23 III. Review of Claims 24 A. Double Jeopardy 25 In his first ground for relief, Petitioner claims his conviction violates the Double Jeopardy 26 Clause of the Constitution because Cal. Penal Code § 654 is impermissibly vague. He claims the 27 statute is so vague and standardless that it leaves the public uncertain as to the conduct it 28 prohibits. Respondent correctly argues that habeas relief is unavailable for Petitioner’s facial 5 1 2 challenge to the statute. Petitioner presented this claim by habeas petition. The Supreme Court summarily 3 rejected the claim. (See Attachments to Petition.) Normally, when the California Supreme 4 Court’s opinion is summary in nature, the Court must “look through” that decision to a court 5 below that has issued a reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3 6 (1991). In this case, the claim was not presented to a lower state court prior to the California 7 Supreme Court; therefore, there is no reasoned state court decision to review. In such a case, 8 “[w]here a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s 9 burden still must be met by showing there was no reasonable basis for the state court to deny 10 relief.” Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784, 2011 WL 148587 (2011). 11 “Under § 2254(d), a habeas court must determine what arguments or theories supported or, as 12 here, could have supported, the state court’s decision; and then it must ask whether it is possible 13 fairminded jurists could disagree that those arguments or theories are inconsistent with the 14 holding in a prior decision of [the Supreme] Court.” Id. at 786. Federal habeas relief is 15 precluded “so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 16 decision.” Id., quoting, Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 17 In a confusing claim, Petitioner contends Cal. Penal Code § 654 violates the Double 18 Jeopardy Clause because it is impermissibly vague. Cal. Penal Code § 654(a) provides, in 19 relevant part: 20 21 An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. 22 Section 654 is anything but violative of the Double Jeopardy Clause of the Constitution; on the 23 contrary, it ensures that double punishment is proscribed. Indeed it goes further than the Double 24 Jeopardy Clause in its protections. 25 As to the assertion that Cal. Penal Code § 654 is unconstitutionally vague, Petitioner’s 26 argument is without merit. "[V]ague sentencing provisions may pose constitutional questions if 27 they do not state with sufficient clarity the consequences of violating a given criminal statute." 28 6 1 United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198 (1979). Unless First Amendment 2 freedoms are implicated "a vagueness challenge may not rest on arguments that the law is vague 3 in its hypothetical applications, but must show that the law is vague as applied to the facts of the 4 case at hand. The test for vagueness is whether the provision fails to give a person of ordinary 5 intelligence fair notice that it would apply to the conduct contemplated." United States v. 6 Johnson, 130 F.3d 1352 (9th Cir.1997) (citations omitted). The statute at issue does not proscribe 7 certain conduct and set forth consequences resulting from its violation; rather, as noted above it 8 serves to ensure that individuals are not doubly punished. 9 Nevertheless, Petitioner argues that the application of the statute is inconsistent, and he 10 points to the case of In re Adams, 14 Cal.3d 629 (1975), in support. In Adams, the California 11 Supreme Court considered whether Cal. Penal Code § 654 applies to the simultaneous 12 transportation of different kinds of illegal narcotics and drugs. Id. It concluded that where 13 different kinds of drugs are simultaneously transported in one, indivisible transaction, with the 14 single intent and objective of delivering them to another person, only one act of illegal 15 transportation occurs. Id. at 632. Petitioner complains that in his case, he should likewise have 16 been found guilty of only one offense of possession of narcotics for sale, rather than separate 17 offenses of possession of marijuana for sale and possession of methamphetamine for sale. 18 Adams is distinguishable, however. In Adams, the defendant’s sole act was to move a large 19 quantity of drugs from one location to another, and all of the drugs were to be delivered to one 20 recipient. Id. Adams does not deal with a case such as this where a defendant has been found to 21 possess multiple illegal drugs with the intent to sell to a presumptively large number of buyers. 22 On direct appeal, the Fifth DCA concluded that Petitioner’s case was akin to People v. Monarrez, 23 66 Cal.App.4th 710, 714 (1998), wherein the court found that simultaneous possession of drugs 24 made no difference; rather, the court determined multiple punishments were warranted based on 25 the evidence that the defendant had been engaged in multiple sales and intended to make multiple 26 sales of the narcotics he possessed. Similarly here, the state court determined that the evidence 27 showed Petitioner harbored multiple criminal objectives with respect to the different narcotics he 28 possessed. The factual findings of the state court are presumed correct, and Petitioner offers 7 1 nothing to overcome this presumption. See 28 U.S.C. § 2254(e)(1). Petitioner’s vagueness 2 challenge must therefore fail. 3 In his traverse, Petitioner attempts to raise a new claim by asserting his convictions for 4 possession of marijuana for sale and possession of methamphetamine for sale violate the double 5 jeopardy clause. This claim is not properly before this Court insomuch as "[a] Traverse is not the 6 proper pleading to raise additional grounds for relief." Cacoperdo v. Demosthenes, 37 F.3d 504, 7 507 (9th Cir.1994). In any case, the claim is devoid of merit. 8 9 The Fifth Amendment's Double Jeopardy Clause prevents multiple or successive prosecutions for the same offense. The Supreme Court set forth a generally applicable test in 10 Blockburger v. United States, 284 U.S. 299 (1932), to determine whether two statutory 11 provisions prohibit the same offense. The Blockburger test, as it has become known, states: 12 “where the same act or transaction constitutes a violation of two distinct statutory provisions, the 13 test to be applied to determine whether there are two offenses or only one, is whether each 14 provision requires proof of a fact which the other does not.” Id. at 304. In this case, it is clear 15 Petitioner’s convictions do not violate the Double Jeopardy Clause, since the first conviction 16 requires proof of the possession of the narcotic marijuana, while the second conviction requires 17 proof of possession of the narcotic methamphetamine. The two offenses are therefore distinct 18 under the Blockburger test. 19 20 Petitioner fails to show that the state court determination of his claim was contrary to or an unreasonable application of clearly established federal law. This claim should be denied. 21 B. Ineffective Assistance of Appellate Counsel 22 Petitioner claims he received ineffective assistance from appellate counsel because his 23 appellate counsel failed to challenge the search of Petitioner’s home under the Fourth 24 Amendment to the Constitution. 25 As with his first claim, this claim was presented by habeas petition to the California 26 Supreme Court where it was summarily rejected. (See Attachments to Petition.) Since there is no 27 reasoned state court decision to review, Petitioner must demonstrate that “there was no 28 reasonable basis for the state court to deny relief.” Harrington, 131 S.Ct. 770. 8 1 Claims of ineffective assistance of appellate counsel are reviewed according to 2 Strickland's two-pronged test. See Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989); United 3 States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986). A defendant must therefore show that 4 counsel's advice fell below an objective standard of reasonableness and that there is a reasonable 5 probability that, but for counsel's unprofessional errors, defendant would have prevailed on 6 appeal. Miller, 882 F.2d at 1434 & n. 9, citing Strickland, 466 U.S. at 688, 694. However, 7 appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested 8 by defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Miller, 882 F.2d at 1434 n. 10. 9 The weeding out of weaker issues is widely recognized as one of the hallmarks of effective 10 appellate advocacy. Miller, 882 F.2d at 1434 (footnote and citations omitted). As a result, 11 appellate counsel will frequently remain above an objective standard of competence and have 12 caused her client no prejudice for the same reason--because she declined to raise a weak issue. 13 Id. 14 In this case, Petitioner fails to demonstrate that appellate counsel’s assistance was 15 objectively unreasonable. He argues that appellate counsel should have challenged the search of 16 his residence as unconstitutional. However, Petitioner concedes he gave officers permission to 17 search his residence. Therefore, any challenge to the search of his residence would have been 18 weak at best. Counsel’s decision not to raise this argument cannot be deemed unreasonable. 19 Moreover, Petitioner cannot demonstrate prejudice, for even if appellate counsel had raised the 20 issue, there is no likelihood the claim would have been successful. Petitioner’s claim is without 21 merit and should be denied. 22 23 24 25 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DENIED WITH PREJUDICE. This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, 26 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and 27 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 28 California. Within thirty (30) days after service of the Findings and Recommendation, any party 9 1 may file written objections with the court and serve a copy on all parties. Such a document 2 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies 3 to the objections shall be served and filed within fourteen (14) days after service of the 4 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 5 § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time 6 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 7 Cir. 1991). 8 9 IT IS SO ORDERED. 10 Dated: 6i0kij July 7, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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