Robertson v. Pichon et al, No. 5:2010cv05027 - Document 19 (N.D. Cal. 2015)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING LIMITED CERTIFICATE OF APPEALABILITY. After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus must be DENIED.A Certificate of Appealability is GRANTED as to whether the trial court's admission of his statements regarding the baton violated Edwards v. Arizona, 384 U.S. 436 (1995). However, a Certificate of Appealability is DENIED as to Petitioner's other claims. The Clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file Signed by Judge Edward J. Davila on 7/10/2015. (ecg, COURT STAFF) (Filed on 7/10/2015)

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Robertson v. Pichon et al Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 WADE ROBERTSON, 12 Petitioner, 13 vs. 14 15 ATTORNEY GENERAL KAMALA HARRIS, Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 10-05027 EJD (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING LIMITED CERTIFICATE OF APPEALABILITY 18 19 Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. 20 § 2254 challenging his state conviction from Santa Clara Superior Court. The Court 21 ordered Respondent1 to show cause why the writ should not be granted. Respondent 22 1 23 24 25 26 27 28 Petitioner originally named Judge Rise Jones Pichon as respondent. However, the rules governing relief under 28 U.S.C. § 2254 require a person in custody pursuant to the judgment of a state court to name the “‘state officer having custody’” of him as the respondent. Ortiz–Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (quoting Rule 2(a) of the Rules Governing Habeas Corpus Cases Under Section § 2254). This person typically is the warden of the facility in which the petitioner is incarcerated. Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Here, however, petitioner was not incarcerated when he filed the petition. He was on probation, but probably no longer is, meaning that his probation officer probably would not be a proper respondent. That he is not incarcerated or on probation does not moot the petition, see Spencer v. Kemna, 523 U.S. 1, 8–12 (1998) (courts may presume that a criminal conviction has continuing collateral Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd Dockets.Justia.com 1 has filed an answer and a memorandum of points and authorities, and has lodged 2 exhibits with the court. Petitioner has responded with a traverse. For the reasons set 3 forth below, the Petition for a Writ of Habeas Corpus is DENIED. 4 PROCEDURAL BACKGROUND 5 On May 5, 2008, Petitioner was found guilty by a jury of misdemeanor 6 driving under the influence of alcohol (Cal. Veh. Code § 23152(a)) and 7 misdemeanor possession of a billy (Cal. Penal Code §12020(a)(1)). The jury also 8 found true an allegation that Petitioner had wilfully refused a peace officer’s request 9 to submit to a chemical test (Cal. Veh. Code §§ 23577(a), 23157, 23612). (Docket No. 9, Ex. 1 (“CT”) at 31–32 and 897–901.) On October 30, 2008, the court 11 For the Northern District of California United States District Court 10 suspended imposition of sentence and placed Petitioner on probation for three years 12 with conditions including a 12-day jail term. (CT at 1232.) 13 On September 28, 2009, the Appellate Division of the Santa Clara County 14 Superior Court affirmed the judgment in a summary two-page order. (Docket No. 9, 15 Ex. 7.) On October 20, 2009, the Appellate Division of the Santa Clara County 16 Superior Court denied Petitioner’s application for certification to the California 17 Court of Appeal. (Id., Exs. 8 and 9.) Petitioner petitioned the Sixth District Court of 18 Appeal to transfer the case to the California Court of Appeal, which was denied on 19 November 13, 2009. (Id., Exs. 10 and 11.) On November 20, 2009, Petitioner filed 20 a writ of habeas corpus in the California Supreme Court, which was denied on 21 January 13, 2010 in a summary denial. (Id., Exs. 12 and 13.) 22 Petitioner filed the instant federal habeas petition on November 5, 2010. 23 24 25 26 27 28 consequences sufficient to avoid mootness), but it does mean that there is no warden, jailer, or probation officer who would be a proper respondent. The Court therefore has substituted Kamala Harris, the Attorney General, as respondent. See Silveyra v. Moschorak, 989 F.2d 1012, 1015 n. 3 (9th Cir. 1993) (court may substitute proper respondent sua sponte), superseded by statute on other grounds by Campos v. I.N.S., 62 F.3d 311 (9th Cir. 1995); see also Rule 2(b), Rules Governing Habeas Corpus Cases Under Section § 2254, 1975 advisory committee’s note (when petitioner is not incarcerated or on probation or parole, proper respondent is the Attorney General). Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 2 1 // 2 FACTUAL BACKGROUND 3 Prosecution Case 4 On the night of April 27, 2006, Petitioner was with his friend Tim Gray, in Ramona Street, Palo Alto. (Jury Trial Reporter’s Transcript (“RT”)2 at 243.) 7 Petitioner and Mr. Gray appeared to be celebrating a case that they had won. (RT at 8 353.) Around 8:36 p.m., Petitioner opened a check at Nola’s. Over the next four 9 hours, 24 shots of Patron tequila, three Red Bull and vodkas, two Gray Goose and 10 juices, one pink Pantie Dropper cocktail, one soda water, one Red Bull, one cup of 11 For the Northern District of California Gray’s office which was located upstairs from Nola’s restaurant, located at 535 6 United States District Court 5 crab soup and a bowl of gumbo were ordered and added to Petitioner’s check. (RT 12 at 272–75.) Tiffany Colon, a cocktail waitress at Nola’s, delivered the drinks to the 13 office. At trial she testified that there were five people total in the office, including 14 Petitioner. (RT at 228.) To her personal knowledge, all five people were drinking. 15 (RT at 228.) Any drinks delivered by Colon which were paid for in cash did not 16 show up on Petitioner’s check. (RT at 275.) 17 At the end of the night, around 12:45 a.m. on April 28, 2006, Shiraz Qadri, 18 Nola’s general manager, spoke with Petitioner. (RT at 252.) Petitioner was upset 19 because he believed that change had not been returned to him. (RT at 253–54 and 20 257–58.) Qadri had been under the impression that the money had been intended as 21 a gratuity, but agreed to reduce Petitioner’s bill. (RT at 257–58.) Qadri testified 22 that Petitioner was drunk at the time of their conversation, citing Petitioner’s dilated 23 eyes, red face, and red eyes; Petitioner’s aggressive behavior; Petitioner’s verbosity 24 and outlandish claims; and the smell of alcohol on Petitioner’s breath. (RT at 25 257–58.) Qadri testified that he had seen drunk people previously and that 26 Petitioner’s behavior corresponded with how he had seen drunk people behave. (RT 27 2 28 The Reporter’s Transcript for the jury trial is located at Docket No. 9, Ex. 2, Volumes 5–12. The citations refer to the pagination assigned by the court reporter. Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 3 1 at 258–59.) Qadri offered to call Petitioner a cab, but Petitioner declined and left. 2 (RT at 259.) When Qadri walked outside Nola’s, he saw Petitioner down the street 3 standing in front of a white pickup with the passenger door open. (RT at 260–61.) 4 Qadri flagged down Palo Alto Police Agent Ryan, who was driving by in his 5 patrol car on DUI patrol. (RT at 102 and 337.) Qadri pointed out Petitioner to 6 Agent Ryan, stating that Petitioner was pretty drunk and had promised to take a cab. 7 (RT at 337.) Petitioner noted Agent Ryan’s presence and called out to the two 8 people to look out, there was a cop. (RT at 106.) 9 Approximately ten to fifteen minutes later, Agent Ryan pulled Petitioner over as they were both driving westbound on Lytton Avenue in Palo Alto. (RT at 104.) 11 For the Northern District of California United States District Court 10 Petitioner pulled into a Shell station at the corner of Lytton and Alma, immediately 12 jumped out of his truck, walked back to Agent Ryan’s patrol car, and aggressively 13 asked why he had been stopped. (RT at 104, 107, and 110–11.) Agent Ryan noticed 14 the smell of alcohol on Petitioner’s breath and asked Petitioner if he had consumed 15 any alcohol. (RT at 111.) Petitioner denied consuming any alcohol and stated that 16 he was the designated driver. (RT at 111–12.) 17 Agent Ryan then had Petitioner perform four field sobriety tests. (RT at 112.) 18 At this time, police officers David Guy and Cole Ghilarducci were also present. (RT 19 at 112.) Prior to performing the tests, Petitioner informed Agent Ryan that he had a 20 bad knee from a college sports injury. (RT at 118.) 21 The first field sobriety test conducted was the nystagmus gaze test. Petitioner 22 was asked to stand still and focus on Agent Ryan’s finger as it moved back and forth 23 in a straight line at a 15-inch distance from Petitioner’s face. (RT at 114.) In 24 conducting the test, Agent Ryan noticed the phenomenon of nystagmus present in 25 both of Petitioner’s eyes in that the irises of Petitioner’s eyes did not smoothly 26 follow the finger, but had a jerky or skipping movement as they moved left to right. 27 (RT at 115.) In 98 percent of the population, nystagmus usually indicates the 28 presence of alcohol. (RT at 116.) Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 4 1 The second field sobriety test conducted was the Romberg test, where 2 Petitioner was asked to tilt his head back, close his eyes, and estimate when 30 3 seconds had passed. (RT at 120.) Petitioner was instructed to put down his head, 4 open his eyes and tell Agent Ryan to stop timing when he believed 30 seconds had 5 passed. (RT at 120.) Petitioner opened his eyes after ten seconds but did not put his 6 head down. (RT at 123.) His body swayed about two inches in all directions. (RT 7 at 122.) Agent Ryan timed 78 seconds before Petitioner put his head down and 8 opened his eyes. (RT at 121.) Petitioner never told Agent Ryan to stop timing. (RT 9 at 121.) The third field sobriety test was the one-leg balance test, where Petitioner was 11 For the Northern District of California United States District Court 10 asked to lift one leg about six to eight inches off the ground, point his toe towards 12 the ground, and count from 1,001 to 1,020 as follows: 1,001, 1,002, 1,003, up to 13 1,020. (RT at 124.) Petitioner attempted this test three times, but each time lost his 14 balance and touched his foot down after two seconds. (RT at 125.) 15 The fourth field sobriety test was the line test, where Petitioner was asked to 16 walk straight along a line with his hands at his sides counting aloud. (RT at 127.) 17 Petitioner was asked to walk heel to toe ten steps in one direction, then turn around, 18 and walk seven steps back. (RT at 127.) Petitioner took the right number of steps in 19 each direction but never touched heel to toe. (RT at 128.) Petitioner had been asked 20 to keep his hands parallel to his sides, but instead he held his arms out at a 45 degree 21 angle for the initial ten steps, and then for the return seven steps, held his upper arms 22 straight out from his shoulders with his lower arms dangling down at the elbow at a 23 right angle. (RT at 128–29.) With each step, Petitioner bounced rhythmically up 24 and down. (RT at 129.) In the middle of the line test, Petitioner bent down to 25 remove his sandals and almost fell on his face. (RT at 129–30.) 26 During the tests, Petitioner had poor coordination and terrible balance. (RT 27 at 133.) Petitioner was also loud and argumentative about each test. (RT at 132.) 28 He called Agent Ryan a liar before Agent Ryan explained what he was trying to do, Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 5 1 and disputed everything Agent Ryan said. (RT at 132–33.) 2 In Agent Ryan’s expert opinion, based upon the field sobriety tests and 3 Petitioner’s demeanor, Plaintiff was clearly under the influence and had been driving 4 under the influence. (RT at 132.) 5 Officer Guy also testified that Petitioner did not successfully complete any of 6 the field sobriety tests. (RT at 286–88.) Officer Guy smelled alcohol on Petitioner’s 7 breath. (RT at 288.) He also testified that Petitioner’s behavior was typical of 8 someone who was intoxicated, citing Petitioner’s voice ranging in volume from low 9 to normal to loud; Petitioner’s inability to follow directions; and Petitioner’s repeated questions and requests to repeat things. (RT at 288.) In Officer Guy’s 11 For the Northern District of California United States District Court 10 expert opinion, Petitioner was clearly intoxicated. (RT at 288.) 12 13 14 Officer Guy found a baton in plain view in Petitioner’s car, located on the bench seating between the seatbelts for the driver and the passenger. (RT at 289.) Agent Ryan arrested Petitioner and took him to the prebooking area in the 15 police department. (RT at 133.) Petitioner refused to take any chemical test, 16 including a breath test or a blood test. (RT at 132.) Agent Ryan provided Petitioner 17 with DMV Form DS 367 which advises that a person who is lawfully arrested is 18 required by law to submit to a chemical test and advises that there is no right to 19 speak to an attorney in relation to Form DS 367. (RT at 135–37.) Despite reading 20 the form, Petitioner repeatedly claimed that he had a right to speak with an attorney 21 and requested an attorney. (RT at 136–37.) Agent Ryan again advised him that 22 there was no right to speak with an attorney prior to complying with Form DS 367, 23 and that Petitioner’s refusal to submit to a chemical test could be used against him in 24 court. (RT at 138.) Agent Ryan further advised Plaintiff that a refusal to submit to a 25 chemical test would result in either suspension of Petitioner’s driving privileges for 26 one year or revocation of his driving privileges for two or three years. (RT at 138.) 27 In addition, if Petitioner was convicted of driving under the influence with a blood 28 alcohol level of .08 or more, the refusal to submit to a chemical test would result in a Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 6 1 fine or mandatory imprisonment. (RT at 138.) Petitioner still refused to take either 2 a blood test or a breath test. (RT at 139.) 3 Agent Ryan read Petitioner his Miranda rights while Petitioner was at 4 booking. (RT at 139–40.) Petitioner agreed to speak with Agent Ryan after being 5 read his Miranda rights. (RT at 132.) At this point, Agent Ryan asked Petitioner if 6 the collapsible baton found in his car belonged to him. (RT at 141.) Petitioner 7 responded that the baton belonged in the car and asked if it was a misdemeanor 8 under California law to possess the baton. (RT at 141–42.) The baton found in 9 Petitioner’s truck is similar to the ones that are issued to the Palo Alto Police 11 For the Northern District of California United States District Court 10 Department. (RT at 142.) Petitioner was in the booking area for approximately an hour and a half, 12 during which he was videotaped. (RT at 143.) Petitioner was argumentative 13 virtually the entire time. (RT at 132.) He threatened to have Agent Ryan fired and 14 to sue Agent Ryan. (RT at 208.) While Petitioner was in the booking area, Agent 15 Ryan conducted a second series of field sobriety tests, which Petitioner again failed. 16 (RT at 143.) Nystagmus was still present in Petitioner’s eyes to the same degree. 17 (RT at 147.) On the Romberg test, Petitioner held his arms tightly to his sides and 18 estimated 51 seconds to be 30 seconds. (RT at 144.) Petitioner tried the balance test 19 twice. On his first attempt, he lost his balance after 7 or 8 seconds and used his arms 20 at his sides to balance. (RT at 145.) On his second attempt, he kept his balance for 21 30 seconds, but kept his heel only four inches off the ground, rather than six to eight 22 inches, and he bounced a little at the end. (RT at 145.) For the line test, for the 23 Petitioner missed touching heel to toe four times and tripped off the line on the third 24 step. (RT at 147.) On the seven steps back, Petitioner missed touching heel to toe on 25 any of the steps. (RT at 147.) In Agent Ryan’s opinion, Petitioner was still under 26 the influence of alcohol. (RT at 147.) 27 28 Alice King, a forensic toxicologist for the Santa Clara County Crime Laboratory, testified that typical symptoms of hypoglycemia are a feeling of hunger; Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 7 1 difficulty breathing; perspiration; feeling light-headed; feeling faint; and becoming 2 confused. (RT at 331.) Someone suffering from hypoglycemia is generally weak 3 and fatigued. (RT at 331.) Hypoglycemia only causes a fruity smell if the 4 individual is also diabetic. (RT at 331–32.) 5 Defense Case 6 Petitioner played the entire DVD of the booking process during his opening 7 statement and it was introduced into evidence. (RT at 93–95 and 348.) The video 8 did not include sound. (RT at 160.) 9 Amanda Grillo testified for the defense. Grillo worked as a waitress at Nola’s on the night of April 27, 2006. (RT at 353.) She saw Petitioner that night 11 For the Northern District of California United States District Court 10 upstairs in Gray’s office and downstairs in the bar area with a bunch of people. (RT 12 at 353.) She did not see Petitioner consume any alcohol. (RT at 354.) Grillo 13 finished working around 10:43 pm that night. (RT at 360 and 439.) Her usual 14 practice was to leave Nola’s immediately after she finished her shift. (RT at 360.) 15 Grillo testified that Petitioner “was in no way intoxicated at all” and that she never 16 told Agent Ryan that Petitioner was intoxicated. (RT at 355.) 17 On cross-examination, Grillo acknowledged that she had been unaware of 18 Petitioner’s DUI arrest until she received a subpoena from Agent Ryan in mid-2007. 19 (RT at 358.) Grillo agreed that she had not thought about the night of April 27, 20 2006, until she received the subpoena. (RT at 365.) She stated that “[i]t was just a 21 regular night. There was no reason to remember.” (RT at 365.) She agreed that she 22 did not know if Petitioner was drinking the night of April 27, 2006 or on the 23 morning of April 28th, 2006. (RT at 364.) Grillo stated that she met with Petitioner 24 soon after receiving the subpoena. (RT at 358–59.) In September 2007, Grillo 25 signed a declaration that Petitioner had prepared for her. (RT at 360–61.) She stated 26 that she had read the entire declaration and it was consistent with what she 27 remembered. (RT at 360.) Grillo also acknowledged that she was employed by 28 Gray for awhile. (RT at 363–64.) Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 8 1 On cross-examination, Colon stated that she never saw Petitioner drinking acknowledged that Agent Ryan interviewed her on September 6, 2007, but disputed 4 Agent Ryan’s police report regarding that interview. (RT at 236–37.) She stated 5 that she never told Agent Ryan that Petitioner had been fairly intoxicated when she 6 last saw him that evening. (RT at 239.) She stated that when Agent Ryan’s report 7 was read to her for her review and approval, she was not informed that the sentence 8 “Colon had been fairly intoxicated when she last saw [Petitioner] that evening” was 9 in the report. (RT at 238–39.) On redirect, Colon acknowledged that the police 10 report had been presented to her the week before trial, and, at that time, she had 11 For the Northern District of California alcohol and that she did not know if Petitioner was intoxicated. (RT at 235.) Colon 3 United States District Court 2 confirmed that the police report was pretty much accurate. (RT at 243–44.) 12 13 14 On cross-examination, Qadri acknowledged that did not personally see Petitioner consume any alcohol drinks. (RT at 279.) A field sobriety test expert, Robert LaPier, testified that after watching the 15 video of Petitioner conducting the sobriety tests in the booking area, he concluded 16 that Petitioner was not impaired. (RT at 379.) LaPier testified that Petitioner’s 17 performance on the Romberg test could be attributed to being a slow counter and to 18 his Southern drawl, rather than to intoxication. (RT at 384–85.) LaPier also 19 testified that Agent Ryan administered the line test incorrectly because there are 20 supposed to be nine steps down the line, and nine steps back, and administered the 21 nystagmus test incorrectly because the test requires seven passes back and forth 22 across the eyes. (RT at 390 and 394–95.) LaPier stated that if a test was 23 administered according to standardized instructions, the results could not be trusted. 24 (RT at 388.) LaPier stated that Petitioner’s actions during the video, outside of the 25 sobriety tests, did not show any signs of intoxication. (RT at 379–81 and 400–01.) 26 On cross-examination, LaPier agreed that Petitioner’s fall, during the line 27 test, off the line at step three had nothing to do with the number of steps he was 28 supposed to take, that failing to touch heel to toe demonstrated a failure to follow Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 9 1 instructions, and that holding his arms out showed a failure to follow instructions 2 and a problem with balance. (RT at 402–05.) LaPier agreed that a problem with 3 balance and a failure to follow instructions could be caused by being under the 4 influence of alcohol as well as other causes. (RT at 403–04.) In determining 5 whether a person is under the influence of alcohol, LaPier would take note of a 6 person putting down his leg after two seconds each of the three times he attempted 7 the balance test; of a person estimating 78 or 51 seconds as 30 seconds during the 8 Romberg test; and of the smell of alcohol on a person’s breath. (RT at 405–06 and 9 416–17.) He would also take note of a person’s refusal to take a breath test and find it suspicious. (RT at 428.) 11 For the Northern District of California United States District Court 10 Donald Criswell, a licensed private investigator, who had formerly worked a 12 as a police officer for the San Jose Police Department, testified that the baton found 13 in Petitioner’s car could have non-violent uses, such as checking for tire pressure 14 and using as a jack handle. (RT at 431–33.) 15 Petitioner told Agent Ryan that he had hypoglycemia. (RT at 189.) 16 Hypoglycemia can create the overtone odor of an alcoholic beverage, and can create 17 physical impairments that mimic DUI. (RT at 190.) Petitioner told Agent Ryan that 18 he had not consumed alcohol that evening. (RT at 190.) 19 Suppression Hearing 20 Petitioner filed a pre-trial suppression motion, seeking to suppress evidence 21 obtained from the vehicle stop on the grounds that he was illegally detained and 22 arrested. (CT at 40–42.) 23 Prosecution Case. At the hearing on the suppression motion, Agent Ryan 24 testified that on April 28, 2006, at around 1:00 a.m., he was driving southbound on 25 Ramona Street just before the intersection of Ramona Street and Lytton Avenue, 26 when he recognized Petitioner’s truck headed in the opposite direction. (2/26/2007 27 28 Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 10 1 RT3 at 22.) He made a U-turn to get behind Petitioner’s truck. (2/26/2007 RT at 2 22.) Agent Ryan saw Petitioner stop at the flashing red light for Lytton. (2/26/2007 3 RT at 7.) Petitioner then made a left turn to go westbound onto Lytton, cutting off 4 an eastbound vehicle on Lytton and forcing that vehicle to stop. (2/26/2007 at 7.) 5 Upon observing a California vehicle code violation for failing to yield to traffic at a 6 stop sign, Agent Ryan made a left turn onto Lytton and initiated a traffic stop at a 7 gas station at the corner of Lytton and Alma. (2/26/2007 at 8.) 8 9 William Krone, a forensics video analysis expert, analyzed several rolls of bank film taken by security cameras at the bank at the corner of Ramona and Lytton. (2/26/2007 RT at 23–26.) Generally, each camera took a picture every 28 to 30 11 For the Northern District of California United States District Court 10 seconds. (2/26/2007 RT at 26.) However, the cameras had a motion sensing device 12 which triggered multiple frames in certain situations. (2/26/2007 RT at 27.) Krone 13 found nine significant photos from around 1:00 a.m. on April 28, 2006. (2/26/2007 14 RT at 28.) None of these photos showed Agent Ryan’s patrol car stopped behind 15 Petitioner’s truck. (2/26/2007 RT at 23–26.) Based on Krone’s measurements, if 16 Agent Ryan’s car had been stopped behind Petitioner’s truck northbound on Ramona 17 at Lytton, the camera would have its image. (2/26/2007 RT at 36.) Based upon 18 these photos and after measuring potential speeds of vehicles and the distance 19 between cars at safe speeds, Krone concluded that it was impossible that Agent 20 Ryan’s car could have been stopped behind Petitioner’s truck when Petitioner was 21 stopped northbound on Ramona at Lytton around 1:00 a.m. (2/26/2007 RT at 40 22 and 3/6/2007 RT at 34–43.) 23 24 Robert Lindskog, a registered engineer, reviewed the size of the vehicles, the dimensions of the scene, and the photos which did not show two vehicles stopped 25 26 27 28 3 The Court heard the suppression motion on February 26 and March 6, 2007. The reporter’s transcript for the February 26, 2007 hearing is located at Docket No. 9, Ex. 2, Vol. 1 and referred to as “2/26/2007 RT.” The reporter’s transcript for the March 6, 2007 hearing is located at Docket No. 9, Ex. 2, Vol. 2 and referred to as “3/6/2007 RT.” Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 11 1 behind one another. (2/26/2007 RT at 56–59.) He testified that at least the rear half 2 of the patrol car would have been in one of the photos if Agent Ryan had stopped 3 behind Petitioner’s truck. (2/26/2007 RT at 58.) 4 Petitioner also presented the testimony of two eyewitnesses who testified that, 5 contrary to Agent Ryan’s testimony, Agent Ryan’s police car was not immediately 6 behind Petitioner’s truck and did not stop behind Petitioner’s truck. 7 Raymond Connolly testified as follows: Connolly was with Petitioner at 8 Nola’s the night of April 27, 2006, and he was not drinking alcohol that night. 9 (2/26/2007 RT at 61, 68.) At about 12:55 a.m., Petitioner pulled by his car and beeped his horn at him. (2/26/2007 RT at 67.) Petitioner pulled up to the light at 11 For the Northern District of California United States District Court 10 Lytton, waited 10 to 15 seconds, and then made a left turn with no traffic around. 12 (2/26/2007 RT at 65.) A minute or two later, Connolly saw a police car follow 13 Petitioner’s trick. (2/26/2007 RT at 65–66 and 69–70.) 14 Jerry Webb testified as follows: Around 12:55 a.m. on April 28, 2006, he was 15 near the intersection of Ramona and Lytton, smoking a cigarette (2/26/2007 RT at 16 74.) He heard a horn honk and looked towards the sound. (2/26/2007 RT at 76.) 17 He immediately recognized Petitioner’s truck and saw it pull up to the intersection 18 of Ramona and Lytton. (2/26/2007 RT at 76.) Petitioner stopped about fifteen feet 19 from the intersection and remained there for about ten seconds before he made a left 20 on Lytton. (2/26/2007 RT at 77.) About a minute later, a police car came through 21 the intersection in a hurried manner, made the same left turn, and pulled over a block 22 behind Petitioner’s vehicle. (2/26/2007 RT at 77.) 23 On rebuttal, Agent Ryan testified that he drove by the ATM camera several 24 times that night. He reviewed the photos rolls and found that the camera did not 25 capture each time he drove by the camera. (3/6/2007 RT at 21.) He found six 26 photos of a patrol car. (3/6/2007 at 8.) The image at 12:56:35 a.m. shows his car 27 going northbound on Lytton. (3/6/2007 at 10.) He then made a u-turn and turned 28 and parked southbound in front of the ATM camera. (3/6/2007 at 10.) The nose of Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 12 1 his car is in the photos from 12:57:06 a.m. to 12:58:44 a.m. (3/6/2007 at 12.) While 2 Ryan was parked, he saw the door of Petitioner’s truck open but could not see who 3 was getting in the truck. (3/6/2007 at 11.) 4 5 The trial court denied the motion to suppress and found that the stop was lawful. (3/12/07 RT at 2–3.) 6 7 DISCUSSION A. 8 9 Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2254 et seq., prohibits a district court from granting a petition challenging a state conviction that was decided on the merits by a state court, unless that 11 For the Northern District of California United States District Court 10 adjudication: 12 (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 13 (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. 14 15 16 28 U.S.C. § 2254(d). For purposes of § 2254(d)(1), a state court decision is “contrary to” Supreme 17 18 Court authority only if “the state court arrives at a conclusion opposite to that 19 reached by [the Supreme] Court on a question of law or if the state court decides a 20 case differently than [the Supreme] Court has on a set of materially indistinguishable 21 facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Similarly, a state court 22 decision is an “unreasonable application of” Supreme Court authority if “the state 23 court identifies the correct governing legal principle from [the Supreme] Court’s 24 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” 25 Id. 26 The only definitive source of clearly established federal law under AEDPA is 27 the holdings—as opposed to the dicta—of the Supreme Court as of the time of the 28 state court’s decision. See Williams, 529 U.S. 362, 412; see also Marshall v. Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 13 1 Rodgers, 133 S.Ct. 1446, 1449 (2013) (“The starting point for cases subject to 2 § 2254(d)(1) is to identify the ‘clearly established Federal law, as determined by the 3 Supreme Court of the United States, that governs the habeas petitioner’s claims.’”). 4 Section 2254(d)(1) imposes a “highly deferential standard for evaluating state-court 5 rulings,” Lindh v. Murphy, 521 U.S. 320, 333 (1997), and prohibits a federal court 6 from “substituting its own judgment for that of the state court,” Woodford v. 7 Visciotti, 123 S.Ct. 357, 360 (2002) (per curiam) (finding habeas relief improper 8 when the state court decision was “merely erroneous”). 9 The state court decision to which Section 2254(d) applies is the “last reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 11 For the Northern District of California United States District Court 10 803–04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005). In this 12 case, the order issued by the Santa Clara County Superior Court, Appellate Division 13 is the last reasoned decision. In deciding whether no reasonable basis existed for the 14 state court’s decision, the district court “must determine what arguments or theories 15 could have supported the state court’s decision; and then it must ask whether it is 16 possible fairminded jurists could disagree that those arguments or theories are 17 inconsistent with the holding in a prior decision of [the Supreme] Court.” Cullen v. 18 Pinholster, 131 S. Ct. 1388, 1402 (2011) (internal quotations and punctuation 19 omitted); see also Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (“If this 20 standard is difficult to meet—and it is—that is because it was meant to be.”). 21 The Supreme Court has vigorously and repeatedly affirmed that under 22 AEDPA, there is a heightened level of deference a federal habeas court must give to 23 state court decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam); 24 Harrington, 131 S. Ct. at 783–85 (2011); Felkner v. Jackson, 131 S. Ct. 1305 (2011) 25 (per curiam). As the Court explained: “[o]n federal habeas review, AEDPA 26 ‘imposes a highly deferential standard for evaluating state-court rulings’ and 27 ‘demands that state-court decisions be given the benefit of the doubt.’” Id. at 1307 28 (citation omitted). With these principles in mind regarding the standard and limited Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 14 1 scope of review in which this Court may engage in federal habeas proceedings, the 2 Court addresses Petitioner’s claims. 3 B. 4 Claims and Analysis As grounds for federal habeas relief, Petitioner raises the following claims: 5 (1) Petitioner was denied his right to present a defense by the state court’s exclusion 6 of bank surveillance photos and expert testimony analyzing the photos; 7 (2) instructional error where the trial court failed to instruct that a lawful arrest was 8 an element of the refusal enhancement and failed to define a lawful arrest; 9 (3) instructional error where trial court used the wrong definition of billy; (4) Miranda violation when the trial court admitted statements that Petitioner made 11 For the Northern District of California United States District Court 10 while in custody after Petitioner invoked his right to counsel; (5) prosecutorial 12 misconduct; (6) the prohibition on carrying non-concealed weapons for self-defense 13 set forth in Section 12020 of the California Penal Code violates the Second 14 Amendment; and (7) ineffective assistance of counsel for failure to object to the car 15 search. 16 1. 17 Petitioner’s first claim is that the trial court’s exclusion of bank video 18 surveillance photos and expert testimony analyzing these photos violated his right to 19 present a defense. Petitioner further argues that the appellate court’s failure to 20 address this issue was contrary to the Supreme Court’s decision in Crane v. 21 Kentucky, 476 U.S. 683 (1986). 22 Right to Present a Defense “[T]he Constitution guarantees criminal defendants ‘a meaningful 23 opportunity to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 24 319, 324 (2006) (quoting Crane, 476 U.S. at 690 (1986)). The constitutional right to 25 present a complete defense includes the right to present evidence, including the 26 testimony of witnesses. See Washington v. Texas, 388 U.S. 14, 19 (1967). But the 27 right is only implicated when the evidence the defendant seeks to admit is “relevant 28 and material, and . . . vital to the defense.” Id. at 16. Additionally, a violation of the Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 15 rather only when its exclusion is “arbitrary or disproportionate to the purposes [the 3 exclusionary rule applied is] designed to serve.” Holmes, 547 U.S. at 324 (internal 4 citation and quotation marks omitted); Michigan v. Lucas, 500 U.S. 145, 151 (1991). 5 “Only rarely” has the Supreme Court held that the right to present a complete 6 defense was violated by the exclusion of defense evidence under a state rule of 7 evidence. Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (citing Holmes, 547 8 U.S. at 331 (rule did not rationally serve any discernable purpose). A violation of 9 the right to present a defense merits habeas relief only if the error was likely to have 10 had a substantial and injurious effect on the verdict. See Lunbery v. Hornbeam, 605 11 For the Northern District of California right to present a defense does not occur any time such evidence is excluded, but 2 United States District Court 1 F.3d 754, 762 (9th Cir. 2010) (citing Brecht v. Abrahamson, 507 U.S. 619, 637–38 12 (1993)). 13 In a pre-trial suppression hearing, the parties litigated the lawfulness of the 14 stop of Petitioner’s car. During the suppression hearing, Petitioner presented 15 pictures captured from a bank security camera at the corner of Ramona and Lytton. 16 The pictures were intended to show that Agent Ryan did not have probable cause to 17 stop Petitioner. The trial court denied the motion to suppress and found that the stop 18 was lawful as follows: 19 20 21 22 23 24 25 The experts’ testimony was basically that the Defendant’s car and the Police Officer’s car were too far apart and that is the reason why the two cars are not visible together in any of the photos, which according to the expert means that the Officer’s patrol car was not immediately behind the Defendant’s car when approaching the intersection of Ramona and Lytton. However, it is this Court’s opinion, based on all the evidence, this does not discredit the Officer’s testimony. He testified that he personally observed the illegal left turn as he came down on Ramona toward the intersection at Lytton. The Officer testified that he observed the illegal turn and he gave a reasonable explanation why his car may not have been visible in any of the photos with the Defendant’s pickup. 27 I also find Mr. Connolly’s and Mr. Webb’s testimony was not believable because of its preciseness. Both gave the exactly same time up to the minute, two different witnesses at two different locations. That, I did not believe. 28 According to Agent Ryan, he stopped the Defendant’s car from making an 26 Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 16 1 unsafe turn in the path of an oncoming car. This testimony was not contradicted. 2 3 4 Therefore, I find that the car stop was lawful and the Motion to Suppress is denied. (3/12/07 RT at 2–3.) the suppression hearing and to admit the related expert testimony. (CT at 804.) The 7 prosecution opposed this motion, arguing that (1) this evidence did not meet the 8 requirements of section 801 of the California Evidence Code, and that (2) this 9 evidence would unduly consume time and had a high likelihood of misleading the 10 jury, in violation of section 352 of the California Evidence Code. (CT at 824–30.) 11 For the Northern District of California Prior to trial, Petitioner moved to admit the photos that had been presented at 6 United States District Court 5 The trial court denied Petitioner’s motion to admit the evidence, stating these photos 12 had been used to contest the legality of the traffic stop, which had already been fully 13 litigated. (RT at 35.) In response, Petitioner’s counsel stated that admission of the 14 photos was not intended to re-litigate whether Agent Ryan had probable cause to 15 stop Petitioner, but rather whether Agent Ryan was telling the truth as to what 16 occurred that night. (RT at 35.) The trial court stated that if the credibility of Agent 17 Ryan came up at trial, the trial court would reconsider whether to admit the 18 evidence. (RT at 35.) Later that day, Petitioner argued that the photos were relevant 19 because they supported an argument that Agent Ryan was dishonest about why he 20 had stopped Petitioner, and that Petitioner may have refused the chemical test 21 because he believed that Agent Ryan was being dishonest. (RT at 49–54.) 22 However, Petitioner’s counsel also conceded that the violation and stop were not in 23 the camera’s range. (RT at 52.) After hearing argument on the motion, the trial 24 court denied the motion, stating that the photos showed a “little snippet of time;” 25 that the trial court did not see the relevance of that small time period to Agent 26 Ryan’s credibility; and that the probative value was substantially outweighed by the 27 undue consumption of time. (RT at 56.) 28 To the extent that this evidence was intended to attack Agent Ryan’s Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 17 exclusion was neither arbitrary nor disproportionate to the purposes of Section 352 3 of the California Evidence Code. In denying the motion for a new trial, the trial 4 court estimated that admitting the evidence would turn a 4 to 5 day trial into a two 5 week trial. (CT at 1195.) The trial court also noted that the tapes and photographs 6 were not continuous, were pieced together from multiple cameras, and were 7 dependent on mathematical calculations. (CT at 1196.) Given these concerns, the 8 trial court’s exclusion of the evidence was within the scope of Section 352. 9 Moreover, exclusion of this evidence did not deny Petitioner a chance to present his 10 defense that Agent Ryan was untruthful. Petitioner was able to attack Agent Ryan’s 11 For the Northern District of California credibility — which is what Petitioner stated at the motion in limine hearing4 — the 2 United States District Court 1 credibility in other ways. Colon and Grillo challenged the reliability of Agent 12 Ryan’s reports, testifying that they never said that Petitioner was intoxicated. 13 Petitioner also elicited from Agent Ryan an admission that the declaration that he 14 had submitted in a related federal case had been altered to delete the information 15 about Petitioner’s medical conditions that might have affected his performance on 16 the field sobriety tests. (RT at 195–97.) 17 Assuming arguendo that it was error to exclude this evidence, the exclusion 18 did not have a substantial and injurious effect on the verdict. There was ample 19 evidence outside of Agent Ryan’s testimony that supported a finding that Petitioner 20 was guilty of the charges: Qadri’s testimony regarding Petitioner’s behavior at 21 NOLA; Officer Guy’s testimony regarding Petitioner’s performance on the first set 22 of field sobriety tests and Petitioner’s behavior; the video of Petitioner at the police 23 24 25 26 27 28 4 During the hearing the Court stated: “Okay, now this [evidence] is all part of the legality of the stop. It has been fully and — fully litigated at great length. I know you may want to use some of it to attack the credibility of the officer. If that comes up during the trial, we will revisit it; but at this time, it is part and was part of your motion to suppress and will not be litigated again during the trial. And so your motion to admit the bank video surveillance tape is denied.” (RT at 35.) Petitioner responded: “If I may, with all respect, Your Honor. We’re not litigating — relitigating whether or not the officer had probable cause. This is the gravamen of the entirety of the case, whether this officer is telling the truth as to what happened.” (RT at 35.) Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 18 1 station; and Petitioner’s bar tab. Accordingly, to the extent that Petitioner argues 2 that the exclusion of the evidence pursuant to Section 352 violated his right to 3 present a defense that Agent Ryan was not credible, this claim for habeas relief is 4 denied. Holmes, 547 U.S. at 324 (violation of right to present defense occurs only 5 when its exclusion is arbitrary or disproportionate to the purposes of the 6 exclusionary rule applied). 7 Petitioner also contends that the evidence was necessary to support a defense 8 that his arrest was unlawful, and that therefore his refusal to take a chemical test was 9 not consistent with a consciousness of guilt. However, assuming arguendo that it was error to exclude evidence that challenged the lawfulness of the arrest, the Court 11 For the Northern District of California United States District Court 10 finds that the exclusion did not have a substantial and injurious effect on the verdict 12 because, as discussed above, there was ample evidence outside of Petitioner’s 13 refusal to take a chemical test that supported a finding that Petitioner was guilty of 14 the charges. 15 Moreover, Petitioner’s argument that evidence bearing upon the lawfulness of 16 the arrest was necessary to his defense is defective in two ways. First, Petitioner 17 presumes that the lawfulness of the arrest was an element of the implied consent law 18 that must be submitted to the jury. However, as discussed below in Section B.2 19 infra, at the time of Petitioner’s arrest, the lawfulness of the arrest was a legal issue 20 to be decided by a judge in a motion to suppress which should be heard prior to trial, 21 and was not an element to be submitted to the jury separate from the elements of 22 driving under the influence of alcohol. Second, whether Petitioner committed a 23 traffic infraction was not at issue. Petitioner argues that evidence that he did not 24 commit a traffic violation was relevant to whether he was under the influence per 25 CALCRIM 2110. However, the jury heard no evidence that Petitioner drove badly, 26 which defense counsel emphasized during closing argument. (RT at 496 and 502.) 27 The safety of Petitioner’s driving was not at issue. 28 Taking into account the heightened level of deference that a federal habeas Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 19 was not objectively unreasonable. Habeas relief is warranted only if the 3 constitutional error at issue had a “‘substantial and injurious effect or influence in 4 determining the jury’s verdict.’” Penry v. Johnson, 532 U.S. 782, 795–96 (2001) 5 (quoting Brecht, 507 U.S. at 638). Whether a trial error had a substantial and 6 injurious effect is not to be analyzed in terms of burdens of proof. O’Neal v. 7 McAninch, 513 U.S. 432, 436–37 (1995); Mancuso v. Olivarez, 292 F.3d 939, 950 8 n.4 (9th Cir. 2002) (reviewing court must determine independently whether trial 9 error had substantial and injurious effect, without consideration of burdens of proof). 10 Instead, the proper question in assessing harm in a habeas case is, “‘Do I, the judge, 11 For the Northern District of California court must given to state court decision, the Court finds that the state court’s ruling 2 United States District Court 1 think that the error substantially influenced the jury’s decision?’” O’Neal, 513 U.S. 12 at 436. If the court is convinced that the error did not influence the jury, or had but 13 very slight effect, the verdict and the judgment should stand. Id. at 437. Here, the 14 evidence which Petitioner sought to introduce would not have affected the jury’s 15 decision. Petitioner alleged that the photos would have established that Agent 16 Ryan’s patrol car was not stopped behind Petitioner’s truck and that Agent Ryan did 17 not see Petitioner make an illegal left turn. However, there was no testimony 18 regarding an illegal left turn or unsafe driving and there was substantial evidence 19 supporting a finding that Petitioner was intoxicated, as discussed above. The jury’s 20 decision would not have been affected by evidence regarding whether Petitioner 21 made an illegal left turn. 22 Nor was the state court’s rejection of this claim contrary to the Supreme 23 Court’s decision in Crane v. Kentucky, 476 U.S. 683 (1986). In Crane, the Supreme 24 Court held that the petitioner had been denied his right to present a complete defense 25 when the trial court excluded competent, reliable evidence bearing on the credibility 26 of a confession that was central to the defendant’s claim of innocence. 476 U.S. at 27 690. In Crane, the prosecution’s case rested almost entirely on the petitioner’s 28 confession and the statement of his uncle. Id. at 685. Also, the trial court failed to Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 20 1 “advance[] any reasonable justification for the wholesale exclusion of this body of 2 potentially exculpatory evidence.” Id. at 688. In contrast, here, there were three 3 different witnesses and other evidence that supported a finding that Petitioner was 4 intoxicated, and the trial court excluded the evidence after finding that the probative 5 value was substantially outweighed by the undue consumption of time. 6 In sum, the state court’s rejection of this claim was neither contrary to, or an 7 unreasonable determination of, clearly established federal law. Nor was it an 8 unreasonable determination of the facts in light of the evidence presented in the state 9 court proceeding. 2) 11 For the Northern District of California United States District Court 10 Instructional Error Claims To obtain federal collateral relief for errors in the jury charge, a petitioner 12 must show that the ailing instruction by itself so infected the entire trial that the 13 resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 14 (1991); Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v. 15 DeChristoforo, 416 U.S. 637, 643 (1974) (“‘[I]t must be established not merely that 16 the instruction is undesirable, erroneous or even “universally condemned,” but that it 17 violated some [constitutional right].’”). The instruction may not be judged in 18 artificial isolation, but must be considered in the context of the instructions as a 19 whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the court 20 must evaluate jury instructions in the context of the overall charge to the jury as a 21 component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 22 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). The defined 23 category of infractions that violate fundamental fairness is very narrow: “Beyond 24 the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has 25 limited operation.” Estelle, 502 U.S. at 73. 26 A jury instruction that omits an element of an offense is constitutional error 27 subject to “harmless error” analysis. See Neder v. United States, 527 U.S. 1, 8–11 28 (1999) (direct review); Evanchyk v. Stewart, 340 F.3d 933, 940 (9th Cir. 2003) Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 21 1 (§ 2254 case); Spicer v. Gregoire, 194 F.3d 1006, 1008 (9th Cir. 1999) (§ 2254 2 case). Harmless error applies whether the error is characterized as a misdescription 3 of an element of an offense in a jury instruction, or as an omission of the element. 4 See California v. Roy, 519 U.S. 2, 5 (1996) (omission of “intent” element from 5 aiding and abetting instruction subject to harmless error analysis where jury could 6 have found intent based on evidence it considered). The omission will be found 7 harmless unless it “‘had substantial and injurious effect or influence in determining 8 the jury’s verdict.’” Roy, 519 U.S. at 4 (quoting Brecht, 507 U.S. at 637); see Roy 9 v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (on remand after California v. Roy). a) Lawful Arrest 11 For the Northern District of California United States District Court 10 Petitioner argues that the state court’s failure to instruct that a lawful arrest 12 was an element of the refusal enhancement and its failure to define a lawful arrest 13 deprived Petitioner of his right to have the jury make a finding on every element of 14 the offense. The state court rejected this argument as follows: 15 18 The alleged instructional error on the enhancement was harmless error. Because the jury found beyond a reasonable doubt that appellant had driven under the influence of alcohol, the jury found that appellant’s arrest was lawful. Requiring a lawful arrest element on the enhancement was merely duplicating an element that had already been found on the substantive charge of driving under the influence. 19 Respondent correctly points out that a state determination regarding the elements of 20 an offense is not open to challenge on federal habeas review. Stanton v. Benzler, 21 146 F.3d 726, 728 (9th Cir. 1998); see, e.g., Jackson v. Virgina, 443 U .S. 307, 324 22 n. 16 (1979) (sufficiency of the evidence claim in federal habeas must be analyzed 23 “with explicit reference to the substantive elements of the criminal offense as 24 defined by state law”). This Court is bound by state court rulings on state law. See 25 Estelle, 502 U.S. at 67–68 (“it is not the province of a federal habeas court to 26 reexamine state-court determinations on state-law questions”). Here, in denying 27 Petitioner’s motion for a new trial, the state trial court found that the lawfulness of 28 the arrest is a legal issue to be decided by a judge in a motion to suppress which 16 17 Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 22 1 should be heard prior to trial, and lawfulness of arrest is not an element to be 2 submitted to the jury separate from the elements of driving under the influence of 3 alcohol. (CT at 1193–94.) 4 Petitioner argues that Respondent’s assertion is factually untrue because 5 lawfulness of the arrest as an the element of the offense had already been established 6 by the statute itself (Cal. Veh. Code § 23162(a)); by the state’s official jury 7 instruction on the refusal enhancement and the accompanying Bench Notes; and by 8 the California Court of Appeal’s decision in Music v. Dep’t of Motor Vehicles, 270 9 Cal. Rptr. 692 (Cal. Ct. App. 1991) which Petitioner argues holds that a lawful arrest is a necessary predicate for the application of the refusal enhancement. See 11 For the Northern District of California United States District Court 10 Traverse at 28. At best, Petitioner has established that before a refusal enhancement 12 can be submitted to the jury, the prosecution must first obtain a legal ruling that 13 there was a lawful arrest. Petitioner has not established that California law, at that 14 time, considered lawfulness of the arrest an element of the offense. Moreover, as the 15 state court noted, the jury’s guilty finding on the driving under the influence charge 16 constituted a finding that the arrest was lawful. The state court’s rejection of this 17 claim was neither contrary to, or an unreasonable determination of, clearly 18 established federal law. Nor was it an unreasonable determination of the facts in 19 light of the evidence presented in the state court proceeding. 20 21 b) Definition of billy Petitioner argues that the jury instruction defining “billy” constituted 22 instructional error because it (1) violated the rule of lenity by failing to interpret 23 Section 12020 of the California Penal Code in Petitioner’s favor; and 24 (2) retroactively applied a broader definition of Section 12020 to Petitioner. 25 Petitioner also argues that Section 12020 is void for vagueness. Respondent argues 26 that the Appellate Division of the Santa Clara County Superior Court’s rejection of 27 this claim constituted a state court ruling on state law, and is therefore not 28 cognizable in habeas. Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 23 1 The Appellate Division of the Santa Clara County Superior Court rejected 2 this claim, stating: “There was no instructional error in the jury instruction for the 3 billy offense. The instruction given properly defined a weapon of that class which 4 the legislature intended to prohibit.” (Docket No. 18, Ex. 7.) 5 Petitioner’s claim is without merit. The “rule of lenity” (i.e., a rule that 6 ambiguous criminal statutes should be construed favorably to defendants) is 7 inapplicable here. The rule of lenity is a rule of statutory construction rather than a 8 constitutional command. See Sabetti v. DiPaolo, 16 F.3d 16, 19 (1st Cir. 1994). 9 “‘[N]othing in the federal constitution requires a state court to apply the rule of lenity when interpreting a state statute.’ Bowen v. Romanowski, No. Civ. 11 For the Northern District of California United States District Court 10 05–cv–72754–DT, 2005 WL 1838329, at *2 (E.D.Mich. Aug. 2, 2005) (citing 12 Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir.), cert. denied, 513 U.S. 916 (1994)); cf. 13 Lurie v. Wittner, 228 F.3d 113, 126 (2nd Cir. 2000) (“The rule of lenity is a canon 14 of statutory construction, not in itself federal law.”) (citing United States v. Torres- 15 Echavarria, 129 F.3d 692, 698 n .2 (2nd Cir.1997), cert. denied, 522 U.S. 1153 16 (1998), and United States v. Harris, 959 F.2d 246, 258 (D.C. Cir.), cert. denied, 506 17 U.S. 932, 933 (1992)), cert. denied, 532 U.S. 943 (2001).” Walker v. Warden, 18 Chillicothe Corr. Inst., No. 1:08-CV-580, 2010 WL 419942, at *12 (S.D. Ohio Jan. 19 29, 2010). The case cited by Petitioner does not hold otherwise; in U.S. v. Santos, 20 533 U.S. 507 (2008), the Supreme Court reviewed a federal court’s construction of a 21 federal statute. 553 U.S. at 514. 22 The state’s alleged failure to apply this rule of statutory construction cannot 23 be the basis for federal habeas relief. A person in custody pursuant to the judgment 24 of a state court can obtain a federal writ of habeas corpus only on the ground that he 25 is in custody in violation of the Constitution or laws or treaties of the United States. 26 28 U.S.C. § 2254(a). In other words, a writ of habeas corpus is available under § 27 2254(a) “only on the basis of some transgression of federal law binding on the state 28 courts.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 24 1 Isaac, 456 U.S. 107, 119 (1982). Petitioner’s claim that the state court incorrectly 2 defined billy by using a broader definition is a claim that the state court erred in 3 applying state law, and is not cognizable on federal habeas. Estelle, 502 U.S. at 4 67–68 (1991) (federal habeas relief unavailable for violations of state law or for 5 alleged error in the interpretation or application of state law); see, e.g., Little v. 6 Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006) (claim that state supreme court 7 misapplied state law or departed from its earlier decisions does not provide a ground 8 for habeas relief); Stanton, 146 F.3d at 728. of Section 12020 to him is also without merit. The relevant event took place on May 11 For the Northern District of California Petitioner’s claim that the trial court retroactively applied a broader definition 10 United States District Court 9 5, 2008. As of that date, there was a California Supreme Court case, People v. 12 Grubb, 47 Cal. Rptr. 772 (1965), which held that an altered baseball bat, taped at the 13 smaller end, heavier at the other end and carried around in a car, obviously not for 14 playing baseball, is a “billy.” 47 Cal. Rptr. at 778. Petitioner accordingly had notice 15 that his baton could be considered a billy. The case relied upon by Petitioner, 16 People v. Mulherin, 35 P.2d 174 (Cal. Ct. App. 1934) was issued by a lower court 17 twenty years prior to Grubb and therefore does not supersede a California Supreme 18 Court opinion. Moreover, the fact that the CALCRIM 2500 Bench Notes cite to 19 Mulherin for the definition of a “billy” does not render Mulherin law. See, e.g., 20 People v. Morales, 25 Cal.4th 34, 48, fn. 7 (2001) (“jury instructions, whether 21 published or not, are not themselves the law, and are not authority to establish legal 22 propositions or precedent. They should not be cited as authority for legal principles 23 in appellate opinions.”). 24 Finally, the Court also finds that Petitioner’s void-for-vagueness argument is 25 without merit. “[T]he void-for-vagueness doctrine requires that a penal statute 26 define the criminal offense with sufficient definiteness that ordinary people can 27 understand what conduct is prohibited and in a manner that does not encourage 28 arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 25 1 (1983) (citing Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972)). In a 2 vagueness challenge, a court must look to the plain language of the statute, as well 3 as to state courts’ interpretations of it. Nunez v. City of San Diego, 114 F.3d 935, 4 941–42 (9th Cir. 1997) (citing Kolender, 461 U.S. at 355 n. 4). A statute will meet 5 the “certainty required by the Constitution if its language conveys sufficiently 6 definite warning as to the proscribed conduct when measured by common 7 understanding and practices.” Panther v. Hames, 991 F.2d 576, 578 (9th Cir. 1993) 8 (citations omitted). The state court denied Petitioner’s claim that the definition of 9 “billy” constituted instructional error, but did not expressly address Petitioner’s vagueness argument. Accordingly, this Court must “determine what arguments or 11 For the Northern District of California United States District Court 10 theories supported . . . or could have supported the state court’s decision” and then 12 “must ask whether it is possible fairminded jurists could disagree that those 13 arguments or theories are inconsistent with the holding in a prior decision of [the 14 Supreme] Court.” Harrington, 131 S.Ct. at 786. 15 Unless First Amendment freedoms are implicated, “a vagueness challenge 16 may not rest on arguments that the law is vague in its hypothetical applications, but 17 must show that the law is vague as applied to the facts of the case at hand.” United 18 States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997) (citing Chapman v. United 19 States, 500 U.S. 453, 467 (1991)). Here, Petitioner takes issue with the trial court’s 20 failure to instruct with the definition of “billy” as set forth in People v. Mulherin, 21 which requires that a billy fit within a pocket, 35 P.2d at 176, and the trial court’s 22 application of the definition set forth in People v. Mercer, 49 Cal. Rptr. 2d 728 (Cal. 23 Ct. App. 1995). The Mercer court’s definition of “billy” was taken from the 1986 24 edition of the Webster’s New World Dictionary. Mercer, 49 Cal. Rptr. 2d at 731 25 (“We note that Webster’s New World Dictionary defines a ‘billy’ as ‘a club or 26 heavy stick; truncheon, esp. one carried by a policeman.’ (Webster’s New World 27 Dict. (2d college ed. 1986) p. 141.) A ‘truncheon’ is defined as ‘1. a short, thick 28 cudgel; club 2. any staff or baton of authority 3. . . . a policeman’s stick or billy . . . “ Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 26 1 (Id. at p. 1527.) .”). The state court could have reasonably concluded that the trial 2 court had interpreted “billy” to give it its usual and ordinary meaning by applying 3 the definition set forth in Mercer, which relies on a definition found in a mainstream 4 dictionary. The state court could have reasonably concluded that Section 12020 5 was not vague as applied to the facts of the case at hand. Accordingly, the state 6 court’s rejection of Petitioner’s contention that Section 12020’s definition of “billy” 7 was void for vagueness was neither contrary to nor an unreasonable application of 8 clearly established federal law. Federal habeas relief is denied on this claim. 9 Miranda violation Petitioner argues that the trial court’s admission of his statements regarding 11 For the Northern District of California United States District Court 10 3) the baton violated Edwards v. Arizona, 384 U.S. 436 (1996) because they were 12 made after Petitioner invoked his right to counsel.5 The state court rejected this 13 claim, stating: “[Petitioner’s] statements did not violate Miranda.” (Docket No. 9, 14 Ex. 7 at 2.) Respondent argues that Edwards is inapplicable because Petitioner was 15 not dealing with custodial interrogation by the police. 16 Agent Ryan testified that after he arrested Petitioner, he asked if Petitioner 17 was willing to take a breath test. (RT at 134.) Petitioner refused. (RT at 134.) 18 Petitioner informed Agent Ryan that he wished to speak to an attorney before 19 submitting to any chemical test. (RT at 136.) Agent Ryan reminded him that there 20 is no right to speak to an attorney before submitting to chemical testing. (RT at 21 136–38.) Afterwards, Agent Ryan read Petitioner his Miranda rights. (RT at 139.) 22 After reading Petitioner his Miranda rights, Agent Ryan asked Petitioner whether the 23 baton belonged to him. (RT at 141.) Petitioner responded that yes, the baton 24 belonged in the truck. (RT at 141.) He then asked if it was a misdemeanor in 25 26 27 28 5 Petitioner invokes Edwards only when it benefits him. Petitioner relied on his statement to Agent Ryan that he was hypoglycemic to offer another reason for the smell of alcohol in his breath. However, his statement that he was hypoglycemic was offered after he had received his Miranda warning (RT at 189) and would be considered inadmissible if Edwards applied to his statements in the booking area. Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 27 1 California to possess the baton. (RT at 141–42.) 2 In reviewing this claim, the Court must again “determine what arguments or 3 theories supported . . . or could have supported the state court’s decision” and then 4 “must ask whether it is possible fairminded jurists could disagree that those 5 arguments or theories are inconsistent with the holding in a prior decision of [the 6 Supreme] Court.” Harrington, 131 S.Ct. at 786. “A state court’s determination that 7 a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists 8 could disagree’ on the correctness of the state court’s decision.” Id. at 786 (citing 9 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also id. at 786–87 (petitioner must show that state court’s decision “was so lacking in justification that 11 For the Northern District of California United States District Court 10 there was an error well understood and comprehended in existing law beyond any 12 possibility for fairminded disagreement.”). 13 The Court finds that the state court could have reasonably concluded that 14 Petitioner’s request for counsel with respect to the chemical test, and prior to 15 receiving his Miranda warnings, did not require a halt to all questioning pursuant to 16 Edwards v. Arizona. In McNeil v. Wisconsin, 501 U.S. 171 (1991), the Supreme 17 Court distinguished between the Sixth Amendment right to counsel, which is 18 invoked when an individual requests counsel, and the Miranda-Edwards Fifth 19 Amendment right to counsel. The McNeil court found that invoking one’s Sixth 20 Amendment right to counsel did not constitute an invocation of one’s right to 21 counsel under Miranda: 22 23 24 25 26 27 28 The purpose of the Sixth Amendment counsel guarantee — and hence the purpose of invoking it — is to “protec[t] the unaided layman at critical confrontations” with his “expert adversary,” the government, after “the adverse positions of government and defendant have solidified” with respect to a particular alleged crime. U.S. v. Gouveia, 467 U.S. 180, 189 (1984). The purpose of the Miranda-Edwards guarantee, on the other hand — and hence the purpose of invoking it — is to protect a quite different interest: the suspect’s “desire to deal with the police only through counsel,” Edwards v. Arizona, 451 U.S. 477, 484 (1981). This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation) and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the “adversarial relationship” produced by a pending prosecution has yet arisen). Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 28 1 2 3 4 To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards interest. . . . [T]he likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards. The rule of that case applies only when the suspect “ha[s] expressed” his wish for the particular sort of lawyerly assistance that is the subject of Miranda. Edwards, 451 U.S. at 484 (emphasis added). It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. 5 McNeil, 501 U.S. at 177–78 (emphasis in original). The McNeil court rejected 6 Petitioner’s proposed bright-line rule that there should be no police-initiated 7 questioning of any person in custody who has requested counsel to assist him in 8 defense or interrogation. Id. at 181. Applying the above reasoning, the McNeil 9 court found that an accused’s invocation of his Sixth Amendment right to counsel 10 For the Northern District of California United States District Court during a judicial proceeding did not constitute an invocation of the right to counsel 11 derived by Miranda. Id. at 177–82. 12 Fair-minded jurists could reasonably disagree as to whether the state court 13 properly rejected Petitioner’s Miranda claim. McNeil can reasonably be read as 14 finding that Miranda requires a clear invocation of the right to counsel after the 15 Miranda warning was given. Cf. U.S. v. Ogden, 572 F.2d 501, 502–03 (5th Cir. 16 1978) (finding no error in the admission of defendant’s post-arrest inculpatory 17 statements where he requested a lawyer prior to being given Miranda warnings but 18 after being given Miranda warnings chose to inculpate himself). It is undisputed 19 that Petitioner did not request an attorney after he was advised of his Miranda rights. 20 However, because Petitioner’s request for counsel can also be viewed as “an 21 expression of a desire for the assistance of an attorney in dealing with custodial 22 interrogation by the police,” it can also be argued that McNeil requires that 23 Petitioner’s pre-Miranda request for an attorney be treated as an invocation of the 24 Miranda-Edwards right to counsel. McNeil, 501 U.S. at 178. Because fairminded 25 jurists could disagree on the correctness of the state court’s decision, the state 26 court’s rejection of this claim precludes federal habeas relief. Harrington, 562 U.S. 27 at 101. However, the Court will grant a certificate of appealability on this issue. 28 Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 29 1 4) 2 Petitioner argues that the prosecutor committed prosecutorial misconduct 3 when he acted as a witness and advocate with respect to Colon; when he elicited 4 false evidence regarding Colon’s testimony; when he misstated the law regarding 5 consciousness of guilt and regarding whether Miranda and “probable cause” were 6 legal issues; and when he failed to disclose evidence of Qadri’s DUI arrest. The 7 state court rejected this claim, stating: “Witness Qadri’s misdemeanor DUI was 8 irrelevant. There was no showing of prosecutorial misconduct.” (Docket No. 9, Ex. 9 7 at 2.) A defendant’s due process rights are violated when a prosecutor’s misconduct 11 For the Northern District of California United States District Court 10 Prosecutorial Misconduct renders a trial “fundamentally unfair.” Darden v. Wainwright, 477 U.S. 168, 181 12 (1986). Under Darden, the first issue is whether the prosecutor’s remarks were 13 improper; if so, the next question is whether such conduct infected the trial with 14 unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005); see also Deck v. 15 Jenkins, 768 F.3d 1015, 1023 (9th Cir. 2014) (recognizing that Darden is the clearly 16 established federal law regarding a prosecutor’s improper comments for AEDPA 17 review purposes). A prosecutorial misconduct claim is decided “‘on the merits, 18 examining the entire proceedings to determine whether the prosecutor’s remarks so 19 infected the trial with unfairness as to make the resulting conviction a denial of due 20 process.’” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see Trillo v. Biter, 21 769 F.3d 995, 1001 (9th Cir. 2014) (“Our aim is not to punish society for the 22 misdeeds of the prosecutor; rather, our goal is to ensure that the petitioner received a 23 fair trial.”). 24 25 a) False Argument Petitioner argues that the prosecutor made a false argument to the jury when 26 he argued in this closing argument that Petitioner had no reason to not give a 27 chemical test except consciousness of guilt. According to Petitioner, his refusal to 28 give a chemical test could also be explained by the unlawfulness of the arrest, since Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 30 1 under California caselaw a driver has no obligation to take a chemical test if he is 2 unlawfully detained or arrested. Petitioner also argues that the prosecutor 3 knowingly made a false statement since he was aware that Petitioner believed the 4 arrest to be unlawful. The Court finds this claim to be without merit. 5 The Court agrees with Respondent that Petitioner has taken the sentence out 6 of context. Petitioner challenges the last sentence of the following portion of the 7 prosecutor’s closing argument: 8 9 11 For the Northern District of California United States District Court 10 Ladies and gentlemen, to find reasonable doubt in this case you got to believe Shiraz Qadri lied about a complete stranger; Agent Ryan lied about a complete stranger that night; Officer Guy lied about a complete stranger that night; that defendant just can’t follow instructions; that he just has horrible balance, despite being a wrestler which requires great balance. He lies about alcohol for no reason. He had some good reason not to blow besides guilt, and he was willing to take the consequences for some reason besides being guilty. 12 (RT at 524.) Petitioner claims that the prosecutor’s argument conveyed to the jury 13 the false and misleading impression that Petitioner had no other reason for refusing 14 the test except consciousness of guilt. However, read in context, it is also read as the 15 prosecution’s summary and characterization of Petitioner’s defense which is that 16 Qadri, Ryan and Guy were unreliable witnesses; that Petitioner’s poor performance 17 on the sobriety tests was attributable to causes other than his intoxication; and that 18 Petitioner had another reason, such as frustration with an unjustified stop, for not 19 submitting to the breath test. In fact, the defense specifically argued that Petitioner 20 may have refused the breath test because he believed it was futile because he was 21 subject to an unjustified stop and then arrested despite his innocence: 22 27 Stopped for no reason. Now, think about this. This is huge, ladies and gentleman. The judge gave an instruction that the manner of driving the vehicle was not definitive but something to be determined. Did you hear Agent Ryan say that Mr. Robertson did anything to break the law? No. Was the impression you are left the impression Mr. Robertson was left with? Hey, guys, watch out, there goes the police. See you later. Get in my car with Tennessee tags, drive, and all of a sudden, “Whoop, whoop, whoop.” What did I do? I didn’t do anything. Officer, I didn’t do anything. You’ve been drinking, boy. Can you see why he’s afraid? Can you see why Mr. Robertson starts right out what is going on here? Nothing about him doing anything wrong? 28 Then as if matters aren’t bad enough, he’s told that not this (indicating) but this 23 24 25 26 Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 31 1 2 is a felony for which he can go to jail, lose his law license, and everything else? Can you imagine why he’s afraid? And he get frustrated. I didn’t have anything to drink. I’m the designated driver. 3 ... 4 Futility. Despite telling the officer he hadn’t anything to drink, despite never having done anything wrong, despite trying his best on these field sobriety tests, he gets arrested. He gets taken down to the holding area, booking room. He tries to explain everything to the officer. . . . 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 Here’s the jury instruction. If Mr. Robertson refused to submit to a chemical test after the officer asked him to do so and explained the nature to Wade, then Wade’s conduct may show. It is not definitive. It’s a maybe. But balance it. If his mind is guilty, why is he going to keep talking to the officer. Why is he going to explain to the officer? Why he is going to redo the test? A guilty person doesn’t do that. It’s up to you to decide the meaning and importance of the refusal. Well, Mr. Robertson has been trying to convince Agent Ryan the entire time, I didn’t drive badly. I didn’t drink. Go back and ask the people at the bar. There’s two waitresses over there they will tell you they didn’t see him drinking. No, it’s all futile for Mr. Robertson. Even if you find that he did refuse, and he did, I’m not saying he didn’t refuse, that can’t prove guilty by itself. Okay, Mr. Robertson, you refused. Okay, fine. Doesn’t mean he’s guilty of driving under the influence, which is the crime here. So you can say you are right, [prosecutor Shearer], but you didn’t prove he was driving under the influence. 16 RT at 480–83. After evaluating the prosecutor’s statement in the context of the 17 entire trial, the Court finds that the state court reasonably determined that the 18 prosecution did not misstate the law. In addition, the state court reasonably determined that the prosecutor did not 19 20 offer a false statement. The fact that Petitioner argued that he was unlawfully 21 arrested at a suppression hearing does not mean that the prosecutor cannot, in good 22 faith, believe that the evidence shows that Petitioner was lawfully arrested and that 23 therefore his refusal could indicate consciousness of guilt. The Court also notes that the trial court specifically instructed the jurors that 24 25 they were to disregard the attorneys’ comments on the law if the comments 26 conflicted with the trial court’s instructions (RT at 447), and that nothing the 27 attorneys said, including in their closing arguments, constituted evidence (RT at 28 450). Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 32 1 After having examined the entire record, the Court finds that the prosecutor’s 2 comment regarding why Petitioner may have refused the breath test did not “‘so 3 infect[] the trial with unfairness as to make the resulting conviction a denial of due 4 process.’” Darden, 477 U.S. at 181 (citing Donnelly, 416 U.S. 637). The state 5 court’s rejection of this claim was not contrary to, or an unreasonable application of, 6 clearly established federal law. 7 b) 8 9 Brady violation Petitioner argues that the prosecutor withheld exculpatory evidence impeaching its key witness, Qadri, who gave the lay opinion that Petitioner was intoxicated. The state court denied this claim, stating: “Witness Qadri’s 11 For the Northern District of California United States District Court 10 misdemeanor DUI was irrelevant.” (Docket No. 9, Ex. 7 at 2.) 12 After the start of trial, the prosecution disclosed that Qadri had a 13 misdemeanor and was on probation but provided no information regarding where the 14 arrest or conviction took place. (CT at 1004.) The trial court granted the 15 prosecutor’s request to preclude the defense from questioning Qadri about this 16 conviction because it was not a conviction of moral turpitude. (CT at 822.) 17 The police report and court file, obtained after trial, indicate that on October 29, 18 2006, Qadri was arrested for DUI, pled guilty to the charge, and was on probation 19 for that offense at the time of Petitioner’s trial. (CT at 1007–31.) In denying the 20 new trial motion, the trial court noted that it was Petitioner’s choice to wait until the 21 end of trial to obtain Qadri’s police report and court file, and that his information 22 was easily accessible to Petitioner since it was in the same building in which the trial 23 was behind held. (CT at 1197.) 24 Petitioner argues that the police report indicated that Qadri lied when he 25 informed the police at the time of the arrest that he only had two beers since Qadri’s 26 blood alcohol level (“BAC”) was .20; that Qadri’s ability to drive a car with a .20 27 BAC indicates that he is a heavy drinker, if not an alcoholic; that Qadri had likely 28 been drinking when he saw Petitioner; and that he was a poor judge of whether a Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 33 1 person was intoxicated since he estimated his alcohol intake as two beers, instead of 2 ten. (Pet. at 51–52.) Accordingly, concludes Petitioner, the details of the 3 conviction would have been “key impeachment material” and constituted 4 exculpatory evidence. (Pet. at 51.) 5 In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the 6 suppression by the prosecution of evidence favorable to an accused upon request 7 violates due process where the evidence is material either to guilt or to punishment, 8 irrespective of the good faith or bad faith of the prosecution.” Id. at 87. The 9 Supreme Court has since made clear that the duty to disclose such evidence applies even when there has been no request by the accused, United States v. Agurs, 427 11 For the Northern District of California United States District Court 10 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well 12 as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985). 13 Evidence is material if “there is a reasonable probability that, had the evidence been 14 disclosed to the defense, the result of the proceeding would have been different.” 15 Cone v. Bell, 556 U.S. 449, 469–70 (2009). “A reasonable probability does not 16 mean that the defendant ‘would more likely than not have received a different 17 verdict with the evidence,’ only that the likelihood of a different result is great 18 enough to ‘undermine confidence in the outcome of the trial.’” Smith v. Cain, 132 19 S. Ct. 627, 630 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). 20 The Court finds that the state court’s rejection of this claim was neither 21 contrary to, nor an unreasonable application of, clearly established federal law. 22 Petitioner has failed to demonstrate that Qadri’s misdemeanor DUI conviction was 23 relevant or material. Petitioner’s conclusions that the details of the conviction 24 established that Qadri was a liar, a heavy drinker, and a poor judge of sobriety are 25 purely speculative. Whether a “reasonable probability” exists that Petitioner would 26 have received a different verdict may not be based on mere speculation without 27 adequate support. See Wood v. Bartholomew, 516 U.S. 1, 6–8 (1995). 28 // Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 34 1 2 c) Advocate-Witness Rule Petitioner argues that the prosecutor improperly acted as a witness, thereby 3 violating his due process rights. According to Petitioner, the prosecutor behaved 4 improperly as follows. On the eve of trial, the prosecutor made a taped phone call to 5 Colon. (RT at 37.) The prosecutor states that the purpose of the call was to discuss 6 Petitioner’s behavior the night he was arrested, and the relationship between Grillo 7 and Petitioner. (RT at 37.) Petitioner argues that the prosecutor misleadingly 8 obtained Colon’s assent that Agent Ryan’s police report was fairly accurate by 9 reading Colon a version of the police report that omitted a sentence that Colon had repeatedly stated was inaccurate. (RT at 60–62.) Petitioner requested that the Court 11 For the Northern District of California United States District Court 10 recuse prosecutor due to these events, which the Court declined to do. (RT at 12 60–66, 70 and CT at 832–38.) Petitioner argues that in his closing argument, the 13 prosecutor made himself an unsworn witness by vouching to the trial court and to 14 the jury the version of events with regard to Colon’s statement as the prosecutor had 15 witnessed them. 16 20 Prosecution: At the end of this day regarding the DUI the People have shown that Shiraz Qadri said he was intoxicated; Agent Ryan said he was intoxicated; Officer Guy said he was intoxicated; even the defense expert said he had 20 clues of being under the influence of alcohol consider both sets of FST’s. He even said the defendant should have just blown if he was innocent. All of those things, and then you have Tiffany Colon’s prior statement where she said he was drinking or becoming intoxicated. 21 Defense: Objection; misstates the evidence. There’s no prior statement from Ms. Colon as to that. Court: Where are you getting that from? 17 18 19 22 23 24 Prosecution: When I read her if that was a correct statement at the time, Your Honor, and she said yes. 25 Court: The objection is overruled. 26 (RT 526–27.) 27 After reviewing the record, the Court finds that the state court’s rejection of 28 Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 35 1 this claim of prosecutorial misconduct was neither contrary to, nor an unreasonable 2 application of, clearly established federal law. Put simply, it did not render the trial 3 fundamentally unfair. The prosecution’s statement that Colon had previously stated 4 that Petitioner was drinking and becoming intoxicated did not have a substantial and 5 injurious effect on the jury’s verdict. As previously noted, the jury was specifically 6 instructed that the attorneys’ statements were not evidence and the jury is presumed 7 to have followed those instructions. See Weeks v. Angelone, 528 U.S. 225, 234 8 (2000). Furthermore, the evidence in this case was strong against Petitioner, as the 9 prosecution detailed above. In addition, the prosecution’s statement is supported by Colon’s testimony. On cross-examination, Colon agreed that her statement that 11 For the Northern District of California United States District Court 10 Petitioner, Grey and a third man were becoming intoxicated when she served them 12 drinks the night of April 27, 2006 was “pretty right on” and “an accurate reflection” 13 of her memory. (RT at 249.) 14 Neither Berger v. U.S., 295 U.S. 78 (1935), nor U.S. v. Edwards, 154 F.3d 15 915 (9th Cir. 1998) compel a finding that the prosecutor’s comments violated 16 Petitioner’s due process rights. In Berger, the Supreme Court was confronted with a 17 situation in which the conduct of the prosecuting attorney was not “slight or 18 confined to a single instance, but one where such misconduct was pronounced and 19 persistent, with a probable cumulative effect upon the jury which cannot be 20 disregarded as inconsequential.” Berger, 295 U.S. at 89. The Court concluded that 21 “[i]f the case . . . had been strong, or . . . the evidence of his guilt overwhelming, a 22 different conclusion might be reached.” Id. Finding that the case against the 23 petitioner was weak, the Supreme Court granted habeas relief. Berger is not 24 applicable in this case because the prosecutor’s alleged misconduct was neither 25 pronounced nor persistent, and the case against Petitioner is strong. In Edwards, the 26 Ninth Circuit found that the prosecutor’s continued performance of his role as 27 prosecutor in case constituted a form of improper vouching that affected the 28 fundamental fairness of defendant’s trial where the prosecutor was personally Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 36 1 involved in the discovery of a critical piece of evidence, when that fact is made 2 evident to the jury, and when the reliability of the circumstances surrounding the 3 discovery of the evidence was at issue. Edwards, 154 F.3d at 924. Edwards is 4 distinguishable because, as discussed earlier, Colon’s testimony was consistent with 5 the prosecution’s statement. Accordingly, the Court denies federal habeas relief on 6 this claim. 7 d) Eliciting false testimony because Colon had informed the prosecutor that she did not have a conversation with 10 Agent Ryan and that she did not tell Agent Ryan that Petitioner was intoxicated, yet 11 For the Northern District of California Petitioner argues that the prosecutor knowingly elicited false testimony 9 United States District Court 8 the prosecutor elicited from Agent Ryan testimony that Agent Ryan spoke with 12 Colon and that she said Petitioner was intoxicated. This claim was also denied by 13 the state court. The government’s knowing use of false testimony to convict a defendant 14 15 violates due process. Napue v. Illinois, 360 U.S. 264, 269 (1949). However, the 16 evidence is inconclusive as to whether Agent Ryan’s testimony was false. It is 17 equally plausible that Colon mis-remembered the relevant events or was herself 18 presenting false testimony. Discrepancies in the testimonies of different witnesses 19 do not prove that the prosecution knowingly elicited false testimony. U.S. v. Zuno- 20 Acre, 44 F.3d 1420, 1423 (9th Cir. 1995). Inconsistencies are not only attributable 21 to lies, but also to errors in perception or recollection. Id. Determining the cause of 22 the discrepancies is a question for the jury. Id. The record does not support a 23 finding that Agent Ryan’s testimony regarding the length of his conversation with 24 Colon and Colon’s statement regarding Petitioner’s level of intoxication was false. 25 The state court’s rejection of this claim was neither contrary to, nor an unreasonable 26 application of, clearly established federal. Nor was it an unreasonable determination 27 of the facts in light of the evidence presented in the state court proceeding. 28 // Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 37 e) 1 2 Misstatements of the law Petitioner claims that the prosecutor misstated the facts and the law in the 3 following ways: by arguing that Miranda and probable cause were to be decided by 4 the judge and not the jury; by stating that the prosecution learned that Grillo worked 5 for Gray; by stating that the prosecution learned that Grillo was buddies with 6 Petitioner; by stating that the prosecution decided before trial that Grillo would not 7 be a helpful claim; and by claiming that it was a labor law violation for a bar 8 manager to refund a tip to a customer. This claim was rejected by the state court 9 which found no prosecutorial misconduct. The Court finds that these claims are without merit. The Court agrees with 11 For the Northern District of California United States District Court 10 Respondent that since the state court had determined that the jury did not need to 12 determine whether Petitioner’s arrest was lawful, the prosecutor did not misstate the 13 law by stating that Miranda and probable cause were issues to be decided by the 14 jury. Nor were the statements regarding Grillo improper since they were reasonable 15 inferences from the evidence. United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir. 16 1995) (prosecutor may draw reasonable inferences from the evidence and is not 17 limited to a mere summary). The state court’s rejection of this claim was neither 18 contrary to, nor an unreasonable application of, clearly established federal. Nor was 19 it an unreasonable determination of the facts in light of the evidence presented in the 20 state court proceeding. 21 5) Second Amendment violation 22 Petitioner argues that the version of Section 12020 of the California Penal 23 Code that was in effect when he was convicted6 violated the Second Amendment 24 and that therefore his conviction under this statute must be set aside. The state 25 appellate court addressed this claim in one sentence, stating only that “Penal Code 26 27 28 6 Section 12020 of the California Penal Code was repealed in 2012, pursuant to the nonsubstantive reorganization of statutes set forth in Senate Bill No. 1080, and recodified at Section 22210 of the California Penal Code which, in relevant part, prohibits the possession of a billy. Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 38 1 section 12020(a)(1) does not violate the Second Amendment.” (Docket No. 9, Ex. 7 2 at 2.) Petitioner argues that the state appellate court’s finding was contrary to the 3 Supreme Court’s holding in District of Columbia v. Heller, 554 U.S. 570 (2008). 4 Petitioner argues that Heller extended the Second Amendment “to all instruments 5 that constitute bearable arms,” id. at 582, including a billy. 6 The Court agrees with Respondent that the state appellate court’s ruling was 7 neither “contrary to, [nor] an unreasonable application of[] clearly established 8 Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. 9 § 2254(d)(1). In a habeas case governed by 28 U.S.C. § 2254(d), “[c]learly established federal law, as determined by the Supreme Court of the United States” 11 For the Northern District of California United States District Court 10 refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” 12 Williams, 529 U.S. at 412; cf. Alvarado v. Hill, 252 F.3d 1066, 1068–69 (9th Cir. 13 2001) (“the question . . . is not whether [state law] violates due process as that 14 concept might be extrapolated from the decisions of the Supreme Court. Rather, it is 15 whether [state law] violates due process under ‘clearly established’ federal law.”). 16 In Heller, the Supreme Court held that the District of Columbia’s total ban on 17 handgun possession in the home and its requirement that handguns be rendered 18 inoperable when stored in a home violated the Second Amendment. Heller, 544 19 U.S. at 635. The Supreme Court’s holding was limited to handguns. Contrary to 20 Petitioner’s assertion, Heller did not, in its holding, specify what constituted 21 “bearable arms.” See, e.g., id. at 623 (acknowledging that Miller v. United States, 22 309 U.S. 174 (1939) holds that Second Amendment right “extends to only certain 23 types of weapons”) and 626 (noting that the right to bear arms under Second 24 Amendment is “not a right to keep and carry any weapon whatsoever in any manner 25 whatsoever and for whatever purpose”). Nor did Heller hold that the Second 26 Amendment protected Petitioner’s right to carry a billy. Petitioner’s reliance on 27 State v. Kessler, 289 Or. 359, 361–62 (Or. 1980), and Peruta v. County of San 28 Diego, 742 F.2d 1144 (9th Cir. 2014) are unpersuasive since neither case constitutes Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 39 1 clearly established Federal law for the purposes of federal habeas review under § 2 2254(d). See, e.g., Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (“circuit 3 precedent does not constitute clearly established Federal law, as determined by the 4 Supreme Court [and] therefore cannot form the basis for habeas relief under 5 AEDPA”) (internal quotation and citation omitted). Accordingly, Petitioner is not 6 entitled to habeas relief on this claim. 7 6) Ineffective Assistance of Counsel 8 Petitioner argues that trial counsel was ineffective for failing to adequately 9 object to the car search for the reasons set forth in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the Supreme Court held that the police may search a vehicle 11 For the Northern District of California United States District Court 10 incident to a recent occupant’s arrest only if the arrestee is within reaching distance 12 of the passenger compartment at the time of the search or it is reasonable to believe 13 the vehicle contains evidence of the offense of arrest. Gant, 556 U.S. at 351. 14 Petitioner argues that defense counsel rendered ineffective assistance of counsel 15 when he failed to adequately move to suppress the fruits of the car search in this 16 case, namely the baton, which had been discovered during a post-arrest inventory 17 search, and to suppress any observations of the baton. Petitioner argues that if 18 defense counsel had moved to suppress the fruits of the inventory search, the 19 suppression motion would have been successful and Count Two would have been 20 dismissed. Petitioner further argues that there could no strategic motion to not move 21 to suppress the fruits of the inventory search. The trial court rejected this claim, 22 stating, “There was no showing that trial counsel was ineffective in not bringing a 23 renewed suppression motion.” (Docket No. 8, Ex. 7 at 2.) 24 A claim of ineffective assistance of counsel is cognizable as a claim of denial 25 of the Sixth Amendment right to counsel, which guarantees not only assistance, but 26 effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). 27 The benchmark for judging any claim of ineffectiveness must be whether counsel’s 28 conduct so undermined the proper functioning of the adversarial process that the Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 40 1 trial cannot be relied upon as having produced a just result. Id. The right to 2 effective assistance counsel applies to the performance of both retained and 3 appointed counsel without distinction. See Cuyler v. Sullivan, 446 U.S. 335, 4 344–45 (1980). 5 In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a 6 petitioner must establish two things. First, he must establish that counsel’s 7 performance was deficient, i.e., that it fell below an “objective standard of 8 reasonableness” under prevailing professional norms. Strickland, 466 U.S. at 9 687–88. Second, he must establish that he was prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s 11 For the Northern District of California United States District Court 10 unprofessional errors, the result of the proceeding would have been different.” Id. at 12 694. A reasonable probability is a probability sufficient to undermine confidence in 13 the outcome. Id. 14 The general rule of Strickland, i.e., to review a defense counsel’s 15 effectiveness with great deference, gives the state courts greater leeway in 16 reasonably applying that rule, which in turn “translates to a narrower range of 17 decisions that are objectively unreasonable under AEDPA.” Cheney v. Washington, 18 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough, 541 U.S. at 664). When 19 § 2254(d) applies, “the question is not whether counsel’s actions were reasonable. 20 The question is whether there is any reasonable argument that counsel satisfied 21 Strickland’s deferential standard.” Harrington, 131 S. Ct. at 788. 22 Gant was decided in 2009, after the trial proceedings in the instant case had 23 concluded. Petitioner does not cite any cases prior to 2008 that would have put trial 24 counsel on notice that a motion to suppress the fruits of a post-arrest inventory 25 search would have been successful. The reasonableness of counsel’s decisions must 26 be measured against the prevailing legal norms at the time counsel represented the 27 defendant. See, e.g., Bobby v. Van Hook, 558 U.S. 4, 6–9 (2009) (criticizing the 28 appellate court’s reliance on the 2003 American Bar Association Standards as Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 41 a 1985 trial); Rompilla v. Beard, 545 U.S. 374, 387 (2005) (citing American Bar 3 Association Standards for Criminal Justice in circulation at time of defendant’s 4 trial); Wiggins v. Smith, 539 U.S. 510, 522–23 (2003) (citing American Bar 5 Association professional standards and standard practice in capital defense at 6 pertinent time); see also Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) 7 (deficient performance where counsel who had settled on alibi defense failed to 8 investigate possible mental defense despite state supreme court decision before trial 9 that in such instances counsel is not excused from investigating the potential mental 10 defense). At the time of Petitioner’s trial, it was clearly established federal law that 11 For the Northern District of California commands rather than guidelines when evaluating defense counsel’s performance in 2 United States District Court 1 the impoundment and subsequent inventory search of a vehicle was valid under the 12 Fourth Amendment where the inventory search was pursuant to standardized 13 procedures and there was no showing that police officer was acting in bad faith or 14 for purposes of investigation. See Colorado v. Bertine, 479 U.S. 367, 374 (1987) 15 (“reasonable police regulations relating to inventory procedures administered in 16 good faith satisfy the Fourth Amendment”). Petitioner argues that Bertine is 17 inapplicable because Respondent has presented no evidence that Petitioner was not 18 in his automobile at the time of the arrest or that the inventory search was conducted 19 according to standardized procedures. Petitioner is correct that the record is silent as 20 to these two issues. However, because there is no evidence either way regarding 21 these two issues, it is also equally plausible that defense counsel chose not to raise 22 this issue because Petitioner was not present in his automobile at the time of the 23 arrest and that the inventory search was conducted according to standardized 24 procedures. The question on federal habeas review is “whether there is any 25 reasonable argument that counsel satisfied Strickland’s deferential standard.” 26 Harrington, 131 S. Ct. at 788. Here, there is a reasonable argument that defense 27 counsel believed that Bertine governed inventory searches and that a renewed 28 Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 42 1 suppression motion would have been futile.7 The state court’s denial of this claim 2 was not contrary to, nor an unreasonable application of, clearly established federal 3 law. Accordingly, this claim for federal habeas relief is denied. CONCLUSION 4 5 6 After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus must be DENIED. 7 A Certificate of Appealability is GRANTED as to whether the trial court’s 8 admission of his statements regarding the baton violated Edwards v. Arizona, 384 9 U.S. 436 (1995). However, a Certificate of Appealability is DENIED as to Petitioner’s other claims. See Rule 11(a) of the Rules Governing Section 2254 11 For the Northern District of California United States District Court 10 Cases. With respect to those claims, Petitioner has not made “a substantial showing 12 of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has Petitioner 13 demonstrated that “reasonable jurists would find the district court’s assessment of 14 the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 15 484 (2000). Petitioner may not appeal the denial of a Certificate of Appealability in 16 this Court but may seek a certificate from the Court of Appeals under Rule 22 of the 17 Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing 18 19 20 21 22 23 24 25 26 27 28 7 If Petitioner had been in the car at the time of the arrest and search, there is a reasonable argument that defense counsel believed that either Chimel v. California, 395 U.S. 752 (1969), or New York v. Belton, 453 U.S. 454 (1981), were applicable to Petitioner’s case and that a renewed suppression motion would have been futile. In Chimel, the Supreme Court held that a police officer who makes a lawful arrest may conduct a warrantless search of the arrestee’s person and the area “within his immediate control.” Chimel, 395 U.S. at 763, abrogation recognized by Davis v. U.S., 131 S. Ct. 2419, 2424 (2011). In Belton, the Supreme Court held that the Court announced “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Belton, 453 U.S. 459–60 abrogation recognized by Davis v. U.S., 131 S. Ct. 2419, 2424 (2011). In 2011, after the trial court proceedings in this instant case, the Supreme Court noted that Arizona v. Gant, had modified the rulings in Chimel and Belton, and “adopted a new, two-part rule under which an automobile search incident to a recent occupant's arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains ‘evidence relevant to the crime of arrest.’” Davis, 131 S. Ct. at 2425 (citing Gant, 556 U.S. at 343) (declining to retroactively apply Gant to a search that took place two years before Gant was decided). Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 43 1 2 3 4 5 6 Section 2254 Cases. The Clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file. IT IS SO ORDERED. DATED: 7/10/2015 EDWARD J. DAVILA United States District Judge 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Petition; Granting Limited Certificate of Appealabilty P:\PRO-SE\EJD\HC.10\Robertson5027_denyHC.wpd 44

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