Opinion
No. CIV S-01-1724 LKK KJM P.
August 18, 2006
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with his third amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges his 1998 conviction for possession of heroin for sale and possession of contraband in state prison and the resulting three strikes sentence on five grounds: (1) the court erred in ordering him to be shackled during trial; (2) the prosecutor committed misconduct during argument; (3) the state failed to preserve evidence and thus deprived petitioner of due process; (4) the court erred in denying petitioner's motion for release of the personnel records of the chief witness against him; and (5) the evidence is insufficient to support the conviction of possession of heroin for sale.
I. Factual And Procedural Background
Correctional Sergeant Antonio Gold was on duty in the C-Facility of California State Prison Sacramento (CSP-Sac) on February 25, 1997, conducting random searches of inmates coming onto the yard. RT 76, 80. Gold stopped petitioner, who was wearing a blue chambray shirt, perhaps some tattered sweat pants, and some cut off jeans with pockets in front and back. RT 81. Gold found a piece of paper in petitioner's shirt pocket and a marijuana cigarette in one of petitioner's pockets. RT 82, 149.
"RT" refers to the Reporter's Transcript; "ART" to the Augmented Reporter's Transcript; and "CT" to the Clerk's Transcript of the state court proceedings. All are lodged with this court.
Gold handcuffed petitioner and, along with Correctional Officer Celso Zamudio, took him to a holding area for a thorough search. RT 82-83, 299-300. Petitioner removed his clothing and piled it on the floor, but shook his underwear and threw it to the left. RT 301. Zamudio could see a lump in the fly area of petitioner's underwear. RT 302. Gold felt a lump in that seam of petitioner's boxer shorts and took them to the C-Facility office, where he extracted four bindles of heroin. RT 85-86, 106. Gold confiscated the boxer shorts but returned petitioner's other clothing to the holding area. RT 106.
Zamudio conceded he had not prepared a report of his observations, explaining that he had not been involved in handling the evidence and so did not think a report was necessary. RT 317. He said his testimony was based on his memory of the incident. RT 321.
The presumptive field test suggested the bindles contained heroin, a finding confirmed by the criminalist. RT 87, 250, 328.
Gold did not believe petitioner was under the influence of a controlled substance. RT 94. Based on his education and training, Gold believed the heroin was possessed for sale even though he found no other indicators of drug sale activity. RT 108-110. He based his opinion on the following facts: inmates generally hide their personal supplies of drugs in their living quarters or in a body cavity; inmates with drugs to sell generally take them out to the yard, where it will be easier to distribute them to other inmates; petitioner was carrying about two grams of heroin, which translates to about sixty single-use doses and which would be worth approximately $1,000.00 in the prison setting; the heroin was wrapped in four separate packages, which would make it easier to hand off to other inmates, whereas drugs kept for personal use would more likely be in a single package. RT 126-127.
Correctional Officer Robert Buda testified as an expert on narcotics sales in state prisons. RT 272. Based on a hypothetical question embracing the facts as developed during the prosecution's case, Buda testified that the heroin would have been possessed for sale. RT 274. The amount was "not quickly usable" in prison; the average saleable dose in prison is .03 of a gram, which sells for about $50, while the average usable dose is .01 of a gram. RT 274-275. The packaging suggested sales. The amount would produce an overdose if used all at once, so generally the excess would be hidden; that it was accessible in the seam of a pair of boxer shorts, a common place for caching drugs, again suggested it was possessed for sale. RT 274-275. Moreover, an inmate without marks for injection and who was not under the influence of drugs would most likely possess drugs for sale, given the penalties for possession of drugs in prison. RT 276-277.
Inmate Irvin Tatum was on the yard of 5 Block on the morning of February 27, 1997. He described petitioner's clothes as a "blue state-issued shirt and . . . like some raggedy cutoff sweat pants." RT 458. The sweat pants had no pockets; inmates were not permitted to have sweat pants with pockets. RT 468, 471. It appeared to Tatum that Gold singled petitioner out for a pat-search. RT 470. Tatum saw Gold handcuff petitioner and escort him from the yard. RT 458. Although Tatum did not see Zamudio escorting petitioner, he saw Zamudio participating in the search. RT 458, 460.
Inmate Morris Ervin also was a resident of 5 Block. RT 474. He came out of section B of 5 Block with petitioner on the morning of February 27, 1997. RT 476. Petitioner was wearing a blue shirt and ragged, torn up sweat pants; inmates were not allowed to have sweat pants with pockets. RT 478. Gold took a piece of paper out of petitioner's shirt pocket. RT 476. The paper appeared to be a "kite" or inmate-to-inmate letter. RT 476. Ervin watched Gold escort petitioner out of the yard; no other officer was with them. RT 477. Ervin had seen Gold harass other inmates. RT 485. He characterized Gold as a corrupt officer who had threatened to plant drugs on him. RT 495-496.
Petitioner was convicted of possession of contraband in state prison and possession of heroin for sale. RT 560-561. In addition, the jury found that petitioner had suffered prior convictions for murder, attempted murder, assault with a firearm and possession of phencyclidine for sale. RT 561-563. He was sentenced to a total term of twenty-nine-years-to-life, to run consecutively to the life term he was already serving. RT 608-609.
II. Standards Under The AEDPA
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (referenced herein in as "§ 2254(d)" or "AEDPA"). See Ramirez v. Castro, 365 F.3d 755, 773-75 (9th Cir. 2004) (Ninth Circuit affirmed lower court's grant of habeas relief under 28 U.S.C. § 2254 after determining that petitioner was in custody in violation of his Eighth Amendment rights and that § 2254(d) does not preclude relief); see also Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003) (Supreme Court found relief precluded under § 2254(d) and therefore did not address the merits of petitioner's Eighth Amendment claim). Courts are not required to address the merits of a particular claim, but may simply deny a habeas application on the ground that relief is precluded by 28 U.S.C. § 2254(d). Lockyer, 538 U.S. at 71 (overruling Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir. 2000) in which the Ninth Circuit required district courts to review state court decisions for error before determining whether relief is precluded by § 2254(d)). It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d).See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
In Bell v. Jarvis, 236 F.3d 149, 162 (4th Cir. 2000), the Fourth Circuit Court of Appeals held in a § 2254 action that "any independent opinions we offer on the merits of constitutional claims will have no determinative effect in the case before us . . . At best, it is constitutional dicta." However, to the extentBell stands for the proposition that a § 2254 petitioner may obtain relief simply by showing that § 2254(d) does not preclude his claim, this court disagrees. Title 28 U.S.C. § 2254(a) still requires that a habeas petitioner show that he is in custody in violation of the Constitution before he or she may obtain habeas relief. See Lockyer, 538 U.S. at 70-71; Ramirez, 365 F.3d at 773-75.
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law.Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999).
III. The Use Of Restraints
A. Factual Background And Court Of Appeal Opinion
On the first day of trial, the court considered petitioner's motion to appear without restraints before the jury. RT 30. It took testimony from Correctional Officer Daniel Rodriguez, one of the officers who had transported petitioner from CSP-Sac. and who was assigned to provide security while petitioner was in court. RT 32. Rodriguez reviewed petitioner's history of sustained rules violations:
• 6/5/98: mutual combat with another inmate,
• 5/20/98: battery on a peace officer,
• 3/23/98: resisting staff, which required a cell extraction,
• 6/17/97: battery on a peace officer,
• 12/10/97: willful delay of a peace officer's duties,
• 10/21/97: refusing a direct order,
• 6/18/97: resisting staff,
• 6/17/97: battery on a peace officer,
• 6/6/97: willful obstruction of peace officer in line of duty,
• 3/12/97: behavior which could lead to violence,
• 3/9/97: over-familiarity with staff, and
• 11/15/97: narcotics trafficking.
RT 33. He noted that there were three unadjudicated rules violations reports for battery on an officer, battery on another inmate, and delaying a peace officer in the performance of his duties. RT 34. For purposes of the hearing, Rodriguez had reviewed petitioner's record only back through 1997, but was aware petitioner had "numerous 115s" stretching back to February 1989. Id. Rodriguez reported that during earlier court appearances, petitioner acknowledged members of the audience, who appeared to know him. RT 34. Finally, the prosecution offered documentary evidence (the "969b packet") concerning petitioner's prior convictions for murder and assault with a firearm. RT 34-35.
A "115" is a Rules Violation Report.
The court concluded petitioner should be restrained with a waist chain and handcuffs, but asked the correctional officers to explore whether the restraints for petitioner's wrists could be hidden under his shirt and fashioned so as to give petitioner some limited movement of his arms. Id.
The next day, the court considered the need for leg shackles, recognizing that they could not be hidden from the jury. RT 55. Rodriguez once again testified, this time recounting threats petitioner had allegedly made against officers and attributing to him the sentiment that he "loves to see cops die." RT 56. Moreover, according to Rodriguez, petitioner was a free lance gang member, who will "run with anyone that has money or will pay him to do gang activity." RT 56. While Rodriguez did not have any specific information about petitioner's potential escape risk, he noted petitioner was a maximum security inmate. RT 56.
It appears that there were no "drapes" for the table to hide the restraints. RT 55.
The court recognized that the visibility of the leg shackles would "make a statement as to the danger," but observed that petitioner was "on trial for . . . selling drugs within a prison situation. . . . He is under physical restraint and in custody. That has to be expected." RT 57. The court also elicited from Rodriguez that this level of restraint was normal for a prisoner on trial and observed for the record that petitioner was a large, muscular man. RT 58, 60.
Finally, while the court recognized that the restraints "may well have to be visible to some degree," he asked that the officers "utilize them with tact." RT 59. He reiterated his desire that the officers explore the possibility of hiding the restraints so far as possible under petitioner's clothing. Id.
At the conclusion of the evidence, the trial court instructed the jury:
The fact that physical restraints have been placed on the defendant, Mr. Woods, is not to be considered by you for any purpose.
They are not evidence of guilt, and they must not be considered by you as any evidence that he is more likely to be guilty than not guilty.
You must not speculate as to why the restraints have been used in determining the issues in this case; disregard this matter entirely.
RT 515.
The Court of Appeal rejected petitioner's challenge:
Before a defendant may appear in court under physical restraints, there must be a hearing at which the court receives evidence of the defendant's past (or intended) nonconforming conduct, after which the court must make findings of the necessity for restraints which are as unobtrusive as possible while being as effective as needed. When the court satisfies these criteria, its ruling is reviewed for abuse of discretion. The court must also on its own motion admonish the jury to disregard the physical restraints. There is no mandate for restraints to be invisible. "[S]hackles or manacles are not easily hidden from the jury's view, and [we] do not wish to imply that they should not be used simply because they are obtrusive"; less drastic and visible restraints must be ordered only when the court concludes in its discretion that it is safe to do so.
Although the defendant cites the facts in a number of other cases involving restraints, a defendant cannot succeed when the issue on appeal is the trial court's exercise of discretion and the record presents facts which merely afford an opportunity for a difference of opinion; we are neither authorized nor warranted in substituting our judgment for the judgment of the trial judge. Given the fact-specific nature of the inquiry and the abuse-of-discretion standard of review, there is little purpose in engaging in a "compare and contrast" exercise with these cases; thus, we simply find these other cases inapposite.
The defendant first contends the failure to supply him with a copy of the report containing the incidents from 1988 and 1990 violated due process. As this information was at most cumulative to the extensive and more recent evidence of the defendant's nonconforming behavior at the highest-security prison in the state, we reject the argument.
The defendant then attacks a straw issue, claiming in two paragraphs that the trial court abused its discretion in characterizing the restraints as normal when other cases describe them as maximum. To this effect he cites the condemnation in Duran of general policies allowing restraints. In point of fact, the court was inquiring of the witness whether the level of restraint on the defendant was customary or unusual; it was the escort guard who described it as customary. The record does not show any general policy on the part of the trial court; rather, it sought creative alternatives to the escort guard's approach to security requirements. As there was no evidence before the trial court that any lesser degree of restraint would satisfy the security concerns, [fn], we cannot find an abuse of discretion on these facts.
[fn]. While appellate counsel may view the issue in the abstract and denigrate these concerns, this court is aware of the frequent mayhem in courtrooms from inmates whose creativity is warped into designs of violence.
In a paragraph, the defendant advances a lurking argument (tacking off on tangents not directly related to the heading under which they appear) which intimates his election to represent himself was invalid because there is no showing the court informed him he would be an advocate under restraint. We need not respond. Moreover, nothing in the record suggests the restraints interfered with the defendant's ability to represent himself. To the contrary, the court commended him at the conclusion of trial. . . ." Nor did the defendant claim in his motion for new trial that the restraints hampered his effectiveness (contending instead prejudice from his appearance). We thus reject this suggestion of an argument.
People v. Duran, 16 Cal.3d 282 (1976).
Answer, Ex. D at 6-9 (Court of Appeal opinion; emphasis in original, citations omitted).
B. Discovery Of The Report
Petitioner argues he was deprived of his right to a fair hearing on the shackling issue when the court refused to release to him the report of his purported threats against officers. Pet. at 16. As the Supreme Court has noted, however, "[t]here is no general constitutional right to discovery in a criminal case, and Brady, which addressed only exculpatory evidence, did not create one." Gray v. Netherland, 518 U.S. 152, 168 (1996) (internal quotation omitted). This court has reviewed the report; it is not exculpatory and thus would not have been discoverable under the rationale of Brady v. Maryland, 373 U.S. 83 (1963).See SCT 1. Petitioner cannot establish a constitutional error based on the failure to reveal the report. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
C. Impact On Petitioner's Faretta Waiver
Petitioner argues his Faretta waiver was invalid because the trial court failed to advise him he would be required to represent himself while in "fully visible mechanical restraints." Pet. at 15.
This argument is disingenuous. After taking testimony from Rodriguez and determining that shackling was necessary, the court arraigned petitioner on the amended information. RT 36 (conclusion of initial hearing on restraints; petitioner recognizes his hands will be restrained); RT 41 (petitioner asks to be arraigned on amended information). During the arraignment, the court informed petitioner he had the right to counsel, but noted petitioner had previously asked to represent himself. RT 44. Petitioner confirmed that he still desired to represent himself with advisory counsel available. Id. Accordingly, at the time petitioner reasserted his desire to represent himself, he was aware that he would be representing himself while in "fully visible mechanical restraints." Id.
D. Shackling
Restraining a criminal defendant in the courtroom should be undertaken only as a "last resort," after the court has been "`persuaded by compelling circumstances that some measures [are] needed to maintain security." Illinois v. Allen, 397 U.S. 337, 344 (1970); Castillo v. Stainer, 983 F.2d 145, 147 (9th Cir. 1992), as amended in 997 F.2d 669 (9th Cir. 1993). As the Ninth Circuit has explained:
A defendant's status as a convicted felon may justify a trial judge's concern for security. Standing alone, however, this is not sufficient reason to impose physical restraints. In all the cases in which shackling has been approved, there has also been evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities.Duckett v. Godinez, 67 F.3d 734, 749 (9th Cir. 1995); see also Ruimveld v. Birkett, 404 F.3d 1006, 1016 (6th Cir. 2005). However, a court is justified in requiring a defendant to be shackled when his prior convictions and gang affiliations suggest the potential for harm or disruption, Wilson v. McCarthy, 770 F.2d 1482, 1485 (9th Cir. 1985), or when a defendant has been involved in jail altercations and has threatened to harm his co-defendant, his lawyer, and a bailiff. Jones v. Meyer, 899 F.2d 883, 885 (9th Cir. 1990).
The state courts did not apply this federal law unreasonably in concluding that petitioner's prior convictions and his record of assaultive and defiant behavior in custody justified the restraints.
This conclusion is buttressed by several factors. First, the trial court instructed the jury to disregard the restraints in reaching its verdict. RT 515. It is generally presumed that jurors follow the court's instructions regarding whether, and in what respect, something can be considered evidence. See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997); see also Greer v. Miller, 483 U.S. 756, 767 n. 8 (1987) (juries are presumed to follow instruction to disregard inadmissible evidence).
Second, because petitioner did not seek a bifurcated proceeding on his prior convictions, the jury was aware that he was in prison for assault with a firearm, attempted murder, murder and possession for sale of phencyclidine. RT 218-221 (introduction of 969(b) packet), 179 (cross-examination of Gold). See Wilkerson v. Whitley, 16 F.3d 64, 68, vacated by 16 F.3d at 68, reinstated in relevant part, 28 F.3d 498, 509 (5th Cir. 1994) (en banc) (jury knew defendant was a convicted felon and could have assumed all convicted felons were restrained in court).
Third, although the restraints suggested petitioner was violent, his propensity for violence was not a critical issue in this case of drug possession in prison. Compare Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir. 1999) (shackling not harmless when defendant's tendency toward violence at the heart of the case).
Based on these factors, the state courts did not unreasonably apply clearly established federal law.
IV. Prosecutorial Misconduct
During the rebuttal phase of trial, the prosecutor argued:
MR. CLANCEY: I know you heard a lot about people's priors. It is easy to become numb to these priors but take a moment and think about the type of people that we are dealing with. Someone who would just as soon lie to you as kill you.
MR. WOODS: Objection, Your Honor.
THE COURT: Ladies and gentlemen, you are to disregard that comment. That is not to be considered by you in your decision-making process.
I admonish the District Attorney to refrain from such comments.
MR. CLANCEY: I apologize, Your Honor.
RT 544-545. Shortly thereafter, the court addressed the jury again:
While counsel is studying his notes, I want to give you an addendum to the instruction that I just gave you in regards to the comments that were made to you by the prosecutor.
Those insinuations were uncalled for, and I want you to know that the prosecutor has absolutely no evidence to present to you to back up those insinuations.
The prosecutor's improper remarks amount to an attempt to prejudice you against the evidence [sic]. Were you to believe those unwarranted insinuations and convict the defendant on the basis of them, I would declare a mistrial. Therefore, you must disregard those improper and unsupported remarks.
RT 546-547.
The state Court of Appeal rejected petitioner's claim of error:
The defendant contends the admonition was insufficient to cure the effect of the prosecutor's unwarranted appeal to the prejudice of the jury, particularly in light of the defendant's physical restraints. However, this was an isolated remark, and we cannot conceive of a more pointed admonition to the jury. To the extent the defendant attacks the misconduct itself, it is controlling law that we must deem admonitions to cure all but admission of direct evidence of a defendant's guilt, or else risk jurisprudential anarchy.
Answer, Ex. D at 10 (citations omitted).
In general, a prosecutor's actions will not be grounds for habeas relief unless they "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"Darden v. Wainwright, 477 U.S. 168, 180 (1986) (quotingDonnelly v. DeChristoforo, 416 U.S. 637 (1974)). In gauging the fairness of petitioner's trial, this court may consider whether the jury was instructed to disregard the challenged argument.Darden, 477 U.S. at 182; Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005).
This court finds no fault with the state court's resolution of this claim. The prosecutor's remark, though improper, was isolated and was met with a specific instruction that it was improper and would produce a mistrial if the jury were to consider it. Once again, this court must presume the jury took the judge's words to heart. Id. at 1115.
V. Procedural Default
Respondent argues this court cannot reach the merits of petitioner's third, fourth and fifth claims because the Sacramento County Superior Court denied them on procedural grounds. Answer at 12 Ex. H (Superior Court order).
In Coleman v. Thompson, 501 U.S. 722 (1991), the U.S. Supreme Court held that federal courts should not review an alleged violation of federal law on habeas review if the state court's decision rests on an independent and adequate state ground.
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Id. at 750.
Respondent relies on the Sacramento County Superior Court's denial of petitioner's state habeas petition, which found the three issues not cognizable because they "were part of the record at trial and could have been appealed." Answer, Ex. H. However, the California Supreme Court also denied petitioner's application for collateral relief on slightly different procedural grounds. It is this later order that is determinative of the viability of any procedural bar. See Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991) (only if the last ruling is an "unexplained order (by which we mean an order whose text or accompanying opinion does not disclose the reason for the judgment)" does this court "look through" to a lower court's determination).
The California Supreme Court relied on five cases in denying petitioner's habeas petition: In re Clark, 5 Cal.4th 750 (1993), In re Robbins, 18 Cal.4th 770 (1998), In re Dixon, 41 Cal.2d 756 (1953), In re Waltreus, 62 Cal.2d 218 (1965) and In re Lindley, 29 Cal. 2d 709 (1947). Answer, Ex. L (California Supreme Court order). The citation to Clark and Robbins suggest the Court found all or part of the petition untimely.See Bennett v. Mueller, 322 F.3d 573, 579 (9th Cir.), cert. denied sub nom Blanks v. Bennett, 540 U.S. 938 (2003). A citation of Waltreus, on the other hand, does not impose a procedural bar, because the rule of that case is that habeas corpus cannot serve as a second appeal. Hill v. Roe, 321 F.3d 787, 789 (9th Cir. 2003). Reliance on Lindley is a procedural ruling, however, for that case holds sufficiency of the evidence cannot be raised in a state habeas petition. Carter v. Giurbino, 385 F.3d 1194, 1197 (9th Cir. 2004), cert. denied, 543 U.S. 1190 (2005). Dixon erects another procedural bar; a citation to Dixon means the issues should have been raised on direct appeal. Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000).
For a procedural bar to block federal review, the rule must be actually relied on in the particular case in question. Coleman, 501 U.S. at 735. "[A] procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review." Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996). As the Ninth Circuit has recognized, when the California Supreme Court cites several different cases in denying a state habeas petition, but does not specify which bar applies to which of the grounds raised, the order is too ambiguous to provide the proper foundation for the procedural bar that respondent asks this court to apply. Calderon v. U.S. Dist. Court for Eastern Dist. of California, 96 F.3d 1126, 1131 (9th Cir. 1996). This court thus may reach the merits of petitioner's claims.
VI. Destruction Of Evidence
Petitioner filed a motion for sanctions based on the alleged destruction of, among other things, "(1) one pair of sweat pants (gray tattered)." CT 148. As he argues here, he contended that correctional officials failed to preserve these items, which petitioner provided or removed in response to Gold's instructions. CT 148-151; Pet. at 19-20. The Superior Court denied the motion laconically: "Requires more than what you have written." ART 26.
In California v. Trombetta, 467 U.S. 479, 488-89 (1984), the Supreme Court held:
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
The court further refined the test in Arizona v. Youngblood, 488 U.S. 51, 58 (1988), holding that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." See also Cooper v. Calderon, 255 F.3d 1104, 1113-14 (9th Cir. 2001).
Petitioner has not satisfied either prong of theTrombetta/Youngblood test. Gold testified he removed the marijuana cigarette from the pocket of some denim pants that petitioner wore over his sweat pants. RT 81-82. The heroin came from a seam of petitioner's boxer shorts. RT 85-86, 302. Gold kept the boxer shorts, but recalled returning the other clothing to petitioner in the holding area. RT 106. The trial court found that the clothing had been put back into the institution's clothing stores or lost, but noted there was little relevance to the sweat pants. RT 335.
In light of the prosecution's version of events, the "exculpatory value" of the sweat pants was not apparent before they were returned to petitioner or otherwise not preserved because the contraband had been found in other locations. Nor can petitioner show that the failure to preserve the pants was done in bad faith in light of Gold's suggestion he returned the clothing to petitioner, who had removed all his garments for the search. RT 105-106.
Petitioner presented evidence that he was dressed only in the sweat pants and shirt and argued that because the pants had no pockets, Gold's claim of discovering the marijuana and indeed Gold's credibility was suspect. Petitioner's witnesses testified that petitioner was wearing sweat pants and that inmates were prohibited from having sweat pants with pockets. RT 468, 478. Thus, as in Trombetta, petitioner was "perfectly capable of raising" the issue without presenting the actual sweat pants. Trombetta, 467 U.S. at 490.
There was no constitutional violation.
VII. The Denial Of The Pitchess Motion
Before trial, petitioner sought discovery about any investigations of Gold and his supervisor Lieutenant Moore for perjury, planting evidence, falsifying information, and racial bias; petitioner did so by filing a Pitchess motion. CT 176(2)-176(12); Pitchess v. Superior Court, 11 Cal.3d 531 (1974); see also Cal. Evid. Code §§ 1043- 1045. The court denied the motion. ART 21. Petitioner renewed the motion at the close of the prosecution's case, but the court once again denied it. RT 334-335.
The Court of Appeal rejected petitioner's claim:
Petitioner raised this claim in the Court of Appeal, but did not include it in his petition for review.
The defendant apparently abandons any claim it was error to deny the motion as to Lieutenant Moore, since he does not provide any argument in that respect. As for Sergeant Gold, the defendant concedes, "the motion sought many items of information which are not within the realm of Pitchess" and "The declaration did not make the precise factual assertion that the defense at trial would show that evidence was planted, falsified, ethnic bias, or anticipating perjured testimony." [sic] He does not indicate how the trial court was to divine this specific basis for materiality from the general tenor of the request.
Answer, Ex. D at 3 (citation omitted). Petitioner renews the claim in the instant proceeding. Pet. at 14-16 (20) (attached to petition as continuation pages).
Although a Pitchess motion is a creature of state law, it implicates a defendant's due process right to receive exculpatory and impeachment evidence. Harrison v. Lockyer, 316 F.3d 1063, 1065-66 (9th Cir.), cert. denied, 538 U.S. 988 (2003).
In Brady v. Maryland, 373 U.S. 83, 86 (1963), the Supreme Court recognized a prosecutor's obligation to reveal exculpatory evidence, whether substantive or for impeachment purposes, when such evidence is "material" to the defense. To establish aBrady violation, a habeas petitioner must show three things: that the evidence was favorable to him, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the prosecution either willfully or inadvertently; and defendant was prejudiced by the non-disclosure. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Petitioner has not met the threshold showing: nothing in his petition shows that any documents or reports from either officer's personnel file meet the Brady standard of materiality. Accordingly, he has not borne his burden of showing a denial of due process.
VIII. Sufficiency Of The Evidence
In Jackson v. Virginia, 443 U.S. 307, 319 (1979), the Supreme Court examined the role of a habeas court in considering a challenge to the sufficiency of the evidence:
[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(emphasis in original). In making this determination, a federal court should consider the state law governing proof of the elements of the offense. Moore v. Duckworth, 443 U.S. 713, 714 (1979).
In California, the crime of possession of drugs for sale, defined by California Health Safety Code § 11351, has five elements:
(1) defendant exercised dominion and control over the controlled substance, (2) defendant was aware that he was in possession of a controlled substance, (3) defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) defendant possessed a controlled substance with the specific intent to sell it.People v. Parra, 70 Cal.App.4th 222, 226 (1999). Petitioner challenges the sufficiency of only the latter element, suggesting that Gold's opinion was the only evidence that petitioner possessed the heroin for sale and that, unsupported by other factors, is insufficient. Pet. at 18 (20) (continuation page).
Petitioner is incorrect on the facts and the law. It is true that Gold did give expert testimony on the question of petitioner's intent in possessing the drugs, but this was supported by Buda's expert testimony on the same point. RT 272-275. In California,
[i]n cases involving possession of marijuana or heroin, experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions for purposes of sale have been upheld.People v. Newman, 5 Cal.3d 48, 53 (1971); People v. Harris, 83 Cal.App.4th 371, 374-75 (2000). In this case, the testimony of two expert witnesses was a sufficient basis for the jury's conclusion that the four bindles of heroin, some sixty single doses, was possessed for sale. RT 127; CT 378. Petitioner was not denied his right to be convicted only upon sufficient evidence.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).