Timothy Wayne Sherow Sr v. Paul Brazelton

Filing 17

MINUTE ORDER IN CHAMBERS by Judge Valerie Baker Fairbank: re: Report and Recommendation (Issued), 16 . The Court adopts the Magistrate Judges conclusion in the well-reasoned Report and Recommendation (R&R) that all three claims in the instant federal habeas petition should be dismissed, essentially for the reasons stated by the Magistrate Judge with clarifications. ( see minute order for further details). (sbu) Modified on 6/25/2013 (sbu).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No.

CV 13-00060-VBF

Dated:

Title:

Timothy Wayne Sherow, Senior v. Paul Brazleton (Warden)

PRESENT:

HONORABLE VALERIE BAKER FAIRBANK, U.S. DISTRICT JUDGE
Linda Kanter
Courtroom Deputy

N/A
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:

ATTORNEYS PRESENT FOR DEFENDANTS:

N/A
PROCEEDINGS (IN CHAMBERS):

June 24, 2013

N/A
ORDER ADOPTING THE REPORT AND
RECOMMENDATION WITH CLARIFICATIONS

The Court adopts the Magistrate Judge’s conclusion in the well-reasoned Report and Recommendation
(“R&R”) that all three claims in the instant federal habeas petition should be dismissed, essentially for the
reasons stated by the Magistrate Judge. The Court adopts without change the R&R’s analysis of petitioner’s
Fourth Amendment claim. See R&R at 8 (citing Stone, 428 U.S. at 494); see also Wallace v. Kato, 549 U.S. 384,
395 n.5, 127 S. Ct. 1091, 1099 n.5 (2007) (“Fourth Amendment violations are generally not cognizable on
federal habeas [review], but they are cognizable when the State has failed to provide the habeas petitioner ‘an
opportunity for full and fair litigation of a Fourth Amendment claim.’”) (quoting Stone, 428 U.S. at 482).1 The
1

The Stone v. Powell limitation on the availability of federal habeas relief for such alleged Fourth
Amendment violations is “not jurisdictional in nature, but rest[s] on prudential concerns counseling against the
application of the Fourth Amendment exclusionary rule on collateral review.” Withrow v. Williams, 507 U.S.
680, 686, 113 S. Ct. 1745, 1750 (1993) (citing, inter alia, Stone, 428 U.S. at 494-95 n.37, 96 S. Ct. at 3052-53

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Court will adopt the R&R’s recommendation to dismiss both of petitioner’s ineffective assistance of counsel
claims as well, but with clarifications described below.

In January 2012 the Supreme Court issued United States v. Jones, 565 U.S. –, 132 S. Ct. 945 (2012),
holding that “tracking an automobile’s whereabouts using a physically-mounted GPS [Global Positioning
Satellite] receiver is a Fourth Amendment search.” Florida v. Jardines, – U.S. –, 133 S. Ct. 1409, 1414 (2013)
(citing Jones, 132 S. Ct. at 950, and quoting id. at 950-51 n.3, for the principle that “[w]hen ‘the Government
obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a search within the original
meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’”).2
Before the Supreme Court issued Jones, Ninth Circuit precedent did not hold that attaching a GPS device
to an automobile and using it to monitor the GPS’s movements constituted a search for Fourth Amendment
purposes. “Recently, the Ninth Circuit Court of Appeals held that suppression of evidence obtained from the
attachment of a GPS device monitoring device prior to Jones, was not warranted because agents objectively
relied on then-existing binding precedent when they attached the devi[c]e to defendant’s car.” United States v.

n.37, and Kimmelman v. Morrison, 477 U.S. 365, 379 n.4, 106 S. Ct. 2574, 2585 n.4 (1986)); accord Young v.
Conway, No. 11-830, – F.3d –, –, 2013 WL 1749701, *6 (2d Cir. Apr. 23, 2013) (Parker, J., joined by Hall, J.,
concurring in denial of reh’g en banc) (“[T]he Supreme Court made clear that Stone’s rule is not jurisdictional.”).
2

“Although some of the concurring Justices in Jones noted that long-term GPS monitoring may raise
Fourth Amendment concerns, the majority limited its analysis to the trespassory nature of the GPS installation,
refusing to establish a point at which uninterrupted surveillance might become constitutionally problematic.”
United States v. Krawczyk, 2013 WL 2481275, *4 (D. Ariz. June 10, 2013) (rejecting defendant’s argument that
24-hour surveillance by cameras mounted on poles in public places violated his Fourth Amendment rights)
(citing Jones, 132 S. Ct. at 954).

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Brooks, 2012 WL 5984796, *3 (D. Ariz. Nov. 28, 2012) (James Teilborg, J.) (citing United States v. PinedaMoreno, 688 F.3d 1087, 1091 (9th Cir. 2012), cert. denied, – U.S. –, 133 S. Ct. 994 (2013)).3
Both on direct appeal and in unsuccessful state habeas petitions, petitioner claimed that his trial counsel
rendered ineffective assistance by failing to file a motion to suppress the evidence that the police gathered as a
result of the GPS they attached to the vehicle he was driving without first obtaining a warrant. The California
courts did not address this Fourth Amendment ineffective-assistance claim on direct appeal, but on collateral
review the California Court of Appeal issued a reasoned written decision rejecting the claim for lack of merit.

The otherwise well-reasoned Report proceeds on the premise that federal habeas review assesses
the state court’s compliance with Supreme Court precedents as they stood at the time petitioner’s
convictions became final. This Court must respectfully disagree with the Report on this score. The
Supreme Court has clearly held, and recently reaffirmed, that a federal habeas court under AEDPA must assess
whether the relevant state court followed U.S. Supreme Court holdings as they existed at the time of the state
court’s decision rejecting the claim. The relevant state court is the California Court of Appeal, because that
court issued the only reasoned decision adjudicating the merits of this claim.4
3

See, e.g., United States v. Valles, 2013 WL 1867005, *1 (D. Ariz. May 2, 2013) (denying motion to
suppress evidence gathered by use of GPS placed on vehicle without a warrant, court found that good-faith
exception to exclusionary rule applied because “the agent reasonably relied on Ninth Circuit precedent when
he attached the device”) (citing, inter alia, United States v. MacIver, 186 F.3d 1119, 1127 (9th Cir. 1999)); United
States v. Smith, 2012 WL 4898652, *2-*3 (D. Nev. Oct. 15, 2012) (same); United States v. Tan, 2012 WL
3535887, *2 (E.D. Cal. Aug. 15, 2012) (same); United States v. Aquilar, 2012 WL 1600276 (D. Idaho May 7,
2012) (same); United States v. Leon, 856 F. Supp.2d 1188 (D. Haw. Mar. 28, 2012) (same).
4

In Greene v. Fisher, – U.S. –, 132 S. Ct. 38 (2011), the Supreme Court rejected the notion that the
relevant state court decision could be a state supreme court decision which simply denied review of a claim.
Parsing the language of 28 U.S.C. § 2254(d)(1), the Supreme Court reasoned as follows:
Greene alternatively contends that the relevant “decision” to which the “clearly established

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On AEDPA review this Court’s role is to measure the California Court of Appeal (in its decision
rejecting petitioner’s Fourth Amendment claim on collateral review) against U.S. Supreme Court holdings which
existed at the time of the California Court of Appeal’s decision.5 Thus, at the time of the state-court decision
which this Court is reviewing (April 2012), the “clearly established federal law” which the state court was bound
to follow included Jones (issued in January 2012). For purposes of the ineffective-assistance-of-trial-counsel
claim, this correction does not alter the outcome, for the following reasons.
But the California Court of Appeal, in turn, was tasked with assessing trial counsel’s performance based,
of course, on the federal law available to trial counsel at the time of trial, November 2009. At that time, the
Supreme Court had not yet issued Jones, and without Jones, there was no Supreme Court or Ninth Circuit

Federal law” criterion must be applied is the decision of the state supreme court that disposes of
a direct appeal from a defendant’s conviction or sentence, even when (as here) that decision does
not adjudicate the relevant claim on the merits. This is an implausible reading of § 2254(d)(1).
The text, we repeat, provides that habeas relief
“shall not be granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim . . . resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law . . . .”
[t]he words “the adjudication” in the “unless” clause obviously refer back to the “adjudicat[ion]
on the merits,”’ and the phrase “resulted in a decision” obviously refers to the decision produced
by that same adjudication on the merits.
Greene, – U.S. at –, 132 S. Ct. at 44-45 (italics in original).
5

The Court does not review the California Supreme Court’s subsequent summary silent denial of review.
See Carr v. Harrington, 2011 WL 3652246, *3 (C.D. Cal. July 22, 2011) (Fairbank, J.) (“Where, as here, the
California Supreme Court denies a petitioner’s claims without comment, the state high court’s ‘silent’ denial is
considered to be ‘on the merits’ and to rest on the last reasoned decision on these claims, in this case, the grounds
articulated by the California Court of Appeal in its decision.”) (citing, inter alia, Ylst v. Nunnemaker and Hunter
v. Aisporo, 982 F.2d 344, 347-48 (9th Cir. 1992)).

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precedent holding that GPS intrusions such as the one the police committed here constitute a search for Fourth
Amendment purposes. Consequently, petitioner has not shown that a Jones-type motion to suppress the GPSgathered evidence would have been reasonably likely to yield a more favorable outcome at trial. With no ability
to show such a reasonable probability, petitioner has not established Strickland prejudice, the second prong of
Strickland. Nor has petitioner established that his trial counsel performed deficiently, the first prong of
Strickland, because failure to make a meritless or likely unsuccessful objection cannot constitute deficient
performance, as a matter of law. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (“Here, the merits
of the coercion claim control the resolution of the Strickland claim because trial counsel cannot have been
ineffective for failing to raise a meritless objection.”). Therefore, it was not unreasonable or contrary to clearly
established federal law for the California Court of Appeal to conclude that trial counsel was not ineffective for
“failing” to move to suppress evidence on the theory that police violated petitioner’s Fourth Amendment rights
by affixing the GPS device to the car he was driving without first obtaining a warrant.

The Court likewise adopts the Magistrate Judge’s recommendation to deny petitioner’s claim for
ineffective assistance of appellate counsel. Once again, the relevant state-court decision – the decision this
Court is reviewing – is the California Court of Appeal’s April 2012 decision denying this claim on collateral
review. At the time of that decision, the “clearly established federal law” which the state courts were bound to
follow included US v. Jones, which the Supreme Court had issued three months earlier in January 2012. But
in assessing whether petitioner’s appellate counsel rendered ineffective assistance by “failing” to move to
suppress the GPS-gathered evidence, the California Court of Appeal necessarily had to assess counsel’s
performance and decisionmaking based on the precedent that was available to him at the time of the
performance, i.e., when he filed petitioner’s briefs on appeal.6 Petitioner’s appellate counsel filed his briefs on
6

Petitioner has not attempted to assert a claim for ineffective assistance of counsel by the attorney who
represented him in his state habeas proceedings. Such a claim could not succeed, because “[t]here is no
constitutional right to an attorney in state post-conviction proceedings” and “[c]onsequently, a petitioner cannot

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appeal to the California Court of Appeal (Lodged Documents 7 and 9) in 2010-2011. The Supreme Court did
not issue Jones until January 2012, after the California Court of Appeal rejected petitioner’s Fourth Amendment
claim directed at the GPS evidence, and there was no existing Supreme Court or Ninth Circuit precedent likely
to support such a claim. Therefore, it cannot be said that petitioner’s appellate counsel performed deficiently
or caused Strickland prejudice by “failing” to make a Jones-type argument to the California Court of Appeal.

Finally, the Court adopts the Report’s description of the legal standard for ineffective assistance
of counsel, with the following addition. The Report correctly describes the first layer of deference which
courts must accord to the decisions of counsel when assessing any ineffective-assistance claim under Strickland
v. Washington (U.S. 1984). That is the full legal standard which would apply on direct appeal. But the Supreme
Court has held that when a federal court is conducting AEDPA collateral review of a state court’s Strickland
ruling, a “second layer of deference” applies – deference above and beyond that which courts afford to counsel’s
“wide range” of reasonable choices under Strickland. In Richter v. Harrington, issued in 2011, the Supreme
Court held that AEDPA requires an additional level of deference to a state-court decision rejecting an
ineffective-assistance claim. “The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense counsel’s performance fell below
Strickland’s standard.” Richter, – U.S. at –, 131 S. Ct. at 785. As the Supreme Court further observed in
Richter,

“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. –, 130
S. Ct. 1473, 1485 . . . (2010). An ineffective-assistance claim can function as a way to escape

claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman v. Thompson, 501 U.S.
722, 755, 111 S. Ct. 2546 (1991); see also Martinez v. Ryan, – U.S. –, 132 S. Ct. 1309, 1315 (2012); see, e.g.,
Harris v. United States, 2012 WL 7845578, *1 (C.D. Cal. Aug. 20, 2012) (Fairbank, J.) (“Petitioner is advised
that ‘[t]here is no constitutional right to the appointment of counsel in a . . . habeas proceeding’”) (quoting Brown
v. Vasquez, 952 F.2d 1164, 1168 (9th Cir. 2001)).

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rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of
the very adversary process the right to counsel is meant to serve. . . . * * * Even under de novo
review, the standard for judging counsel’s representation is a most deferential one. * * *

Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is
all the more difficult. The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ id., at 689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 . . . (1997),
and when the two apply in tandem, review is ‘doubly’ so, Knowles, 556 U.S., at -, 129 S. Ct. at
1420. The Strickland standard is a general one, so the range of reasonable applications is
substantial. 556 U.S., at -, 129 S. Ct. at 1420. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.

Richter, – U.S. at –, 131 S. Ct. at 785 (emphasis added).
Applying this second layer of deference to the state court of appeal’s ruling, however, merely reinforces
the Magistrate Judge’s conclusion that this Court should not disturb the state court’s ruling on petitioner’s
ineffective-assistance claims. Given that the Magistrate’s conclusion was already correct under the single layer
of deference which we accord to counsel’s performance when considered on direct appeal, then a fortiori the
conclusion is even more correct when one adds the “second layer of deference” required by 28 U.S.C. §
2254(d)(1). See Berghuis v. Thompkins, 560 U.S. 370, –, 130 S. Ct. 2250, 2265 (2010) (“Courts can . . . deny
writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA
deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim

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is rejected on de novo review.”); Weeks v. Angelone, 528 U.S. 225, 237, 120 S. Ct. 727, 734 (2000) (because
petitioner’s claim was without merit on de novo review, i.e. without the additional deference required when
AEDPA applies, “it follows a fortiori that the adjudication of the [state court] affirming petitioner’s conviction
and sentence neither was ‘contrary to,’ nor involved an ‘unreasonable application of,’ any of our decisions.”);
see, e.g., Carey v. McDaniel, 2013 WL 1326450, *8 (D. Nev. Mar. 29, 2013) (denying habeas claim, court
stated, “Petitioner’s merits argument would be strained at best even on a de novo review. A fortiori, on
deferential review under § 2254(d)(1), it is clear that petitioner cannot establish a basis for relief . . . .”); Wilson
v. McGrath, 2006 WL 2845611, *11 (N.D. Cal. Sept. 29, 2006) (“Wilson cannot prevail on any of his myriad
claims of ineffective assistance of counsel. A fortiori, he cannot demonstrate that the California courts’ rejection
of those claims was ‘contrary to, or involved an unreasonable application of, clearly established federal law .
. . .”) (citing 28 U.S.C. § 2254(d)(1)) (n.6 omitted), aff’d sub nom. Wilson v. Ayers, 315 F. App’x 27 (9th Cir.
2008).7

ORDER
The Report and Recommendation is ADOPTED as clarified.
The 28 U.S.C. section 2254 petition for a writ of habeas corpus is DENIED.
As required by FED. R. CIV. P. 58(a)(1), the judgment is being issued as a separate document.8

7

Accord Ellsworth v. Warden, 333 F.3d 1, 4 n.1 (1st Cir. 2003) (after citing 28 U.S.C. § 2254(d)(1), the
provision of AEDPA which requires additional deference to state-court rulings on federal collateral review, panel
reasoned that “Ellsworth’s other claims fail even under a de novo standard and therefore fail a fortiori under a
more deferential one.”); Waller v. Varano, 2012 WL 7963003, *8 (E.D. Pa. Nov. 20, 2012), R&R adopted, 2013
WL 1628230 (E.D. Pa. Apr. 16, 2013).
8

See Jayne v. Sherman, 706 F.3d 994, 1009 (9th Cir. 2013) (adopting opinion which concluded, “The Court
will issue a separate Judgment as required by Rule 58(a).”); Stratton v. Buck, 697 F.3d 1004, 1007 (9th Cir. 2012)
(“The district court apparently did not enter a separate Judgment, as required by FED. R. CIV. P. 58(a)(1).”).

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This case shall be CLOSED.
IT IS SO ORDERED.

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