Leon v. Clark

Filing 21

ORDER DENYING petition for a writ of habeas corpus; Clerk of Court DIRECTED to enter judgment; and Court DECLINES to issue a certificate of appealability, signed by Magistrate Judge John M. Dixon, Jr on 8/6/2010. CASE CLOSED (Marrujo, C)

(HC)Leon v. Clark

Doc. 21

1 2 3 4 5 6 7 8 CRAIG CHRISTOPHER LEON, 9 Petitioner, 10 v. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01979 JMD (HC) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

KEN CLARK, Warden, Respondent.

Craig Christopher Leon (Petitioner) is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented, pursuant to Title 18 U.S.C. § 636(c)(1), to have a magistrate judge conduct all further proceedings, including entry of final judgment. The case was reassigned to the undersigned on July 8, 2010. PROCEDURAL BACKGROUND Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) serving a third strike term of twenty-five years to life. Petitioner was convicted of transportation and possession of heroin for sale in the Stanislaus County Superior Court. Petitioner appealed the judgment to the California Court of Appeal, Fifth Appellate District, on April 4, 2006. The court affirmed the judgment in a reasoned opinion filed August 21, 2007. Petitioner filed a petition for review with the California Supreme Court on October 2, 2007. The court denied the petition without comment on November 14, 2007. 1
Dockets.Justia.com

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Petitioner filed the instant petition for writ of habeas corpus on September 24, 2008. Respondent filed an answer on November 13, 2009. FACTUAL BACKGROUND 1 Around 11:30 a.m. on December 12, 2004, Modesto Police Officer Ron Johnson was on patrol when he approached the intersection of Third and J Streets. Johnson was traveling eastbound on Third Street and did not have a stop sign at the intersection. A pickup truck pulled in front of Johnson and almost hit his patrol car. Johnson testified that he noticed there were two people in the truck when it crossed in front of him. Johnson hit the brakes and avoided a collision, and immediately activated the patrol car's emergency lights to perform a traffic stop of the pickup truck. The pickup truck complied and pulled over. Officer Johnson, who was by himself, walked to the driver's side of the truck and contacted the driver, appellant Craig Christopher Leon. James Melton was sitting in the right front passenger seat, about three and a half feet from appellant. The vehicle was a 2002 Chevrolet standard full-size pickup truck. Johnson checked the vehicle's title and determined the truck was registered to appellant. Officer Johnson advised appellant about the reason for the traffic stop and asked for his driver's license. Johnson also asked appellant to step out of the truck so he could perform a patdown search.[2] Appellant left the driver's door open when he got out of the truck. Johnson directed appellant to face the vehicle near the open driver's door and place his hands on top of his head, and Johnson conducted the patdown search. Johnson stood directly behind appellant as he conducted the patdown search. Appellant did not say anything during the search. Officer Johnson testified a backup officer arrived just as he asked appellant to step out of the truck. The officer was on the other side of the truck. Johnson testified Melton remained in the truck's front seat during the patdown search, and Johnson was able to see Melton "[p]art of the time" but not all of the time as he searched appellant. "Q And during the search your focus is on [appellant] as opposed to Mr. Melton." "A Well, no, that's not necessarily true. [¶] I mean, I try to train myself to keep my eyes on everything that's going on. When I have two people I am thinking about two people. Obviously I can't watch both, but I'll be back and forth looking at both parties." "Q But your primary attention was on [appellant] and not Mr. Melton?" "A Yes." Johnson explained it was important to watch for movement in the car for officer safety reasons. "You just have to keep an eye on all your parties and make sure that nothing happens." Officer Johnson testified he conducted the patdown search of appellant, including his upper torso, legs, and ankles. "Q At some point you bend down to search the legs and ankle areas of

A ll Factual Backgrounds quoted in this order are taken from the factual summaries set forth by the California Court o f Appeal, Fifth Appellate District, in its opinion of August 21, 2007, and is presumed correct pursuant to 28 U.S.C. §§ 2 2 5 4 ( d ) ( 2 ) , (e)(1). See People v. Leon, No. F050100, 2007 W L 2367852, at *1-4 (Cal. Ct. App. Aug. 21, 2007); (Lodged D o c . 1, 3-8). A c c o r d in g to the probation report, Officer Johnson determined appellant was on parole, appellant confirmed he w a s on parole, and Johnson conducted the patdown and vehicle searches pursuant to the terms of his parole. The trial court e x c lu d e d evidence as to appellant's parole status and the reasons behind the searches.
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[appellant]?" "A That's correct." "Q And, clearly, as you're doing that, you can't see into the vehicle; right?" "A Not true. When I'm looking down, now, obviously I can't see the vehicle. But while I'm standing there I have a view of probably three quarters of the pickup through the open door. I can't see Mr. Melton very well, but I can see that area that is in my view." The patdown search lasted about a minute and a half. Appellant was in possession of a cell phone and $99. After Officer Johnson completed the patdown search, he advised appellant that he was going to search the pickup truck, and walked toward the open driver's door. Johnson testified appellant "appeared to get nervous and asked me why I was searching the truck." Johnson "explained to him why I was searching the truck. And then due to the fact that he was acting a little nervous I asked him to step back to the rear of the truck with another officer." Johnson moved appellant just behind the back window of the pickup, "so we were right next to the cab of the pickup." Johnson testified he did not see any furtive movements from Melton in the front passenger seat, and did not see Melton place or move anything in the vehicle. Officer Johnson testified he searched the vehicle and found a couple of leather gloves just above the steering wheel. Johnson checked the gloves and "felt that one of the gloves which was the left glove had something inside that was hard." Johnson opened the glove and "there was something wrapped in plastic inside the glove." Johnson removed the item and discovered 11.53 grams of "black tar heroin wrapped in clear plastic." Johnson immediately ordered Melton to step outside the truck, where another officer was standing. Johnson placed appellant in handcuffs and put him into the back of the patrol car. Officer Johnson testified he had not noticed the gloves when he initially approached the driver's side of the vehicle and spoke to appellant after the traffic stop. "Q Fair to say that you don't have any firsthand information as to how the glove got there?" "A No." "Q ... You don't know how the glove got there." "A No, there would be no way for me to know that." "Q You don't know if Mr. Melton put it there." "A I was pretty positive that Mr. Melton didn't put it there because the location of where I was standing with the door open. If there was any movement or somebody tossed the glove or tried to reach over and put the gloves way over by the steering wheel, that's a vantage point that I have in the vehicle." Johnson testified he did not see "any movement" while he was outside the truck with appellant. "If somebody reached over and tossed them, it would have been in my view." "Q You didn't see the glove there, though, when you first approached [appellant]; right?" "A I can't say I didn't see them. I didn't pay any attention to them. The only time I paid attention to them is when I picked it up and felt something inside and it turned out to be heroin." Officer Johnson believed the other officer searched Melton, but he was not sure if the search occurred and did not know whether Melton was found in possession of any narcotics paraphernalia. Johnson did not ask Melton about the heroin or the gloves. Johnson testified Melton was eventually released because there were no outstanding warrants for him. Officer Johnson testified that after he arrested appellant, he did not ask any questions and appellant never said the heroin and/or the glove belonged to him. However, appellant spontaneously said "that he'd liked to work this off and he could take me all the way up to the top of the narcotics ladder, basically, something to that 3

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effect." Appellant said "he was tired of this and he wanted to get out of it." Johnson had not found any indicia of use when he searched appellant. He inspected appellant's arm to look for injection sites and did not find any. Johnson "made a comment to him, and he said he puts it in his muscle," that he injected heroin into a muscle rather than a vein. Johnson inspected the muscle area but did not see any injection sites. Johnson never made any promises to appellant in response to his offer to "work it off." Officer Carlos Ramirez testified that 11.53 grams of heroin were worth over $1,000 on the street, and capable of producing 115 individual doses. It was more than a usable amount and, based on his expertise, it would be possessed for sale because a heroin user "usually does not usually carry that much with them for the sheer amount." In addition, a heroin user would possess paraphernalia to ingest the heroin, such as aluminum foil, needles, a spoon, matches, or "anything to light it up and use it." A person who injected heroin would have needle marks that remain from three days to a week. Most heroin addicts use heroin once or twice a day. In Ramirez's opinion, a person who possessed that amount of heroin without any indicia of use most likely possessed it for sale. In closing argument, the prosecutor argued the evidence showed appellant transported and possessed heroin for sale. There was no doubt heroin was in his car and that appellant knew he possessed a controlled substance, because once he was caught, appellant immediately offered to give the police "somebody else higher up on the food chain." Appellant possessed the drugs for sale based on the large amount and the absence of any evidence he was using drugs. The prosecutor refuted appellant's expected argument that Melton threw the gloves onto the driver's side of the truck. The prosecutor noted that Officer Johnson did not see any movement from the passenger side as he searched appellant, and that he watched the other side of the truck for officer safety reasons. Defense counsel argued it was pure speculation that appellant knew the heroin was in the truck, the case was built on circumstantial evidence, and the prosecution failed to meet the burden of proof. Defense counsel argued the evidence showed "it could have been either way," such that the heroin could have belonged to appellant or Melton, but if the evidence could go either way, then the jury had to reject the conclusion that appellant was guilty. Counsel noted Officer Johnson admitted he did not notice the gloves when he initially approached the driver's side of the truck, and that he did not constantly watch the vehicle's interior as he searched appellant. Counsel also addressed appellant's statements to Johnson, about working off the matter, and argued that appellant never admitted possessing the drugs but knew the drugs had been found in the truck and Melton had been allowed to leave. Appellant did not accept any responsibility but knew he had two prior convictions and he was in trouble, and he was looking for a way "to mitigate or minimize any adverse effects," and it was just speculation to interpret appellant's statements any other way. In the alternative, counsel argued there was no evidence appellant possessed the drugs for sale, Officer Ramirez knew nothing about this case, and the jury should not rely on his opinion. In rebuttal, the prosecutor refuted defense counsel's claim there was no evidence in this case, and argued there was a large amount of heroin on appellant's side of the truck, appellant offered to work off the matter because "he knew about the heroin," and "that's enough." Appellant was convicted of transportation and possession of heroin for sale. He admitted the three prior prison term enhancements and the jury found the two prior strike convictions to be true. The court denied his motion to dismiss one prior strike conviction, and he was sentenced to the third strike term of 25 years to life. On appeal, he contends both convictions must be reversed because the evidence is legally insufficient to establish possession. He also raises several challenges to the true findings for the two prior strike convictions-that he was denied the right to a jury trial on all elements of the special allegations, and the court improperly admitted a CLETS 4

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rap sheet as evidence of one of the prior convictions.[3] Finally, he contends the court abused its discretion when it denied his motion to dismiss one prior strike conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ( Romero ). DISCUSSION

4 I. Jurisdiction 5 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant 6 to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of 7 the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 8 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. 9 Constitution. In addition, the conviction in question arose out of a judgment by the Stanislaus 10 County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 11 28 U.S.C. § 2241(d). Accordingly, the Court has jurisdiction over the action. 12 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 13 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. 14 Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) 15 (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), overruled on other grounds by 16 Lindh, 521 U.S. 320 (1997)) (holding AEDPA only applicable to cases filed after statute's 17 enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by 18 its provisions. 19 II. Legal Standard of Review 20 This Court may entertain a petition for writ of habeas corpus on "behalf of a person in 21 custody pursuant to the judgment of a State court only on the ground that he is in custody in violation 22 of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). 23 Under the AEDPA, an application for habeas corpus will not be granted unless the 24 adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable 25 application of, clearly established Federal law, as determined by the Supreme Court of the United 26 27 28
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C L E T S stands for the California Law Enforcement Telecommunications System. ( People v. M a r tin e z (2000) 22 C a l.4 th 106, 113 ( Martinez ).)

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States" or "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); see Lockyer, 538 U.S. at 70-71; see Williams, 529 U.S. at 413. As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. (quoting Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. Finally, this Court must consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 72, (quoting 28 U.S.C. § 2254(d)(1)). "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court 6

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decision is objectively unreasonable. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). AEDPA requires that the federal habeas court give considerable deference to state court decisions. The state court's factual findings are presumed correct, 28 U.S.C. § 2254(e)(1), and we are bound by a state's interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir. 2002), cert. denied, 537 U.S. 859 (2002), rehearing denied, 537 U.S. 1149 (2003). Thus, the initial step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more than one State court has adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) for the presumption that later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same ground as the prior order). The Ninth Circuit has further stated that where it is undisputed that federal review is not barred by a state procedural ruling, "the question of which state court decision last `explained' the reasons for judgement is therefore relevant only for purposes of determining whether the state court decision was `contrary to' or an `unreasonable application of' clearly established federal law." Bailey v. Rae, 339 F.3d 1107, 1112-1113 (9th Cir. 2003). Thus, a federal habeas court looks through ambiguous or unexplained State court decisions to the last reasoned decision in order to determine whether that decision was contrary to or an unreasonable application of clearly established federal law. Id. Here, the California Court of Appeal and the California Supreme Court both adjudicated Petitioner's claims. As the California Supreme Court issued a summary denial of Petitioner's claims, the Court "look[s] through" that court's decision to the last reasoned decision; namely, that of the appellate court. See Ylst v. Nunnemaker, 501 U.S. at 804. III. Review of Petitioner's Claims Petitioner raises the following eight grounds for relief: (1) Petitioner was subject to an illegal search and seizure in violation of the Fourth Amendment and his counsel's failure to move to suppress the evidence therefrom constituted ineffective assistance of counsel in violation of the Sixth Amendment; (2) Petitioner's statements to the police were the product of an illegal search and 7

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seizure thereby violating his Fourth Amendment rights; (3) there was insufficient evidence on which the jury could rely in finding Petitioner guilty of possession of heroin for the purpose of sale; (4) there was not sufficient evidence on which the jury could rely in finding Petitioner guilty of possession of heroin; (5) the superior court violated Petitioner's Sixth Amendment rights by making a finding as to Petitioner's identity regarding prior convictions instead of leaving the question of identity to the jury; (6) counsel was ineffective in violation of Petitioner's Sixth Amendment rights by conceding that Petitioner suffered the alleged prior strike convictions; (7) a CLETS rap sheet is insufficient evidence to prove that Petitioner had suffered the alleged prior strike convictions; and (8) the trial court abused its discretion in refusing to strike one of Petitioner's prior strike convictions in violation of his Fifth, Eighth, and Fourteenth Amendment rights. Exhaustion of State Remedies Respondent argues that Petitioner did not exhaust Grounds One, Two, or Three in state court. A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995)); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992) (factual basis). Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 8

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1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows: In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

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Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. Lyons, 232 F.3d 666, 668-669 (italics added). Petitioner admits that he failed to present Grounds One, Two, and Three before the State supreme court. Because the State court did not have a full and fair opportunity to rule on those grounds, they are unexhausted. A federal habeas court may, however, deny an application for a writ of habeas corpus on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). The Ninth Circuit has adopted the standard that holds that "a federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim." Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (adopting the standard set forth in Granberry v. Greer, 481 U.S. 129, 135 (1987)). Accordingly, the Court will proceed to the merits of Grounds One, Two, and Three. 9

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\\ Ground One Petitioner claims that he was subject to an illegal search and seizure in violation of his Fourth Amendment rights and that his counsel was ineffective in not moving to suppress the evidence from the search. While the crux of both these claims are centered around Petitioner's allegation that the search of his person and car was carried out in violation of the Fourth Amendment, Petitioner is actually raising two separate and distinct claims: (1) illegal search and seizure and (2) ineffective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). The Fourth Amendment claim is based in the exclusionary rule, which is a "judicially created remedy rather than a personal constitutional right," Reed v. Farley, 512 U.S. 339, 348 (1994), and thus requires a different standard of review than the right to counsel, which is a fundamental right, Morrison, 477 U.S. at 374. Accordingly, the Court will analyze the two claims separately. Ineffective Assistance of Counsel Petitioner claims that his counsel was ineffective in failing to move to suppress the evidence found as a result of the search, thereby violating his Sixth Amendment right to counsel. An allegation of ineffective assistance of counsel requires that a petitioner establish two elements: (1) counsel' s performance was deficient and (2) petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). Under the first element, the petitioner must establish that counsel's representation fell below an objective standard of reasonableness, specifically identifying alleged acts or omissions which did not fall within reasonable professional judgment considering the circumstances. Strickland, 466 U.S. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential and there exists a "strong presumption that counsel's conduct [falls] within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 687 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)) ; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). Second, the petitioner must show that counsel's errors were so egregious that the petitioner 10

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was deprived of the right to a fair trial, namely a trial whose result is reliable. Strickland, 466 U.S. at 687. To prevail on the second element, the petitioner bears the burden of establishing that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Quintero-Barraza, 78 F.3d at 1348 (quoting Strickland, 466 U.S. at 694). Accordingly, in a case where the principal allegation of ineffectiveness is defense counsel's failure to litigate a Fourth Amendment claim competently, the petitioner "must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Morrison, 477 U.S. at 375. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since prejudice is a prerequisite to a successful claim of ineffective assistance of counsel, any deficiency that was not sufficiently prejudicial to the petitioner's case is fatal to an ineffective assistance of counsel claim. Id. Respondent argues that Petitioner has failed to meet his burden of proof to show that the search was unlawful. (Answer, Nov. 13, 2009, ECF No. 17.) The Court agrees. The record indicates that Officer Johnson had a lawful reason for pulling the truck over­the fact that the truck almost hit the patrol car. The record further indicates that Officer Johnson determined that Petitioner was on parole, which Petitioner confirmed, and then conducted the search pursuant to the terms of Petitioner's parole. Petitioner argues that the search violated his Fourth Amendment rights because he did not consent. This argument is without merit because the record indicates that the terms of Petitioner's parole allowed the search, rendering his consent unnecessary. It appears that the search was lawful, thus, trial counsel's failure to file a suppression motion does not fall below an objective standard of reasonableness. Accordingly, Petitioner's claim is meritless. 4th Amendment Petitioner claims that he was searched unlawfully in violation of his Fourth Amendment right to be free from unreasonable search and seizure. A federal district court cannot grant habeas corpus relief on the ground that evidence was 11

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obtained by an unconstitutional search and seizure if the state court has provided the petitioner with a "full and fair opportunity to litigate" the Fourth Amendment issue. Stone v. Powell, 428 U.S. 465, 494 (1976); Moormann v. Schriro, 426 F.3d 1044, 1053 (9th. Cir. 2005); Woolery v. Arvan, 8 F.3d 1325, 1326 (9th Cir. 1993). The only inquiry this Court can make is whether Petitioner had a fair opportunity to litigate his claim, not whether the court correctly decided the claim or even whether Petitioner actually litigated the claim. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); see also, Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (holding that because Cal. Penal Code § 1538.5 provides an opportunity to challenge evidence, dismissal under Powell was necessary). The policy behind the Powell court's analysis is that the exclusionary rule is applied to stop future unconstitutional conduct of law enforcement. Powell, 428 U.S. at 492. However, excluding evidence that is not untrustworthy creates a windfall to the defendant at a substantial societal cost. See id., at 489-90; Woolery, 8 F.3d at 1327-28. Thus, the Ninth Circuit has described the rationale for this rule by stating: The holding is grounded in the Court's conclusion that in cases where a petitioner's Fourth Amendment claim has been adequately litigated in state court, enforcing the exclusionary rule through writs of habeas corpus would not further the deterrent and educative purposes of the rule to an extent sufficient to counter the negative effect such a policy would have on the interests of judicial efficiency, comity and federalism. Woolery. 8 F.3d at 1326; see also Powell, 428 U.S. at 493-494.

18 Here, Petitioner gives no indication that the State court failed to provide him with a full and 19 fair opportunity to litigate the legality of the search. Petitioner only points to his counsel's failure to 20 move to suppress the evidence to argue that he was never provided a full and fair opportunity to 21 litigate the issue. Only if Petitioner's counsel has been found to have been ineffective could this 22 argument prevail; however, as discussed above, counsel was not constitutionally ineffective in 23 choosing not to move to suppress the evidence. Thus, Petitioner was given a full and fair 24 opportunity to address the suppression issue at trial and his claim is not cognizable on federal habeas 25 review. 26 Ground Two 27 Petitioner claims that his statements to the police were the product of an illegal search and 28
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seizure, thereby violating his Fourth Amendment rights. As discussed above, Stone v. Powell, 428 U.S. 465, only allows for federal habeas review of Fourth Amendment claims if Petitioner was not given a full and fair opportunity to litigate the issue in state court. As the illegal search and seizure of which Petitioner complains is the same as that discussed in Ground One, Petitioner's argument that the fruits of the search, namely his statements, should be suppressed must fail. As discussed above, Petitioner's argument that the search was unlawful could only be meritorious if counsel had been found to have been ineffective. As Petitioner's counsel was not constitutionally ineffective, Petitioner has no basis for claiming he was not afforded a full and fair opportunity to litigate counsel's failure to move to suppress his statements as the fruits of that search. Accordingly, this claim is not cognizable on federal habeas review. Ground Three Petitioner claims that there is insufficient evidence to prove that he was in possession of heroin for the purpose of sale. "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005) (noting under AEDPA, a petition for habeas corpus may only be granted where the state court's application of Jackson v. Virgina, 443 U.S. 307 (1979) was objectively unreasonable). A petitioner is "entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324. Pursuant to the Supreme Court's holding in Jackson, the test to determine whether a factual finding is fairly supported by the record is as follows, "whether, after reviewing 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." Jackson, 443 U.S. at 319; see also McDaniel v. Brown, __ U.S. __, 130 S.Ct. 665 (2010) (reaffirming the standard set forth in Jackson). In cases where the evidence is unclear or would support conflicting inferences, "the federal court `must presume­even if it does not affirmatively appear in the record­that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.'" Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1993) (quoting Jackson, 13

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443 U.S. at 326). "An additional layer of deference is added to this standard by 28 U.S.C. § 2254(d), which obliges [Petitioner] to demonstrate that the state court's adjudication entailed an unreasonable application of the quoted Jackson standard." Briceno v. Scribner, 555 F.3d 1069, 1078 (9th Cir. 2009) (citing Juan H., 408 F.3d at 1274). Sufficiency of evidence claims are judged by "the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16. Furthermore, this Court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). This presumption of correctness applies to a state appellate court's determinations of fact as well as those of a state trial court. Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990). In this claim, Petitioner is not challenging the sufficiency of the evidence regarding his possession of the heroin, but rather the sufficiency of the evidence of his specific intent to sell the heroin. Section 11351 of the California Health and Safety Code states that: [e]xcept as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison for two, three, or four years. Cal. Heath & Saf. Code, § 11351. In order to secure a conviction of a violation of Health and Safety Code section 11351, the prosecution must prove beyond a reasonable doubt that (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. (CALJIC No. 12.01 (6th ed.1996); see also People v. Newman (1971) 5 Cal.3d 48, 53, 95 Cal.Rptr. 12, 484 P.2d 1356). People v. Para, 70 Cal. App. 4th 222, 225-26 (Cal. Ct. App. 1999). As discussed more fully in Ground Four, the appellate court's finding that Petitioner was in possession of the heroin was not an unreasonable application of federal law. What the Court must consider here, is whether Petitioner either possessed the specific intent to sell the heroin or possessed the specific intent that someone else would sell the heroin. Id. at 227. 14

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The Court finds that there was sufficient evidence to support a finding of Petitioner's specific intent to sell the heroin. First, Officer Ramirez testified that Petitioner was in possession of 11.53 grams of heroin, which is approximately 115 individual doses and has a street value of over $1,000. It is well settled California law that "experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld." Id. at 227. Any trier of fact could reasonably conclude that Petitioner would only have such a large quantity of drugs if he intended to sell some or all of it. Second, Officer Johnson testified that Petitioner told him "that he could take me all the way up to the top of the narcotics ladder" and that "he was tired of this and he wanted to get out if it." A jury could reasonably take these statements to mean that Petitioner was involved in the narcotics trade. Third, Officer Johnson did not find any paraphernalia or other indicia of drug use when he searched Petitioner nor did he find injection sites when he inspected Petitioner's arm. The finder of fact could reasonably infer that because Petitioner did not show signs of use, he had the heroin for the purpose of selling it. In light of the record evidence, the Court finds that a rational trier of fact could have found proof beyond a reasonable doubt of Petitioner's specific intent to sell the heroin. Accordingly, Petitioner cannot be granted relief as to Ground Three. Ground Four Petitioner claims there is insufficient evidence to prove that he was actually in possession of the heroin. As the State appellate court was the last court to issue a reasoned decision on this issue, the Court will examine whether its finding that Petitioner was in possession of the heroin was an unreasonable application of federal law. The appellate court reasoned as follows: Appellant's convictions for transportation and possession for sale of heroin are supported by substantial evidence. Appellant was driving the truck when he complied with Officer Johnson's traffic stop. Johnson found the gloves just above the steering wheel. One glove contained 11.53 grams of heroin. After he was arrested, appellant spontaneously told Johnson "that he'd liked to work this off and he could take me all the way up to the top of the narcotics ladder, basically, something to that effect." Appellant said "he was tired of this and he wanted to get out of it." As Johnson inspected appellant's arms for injection sites, appellant volunteered that "he puts it in his muscle," that he injected heroin into a muscle rather than a vein.

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Appellant asserts the evidence was legally insufficient because Officer Johnson did not see the gloves when he initially approached appellant in the driver's seat, Johnson lost sight of Melton, the passenger, as he conducted the patdown search of appellant, and Melton had the motive and opportunity to "stash" the heroin into the glove, and place the glove above the steering wheel, while Johnson conducted the patdown search. Defense counsel ably raised these issues during his cross-examination of Officer Johnson and in his closing argument, and thus raised conflicting factual inferences for the jury to resolve. However, there is nothing in the record which rendered the evidence inherently improbable or impossible to believe that appellant possessed the heroin found in the glove. Indeed, Johnson refused to concede that he did not actually see the gloves when he initially approached the driver's side of the truck. "I can't say I didn't see them. I didn't pay any attention to them. The only time I paid attention to them is when I picked it up and felt something inside and it turned out to be heroin." As for the patdown search, Johnson testified his primary attention was on appellant but he kept watching Melton for any furtive movements or gestures because of officer safety issues, even as he searched appellant's lower body. "Q And, clearly, as you're doing that, you can't see into the vehicle; right?

12 13 14 15 16 17 18 19 20 21 22 23 24 (Lodged Doc. 1, 11-13.) 25 The Court finds that the appellate court's decision is not an unreasonable application of the 26 Jackson sufficiency of the evidence standard. As discussed above in Ground Three, Petitioner may 27 only be granted habeas relief "if it is found that upon the record evidence adduced at the trial no 28
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"A Not true. When I'm looking down, now, obviously I can't see the vehicle. But while I'm standing there I have a view of probably three quarters of the pickup through the open door. I can't see Mr. Melton very well, but I can see that area that is in my view." Johnson thus clarified that he could still see into the driver's side of the truck's interior through the open driver's door. Finally, appellant's statements to Officer Johnson provided extremely strong evidence of his possession and knowledge of the nature of the substance found in the glove. Appellant makes much of the fact that he never claimed responsibility or ownership of the heroin, but his statements constituted the circumstantial equivalent of such a claim. Appellant volunteered to "work this off" and take Johnson "all the way up to the top of the narcotics ladder," and said he injected heroin into his muscle rather than a vein, thus inferring that he knew the item found in the glove was a controlled substance, and that he possessed the heroin because he would be able to tell Johnson where he obtained it. There was thus overwhelming circumstantial evidence to support the jury's underlying finding that appellant possessed the heroin with the requisite knowledge. Defense counsel ably raised the possibility that Melton possessed the heroin and planted it on appellant's side of the vehicle, but the jury necessarily resolved the disputed factual issue against appellant and we cannot reweigh factual or credibility issues on appeal.

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rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324. In finding that Petitioner's conviction for possession was supported by substantial evidence, the appellate court relied on the fact that Petitioner was driving the truck in which the heroin was found just above the steering wheel as well as on Petitioner's spontaneous statements to Officer Johnson. Petitioner asserts that this is not sufficient evidence because the passenger was left unattended in the truck before the officers searched the truck, thereby arguing the inference that the passenger could have placed the drugs on the dashboard while Petitioner was being questioned. This argument is without merit at this stage as that scenario was already placed before the finder of fact and rejected. As discussed above in Ground Three, the federal court must presume that the trier of fact resolved any evidentiary conflict in favor of the prosecution, and must defer to that resolution. Payne v. Borg, 982 F.2d at 338. At trial, defense counsel tried to convince the jury that the drugs could have belonged to the passenger and not Petitioner. The jury rejected the defense's theory and ultimately decided to find Petitioner guilty. As this Court will not reweigh the evidence presented to the jury, the Court finds that the appellate court's finding that there exists "overwhelming circumstantial evidence to support the jury's underlying finding that [Petitioner] possessed the heroin with the requisite knowledge" is not an unreasonable application of the Jackson sufficiency of the evidence standard. Accordingly, Petitioner cannot receive habeas relief as to Ground Four. Grounds Five, Six, and Seven Grounds Five, Six, and Seven, all relate to Petitioner's prior convictions. The following background pertains to all three grounds. Factual Background4 The amended information alleged appellant served three prior prison terms. On the first day of trial, appellant admitted the three prior prison term enhancements outside the jury's presence. The amended information also alleged appellant suffered two prior strike convictions: robbery (§ 211) on or about June 21, 1989, in Alameda County Superior Court docket No. 97462; and robbery on January 9, 1992, in Stanislaus County Superior Court docket No. 272303. Appellant denied the allegations but did not move for bifurcation, and instead wanted the prior strike convictions tried to the jury during the trial on the substantive offenses. In the midst of trial, the court conducted a hearing outside the jury's presence

4

People v. Leon, No. F050100, 2007 W L 2367852, at *8-10; (Lodged Doc. 1, 14-16).

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as to the identity of appellant as the person who suffered the two prior strike convictions. The prosecution introduced documentary exhibits consisting of certified copies of the records of conviction from the 1989 conviction in Alameda County (exhibit No. 2), and the 1992 conviction in Stanislaus County (exhibit No. 3), along with appellant's section 969, subdivision (b) package (exhibit No. 4), and a certified CLETS rap sheet in appellant's name (exhibit No. 5). The prosecution also introduced the record of conviction for a 1995 case which was not alleged as a prior strike in the amended information, but the documents included references to appellant's other prior convictions (exhibit No. 6). The prosecutor stated that only exhibits No. 2 and 3 would be introduced to the jury. Defense counsel objected to exhibit No. 6 as irrelevant because it was not based on the charged prior strike allegations. The court overruled the objection since the exhibit was circumstantial evidence of appellant's identity for the other prior convictions. Defense counsel did not otherwise object to documentary exhibits Nos. 1-6. The prosecutor also introduced exhibit No. 7, which was from appellant's parole file and was not a certified document, but it contained appellant's signature which would match his signature on the records for his 1989 prior conviction. Defense counsel objected and asked who would testify as to the authenticity of the signature. The prosecutor explained he was going to call appellant's parole agent. Defense counsel objected and the court overruled the objection. Thereafter, parole agent Chris Smalling testified (outside the jury's presence) that appellant was currently on parole on his caseload. Agent Smalling reviewed the documentary exhibits and testified the photographs in the documents depicted appellant, and set forth the chronological history of appellant's convictions and status with the California Department of Corrections (CDC). The prosecutor asked Smalling to review exhibit No. 7, and he explained it consisted of CDC's notice and parole conditions for appellant, prepared in the regular course of business for parolees, and he recognized appellant's signature on the document. Agent Smalling also identified appellant's signature on the other documentary exhibits. Defense counsel did not object to the exhibits, but asked Smalling if he saw appellant sign exhibit No. 7, the conditions of parole. Smalling said he did not. Defense counsel did not present any evidence, but argued the documents were insufficient to identify appellant as the person who suffered the 1989 robbery conviction. While appellant's signature was on a document regarding that conviction, Smalling admitted he did not see appellant sign that particular document and simply relied on his belief about the similarities between the signatures. Defense counsel argued the handwriting was not consistent, and the prosecution failed to introduce any fingerprint evidence to connect appellant to the 1989 prior conviction. The prosecutor replied that he did not have to introduce "anything other than the name" under People v. Mendoza (1986) 183 Cal.App.3d 390, 401 (Mendoza), and there was a presumption of identity when the first and last names match and there was no countervailing evidence. The prosecutor also argued there were several examples of appellant's signature in the certified documents, and those signatures matched the signature on exhibit No. 7. There was also a fingerprint card in the CLETS documents but "basically we've reached the presumption" and there was no countervailing evidence to dispute his identity. The court found the person convicted in the exhibits had the same name as appellant, the signatures in the documents for the 1989 Alameda County conviction were substantially similar to appellant's signature in his parole records, and the 1989 Alameda County conviction was listed among appellant's other convictions in his CLETS rap sheet. The court found "ample evidence" appellant was the same person named in exhibits Nos. 2 and 3, and the prior convictions were serious felonies within the meaning of three strikes. When the jury returned to the courtroom, the court instructed them that exhibit 18

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Nos. 2 and 3 had been admitted into evidence. Neither party introduced additional evidence before the jury as to the prior convictions. In the course of the instructions on the substantive offenses, the court instructed the jury that if it found appellant guilty of a crime, it had to determine whether the prosecution proved beyond a reasonable doubt the additional allegation that appellant was previously convicted of other crimes. "... It's already been determined that [appellant] is the person named in Exhibits 2 and 3. You must decide whether the evidence proves whether [appellant] was convicted of the crimes alleged." The court read the two prior conviction allegations, and instructed the jury to only consider these allegations in determining whether appellant was previously convicted of the prior offenses, and not as proof that he committed any of the current charges. Ground Five Petitioner claims that the trial court's factual finding of his identification relating to his prior convictions violated his right to jury trial. "[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Jones v. United States, 526 U.S. 227, 243, n.6 (1999). Apprendi v. New Jersey, 530 U.S. 466 (2000), later extended that holding to cover cases involving state statutes by way of the Fourteenth Amendment. Apprendi, 530 U.S. at 489 ("[O]ther than fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"). The Supreme Court has unwaveringly held that prior convictions are excepted from the general rule for several reasons. Historically the court notes that "recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Id. at 488 (quoting Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998)). Furthermore, "recidivism does not relate to the commission of the offense." Apprendi, 530 U.S. at 496. The Supreme Court goes on to explain that there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof. Id. Petitioner claims that the question of whether he was the person named in the documentary exhibits of the prior strike convictions is a material fact that should have been presented to the jury. 19

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(Pet. at 8.) The relevant California statute, California Penal Code Section 1025, provides in part: (b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury. Cal. Penal Code § 1025. On appeal, Petitioner argued that Almendarez-Torres, the authority on which section 1025(c) is based, has been eroded by subsequent case law. The appellate court denied Petitioner's petition based solely on state law grounds while preserving petitioner's "federal arguments for further review." Application of the standards set forth in AEDPA are significantly impeded where, as here, the state court supplies no reasoned decision on Petitioner's federal claim. Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000). Under such circumstances, the Court independently reviews the record to determine whether the state court clearly erred in its application of Supreme Court law. Id. at 982 ("Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law"); see also Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002). Although the Court independently reviews the record, it still defers to the state court's ultimate decision. Because the appellate court did not address the merits of the federal constitutional issue raised by Petitioner, this Court will make an independent review of the record to determine if the alleged constitutional error denied Petitioner his Sixth Amendment right to a jury trial. This Court finds no support for Petitioner's argument that subsequent case law erodes the well settled exception for past convictions. The court notes that Apprendi specifically reiterates the exception. Apprendi, 530 U.S. at 489; see also Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting Apprendi in applying the rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"); Shepard v. United States, 544 U.S. 13, 27 (2005) (stating that "this Court has not yet reconsidered Almendarez-Torres, which draws an exception to 20

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the Apprendi line of cases for judicial factfinding that concerns a defendant's prior convictions"). As it is well settled law that findings of past convictions need not be found by a jury to be true beyond a reasonable doubt see e.g. Butler v. Curry, 528 F.3d 624, 633 (9th Cir. 2008) (applying "Apprendi's bright-line rule" that excepts prior convictions from the constitutional jury and proof beyond a reasonable doubt requirements), the State court in this case provided Petitioner with more protection than required by federal law. The State court only made a finding as to the fact that Petitioner was the person named in the documentary evidence but left the determination as to whether Petitioner had actually committed the past crimes to the jury. As the appellate court's finding that Petitioner was not denied his right to a jury trial is not an unreasonable application of federal law, he cannot receive habeas relief as to Ground Five. Ground Six Petitioner claims that counsel was constitutionally ineffective by conceding that Petitioner has suffered the alleged prior strike convictions. Factual Background5 [T]he court found appellant was the person named in the documentary exhibits of the prior strike convictions, and instructed the jury accordingly. Neither party introduced additional evidence, and the jury was instructed to review exhibit Nos. 2 and 3 to determine if the prior strike convictions were true. During closing argument, the prosecutor advised the jury that if it found appellant guilty of any offense, it had to review exhibit Nos. 2 and 3 and determine whether he also suffered the prior convictions. "... You don't have to determine the identity; it's already been done. [¶] All you have to do is determine whether [appellant] was convicted. What you do is look here: [Appellant] having been convicted on June 21st, 1989. Now, I doubt very much that [defense counsel] is going to come up here and tell you any differently. This is not a serious issue in the case. You might say why are we doing this? It's part of the jury's job." The prosecutor noted the documents showed appellant was convicted by plea in the other prior conviction allegation. Defense counsel began his closing argument by addressing the prior conviction allegations, and said there was "no dispute" appellant suffered prior felony convictions in 1989 and 1992, then immediately moved on to the substantive offenses. "But what is in dispute is this third thing you need to analyze; and that is this heroin and who possessed it, more specifically whether [appellant] knew of its presence, whether he knew that Mr. Melton or anyone else in that vehicle might have had that heroin." Defense counsel continued with his discussion of the prosecution's burden of

5

P e o p le v. Leon, No. F050100, 2007 W L 2367852, at *11-12(Cal. Ct. App. Aug. 21, 2007); (Lodged Doc. 1, 19-20).

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proving the substantive offenses, the lack of direct evidence, and the speculative nature of the circumstantial evidence in this case. Defense counsel conceded appellant said some things to Officer Johnson after he was arrested, but noted appellant never took responsibility for the heroin found in the truck, and cited appellant's prior convictions as the explanations for his statements. "Remember, he has two prior felony convictions so he knows, regardless, he's in trouble. So he's looking for a way to mitigate or minimize any adverse effects. He does not do anything to accept responsibility though for this crime because there is no evidence of any responsibility on [appellant] of this crime. Speculation is all we have." The jury found both prior strike convictions true. Analysis Petitioner claims that his trial counsel was ineffective by conceding that Petitioner had suffered the two prior strikes alleged against him. As set forth in Ground One, an allegation of ineffective assistance of counsel requires that a petitioner establish two elements: (1) counsel' s performance was deficient and (2) petitioner was prejudiced by the deficiency. Strickland, 466 U.S. at 687; Lowry, 21 F.3d at 346. The appellate court found that counsel's conduct did not fall below an objective standard of reasonableness. In reaching this conclusion, the court did not rely expressly on federal law. Instead, the court relied on People v. Murry, 30 Cal. 4th 342, 389 (2003), which cites Strickland's standard. As the California and federal standards are the same, the Court reviews Petitioner's ineffective assistance of counsel claim to determine whether the appellate court's decision was an unreasonable application of the federal law. Here, the appellate court found that "[t]he entirety of the record sets forth a clear tactical reason for defense counsel's closing argument in this case." By conceding that Petitioner has suffered the prior strike convictions, "counsel tried to blunt the impact of [Petitioner]'s postarrest [sic] statements through the existence of [Petitioner]'s two prior strike convictions."