Berry v. Ryan et al

Filing 38

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/14/10 recommending that petitioner's 1 Petition for Writ of Habeas Corpus be denied. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

(HC) Berry v. Ryan et al

Doc. 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. STUART J. RYAN, et al., Respondents. / Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 1999 judgment of conviction entered against him in Placer County Superior Court on charges involving the possession and possession for sale of narcotics and paraphernalia. Petitioner was sentenced to sixty-four years to life in state prison pursuant to California's Three Strikes Law. He seeks relief on the grounds that: (1) his trial and appellate counsel rendered ineffective assistance; (2) the trial court violated his right to due process when it admitted evidence of prior uncharged conduct; (3) the trial court violated his right to due process when it failed to appoint a "drug expert;" (4) the prosecutor committed misconduct by failing to disclose exculpatory evidence to the defense and by using knowingly false testimony; and (5) he was erroneously convicted of both a greater and a lesser included offense for the same crime. Upon careful consideration of the record and the applicable 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRANK K. BERRY, Petitioner, No. CIV S-05-0899 FCD EFB P

FINDINGS AND RECOMMENDATIONS

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law, the undersigned recommends that petitioner's application for habeas corpus relief be denied. I. Procedural and Factual Background In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal1, the California Court of Appeal for the Third Appellate District provided the following factual summary: During a probation search, police officers discovered defendant Frank King Berry in possession of methamphetamine and drug paraphernalia. An amended information charged defendant with possession of methamphetamine for sale (Health & Saf.Code, § 11378); possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)); possession of marijuana for sale (Health & Saf.Code, § 11359); maintaining a place for selling or using controlled substances (Health & Saf.Code, § 11366); possession of more than 28 .5 grams of marijuana (Health & Saf.Code, § 11357, subd. (c)); possession of an injection device (Health & Saf.Code, § 11364); and unauthorized possession of a hypodermic needle or syringe (Bus. & Prof.Code, § 4140). Following a jury trial, the court sentenced defendant to 64 years to life. Defendant appeals, contending: (1) the court erred in admitting evidence of a prior conviction, (2) defendant's conviction for possession of more than one ounce of marijuana is barred as a lesser included offense, (3) the prosecution failed to prove defendant's prior convictions in Oregon constituted strikes under California law, and (4) defendant's sentence constitutes cruel and unusual punishment. In a previously filed opinion (People v. Berry (Aug. 5, 2002, C034405) [nonpub. opn.]), we agreed with defendant that the prosecution had failed to prove his prior Oregon convictions constituted qualifying strikes under California's "three strikes" law. (Pen. Code, §§ 667, subds. (b)-(I), 1170.12.) Subsequently, the Supreme Court granted review and on October 23, 2002, transferred the case back to us with directions to vacate our decision and reconsider the issue in light of People v. Avery (2002) 27 Cal.4th 49 (Avery). On reconsideration, we conclude the trial court correctly found defendant's prior Oregon convictions qualify as strikes. However, consistent with our prior decision, we shall conclude that, pursuant to Penal Code section 654, defendant's conviction for possession of 28.5 grams of marijuana should be stayed. In all other respects, we shall affirm the judgment.

Notice of Lodging Documents on January 23, 2006, Resp.'s Lodg. Doc. 7 (hereinafter Opinion), at 1-5. 2

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FACTUAL AND PROCEDURAL BACKGROUND A neighbor of Michael Jay Douglas noticed a daily stream of visitors, who stopped briefly at the Douglas residence and then drove away in their cars. On March 2, 1999, police officers conducted a probation search of the residence. The officers knocked on the door and heard whispering inside announcing their arrival. The officers heard footsteps and the sound of furniture being moved inside the residence. Following a second knock, Douglas opened the door, appearing very nervous. The officers entered the residence and found several individuals, including defendant, inside. During the search, officers found various containers of usable quantities of methamphetamine and approximately 125 grams of marijuana. The officers also uncovered glass "crank" pipes, marijuana pipes, baggies, a scale, Vitablend, "pay/owe" sheets, and syringes. As the officers searched the premises, three individuals arrived at the residence. One of the arrivals, upon entering the house, possessed a bag containing methamphetamine residue. She admitted purchasing the methamphetamine from defendant earlier that day and that she had returned to purchase more. She identified defendant as "Bud." The telephone rang many times during the search. Six times, the callers asked for "Bud." One of the officers involved in the search knew defendant as "Bud." Outside the residence, officers found a backyard covered with dozens of shallow holes six to 12 inches in depth. Defendant admitted ownership of a red box containing methamphetamine, syringes, and plastic baggies containing powdery residue. He told police he was "just crashing" at the residence. Officers had searched the residence within the past three months, when Douglas was the only resident. No contraband was found during the prior search. An amended information charged defendant with possession of methamphetamine for sale, possession of methamphetamine, possession of marijuana for sale, maintaining a place for selling or using controlled substances, possession of more than 28.5 grams of marijuana, possession of an injection device, and unauthorized possession of a hypodermic needle or syringe. The information also alleged two prior serious felony convictions within the meaning of Penal Code section 667, subdivisions (b) through (I); three prior narcotics convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a); six prior prison terms within the meaning of Penal Code section 667.5, subdivision (b); and that defendant was statutorily ineligible for probation 3

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pursuant to Penal Code section 1203, subdivision (e)(4). A jury trial followed. Defendant admitted the prior prison term and prior conviction allegations. The jury found defendant guilty on all counts and found true the prior felony strike allegations. The trial court sentenced defendant to 64 years to life: 25 years to life for possession for sale of methamphetamine; a consecutive term of 25 years to life for possession of methamphetamine, stayed pursuant to Penal Code section 654; a consecutive term of 25 years to life for possession of marijuana for sale; a concurrent term of 25 years to life for maintaining a place where drugs were sold or used; concurrent terms of six months each for possession of more than 28.5 grams of marijuana, possession of an injection device, and unauthorized possession of a hypodermic needle or syringe; plus three consecutive three-year enhancements for prior narcotics convictions (Health & Saf.Code, § 11370.2) and five consecutive one-year enhancements for prior prison terms (Pen.Code, § 667.5, subd. (b)). The court ordered defendant to pay a restitution fine of $10,000 pursuant to Penal Code section 1202.4 and a $10,000 restitution fine pursuant to Penal Code section 1202.45. Defendant filed a timely notice of appeal. After his conviction was affirmed by the California Court of Appeal, petitioner filed a petition for review in the California Supreme Court. Resp.'s Lodg. Doc. 8. Therein, he claimed, among other things, that the trial court violated his right to due process when it admitted evidence of prior uncharged conduct and that he was erroneously convicted of a both a greater and a lesser included offense for the same crime. Id. The petition for review was summarily denied by order dated May 14, 2003. Lodg. Doc. 9. On January 2, 2004, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, in which he claimed that: (1) his trial and appellate counsel rendered ineffective assistance; (2) the trial court violated his right to due process when it failed to appoint a drug expert; and (3) the prosecutor committed misconduct by failing to disclose exculpatory evidence to the defense and by using knowingly false testimony. Lodg. Doc. 10. That petition was summarily denied by order dated February 26, 2004. Lodg. Doc. 11. On March 22, 2004, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising the same claims. Lodg. Doc. 12. That petition was summarily denied by order dated February 16, 4

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2005. Lodg. Doc. 13. The instant federal habeas petition was filed on May 9, 2005. II. Analysis A. Standards for a Writ of Habeas Corpus Federal habeas corpus relief 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). Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it `applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it `confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'") 5

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The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). B. Petitioner's Claims 1. Admission of Evidence of Prior Uncharged Conduct Petitioner's co-defendant Michael Jay Douglas (Douglas) entered into a plea agreement prior to trial, leaving petitioner as the sole remaining defendant. Because Douglas was no longer involved in the trial, the prosecutor did not introduce evidence of Douglas' prior uncharged acts. Petitioner claims that the admission into evidence at trial of his own "uncharged crimes," in the absence of evidence of Douglas' prior acts, violated his rights to "due process and a fundamentally fair trial." Pet. at 7-8, 101-04; Traverse at 9-11.2 While the logic of this assertion is not clear, petitioner reasons that because the jury was not presented with Douglas' prior crimes, which were very similar to the current offenses, the evidence introduced at trial made it appear as if only petitioner was involved in illegal activities at the Douglas residence. Pet. at 1416; Traverse at 20, 25, 41-44. Petitioner notes the prosecutor intended to introduce evidence of Douglas' prior crimes if he had gone trial, and that he intended to argue petitioner and Douglas were in business together to sell narcotics. Pet. at 5, 7-8. According to petitioner, after Douglas entered into a plea agreement the focus shifted to petitioner and Douglas' involvement was unfairly minimized. Id. Petitioner argues that this situation "allow[ed] the focus of all the evidence in Douglas' home to be directed at petitioner." Traverse at 44. Petitioner also argues that there was no evidence his prior uncharged acts were sufficiently similar to the instant offense; i.e., had the same distinctive "signature," to have any

2

Citations to the petition are to the handwritten pages attached to the printed form. 6

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relevance at his trial. Pet. at 3-8; Traverse at 15, 19, 25-26. On the contrary, according to petitioner, there were many substantial differences between his prior acts and the current offenses. Traverse at 19-20. The California Court of Appeal rejected these claims. The court reasoned as follows: Defendant contends the court erred in admitting evidence concerning a 1997 arrest for possession of methamphetamine for sale. The evidence was admitted under Evidence Code section 1101, subdivision (b). Defendant also argues the evidence should have been excluded under Evidence Code section 352. A. Facts In August 1997 police officers searched defendant in his motel room. The motel room was filled with methamphetamine smoke, and officers found defendant in possession of three ounces of packaged methamphetamine, crank pipes, a scale, packaging materials and a mirror. Officers found pay/owe sheets in a vehicle associated with another occupant of the room, in a bag owned by defendant. Defendant admitted purchasing one-quarter pound of methamphetamine, selling one ounce, and possessing the remaining three ounces. He also informed officers of cash and additional drugs buried behind the motel although a subsequent search failed to uncover any drugs or cash. Several of the same names were listed on both 1997 and 1999 pay/owe sheets. Prior to trial in the present case, defendant's counsel objected to the introduction of evidence of defendant's 1997 prior conviction for possession of methamphetamine for sale. Counsel argued the evidence bore no relevance to the current charges and was unduly prejudicial. The court overruled the objection, finding "[p]rimarily the relevance would be with regard to intent." The court further found the probative value of the prior conviction outweighed any prejudice. The prosecution presented the evidence of the 1997 arrest and conviction. B. Law Under Evidence Code section 1101, evidence of uncharged misconduct is inadmissible to prove the criminal disposition of a defendant. However, such evidence is admissible to prove some relevant fact such as identity or common design, plan, or scheme. The admission of uncharged misconduct lies within the trial court's discretion. The trial court must weigh the probative value 7

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of the evidence against its prejudicial effect. The trial court, in reviewing the admissibility of evidence of other offenses, must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the proffered evidence to prove or disprove the fact, and (3) the existence of any policy or rule requiring exclusion despite relevance. (People v. Daniels (1991) 52 Cal.3d 815, 856, 277 Cal.Rptr. 122, 802 P.2d 906 (Daniels).) We review such evidence under an abuse of discretion standard. (People v. Memro (1995) 11 Cal.4th 786, 864, 47 Cal.Rptr.2d 219, 905 P.2d 1305 (Memro ).) The trial court admitted the evidence of the 1997 arrest to show intent. The court noted that if evidence of defendant's prior crime shed "great light on the defendant's intent at the time he committed that offense, it may lead to a logical inference of his intent at the time he committed the charged offense . . . ." Defendant disputes this assertion and contends "[t]here was no factual dispute whether the methamphetamine found inside the residence was possessed for sale." However, defendant pled not guilty to the charge of possessing methamphetamine for sale, putting his intent, an element of the crime, at issue. (Memro, supra, 11 Cal.4th at p. 864, 47 Cal.Rptr.2d 219, 905 P.2d 1305; Daniels, supra, 52 Cal.3d at pp. 857-858, 277 Cal.Rptr. 122, 802 P.2d 906.) The court found the earlier arrest material as to defendant's intent, a determination we cannot fault. As to the second consideration, the probative value of the evidence to prove the fact, we find the probative value very high. Defendant's prior arrest stemmed from a search that revealed three ounces of methamphetamine, a scale, packaging materials, and crank pipes in his motel room. Officers found pay/owe sheets in a bag belonging to defendant. Several names listed on the 1997 sheets were identical to those found in the 1999 search. Defendant argues the 1997 evidence was not relevant to prove he possessed for sale the methamphetamine found in the 1999 search. However, in addition to the same customers' names on pay/owe sheets, one of the individuals arrested with defendant in the present case testified she had purchased drugs from him earlier the same day and had returned to purchase more. The telephone rang frequently, with callers asking for "Bud," a name by which defendant was known. In addition, defendant admitted owning a box containing drugs and packaging materials. All this evidence, in addition to the duplicate names on the pay/owe sheets, reveals "a direct relationship between the prior offense and an element of the charged offense . . . ." (Daniels, supra, 52 Cal.3d at p. 857, 277 Cal.Rptr. 122, 802 P.2d 906.) The 1997 offense is "logically, naturally, and by reasonable inference relevant to prove" defendant's intent in the current offense. (Id. at p. 856, 277 Cal.Rptr. 122, 802 P.2d 906.) 8

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However, strong probative value does not end the trial court's inquiry. The trial court must also weigh the probative value of the evidence against its prejudicial impact. (People v. Ewoldt (1994) 7 Cal.4th 380, 404, 27 Cal.Rptr.2d 646, 867 P.2d 757 (Ewoldt); Evid.Code, § 352.) In Ewoldt, the Supreme Court noted prejudicial impact increases when other acts do not result in criminal convictions. (Ewoldt, supra, 7 Cal.4th at p. 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.) Here, the other act, the 1997 search of defendant's motel room, resulted in defendant's arrest and conviction. Therefore, there could be no question in the jury's mind that the other conduct occurred. Nor was the evidence surrounding the 1997 arrest inflammatory as compared to the 1999 arrest: Both incidents were quite similar. The probative value of the 1997 evidence, as previously discussed, was high. Although defendant decries the evidence as "highly prejudicial," the trial court properly balanced the probative value of the evidence against its potential prejudicial effect. We find no abuse of discretion in the trial court's conclusion. Opinion at 5-9. The question of whether evidence of petitioner's prior uncharged acts was properly admitted under California law is not cognizable in this federal habeas corpus proceeding. Estelle v. McGuire, 502 U.S. 62, 67 (1991). The only question before this court is whether the trial court committed an error that rendered the trial so arbitrary and fundamentally unfair that it violated federal due process. Id. See also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) ("the issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point"). The United States Supreme Court "has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith, or that it violates due process to admit other crimes evidence for other purposes without an instruction limiting the jury's consideration of the evidence to such purposes." Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001), overruled on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003). In fact, the Supreme Court has expressly left open this question. See Estelle v. Mcguire, 502 U.S. at 75 n.5 ("Because we need not reach the issue, we express no opinion on whether a state law 9

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would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime"). See also Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (holding that state court had not acted objectively unreasonably in determining that the propensity evidence introduced against the defendant did not violate his right to due process); Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007) (denying the petitioner's claim that the introduction of propensity evidence violated his due process rights under the Fourteenth Amendment because "the right [petitioner] asserts has not been clearly established by the Supreme Court, as required by AEDPA"); United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (Fed. R. Evid. 414, permitting admission of evidence of similar crimes in child molestation cases, under which the test for balancing probative value and prejudicial effect remains applicable, does not violate the due process clause). Accordingly, the state court's rejection of petitioner's claim that the trial court violated his right to due process when it admitted evidence of his prior uncharged acts is not contrary to United States Supreme Court precedent and may not be set aside. 28 U.S.C. § 2254(d). Nor has petitioner demonstrated that the decision of the California Court of Appeal is contrary to state or federal law. Under Ninth Circuit law, the admission of "other acts" evidence violates due process only if there were no permissible inferences the factfinder could have drawn from the evidence. See McKinney v. Rees, 993 F.2d 1378, 1381 (9th Cir. 1993) (question is "whether any inferences relevant to a fact of consequence may be drawn from each piece of the evidence, or whether they lead only to impermissible inferences about the defendant's character"); Jammal, 926 F.2d at 920 ("[e]vidence introduced by the prosecution will often raise more than one inference, some permissible, some not; we must rely on the jury to sort them out in light of the court's instructions"). See also LeMay, 260 F.3d at 1027 (evidence of prior similar crimes "will only sometimes violate the constitutional right to a fair trial, if it is of no relevance, or if its potential for prejudice far outweighs what little relevance it might have"). Here, the trial court held a hearing on the prosecutor's pre-trial in limine motion to admit evidence of 10

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petitioner's prior uncharged acts and concluded that petitioner's 1997 arrest was relevant to prove intent. Reporter's Transcript on Appeal (RT) at 3-18. Although the prior conduct did not involve acts that were identical to the current charges, the trial court concluded that the facts were similar enough, especially when considered with the other evidence introduced at petitioner's trial, to be probative on the issue of petitioner's intent.3 The trial court noted that when a prior act is admitted solely to show intent, "a distinctive similarity between the two crimes is often unnecessary for the other crime to be relevant." Id. at 17. The court also exercised its discretion to deny the prosecutor's request to admit evidence of two other prior uncharged acts, finding the circumstances too dissimilar to be relevant to the current charges. Id. at 17-18. This demonstrates that the judge was cognizant of his duty to weigh the appropriate factors and come to a conclusion based on the circumstances of each case. Further, the jury instructions did not compel the jury to draw an inference of propensity. The jury was specifically informed that other crimes evidence could be considered only for the limited purpose of showing the existence of intent, identity, motive, or knowledge, and could not be considered for any other purpose. Id. at 400-401. The jury was further instructed that other crimes evidence "may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes." Id. at 400. In addition, the jury instructions as a whole correctly informed petitioner's jury that the prosecution had the burden of proving petitioner guilty beyond a reasonable doubt. Id. at 404. The jury is presumed to have followed these instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Brown v. Ornoski, 503 F.3d 1006, 1018 (9th Cir. 2007). Under these circumstances, any error in admitting evidence of petitioner's 1997 arrest did not have "a substantial and injurious effect or influence

See People v. Ewoldt, 7 Cal.4th 380, 393 (Cal. 1994) ("In the present case, evidence of defendant's prior misconduct is relevant to prove a material fact other than defendant's criminal disposition, because the similarity between the circumstances of the prior acts and the charged offenses supports the inference that defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the uncharged misconduct"). 11

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in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See also Penry v. Johnson, 532 U.S. 782, 793-96 (2001). Petitioner's claim that the admission into evidence of his prior uncharged acts was unduly prejudicial because Douglas' prior uncharged acts were not admitted into evidence as well is also unavailing. Petitioner has provided no evidence either party requested that evidence of Douglas' prior acts be introduced into evidence after Douglas pled guilty and was removed from the trial. The prosecution was not required to introduce evidence simply for the purpose of helping the defense case, nor was the trial court obliged to ensure that this evidence was introduced in the absence of any request. In any event, petitioner's claim that evidence of Douglas' prior acts would have had a substantial impact on his own conviction is too speculative to constitute prejudice. Petitioner's conviction properly rested on evidence of his own actions. In sum, the admission into evidence at petitioner's trial of his 1997 arrest did not violate any right clearly established by United States Supreme Court precedent or result in prejudice under the circumstances of this case. Accordingly, petitioner is not entitled to relief on this claim. 2. Trial Court's Failure to Appoint a Drug Expert Petitioner claims that the trial court violated his rights pursuant to Ake v. Oklahoma, 470 U.S. 68 (1984) when it failed to "consider or appoint a recognized drug-expert, one that is expert in Modus Operandi detection." Pet. at 109. In the traverse, petitioner clarifies that he is actually claiming his trial counsel rendered ineffective assistance in "not requesting an expert in detection, and analysis of narcotics, and drug "`Modus Operandi.'" Traverse at 17-18. He alleges that a drug expert would have been able to explain that petitioner's 1997 conviction should not have been admitted into evidence at his trial because the modus operandi of that conviction was distinct from the modus operandi of the current charges. Id. at 18. Specifically, he notes that the 1997 conviction involved pager records, a listing of phone numbers, an expensive electronic digital scale, three individual ounces of rock methamphetamine, and the 12

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receipt of money; whereas the current charges involved no pager records, no listing of phone numbers, a "cheap plastic coffin scale," narcotics "in a bunch of mis-weighed tiny bags of probably powder, not rock," and no money at the scene of the arrest. Id. at 19-20, 21; Pet. at 1516. Petitioner adds that his trial counsel should have also obtained a handwriting expert and a fingerprint expert to testify that the "pay-owe sheets" found in the Douglas residence did not belong to him. Traverse at 18-19. This claim was presented to the state courts in petitioner's applications for a writ of habeas corpus filed in the California Court of Appeal and California Supreme Court. Both of these petitions were summarily denied. Accordingly, this court will independently review the record to determine whether habeas corpus relief is available under section 2254(d). Delgado, 223 F.3d at 982. In Ake, the United States Supreme Court held that "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense." 470 U.S. at 83. See also Jones v. Ryan, 583 F.3d 626, 638 (9th Cir. 2009). There is no evidence here that petitioner's sanity was an issue at his trial. Accordingly, the state courts' decision rejecting petitioner's claim in this regard is not contrary to or an unreasonable application of Ake. In light of petitioner's statements contained in the traverse, the court will analyze this claim further in connection with petitioner's claim of ineffective assistance of trial counsel, discussed below. 3. Prosecutorial Misconduct a. Failure to Disclose Exculpatory Evidence to the Defense Petitioner argues that the prosecutor committed misconduct by failing to disclose exculpatory material to the defense. Specifically, petitioner points to the testimony of several police officers to the effect that they received several telephone calls while they were at the 13

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Douglas residence from people asking for "Bud" and stating they needed to pick up something. Pet. at 165-67; RT at 18-19, 95-96.4 Petitioner contends that the purpose of this testimony was to show that each caller to the Douglas residence "was a different caller wanting to get something ­ the inference being drugs and that petitioner lived at Douglas and had constructive poss-for-sale of the narcotics found at 1401 Crestmont." Pet. at 166. Petitioner states that he "never received any calls at Douglas's house." Id. He also states that there is no mention of these telephone calls in the police reports, contrary to the assertion of the prosecutor during pretrial motions in limine that several police reports contained reference to the calls. Pet. at 165-66; RT at 21-22. Petitioner also complains that the prosecutor suppressed the telephone records of William Marquette, who testified that he, his son, and a neighbor called the Douglas residence several times during the course of petitioner's arrest, asking for Bud and attempting to locate Marquette's wife. Pet. at 166; RT at 331-32. Petitioner argues that Marquette's telephone records "conflict with" the testimony of the arresting police officers because they establish that at least four of the calls were from Marquette, his son, or his neighbor, and not from people wanting to buy drugs from petitioner. Petitioner's claim appears to be that the prosecutor improperly failed to turn over discovery describing in detail the nature of the telephone calls made to the Douglas residence during his arrest, because those records would have shown that most, if not all, of those calls were from Mr. Marquette, his son, or his neighbor, and not from miscellaneous drug buyers, as argued by the prosecutor at petitioner's trial. Pet. at 135. Petitioner may also be arguing that the prosecutor falsely told the trial court that the police reports mentioned incoming calls during petitioner's arrest, when in fact the reports made no mention of the calls. //// //// As noted by the California Court of Appeal, additional testimony established that petitioner's nickname was "Bud." 14
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This claim was presented to the state courts in petitioner's applications for a writ of habeas corpus filed in the California Court of Appeal and California Supreme Court. Both of these petitions were summarily denied. Accordingly, this court will independently review the record to determine whether habeas corpus relief is available under section 2254(d). Delgado, 223 F.3d at 982. The United States Supreme Court has held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). See also Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) ("A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused"). The duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). There are three components of a Brady violation: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). See also Banks v. Dretke, 540 U.S. 668, 691 (2004); Silva v. Brown, 416 F.3d 980, 985 (9th Cir. 2005). In order to establish prejudice, petitioner must demonstrate that "`there is a reasonable probability' that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler, 527 U.S. at 289. "The question is not whether petitioner would more likely than not have received a different verdict with the evidence, but whether "in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). See also Silva, 416 F.3d at 986 ("a Brady violation is established where there `the favorable evidence could 15

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reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'") Once the materiality of the suppressed evidence is established, no further harmless error analysis is required. Kyles, 514 U.S. at 435-36; Silva, 416 F.3d at 986. Petitioner is not entitled to relief on these claims. First, there is no evidence that a detailed printout of Douglas' phone records during the relevant period would have provided any evidence favorable to the defense. Petitioner's unsupported speculation to the contrary is insufficient to establish prejudice. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Second, Mr. Marquette testified at petitioner's trial that he, his son, and a neighbor called the Douglas residence during the time of petitioner's arrest and asked for "Bud," in an attempt to locate Marquette's wife. The jury was therefore alerted to the possibility that a fair number of these calls could have come from Mr. Marquette for an innocent purpose. Assuming arguendo that telephone records would have confirmed Marquette's testimony, cumulative evidence of these calls would not have had a substantial affect on the verdict.5 Finally, although Officer Hunt testified that he answered several phone calls at the Douglas residence from people asking for "Bud," he confirmed that he did not mention this in his report. RT at 324, 327-28. Through this testimony, the jury was made aware that Officer Hunt's police report did not confirm his trial testimony. Under these circumstances, the prosecutor's failure, if any, to clarify that some of the police reports did not mention the incoming telephone //// The prosecutor attempted to impeach Mr. Marquette's testimony by getting him to estimate that most of his phone calls took place prior to the arrival of the arresting police officers. RT at 331-35. Petitioner faults the prosecutor and his trial counsel for failing to introduce Marquette's phone records, which suggest that the calls were made during the time the police were at the Douglas residence. This court concludes that any misconduct is harmless. Police officers testified that they received more calls asking for "Bud" than the total number of calls estimated by Mr. Marquette. Further, the confusing and conflicting evidence of the phone calls constituted a relatively minor part of the evidence against petitioner. 16
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calls to the Douglas residence did not "put the whole case in such a different light as to undermine confidence in the verdict." Silva, 416 F.3d at 986.6 In sum, petitioner has failed to show that the prosecutor failed to disclose evidence that was favorable to the defense, or that any error in this regard resulted in prejudice. Accordingly, petitioner is not entitled to relief on these claims. b. Knowing Use of False Testimony Petitioner claims that the prosecutor knowingly presented false testimony and false evidence, and otherwise committed prosecutorial misconduct. Pet. at 122-58; Traverse at 65152. Petitioner's claims comprise well over 100 pages of handwritten allegations and are somewhat difficult to decipher. However, after setting forth the applicable legal principles, the court will address each decipherable and cognizable claim below. I. Applicable Law A criminal defendant's due process rights are violated when a prosecutor's misconduct renders a trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986). However, such misconduct does not, per se, violate a petitioner's constitutional rights. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (citing Darden, 477 U.S. at 181, and Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987)). Claims of prosecutorial misconduct are reviewed "'on the merits, examining the entire proceedings to determine whether the prosecutor's [actions] so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation omitted). See also Greer v. Miller, 483 U.S. 756, 765 (1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Turner v Calderon, 281 F.3d 851, 868 (9th Cir. 2002). Relief on such claims is limited to cases in which the petitioner can establish that prosecutorial misconduct resulted in actual prejudice. Johnson, 63 F.3d at 930 (citing Brecht, 507 U.S. at 637-38); see also Darden, 477 U.S. at 181-83; Turner, Officer Ortiz apparently noted in his report that Officer Hunt had "picked up the phone several times." RT at 328. 17
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281 F.3d at 868. Put another way, prosecutorial misconduct violates due process when it has a substantial and injurious effect or influence in determining the jury's verdict. See OrtizSandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Finally, it is the petitioner's burden to state facts that point to a real possibility of constitutional error in this regard. See O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). It is clearly established that "a conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury's verdict." United States v. Bagley, 473 U.S. 667, 680 n.9 (1985). See also Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) ("The due process requirement voids a conviction where the false evidence is `known to be such by representatives of the State.'") (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). This rule applies even where the false testimony goes only to the credibility of the witness. Napue, 360 U.S. at 269; Mancuso v Olivarez, 292 F. 3d 939, 957 (9th Cir. 2002). There are three components to establishing a claim for relief based on the prosecutor's introduction of perjured testimony at trial. Specifically, the petitioner must establish that: (1) the testimony or evidence was actually false; (2) the prosecutor knew or should have known that the testimony or evidence was actually false; and (3) the false testimony or evidence was material. Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010). Mere speculation regarding these factors is insufficient to meet petitioner's burden. United States v. Aichele, 941 F.2d 761, 766 (9th Cir. 1991). ii. Sheila Williams and Officer Screeton The trial testimony regarding the involvement of Sheila Williams in the events surrounding petitioner's arrest was summarized by the California Court of Appeal as follows: As the officers searched the premises, three individuals arrived at the residence. One of the arrivals, upon entering the house, possessed a bag containing methamphetamine residue. She admitted purchasing the methamphetamine from defendant earlier that day and that she had returned to purchase more. She identified defendant as "Bud." 18

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Opinion at 3. Petitioner directs the court's attention to a portion of Ms. Williams' testimony wherein she stated she was not present at the Douglas residence after petitioner's arrest when "persons were digging in the back yard." Pet. at 122; RT at 115. However, another prosecution witness, Officer Screeton, testified that after petitioner's arrest he saw Sheila Williams and she made a statement "with regard to digging in the back yard" at the Douglas residence. Pet. at 122-23; RT at 148-49. Petitioner argues this evidence unfairly implied that he had buried drugs in the back yard of the Douglas residence. He notes that his 1997 arrest involved similar allegations that he had buried drugs and cash behind his motel room. Sheila Williams also testified that at the time of petitioner's arrest Officer Screeton threatened to take her children away if she didn't answer his questions; Officer Screeton denied making this threat. Pet. at 124; RT at 121, 148. Petitioner alleges that "one of the prosecution's witnesses is lying." Pet. at 123. Petitioner faults the prosecutor and his trial counsel for failing to "sort out which witness was lying." Id. Petitioner also notes the prosecutor stated during her closing argument that Sheila Williams' testimony that Officer Screeton threatened to take her children was "absolutely false." Pet. at 125; RT at 360. He believes this provides evidence that the prosecution used knowingly false testimony at his trial. The prosecutor's statement during closing argument that Sheila Williams' accusation against Officer Screeton was false in no way supports petitioner's claim that the prosecution knowingly relied on false testimony. To the contrary, the prosecutor went to some length to point out and reject the falsity of that claim. But this does not mean that the details of William's testimony that related to petitioners conduct was false. Indeed, as discussed, those details had independent corroboration. There is no support for petitioner's claim that the prosecutor presented perjured testimony. Petitioner points out other relatively minor discrepancies between the testimony of Sheila Williams and other parts of the trial record, such as whether Williams went to the Douglas residence to pay for drugs she had already purchased, or whether she went there to pay for 19

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additional drugs. See Pet. at 125-26. Petitioner also points to evidence that, in his view, casts doubt on the testimony of Sheila Williams and Officer Screeton. Id. at 126-29, 130. For instance, petitioner attaches letters written by Sheila Williams to petitioner, in which Williams states that Officer Screeton threatened to take her children if she didn't cooperate. Pet. at 131-33 & Ex. B. The letters also indicate that Sheila Williams came to the Douglas residence to get some oriental rugs from petitioner, and not to purchase drugs. Although Ms. Williams denied on the witness stand that her assertion about the rugs was true, petitioner faults the prosecutor, and his trial counsel, for failing to place those letters before the jury. Traverse at 127, 129. Petitioner also faults his trial counsel for failing to ensure that the jury knew Sheila Williams had been convicted of a misdemeanor. Id. at 133. Petitioner has failed to demonstrate prejudice with respect to these claims. The main thrust of Ms. Williams' testimony was that she had purchased methamphetamine from petitioner on the day of his arrest and that she came to the Douglas residence while his arrest was ongoing to purchase additional methamphetamine. Conflicting or confusing testimony about the collateral issue of whether Williams saw people digging in Douglas's back yard would not have had a substantial or injurious effect on the verdict, especially since no buried drugs were found at the Douglas residence or during petitioner's arrest in 1997. Sheila Williams testified on cross-examination that she had been convicted of a felony and that she had "done all [her] time on everything." RT at 116, 122. In light of this testimony, the failure of the prosecutor or petitioner's counsel to provide evidence of Williams' misdemeanor convictions, if any, was harmless. Williams also testified on cross-examination that Officer Screeton threatened to take away her children if she didn't cooperate with him. Id. at 121. The jury was therefore able to judge her credibility and determine whether her testimony was based on these threats, if any, or was truthful. The fact that Officer Screeton denied making this threat, therefore contradicting the testimony of Williams on this point, could not have had a significant effect on the verdict. 20

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Williams testified that when she was in jail, petitioner wrote her letters in which he suggested to her that the reason she went to the Douglas residence on the date of petitioner's arrest was to purchase an oriental rug. Id. at 115. However, she testified at petitioner's trial that this was not true, and that she was "scared." Id. at 114, 115. The letters, in which she stated that she came to the residence to purchase a rug, were discussed during petitioner's trial but were apparently not introduced into evidence or read to the jury. Petitioner believes this situation evidences a conspiracy between his counsel and the prosecutor to withhold information that cast doubt on the credibility of Williams' testimony that she came to the Douglas residence to purchase drugs from petitioner. Sheila Williams testified at trial that she purchased methamphetamine from petitioner at the Douglas residence, and denied that she came to the residence to purchase a rug. She also testified that petitioner told her to testify to "a different purpose for being at that house on March 2nd than what the true purpose of what you were there on March 2nd for;" specifically, "for oriental rug." Id. at 115. At a later point in her testimony, however, Williams denied that her letters mentioning the rug were written after petitioner wrote to her suggesting that this was her motive for coming to the Douglas residence. Id. at 122. Petitioner argues this undercuts the prosecutor's theory that petitioner tried to influence Williams' testimony. In light of the fairly comprehensive discussion of these letters at petitioner's trial, admission into evidence of the actual letters would not have had a significant impact on Williams' testimony that she came to the Douglas residence to purchase methamphetamine. Accordingly, no person committed prejudicial error in failing to ensure that the letters were admitted into evidence. For the foregoing reasons, petitioner is not entitled to relief on his claim that the prosecutor committed misconduct in connection with the trial testimony of Sheila Williams. iii. William Marquette and Investigator Troy Kenney Petitioner argues that defense witness William Marquette was "secretly `turned' as a state's witness" and that prosecution investigator Troy Kenney gave false and misleading 21

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testimony on the witness stand, which was "elicited by the prosecution." Pet. at 134. Petitioner first notes that the trial court ruled the testimony of Mr. Marquette would be limited to the subject of his telephone calls to the Douglas residence, described above. Id. at 134; RT at 300. Petitioner argues that the prosecutor violated this ruling and acted in bad faith during the crossexamination of Mr. Marquette when she unfairly tried to pin Marquette down on the exact timing and number of phone calls made to the Douglas residence, and got him to agree that he made his calls prior to the time that arresting officers Hunt and Screeton arrived at the residence. Pet. at 41;138-40. Petitioner states that telephone records would have confirmed Marquette called the residence while Officers Hunt and Screeton were there, contrary to Marquette's estimate on the witness stand that placed his calls prior to the time the officers arrived. Petitioner states that Marquette's testimony regarding the timing and number of phone calls to the Douglas residence changed between the time petitioner talked to him prior to trial and the date of his testimony. Id. at 148. Petitioner questions why Marquette had a clearer memory of the timing of the telephone calls prior to trial, but had "a convenient memory laps[e]" at the time of his testimony. Id. at 141; Traverse at 94. He states, "it was obvious that something was going on when his testimony changed." Pet. at 148. Petitioner questions whether Mr. Marquette was "offered something for his testimony." Traverse at 102. Petitioner also objects to the prosecutor's "bad faith" in asking Mr. Marquette whether he was under the influence of methamphetamine while he was on the witness stand, arguing that this question was "highly prejudicial" and violated the trial court's ruling limiting the subject matter of Marquette's testimony to the telephone calls. Id. at 70-71. Petitioner also points out differences between the report written by prosecution investigator Kenney about his interview with Mr. Marquette concerning Marquette's telephone calls to the Douglas residence, Pet., Ex. D, and Marquette's trial testimony, in an attempt to demonstrate that Kenney's report was inaccurate and Marquette's testimony about the timing of the telephone calls was either false or manipulated by the prosecutor. Pet. at 142-50; Traverse at 22

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65. Petitioner argues that Kenney's report was "pattently crafted/creatively written, designed to mis-lead, and to make [William Marquette] out to be a liar." Traverse at 65. Petitioner appears, in part, to be challenging that portion of the report which characterizes the Douglas residence as "Bud and Mike's house," when it was not petitioner's residence at all. Id. at 65-67. Petitioner summarizes this part of his argument as follows: 1.) Troy Kenney interviews the subject a William Marquette; 2.) Troy Kenney does not record the interview; 3) the subject William Marquette does not see the report; 4.) the subject Marquette assumes the report will reflect his answers correctly; 5.) Marquette never sees or reads the report; 6.) Marquette does not sign the report under the penalty of perjury; 7.) Marquette's answers are altered to help the People's Theory; 8.) Marquette then is made out to be a liar; 9.) D.A. investigator Troy Kenney is called as a prosecution rebuttal witness, and restates the altered answers under oath. Traverse at 65-66. Petitioner alleges that the prosecutor and Mr. Kenney had a "pattently [sic] crafted scheme" to manipulate the facts to make it appear that petitioner was selling narcotics from Douglas's home, with part of that scheme being false testimony that numerous people called the Douglas residence asking for petitioner. Id. at 68. Petitioner argues that the prosecutor manipulated the testimony of investigator Kenney to make it appear as though petitioner lived at and sold drugs from the Douglas home, when that was not true. Pet. at 14647. Petitioner has failed to demonstrate prejudice with respect to these claims. First, Mr. Marquette testified on cross-examination that he was not certain of the time of his calls because it had been six months since the calls were placed. RT at 341. Even assuming that some of the calls to the Douglas residence were from Mr. Marquette, petitioner has failed to show that these were the only calls made to the residence. The officers testified that they fielded at least six calls asking for "Bud." Mr. Marquette testified that he made approximately three or four calls. Further, there was substantial evidence apart from the telephone calls, described by the California Court of Appeal in its opinion, which supported the prosecutor's theory that petitioner 23

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was selling narcotics from Douglas's residence. Under the circumstances of this case, the prosecutor's questions about the timing of the Marquette calls could not have had a substantial and injurious effect or influence on the verdict. There is also no evidence that Mr. Kenney and the prosecutor, or any other person, were involved in a conspiracy to introduce false testimony. This court also concludes that it was not misconduct for the prosecutor to ask Mr. Marquette whether he was under the influence of methamphetamine at the time of his testimony. Mr. Marquette denied that he was under the influence and there was no further evidence on this subject. Even assuming this question was improper, it was harmless. iv. Officers Hunt and Screeton Petitioner claims Officers Hunt and Screeton testified falsely that during petitioner's arrest they received numerous phone calls from people asking for "Bud," and stating they wanted to pick up something. Pet. at 135-37. He believes all of these calls were from Mr. Marquette, Marquette's son, or his neighbor. As described above, petitioner notes that the police reports written by these officers did not mention the telephone calls. Petitioner has failed to demonstrate that the officers' testimony was false or that the prosecutor knew it was false. Further, even assuming arguendo most of the calls were from Mr. Marquette, Marquette testified that he asked for "Bud" each time he called, thereby supporting the officers' testimony in this regard. RT at 332. For these reasons, petitioner is not entitled to relief on this claim. v. Miscellaneous Claims of Prosecutorial Misconduct Petitioner challenges "the continued effort to circumstantially prove petitioner was living at Douglas's." Pet. at 149. Petitioner points to numerous perceived discrepancies between trial testimony, police reports, petitioner's personal knowledge, and other sources of information in an attempt to show that all of the testimony tending to show he was residing and selling drugs from the Douglas residence was untrue. Petitioner faults his trial counsel and the prosecutor for failing to introduce evidence showing that petitioner actually lived in Del Paso Heights with his 24

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girlfriend. Id. at 149-50. Indeed, petitioner challenges nearly every question asked of the relevant witnesses and nearly every ruling made by the trial judge. Many of petitioner's claims fail to pinpoint any testimony that was actually false. Rather, the claims question the believability of some of the testimony, challenge the trial court for allowing the introduction of certain evidence, or complain about the performance of petitioner's trial counsel. Petitioner also attempts to explain why some of the damaging trial evidence actually had an innocent explanation. Traverse at 145-50. Petitioner makes several other miscellaneous arguments about the testimony of trial witnesses and/or evidence. For instance, he highlights differences between the testimony of various witnesses as to whether the vehicle of one of the persons who came to the Douglas residence during petitioner's arrest (Mr. Greenfield) was parked in front of Douglas's house or in the back of the house. Pet. at 150-52. He argues that the prosecutor was trying to make it appear this person was "sneaking up to the residence to make sure the coast was clear." Id. at 151. Petitioner challenges the testimony of Officer Ortiz to the effect that petitioner admitted ownership of several boxes found in the Douglas residence. Id. at 152-53. Petitioner claims Ortiz was "confused as to Petitioner and Douglas's identity." Id. at 153. Petitioner claims that testimony about the search of the Douglas residence for narcotics did not make logical sense in several respects and was therefore "so suspect and ridiculous . . . to put it to a jury would be insulting their intelligence." Id. at 154-58. Petitioner claims that Officer Jeter testified falsely that the police officers announced their presence when he was arrested in 1997 and waited a period of time before entering the residence, when in fact they rammed the door and rushed in, knocking one of the inhabitants to the ground. Traverse at 116. Petitioner has failed to establish that any of this testimony was actually false or that the prosecutor knew it was false. He has also failed to establish prejudice with respect to any of these claims. After a review of the record, this court concludes that petitioner has failed to demonstrate the prosecutor elicited knowingly false testimony or that she committed prosecutorial 25

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misconduct in any other respect. Petitioner has also failed to demonstrate that any alleged misconduct by the prosecutor had a substantial and injurious effect or influence in determining the jury's verdict. He has also failed to establish that any allegedly false testimony would have effected the verdict in this case. Accordingly, petitioner is not entitled to relief on these claims.7 4. Conviction of Both a Greater and a Lesser Included Offense for the Same Crime Petitioner claims that his "conviction of possession of more than an ounce of marijuana in count five was barred as a lesser included offense of the possession for sale of marijuana in count three." Pet. at 159. Petitioner notes that the prosecutor agreed both counts involved the same quantity of marijuana, and he argues that "both conviction based on the same quantity of marijuana is a unreasonable application of State and Federal Law." Id. at 161. Petitioner also argues that the trial court erred in refusing to instruct the jury that Count Five was a lesser included offense of Count Three. Id. The California Court of Appeal rejected these arguments, reasoning as follows: Defendant argues his conviction for possession of more than 28.5 grams of marijuana (count five) is precluded as a lesser included offense of his conviction for possession of marijuana for sale (count three). The trial court concluded the charges in question were based on the same quantity of marijuana but declined an instruction that count five was a lesser included offense of count three. The court concluded defendant could be convicted of both offenses, but sentencing on both was barred by Penal Code section 654. The jury convicted defendant of both possession for sale and possession of marijuana in counts three and five. The court sentenced defendant to a consecutive sentence of 25 years to life for count three and a concurrent term of six months for count five. //// The traverse also contains several allegations that are not contained in the petition. These allegations will not be specifically addressed by the court. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (a traverse is not the proper pleading to raise additional grounds for relief). 26
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Defendant argues this sentence was improper since possession of more than an ounce of marijuana is a lesser included offense of possession for sale. Defendant misconstrues the facts in this case. "The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense." (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal.Rptr.2d 489, 968 P.2d 48.) Here, the jury convicted defendant of possession of marijuana for sale and possession of more than 28.5 grams of marijuana. Unlike the crime of possession of more than 28.5 grams of marijuana, the crime of possession of marijuana for sale can be established by possession of less than 28.5 grams of marijuana. Therefore, since the crime of possession of marijuana for sale may be committed without necessarily committing the crime of possession of more than 28.5 grams of marijuana, the latter is not a lesser included offense of the former.8 However, although we find the convictions for possession of more than 28.5 grams of marijuana and possession of marijuana for sale appropriate, we find Penal Code section 654 prohibits concurrent sentences for both convictions. Penal Code section 654 states, in part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." Here, the police search uncovered two bags of marijuana containing a total of approximately 125 grams. The court sentenced defendant to a consecutive term of 25 years to life for possession of marijuana for sale and a concurrent term of six months for possession of the same 28.5 grams of marijuana. Under Penal Code section 654, the latter term should be stayed. Opinion at 9-11. //// Defendant argues the prosecution conceded defendant's convictions on counts three and five were based upon possession of the same quantity of marijuana and therefore convictions on both counts were prohibited. Defendant relies on People v. Saldana (1984) 157 Cal.App.3d 443, 453-458, 204 Cal.Rptr. 465 (Saldana). In Saldana, the defendant was charged with possession of heroin for sale (Health & Saf.Code, § 11351), and the court failed to instruct on the lesser included offense of simple possession of heroin. The appellate court reversed, finding a lesser included instruction warranted where the charged offense cannot be committed without necessarily committing another offense. (Saldana, supra, 157 Cal.App.3d at p. 454, 204 Cal.Rptr. 465.) As discussed above, that is not true in the present case. 27
8

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Petitioner's claims regarding his conviction on Counts Five and Three were denied by the California Court of Appeal on state law grounds in a thorough and reasoned opinion. The state court's decision that petitioner's conviction on both counts did not violate state law or the state constitution, derived from its analysis of state law, is binding on this court. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law . . . ."). See also Rivera v. Illinois, ___ U.S. ___, 129 S. Ct. 1446, 1454 (2009) ("[A] mere error of state law . . . is not a denial of due process") (quoting Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982) and Estelle v. McGuire, 502 U.S. 62, 67, 72-73 (1991)); Wad