McDonald v. Daly

Filing 18

ORDER DENYING PETITION; Certificate of Appealability Denied. Signed by Judge William Alsup on 9/19/16. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 9/19/2016)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID MCDONALD,
Petitioner,

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For the Northern District of California

United States District Court

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No. C 15-3654 WHA (PR)
ORDER DENYING PETITION AND
DENYING CERTIFICATE OF
APPEALABILITY

v.
MICHAEL DALY,

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Respondent.
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INTRODUCTION

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Petitioner, a California probationer, filed this pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. 2254. He claims that his conviction for offering to sell a substance in lieu

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of a controlled substance violates his right to due process because it is not supported by

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sufficient evidence for a reasonable jury to find him guilty beyond a reasonable doubt.

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Respondent was ordered to answer, and he has done so. Petitioner filed a supplement to his

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petition and a traverse. All of these papers have been considered, and for the reasons discussed

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below, the petition is DENIED.

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STATEMENT
I.

PROCEDURAL BACKGROUND
In 2012, petitioner was convicted after a bench trial in Marin County Superior Court of

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offering to sell a substance in lieu of a controlled substance (Cal. Health & Saf. Code 11382),

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and he was sentenced to three years of supervised probation. He was acquitted on charges of

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possession of a precursor chemical, phenylpropanolamine, for sale to persons intending to
manufacture methamphetamine. His appeals to the California Court of Appeals and the

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California Supreme Court, in which he raised the same claim raised here, were denied.

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Thereafter, petitioner filed the instant petition.

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II.

FACTUAL BACKGROUND

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In February 2011, police officers received a report from an anonymous informant that

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petitioner was selling ephedrine, a chemical used to make methamphetamine, out of his store

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“Pleasure Principle” in Mill Valley California. Anthony Souza, an undercover agent, went to

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the store on February 28 and March 7, 2011, and bought ephedrine and phenylpropanolamine

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from petitioner. On the latter occasion, Souza asked if petitioner sold “the other stuff,” by

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which he meant methamphetamine. Petitioner said that he did, and when Souza asked for a
sample, petitioner gave him a small pinch of off-white powder from a gallon-size plastic bag.

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For the Northern District of California

United States District Court

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The sample was tested later and found to contain no methamphetamine or other controlled

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substances.

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On March 21, 2011, Souza returned to petitioner’s store and they discussed his purchase

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of a pound of the powdery substance he had sampled for $16,000, along with eight pounds of

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ephedrine for another $12,000. The next day Souza called petitioner and arranged to make the

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purchase the following day. On March 23, 2011, Souza returned to petitioner’s store.

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Petitioner put bags of substances on the counter. One of these bags contained an off-white

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powdery substance, whereas the substance in the rest of the bags was chunky or brick-like.

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Souza asked if the bag with the powder in it was “the crank,” or “the special one,” and

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petitioner answered, “that’s logical.” Souza said that it looked like the same bag from which he

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had received the sample, and petitioner answered that it was. Souza cautioned petitioner that

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there was hole in the bag and it should be double-bagged. At trial, this bag was labeled item 7.

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Souza then stated that he was satisfied, told petitioner that he was going to get the money which

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was in his car, and left the store.

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Souza indicated that there was poor lighting in the store, which made it difficult to

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distinguish the various bags containing the ephedrine and the bag purportedly containing

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methamphetamine. He testified that when he left the shop, neither he nor petitioner were

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certain whether the methamphetamine was in the store. Souza’s best guess was that item 7 was
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the bag that petitioner purported had methamphetamine.

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After Souza left the store, police officers entered the with a search warrant. They found

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item 7 behind the counter. Souza returned to the store and told the investigator that the

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powdery substance in item 7 matched the sample he had received from petitioner. The

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substance was later tested and found to contain no controlled substances. The police also seized

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additional bags of substances from around the store, five of which were tested and found to

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contain phenylpropanolamine and lidocaine. Petitioner was arrested.

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I.

STANDARD OF REVIEW
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a

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For the Northern District of California

United States District Court

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ANALYSIS

federal court may entertain a petition for writ of habeas corpus "in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in violation of

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the Constitution or laws or treaties of the United States." 28 U.S.C.§ 2254(a). The petition may

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not be granted with respect to any claim adjudicated on the merits in state court unless the state

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court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the Supreme

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Court of the United States; or (2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceeding." 28

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U.S.C. § 2254(d).

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"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a

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question of law or if the state court decides a case differently than [the] Court has on a set of

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materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

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"Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the

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state court identifies the correct governing legal principle from [the] Court's decisions but

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unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal

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habeas court may not issue the writ simply because that court concludes in its independent

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judgment that the relevant state-court decision applied clearly established federal law
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erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529

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U.S. at 411. A federal habeas court making the "unreasonable application" inquiry should ask

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whether the state court's application of clearly established federal law was "objectively

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unreasonable." Id. at 409.

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II.

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INSUFFICIENT EVIDENCE
Petitioner claims that there is insufficient evidence to support his conviction for offering

California Health and Safety Code. A state prisoner states a constitutional claim if he alleges

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that the evidence in support of his state conviction cannot be fairly characterized as sufficient to

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have led a rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443

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For the Northern District of California

to sell a substance in lieu of a controlled substance in violation of Section 11382 of the

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United States District Court

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U.S. 307, 321-24 (1979). A federal court reviewing collaterally a state court conviction does

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not determine whether it is satisfied that the evidence established guilt beyond a reasonable

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doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court "determines only

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whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational

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trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"

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Ibid. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof

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of guilt beyond a reasonable doubt, may the writ be granted. Jackson, 443 U.S. at 324. After

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AEDPA, a federal habeas court applies the standards of Jackson with an additional layer of

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deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Generally, a federal habeas

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court must ask whether the operative state court decision reflected an unreasonable application

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of Jackson to the facts of the case. Id. at 1275 (quoting 28 U.S.C. 2254(d)).

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Section 11382 provides:

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Every person who agrees, consents, or in any manner offers to unlawfully sell,
furnish, transport, administer, or give any controlled substance which is []
specified in [Section 11055(d) – including methamphetamine], to any person []
and then sells, delivers, furnishes, transports, administers, or gives, or offers, or
arranges, or negotiates to have sold, delivered, transported, furnished,
administered, or given to any person any other liquid, substance, or material in lieu
of that controlled substance shall be punished by imprisonment in the county jail
for not more than one year, or pursuant to [Section 1170 of the California Penal
Code].

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As explained by the California Court of Appeal — and not disputed here — Section

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11382 is a general intent crime and does not require a specific intent to substitute an illegal drug

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with some innocuous material. People v. McDonald, No. A136903, slip op. at 7 (Cal. Ct. App.

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May 30, 2014) (attached to Resp. Exh. D) (citing People v. Haines, 53 Cal. App. 3d 496, 498

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(1975); People v. Northern, 256 Cal.App.2d 28, 35 (1967)). “‘The section is violated if there is

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an offer of a narcotic and subsequent delivery of a nonnarcotic substance.’” Ibid. (quoting

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Northern, 256 Cal.App.2d at 35). In this context, moreover, “delivery” of an item can occur

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without transfer of possession. Ibid. (citing People v. Ernst, 48 Cal.App.3d 785, 788-92 (1975)

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(“delivery” occurred where parties negotiated sale, agreed on price, and undercover officer

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accepted sample of substance)).
The California Court of Appeal reasonably concluded that a reasonable trier of fact

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For the Northern District of California

United States District Court

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could have found beyond a reasonable doubt that petitioner offered to sell a controlled

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substance and then delivered a non-controlled substance, within the meaning of Section 11382.

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Petitioner does not dispute that he offered to sell Souza methamphetamine. There was also

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substantial evidence that petitioner gave Souza a sample of what was purported to be

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methamphetamine, that they agreed Souza would buy methamphetamine from petitioner, that

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they agreed the price would be $16,000 for one pound, and that they agreed Souza would go to

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his car and return with the money in exchange for the methamphetamine. Under California law,

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this sufficient to constitute “delivery” under Section 11382 because they negotiated a sale,

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agreed on a price, exchanged a sample, and agreed Souza would leave and come back with the

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money to complete the sale. See Ernst, 48 Cal.App.3d at 788-92.

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Petitioner argues that there was not sufficient evidence of a delivery because no specific

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bag was clearly the bag that purportedly contained methamphetamine. That does not matter

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because as long as there was an offer to sell methamphetamine (which petitioner concedes) and

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“delivery” of any bag not containing a controlled substance (of which there was sufficient

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evidence), then Section 11832 was violated under California law. In addition, there was in fact

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sufficient evidence that item 7 — i.e. the bag containing the off-white, powdery substance, had

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a hole in it, and was later double-bagged — was the bag that petitioner represented contained

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the methamphetamine. Specifically, petitioner confirmed that the substance inside that bag was
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“crank” and the “special one,” and he also confirmed that it was the bag from which he had

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previously given the sample of what he represented to be methamphetamine. There was

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sufficient evidence that petitioner “delivered” item 7 under California law, as explained above,

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and there is no dispute that the substance inside did not contain a controlled substance.

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Petitioner also argues that neither he nor Souza were certain as to which bag purportedly

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had methamphetamine, and there was a possibility that petitioner intended to tender a bag

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different than item 7. The possibility that petitioner intended to sell a bag other than item 7

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does not preclude the trier of fact from reasonably concluding otherwise, which is the

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dispositive question on federal habeas review under Jackson. Moreover, their certainty and
intentions about which bag purportedly had the methamphetamine is not relevant because the

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For the Northern District of California

United States District Court

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crime is a general intent crime that does not require a showing that petitioner specifically

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intended to replace methamphetamine with a non-controlled substance. There was sufficient

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evidence that petitioner offered methamphetamine and “delivered” a non-controlled substance,

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which is all that is required under California law for a violation of Section 11832.

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Accordingly, the state court’s denial of petitioner’s claim was neither contrary to nor an
unreasonable application of federal law.

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CONCLUSION

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For the foregoing reasons, the petition is DENIED.

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A certificate of appealability will not issue because reasonable jurists would not “find

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the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the

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United States Court of Appeals.

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The clerk shall enter judgment in favor of respondent, and close the file.

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IT IS SO ORDERED.

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Dated: September

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, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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