Killian v. Hedgpeth

Filing 33

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus filed by Ross R. Killian, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 7/19/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 7/19/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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For the Northern DistrictDistrict of California
For the Northern of California

United States District Court
United States District Court

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No. C 12-0706 PJH (PR)

ROSS R. KILLIAN,

ORDER DENYING PETITION
FOR WRIT OF HABEAS
CORPUS AND GRANTING
CERTIFICATE OF
APPEALABILITY

Petitioner,
vs.
ANTHONY HEDGPETH,
Respondent.
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This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C.

15 § 2254. The court ordered respondent to show cause why the writ should not be granted.
16 Respondent filed an answer and a memorandum of points and authorities in support of it,
17 and lodged exhibits with the court. Petitioner responded with a traverse. For the reasons
18 set out below, the petition is denied.
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BACKGROUND
On October 23, 2009, a Monterey County jury convicted petitioner of possession of

21 ammunition (Cal. Penal Code § 12316(b)(1)); possession of a destructive device (Cal. Penal
22 Code § 12303); possession of controlled substance paraphernalia (Cal. Health & Safety
23 Code § 11364(a)); and possession of fireworks in an unincorporated part of Monterey
24 County (Monterey County Code §10.68.020); with one strike prior conviction (Cal. Penal
25 Code § 1170.12). Clerk’s Transcript (“CT”) 6-9, 69. On January 29, 2010, the trial court
26 sentenced petitioner to four years in prison. Id. at 106-07, 109-10.
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On April 25, 2011, the California Court of Appeal, in an unpublished decision,

28 reversed the judgment as to the fireworks count, and remanded to the trial court for re-

1 sentencing. Lodged Documents, Ex. E. On the same date, the California Court of Appeal
2 summarily denied the habeas petition petitioner had filed in that court. Exs. E at 1, F. On
3 August 17, 2011, the California Supreme Court denied review of the habeas denial. Ex. G.
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FACTS

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The following facts are taken from a suppression hearing after petitioner filed a

6 motion to suppress the evidence found during the search of petitioner’s home prior to his
7 arrest.
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The Prosecution Evidence

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The evidence presented at the motion to suppress hearing established that at

11 residence in Aromas to investigate a “verbal domestic disturbance.” Reporter’s Transcript
For the Northern District of California

United States District Court

10 5:20 p.m. on July 17, 2009, Monterey County Sheriff’s deputies went to petitioner’s

12 (“RT”) at 6-7. When the deputies arrived, Deputy Cameron Vondollen contacted petitioner,
13 who was standing in front of the house. Id. at 7-8. It appeared to Deputy Vondollen that the
14 disturbance had been resolved because “[t]here was no argument at the time.” Id. at 15.
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The sheriff’s department had “a couple of previous enforcement contacts” with

16 petitioner, testified Sergeant David Murray, who was also present at the scene. Id. at 20.
17 “There was everything ranging from a peace disturbance between himself and his tenants in
18 a separate residence on that property. There were prior domestics. And PG&E wanted to
19 . . . disconnect the power, because apparently someone at that house had an illegal hookup
20 into the power line.” Id. at 20-21.
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The deputies checked to determine whether petitioner had any active warrants as

22 they were responding to the address. Id. at 21. When they arrived on scene, the warrant
23 division of the sheriff’s department informed Sergeant Irons that petitioner was on probation
24 in Alameda County for driving under the influence and was subject to a search and seizure
25 condition. Id. at 22. Sergeant Irons related this information to Sergeant Murray, who “was
26 standing right next to” Sergeant Irons. Id. at 23.
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Sergeant Murray explained the process by which information is retrieved:

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[The warrants division will] run through CLETS and CJIS system, which is our local
system, his name, see if there’s any matches for any warrants, probation, or parole.
They’ll also call the county that may be involved, such as Alameda or Santa Cruz
County. They’ll call their warrants division, and we will provide them the name,
search their records, and they’ll confirm whether or not they were on parole or
probation, or whether or not there are any warrants. The[y] will actually pull the hard
copies, or bring it up in their database, and confirm [i]t that way in any and all terms.

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6 RT at 21-22.
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The hard copy of the order placing petitioner on probation reflected that the search

8 and seizure condition did not apply to his residence. Id. at 27. However, the warrants
9 division had told Sergeant Irons that the search condition included petitioner’s residence.

11 Sergeant Murray, who received information from the warrants division “thousands of times,”
For the Northern District of California

United States District Court

10 Id. The deputies did not have a copy of the hard copy at the time of the search. Id. at 25.

12 could not recall ever having received incorrect information regarding search and seizure
13 terms from the warrants division. Id. at 25-26.
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The deputies decided to perform a probation compliance check on the residence. Id.

15 at 11. “Because of his previous history with law enforcement,” petitioner was placed in the
16 rear of Deputy Vondollen’s vehicle for “officer safety purposes.” Id. at 8. Kelly Greene
17 came to the front of the residence and represented that she was petitioner’s wife. Id. She
18 told the deputies that while she was packing to move out of the house, she and petitioner
19 argued loudly. Id. at 9. Petitioner followed her around the house, at one point throwing one
20 of her bags across the bedroom. Id. She attempted to contact police, but petitioner would
21 not let her use his cell phone, the only phone in the house, and her attempt to use a
22 neighbor’s phone was unsuccessful. Id.
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Although the deputies had confirmed that petitioner had a search and seizure

24 condition, they asked for, and received, permission from Greene to search the house. Id.
25 at 10. The deputies recovered “flashbang” explosive devices, live shotgun and rifle
26 cartridges, a methamphetamine pipe, and marijuana. Id. at 13-15.
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Defense Evidence

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Kelly Greene testified that she “[did not] remember giving [the deputies] permission [to

3 search the house].” Id. at 33.
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The Court’s Ruling
Rejecting Greene’s testimony, the trial court found that the deputies requested

6 her permission to search the house “and that Greene did in fact give the officers consent.”
7 Id. at 36. Her consent was valid, the court also found, because “she was a resident of that
8 particular location [who] was packing and moving out.” Id.
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In light of the ruling that Greene validly consented to the search, the court did not

11 petitioner’s probationary status. Id. at 35.
For the Northern District of California

United States District Court

10 reach the issue whether the official channels doctrine justified the search based on

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Petitioner’s Factual Allegations

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In state court, in addition to the evidence presented at the motion to suppress hearing,

14 petitioner alleged that prior to the arrival of the deputies, he had called 911 to request a civil
15 standby to supervise his wife’s departure from the home. Ex. F, Petitioner Exhibit (“Pet’r
16 Ex.”) C. He was holding his infant son in his arms when he went outside to meet the
17 officers. Ex. F, Pet’r Ex. C. Two deputies were on the porch; four others were nearby.
18 Ex. F, Pet’r Ex. C. Four patrol cars were in his driveway. Ex. F, Pet’r Ex. C. Petitioner
19 cooperated with the deputies, speaking to them in a calm voice. Ex. F, Pet’r Ex. G. The
20 deputies handcuffed petitioner and placed him in a patrol car in the driveway. Ex. F, Pet’r
21 Ex. C.
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In his federal habeas petition, petitioner argued that he told officers that they were

23 making a mistake when they informed him that they were doing a probation compliance
24 check; he had not included this argument in his state claim. Petition for a Writ of Habeas
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Corpus (“Hab. Pet.”) at 4. In his traverse, petitioner took the position that he was not

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1 aware that the officers were doing a probation compliance search. Traverse at 4.1
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In his incident report, Deputy Vondollen stated Sergeant Murray told him that

3 petitioner had a history of assaulting police officers. RT at 20-21. Sergeant Murray did not
4 refer to any assaultive conduct on police officers in his testimony. Id.
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STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on

7 the basis of a claim that was reviewed on the merits in state court unless the state court's
8 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an
9 unreasonable application of, clearly established Federal law, as determined by the

11 unreasonable determination of the facts in light of the evidence presented in the State court
For the Northern District of California

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

12 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to
13 mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000),
14 while the second prong applies to decisions based on factual determinations. Miller-El v.
15 Cockrell, 537 U.S. 322, 340 (2003).
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A state court decision is “contrary to” Supreme Court authority, that is, falls under the

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first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the state court decides a case

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differently than [the Supreme] Court has on a set of materially indistinguishable facts.”

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Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application

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of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly

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identifies the governing legal principle from the Supreme Court’s decisions but

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“unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The

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federal court on habeas review may not issue the writ “simply because that court concludes

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in its independent judgment that the relevant state-court decision applied clearly

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Police officers never told petitioner that they were detaining him to do a probation
compliance search; Officer Vondollen stated that they were detaining him for officer safety.
RT at 8.
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1 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must
2 be “objectively unreasonable” to support granting the writ. Id. at 409.
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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

4 determination will not be overturned on factual grounds unless objectively unreasonable in
5 light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340;
6 Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
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When there is no reasoned opinion from the highest state court to consider the

8 petitioner’s claims, the court looks to the last reasoned opinion. Ylst v. Nunnemaker, 501
9 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n.2 (9th Cir. 2000).

11 for its conclusions, a federal court must conduct an independent review of the record to
For the Northern District of California

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10 However, when presented with a state court decision that is unaccompanied by a rationale

12 determine whether the state-court decision is objectively unreasonable. Delgado v. Lewis,
13 223 F.3d 976, 982 (9th Cir. 2000). This review is not a “de novo review of the constitutional
14 issue” rather, it is the only way a federal court can determine whether a state-court decision
15 is objectively unreasonable where the state court is silent. Himes v. Thompson, 336 F.3d
16 848, 853 (9th Cir. 2003). “[W]here a state court's decision is unaccompanied by an
17 explanation, the habeas petitioner's burden still must be met by showing there was no
18 reasonable basis for the state court to deny relief.” Harrington v. Richter, 131 S. Ct. 770,
19 784 (2011).
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DISCUSSION
As grounds for federal habeas relief, petitioner asserts that his counsel was

22 ineffective for failing to argue that the police could not rely on his wife’s consent to a search
23 of their residence.
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Ineffective Assistance of Counsel

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Petitioner contends that his trial counsel was ineffective for failing to argue that his

26 wife’s consent was not valid for a search of their home pursuant to Georgia v. Randolph,
27 547 U.S. 103 (2006). Hab. Pet. at 8,13.
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A claim of ineffective assistance of counsel is cognizable as a claim of denial of the

Legal Standard

3 Sixth Amendment right to counsel, which guarantees not only assistance, but effective
4 assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The
5 benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so
6 undermined the proper functioning of the adversarial process that the trial cannot be relied
7 upon as having produced a just result. Id.
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In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner

9 must establish two things. First, he must establish that counsel's performance was

11 professional norms. Strickland, 466 U.S. at 687–88. Second, he must establish that he
For the Northern District of California

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10 deficient, i.e., that it fell below an “objective standard of reasonableness” under prevailing

12 was prejudiced by counsel's deficient performance, i.e., that “there is a reasonable
13 probability that, but for counsel's unprofessional errors, the result of the proceeding would
14 have been different.” Id. at 694. A reasonable probability is a probability sufficient to
15 undermine confidence in the outcome. Id.
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The Strickland framework for analyzing ineffective assistance of counsel claims is

17 considered to be “clearly established Federal law, as determined by the Supreme Court of
18 the United States” for the purposes of 28 U.S.C. § 2254(d) analysis. Cullen v. Pinholster,
19 131 S. Ct. 1388, 1403 (2011) (quoting 28 U.S.C. § 2254(d)). A “doubly” deferential judicial
20 review is appropriate in analyzing ineffective assistance of counsel claims under § 2254.
21 See id. at 1410–11; Harrington, 131 S. Ct. at 788; Premo v. Moore, 131 S. Ct. 733, 740
22 (2011) (same). The general rule of Strickland, i.e., to review a defense counsel's
23 effectiveness with great deference, gives the state courts greater leeway in reasonably
24 applying that rule, which in turn “translates to a narrower range of decisions that are
25 objectively unreasonable under AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th
26 Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When § 2254(d)
27 applies, “the question is not whether counsel's actions were reasonable. The question is
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1 whether there is any reasonable argument that counsel satisfied Strickland's deferential
2 standard.” Harrington, 131 S. Ct. at 788.
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To demonstrate deficient performance, a petitioner is required to show that counsel

4 made errors so serious that counsel was not functioning as the “counsel” guaranteed by
5 the Sixth Amendment. See Strickland, 466 U.S. at 687.
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B.

Discussion

This claim was denied without a reasoned opinion by the state court; therefore, the

8 court must conduct an independent review of the record. Delgado, 223 F.3d at 982.
9 During the motion to suppress hearing, trial counsel did not argue that Greene's consent to

11 because trial counsel did not argue against the consent search under Randolph, he was
For the Northern District of California

United States District Court

10 search petitioner's residence was invalid. Hab. Pet. at 8, 13. Petitioner contends that

12 deprived of his Sixth Amendment right to effective counsel. 2 Id. Under the Strickland
13 standard, petitioner was not deprived of this right and the claim must be denied.
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Trial counsel’s failure to argue that Greene’s consent was invalid was not an error.

15 During the motion to suppress hearing, petitioner’s counsel argued that the search was not
16 valid because it was an improper probation search. RT at 34-35. Counsel believed that
17 the search was valid because of Greene’s consent. Pet’r Exs. E, F. “[A] third party who
18 [possesses] common authority over... the premises” is allowed to consent to a warrantless
19 search. United States v. Matlock, 415 U.S. 164, 171 (1974). Here, Greene was a resident
20 of the house and gave her consent to search the house. RT at 36.
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Petitioner does not argue that Greene was unable to consent, but rather that her

22 consent was not valid under Randolph. Hab. Pet. at 2. In Georgia v. Randolph, the
23 defendant’s “estranged wife gave police permission to search the marital residence for
24 items of drug use after the [petitioner], who was also present, had unequivocally refused to
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It is unclear whether trial counsel was aware of Randolph during the suppression
hearing. The trial court asked both petitioner's trial counsel and the district attorney whether
either one of them were aware of a "very, very recent case that has some fact patterns and
situations that are very similar to this" case. RT at 4-5. Both parties stated no. Id.
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1 give consent.” 547 U.S. 103 (2006). The Court held “that a warrantless search of a shared
2 dwelling for evidence over the express refusal of consent by a physically present resident
3 cannot be justified as reasonable as to him on the basis of consent given to the police by
4 another resident.” Id. at 120. The Court emphasized that the objecting co-inhabitant must
5 be present to object. Id. at 121. “[I]f a potential defendant with self-interest in objecting is
6 in fact at the door and objects, the co-tenants’s permission does not suffice for a
7 reasonable search, whereas the potential objector, nearby but not invited to take part in the
8 threshold colloquy, loses out.” Id.
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Here, petitioner was detained in the back of Deputy Vondollen’s patrol car when the

11 present at the threshold to object to the search. RT at 8, 10-11. With petitioner not
For the Northern District of California

United States District Court

10 deputies asked for consent to search the house from Greene and therefore, was not

12 present to object, Greene’s consent was valid absent any evidence that petitioner was
13 removed by deputies to avoid his objection to their search of his house under Randolph.
14 547 U.S. at 120-21. Nothing in the record suggests that petitioner was removed to avoid
15 an objection to the search of his house. Petitioner was removed for officer safety as he
16 had prior contacts with law enforcement and of course, and given the potential for violence
17 inherent in domestic disturbances resulting in police intervention, the need for petitioner’s
18 removal was obvious. Thus this claim must fail. See United States v. Wilburn, 473 F.3d
19 742, 745 (7th Cir. 2007) (holding that consent by co-occupant is valid while defendant is
20 outside apartment in police car); see also United States v. Shrader; 675 F.3d 300, 307 (4th
21 Cir. 2012) (holding that a defendant must be present to object to search; once validly
22 arrested, a co-occupant's consent can override defendant's previous objection).
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Moreover, the officers were aware that petitioner was on probation and were under

24 the impression (even though mistaken) that he was subject to compliance searches. RT at
25 21-22. Even though they believed they had a legal right to enter the house before
26 speaking with Greene, the deputies still asked her consent before entering the home. Id. at
27 9. Based on the record in this case, there would have been no need for the police to
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1 purposefully and, in bad faith, remove petitioner to obtain Greene’s consent, as the police
2 already believed they could legally search the house based on the mistake from the
3 warrant division. Petitioner’s conclusory allegations that police officers purposefully
4 removed him to obtain consent and circumvent Randolph fail to support his claim.
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Petitioner has therefore failed to establish that counsel’s failure to argue that Greene’s

6 consent search was not valid pursuant to Randolph, constituted deficient performance.
7 Petitioner also fails to establish prejudice as it is clear that any claim raised pursuant to
8 Randolph would have been denied for the reasons set forth above. “Failure to raise a
9 meritless argument does not constitute ineffective assistance.” Moormann v. Ryan, 628

11 1985)). Accordingly, the state court’s determination that petitioner was not denied effective
For the Northern District of California

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10 F.3d 1102, 1109-10 (9th Cir. 2010) (quoting Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir.

12 assistance of counsel was not contrary to, or an unreasonable application of, clearly
13 established federal law. 28 U.S.C. § 2254(d); Strickland, 466 U.S. at 687.
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CONCLUSION

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For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The

16 clerk shall close the file.
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APPEALABILITY

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To obtain a Certificate of Appealability, petitioner must make “a substantial showing

19 of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has
20 rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is
21 straightforward: The petitioner must demonstrate that reasonable jurists would find the
22 district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
23 McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a COA
24 to indicate which issues satisfy the COA standard. Here, the court finds that only one issue
25 presented by petitioner in his petition meets the above standard and accordingly GRANTS
26 the COA as to that issue. See generally Miller-El, 537 U.S. at 322.
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That issue is:

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(1) whether counsel was ineffective for failing to argue that the police could not rely

2 on petitioner’s wife’s consent to a search of their residence.
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Accordingly, the clerk shall forward the file, including a copy of this order, to the

4 Court of Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270
5 (9th Cir. 1997).
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IT IS SO ORDERED.

7 Dated: July 19, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

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