Robertson v. Pichon et al
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING LIMITED CERTIFICATE OF APPEALABILITY. After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus must be DENIED.A Certificate of Appealability is GRANTED as to whether the trial court's admission of his statements regarding the baton violated Edwards v. Arizona, 384 U.S. 436 (1995). However, a Certificate of Appealability is DENIED as to Petitioner's other claims. The Clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file Signed by Judge Edward J. Davila on 7/10/2015. (ecg, COURT STAFF) (Filed on 7/10/2015)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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WADE ROBERTSON,
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Petitioner,
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vs.
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ATTORNEY GENERAL KAMALA
HARRIS,
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Respondent.
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No. C 10-05027 EJD (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
GRANTING LIMITED
CERTIFICATE OF
APPEALABILITY
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Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C.
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§ 2254 challenging his state conviction from Santa Clara Superior Court. The Court
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ordered Respondent1 to show cause why the writ should not be granted. Respondent
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Petitioner originally named Judge Rise Jones Pichon as respondent.
However, the rules governing relief under 28 U.S.C. § 2254 require a person in
custody pursuant to the judgment of a state court to name the “‘state officer having
custody’” of him as the respondent. Ortiz–Sandoval v. Gomez, 81 F.3d 891, 894
(9th Cir. 1996) (quoting Rule 2(a) of the Rules Governing Habeas Corpus Cases
Under Section § 2254). This person typically is the warden of the facility in which
the petitioner is incarcerated. Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th
Cir. 1994). Here, however, petitioner was not incarcerated when he filed the
petition. He was on probation, but probably no longer is, meaning that his probation
officer probably would not be a proper respondent. That he is not incarcerated or on
probation does not moot the petition, see Spencer v. Kemna, 523 U.S. 1, 8–12
(1998) (courts may presume that a criminal conviction has continuing collateral
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has filed an answer and a memorandum of points and authorities, and has lodged
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exhibits with the court. Petitioner has responded with a traverse. For the reasons set
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forth below, the Petition for a Writ of Habeas Corpus is DENIED.
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PROCEDURAL BACKGROUND
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On May 5, 2008, Petitioner was found guilty by a jury of misdemeanor
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driving under the influence of alcohol (Cal. Veh. Code § 23152(a)) and
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misdemeanor possession of a billy (Cal. Penal Code §12020(a)(1)). The jury also
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found true an allegation that Petitioner had wilfully refused a peace officer’s request
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to submit to a chemical test (Cal. Veh. Code §§ 23577(a), 23157, 23612). (Docket
No. 9, Ex. 1 (“CT”) at 31–32 and 897–901.) On October 30, 2008, the court
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For the Northern District of California
United States District Court
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suspended imposition of sentence and placed Petitioner on probation for three years
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with conditions including a 12-day jail term. (CT at 1232.)
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On September 28, 2009, the Appellate Division of the Santa Clara County
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Superior Court affirmed the judgment in a summary two-page order. (Docket No. 9,
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Ex. 7.) On October 20, 2009, the Appellate Division of the Santa Clara County
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Superior Court denied Petitioner’s application for certification to the California
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Court of Appeal. (Id., Exs. 8 and 9.) Petitioner petitioned the Sixth District Court of
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Appeal to transfer the case to the California Court of Appeal, which was denied on
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November 13, 2009. (Id., Exs. 10 and 11.) On November 20, 2009, Petitioner filed
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a writ of habeas corpus in the California Supreme Court, which was denied on
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January 13, 2010 in a summary denial. (Id., Exs. 12 and 13.)
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Petitioner filed the instant federal habeas petition on November 5, 2010.
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consequences sufficient to avoid mootness), but it does mean that there is no
warden, jailer, or probation officer who would be a proper respondent. The Court
therefore has substituted Kamala Harris, the Attorney General, as respondent. See
Silveyra v. Moschorak, 989 F.2d 1012, 1015 n. 3 (9th Cir. 1993) (court may
substitute proper respondent sua sponte), superseded by statute on other grounds by
Campos v. I.N.S., 62 F.3d 311 (9th Cir. 1995); see also Rule 2(b), Rules Governing
Habeas Corpus Cases Under Section § 2254, 1975 advisory committee’s note (when
petitioner is not incarcerated or on probation or parole, proper respondent is the
Attorney General).
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//
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FACTUAL BACKGROUND
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Prosecution Case
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On the night of April 27, 2006, Petitioner was with his friend Tim Gray, in
Ramona Street, Palo Alto. (Jury Trial Reporter’s Transcript (“RT”)2 at 243.)
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Petitioner and Mr. Gray appeared to be celebrating a case that they had won. (RT at
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353.) Around 8:36 p.m., Petitioner opened a check at Nola’s. Over the next four
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hours, 24 shots of Patron tequila, three Red Bull and vodkas, two Gray Goose and
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juices, one pink Pantie Dropper cocktail, one soda water, one Red Bull, one cup of
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For the Northern District of California
Gray’s office which was located upstairs from Nola’s restaurant, located at 535
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United States District Court
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crab soup and a bowl of gumbo were ordered and added to Petitioner’s check. (RT
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at 272–75.) Tiffany Colon, a cocktail waitress at Nola’s, delivered the drinks to the
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office. At trial she testified that there were five people total in the office, including
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Petitioner. (RT at 228.) To her personal knowledge, all five people were drinking.
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(RT at 228.) Any drinks delivered by Colon which were paid for in cash did not
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show up on Petitioner’s check. (RT at 275.)
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At the end of the night, around 12:45 a.m. on April 28, 2006, Shiraz Qadri,
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Nola’s general manager, spoke with Petitioner. (RT at 252.) Petitioner was upset
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because he believed that change had not been returned to him. (RT at 253–54 and
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257–58.) Qadri had been under the impression that the money had been intended as
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a gratuity, but agreed to reduce Petitioner’s bill. (RT at 257–58.) Qadri testified
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that Petitioner was drunk at the time of their conversation, citing Petitioner’s dilated
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eyes, red face, and red eyes; Petitioner’s aggressive behavior; Petitioner’s verbosity
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and outlandish claims; and the smell of alcohol on Petitioner’s breath. (RT at
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257–58.) Qadri testified that he had seen drunk people previously and that
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Petitioner’s behavior corresponded with how he had seen drunk people behave. (RT
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The Reporter’s Transcript for the jury trial is located at Docket No. 9, Ex. 2,
Volumes 5–12. The citations refer to the pagination assigned by the court reporter.
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at 258–59.) Qadri offered to call Petitioner a cab, but Petitioner declined and left.
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(RT at 259.) When Qadri walked outside Nola’s, he saw Petitioner down the street
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standing in front of a white pickup with the passenger door open. (RT at 260–61.)
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Qadri flagged down Palo Alto Police Agent Ryan, who was driving by in his
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patrol car on DUI patrol. (RT at 102 and 337.) Qadri pointed out Petitioner to
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Agent Ryan, stating that Petitioner was pretty drunk and had promised to take a cab.
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(RT at 337.) Petitioner noted Agent Ryan’s presence and called out to the two
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people to look out, there was a cop. (RT at 106.)
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Approximately ten to fifteen minutes later, Agent Ryan pulled Petitioner over
as they were both driving westbound on Lytton Avenue in Palo Alto. (RT at 104.)
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For the Northern District of California
United States District Court
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Petitioner pulled into a Shell station at the corner of Lytton and Alma, immediately
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jumped out of his truck, walked back to Agent Ryan’s patrol car, and aggressively
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asked why he had been stopped. (RT at 104, 107, and 110–11.) Agent Ryan noticed
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the smell of alcohol on Petitioner’s breath and asked Petitioner if he had consumed
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any alcohol. (RT at 111.) Petitioner denied consuming any alcohol and stated that
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he was the designated driver. (RT at 111–12.)
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Agent Ryan then had Petitioner perform four field sobriety tests. (RT at 112.)
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At this time, police officers David Guy and Cole Ghilarducci were also present. (RT
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at 112.) Prior to performing the tests, Petitioner informed Agent Ryan that he had a
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bad knee from a college sports injury. (RT at 118.)
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The first field sobriety test conducted was the nystagmus gaze test. Petitioner
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was asked to stand still and focus on Agent Ryan’s finger as it moved back and forth
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in a straight line at a 15-inch distance from Petitioner’s face. (RT at 114.) In
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conducting the test, Agent Ryan noticed the phenomenon of nystagmus present in
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both of Petitioner’s eyes in that the irises of Petitioner’s eyes did not smoothly
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follow the finger, but had a jerky or skipping movement as they moved left to right.
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(RT at 115.) In 98 percent of the population, nystagmus usually indicates the
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presence of alcohol. (RT at 116.)
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The second field sobriety test conducted was the Romberg test, where
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Petitioner was asked to tilt his head back, close his eyes, and estimate when 30
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seconds had passed. (RT at 120.) Petitioner was instructed to put down his head,
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open his eyes and tell Agent Ryan to stop timing when he believed 30 seconds had
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passed. (RT at 120.) Petitioner opened his eyes after ten seconds but did not put his
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head down. (RT at 123.) His body swayed about two inches in all directions. (RT
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at 122.) Agent Ryan timed 78 seconds before Petitioner put his head down and
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opened his eyes. (RT at 121.) Petitioner never told Agent Ryan to stop timing. (RT
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at 121.)
The third field sobriety test was the one-leg balance test, where Petitioner was
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For the Northern District of California
United States District Court
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asked to lift one leg about six to eight inches off the ground, point his toe towards
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the ground, and count from 1,001 to 1,020 as follows: 1,001, 1,002, 1,003, up to
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1,020. (RT at 124.) Petitioner attempted this test three times, but each time lost his
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balance and touched his foot down after two seconds. (RT at 125.)
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The fourth field sobriety test was the line test, where Petitioner was asked to
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walk straight along a line with his hands at his sides counting aloud. (RT at 127.)
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Petitioner was asked to walk heel to toe ten steps in one direction, then turn around,
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and walk seven steps back. (RT at 127.) Petitioner took the right number of steps in
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each direction but never touched heel to toe. (RT at 128.) Petitioner had been asked
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to keep his hands parallel to his sides, but instead he held his arms out at a 45 degree
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angle for the initial ten steps, and then for the return seven steps, held his upper arms
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straight out from his shoulders with his lower arms dangling down at the elbow at a
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right angle. (RT at 128–29.) With each step, Petitioner bounced rhythmically up
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and down. (RT at 129.) In the middle of the line test, Petitioner bent down to
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remove his sandals and almost fell on his face. (RT at 129–30.)
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During the tests, Petitioner had poor coordination and terrible balance. (RT
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at 133.) Petitioner was also loud and argumentative about each test. (RT at 132.)
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He called Agent Ryan a liar before Agent Ryan explained what he was trying to do,
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and disputed everything Agent Ryan said. (RT at 132–33.)
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In Agent Ryan’s expert opinion, based upon the field sobriety tests and
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Petitioner’s demeanor, Plaintiff was clearly under the influence and had been driving
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under the influence. (RT at 132.)
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Officer Guy also testified that Petitioner did not successfully complete any of
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the field sobriety tests. (RT at 286–88.) Officer Guy smelled alcohol on Petitioner’s
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breath. (RT at 288.) He also testified that Petitioner’s behavior was typical of
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someone who was intoxicated, citing Petitioner’s voice ranging in volume from low
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to normal to loud; Petitioner’s inability to follow directions; and Petitioner’s
repeated questions and requests to repeat things. (RT at 288.) In Officer Guy’s
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For the Northern District of California
United States District Court
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expert opinion, Petitioner was clearly intoxicated. (RT at 288.)
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Officer Guy found a baton in plain view in Petitioner’s car, located on the
bench seating between the seatbelts for the driver and the passenger. (RT at 289.)
Agent Ryan arrested Petitioner and took him to the prebooking area in the
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police department. (RT at 133.) Petitioner refused to take any chemical test,
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including a breath test or a blood test. (RT at 132.) Agent Ryan provided Petitioner
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with DMV Form DS 367 which advises that a person who is lawfully arrested is
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required by law to submit to a chemical test and advises that there is no right to
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speak to an attorney in relation to Form DS 367. (RT at 135–37.) Despite reading
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the form, Petitioner repeatedly claimed that he had a right to speak with an attorney
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and requested an attorney. (RT at 136–37.) Agent Ryan again advised him that
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there was no right to speak with an attorney prior to complying with Form DS 367,
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and that Petitioner’s refusal to submit to a chemical test could be used against him in
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court. (RT at 138.) Agent Ryan further advised Plaintiff that a refusal to submit to a
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chemical test would result in either suspension of Petitioner’s driving privileges for
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one year or revocation of his driving privileges for two or three years. (RT at 138.)
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In addition, if Petitioner was convicted of driving under the influence with a blood
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alcohol level of .08 or more, the refusal to submit to a chemical test would result in a
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fine or mandatory imprisonment. (RT at 138.) Petitioner still refused to take either
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a blood test or a breath test. (RT at 139.)
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Agent Ryan read Petitioner his Miranda rights while Petitioner was at
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booking. (RT at 139–40.) Petitioner agreed to speak with Agent Ryan after being
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read his Miranda rights. (RT at 132.) At this point, Agent Ryan asked Petitioner if
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the collapsible baton found in his car belonged to him. (RT at 141.) Petitioner
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responded that the baton belonged in the car and asked if it was a misdemeanor
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under California law to possess the baton. (RT at 141–42.) The baton found in
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Petitioner’s truck is similar to the ones that are issued to the Palo Alto Police
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For the Northern District of California
United States District Court
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Department. (RT at 142.)
Petitioner was in the booking area for approximately an hour and a half,
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during which he was videotaped. (RT at 143.) Petitioner was argumentative
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virtually the entire time. (RT at 132.) He threatened to have Agent Ryan fired and
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to sue Agent Ryan. (RT at 208.) While Petitioner was in the booking area, Agent
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Ryan conducted a second series of field sobriety tests, which Petitioner again failed.
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(RT at 143.) Nystagmus was still present in Petitioner’s eyes to the same degree.
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(RT at 147.) On the Romberg test, Petitioner held his arms tightly to his sides and
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estimated 51 seconds to be 30 seconds. (RT at 144.) Petitioner tried the balance test
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twice. On his first attempt, he lost his balance after 7 or 8 seconds and used his arms
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at his sides to balance. (RT at 145.) On his second attempt, he kept his balance for
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30 seconds, but kept his heel only four inches off the ground, rather than six to eight
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inches, and he bounced a little at the end. (RT at 145.) For the line test, for the
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Petitioner missed touching heel to toe four times and tripped off the line on the third
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step. (RT at 147.) On the seven steps back, Petitioner missed touching heel to toe on
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any of the steps. (RT at 147.) In Agent Ryan’s opinion, Petitioner was still under
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the influence of alcohol. (RT at 147.)
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Alice King, a forensic toxicologist for the Santa Clara County Crime
Laboratory, testified that typical symptoms of hypoglycemia are a feeling of hunger;
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difficulty breathing; perspiration; feeling light-headed; feeling faint; and becoming
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confused. (RT at 331.) Someone suffering from hypoglycemia is generally weak
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and fatigued. (RT at 331.) Hypoglycemia only causes a fruity smell if the
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individual is also diabetic. (RT at 331–32.)
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Defense Case
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Petitioner played the entire DVD of the booking process during his opening
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statement and it was introduced into evidence. (RT at 93–95 and 348.) The video
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did not include sound. (RT at 160.)
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Amanda Grillo testified for the defense. Grillo worked as a waitress at
Nola’s on the night of April 27, 2006. (RT at 353.) She saw Petitioner that night
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For the Northern District of California
United States District Court
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upstairs in Gray’s office and downstairs in the bar area with a bunch of people. (RT
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at 353.) She did not see Petitioner consume any alcohol. (RT at 354.) Grillo
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finished working around 10:43 pm that night. (RT at 360 and 439.) Her usual
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practice was to leave Nola’s immediately after she finished her shift. (RT at 360.)
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Grillo testified that Petitioner “was in no way intoxicated at all” and that she never
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told Agent Ryan that Petitioner was intoxicated. (RT at 355.)
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On cross-examination, Grillo acknowledged that she had been unaware of
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Petitioner’s DUI arrest until she received a subpoena from Agent Ryan in mid-2007.
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(RT at 358.) Grillo agreed that she had not thought about the night of April 27,
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2006, until she received the subpoena. (RT at 365.) She stated that “[i]t was just a
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regular night. There was no reason to remember.” (RT at 365.) She agreed that she
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did not know if Petitioner was drinking the night of April 27, 2006 or on the
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morning of April 28th, 2006. (RT at 364.) Grillo stated that she met with Petitioner
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soon after receiving the subpoena. (RT at 358–59.) In September 2007, Grillo
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signed a declaration that Petitioner had prepared for her. (RT at 360–61.) She stated
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that she had read the entire declaration and it was consistent with what she
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remembered. (RT at 360.) Grillo also acknowledged that she was employed by
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Gray for awhile. (RT at 363–64.)
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On cross-examination, Colon stated that she never saw Petitioner drinking
acknowledged that Agent Ryan interviewed her on September 6, 2007, but disputed
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Agent Ryan’s police report regarding that interview. (RT at 236–37.) She stated
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that she never told Agent Ryan that Petitioner had been fairly intoxicated when she
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last saw him that evening. (RT at 239.) She stated that when Agent Ryan’s report
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was read to her for her review and approval, she was not informed that the sentence
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“Colon had been fairly intoxicated when she last saw [Petitioner] that evening” was
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in the report. (RT at 238–39.) On redirect, Colon acknowledged that the police
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report had been presented to her the week before trial, and, at that time, she had
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For the Northern District of California
alcohol and that she did not know if Petitioner was intoxicated. (RT at 235.) Colon
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United States District Court
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confirmed that the police report was pretty much accurate. (RT at 243–44.)
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On cross-examination, Qadri acknowledged that did not personally see
Petitioner consume any alcohol drinks. (RT at 279.)
A field sobriety test expert, Robert LaPier, testified that after watching the
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video of Petitioner conducting the sobriety tests in the booking area, he concluded
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that Petitioner was not impaired. (RT at 379.) LaPier testified that Petitioner’s
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performance on the Romberg test could be attributed to being a slow counter and to
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his Southern drawl, rather than to intoxication. (RT at 384–85.) LaPier also
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testified that Agent Ryan administered the line test incorrectly because there are
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supposed to be nine steps down the line, and nine steps back, and administered the
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nystagmus test incorrectly because the test requires seven passes back and forth
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across the eyes. (RT at 390 and 394–95.) LaPier stated that if a test was
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administered according to standardized instructions, the results could not be trusted.
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(RT at 388.) LaPier stated that Petitioner’s actions during the video, outside of the
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sobriety tests, did not show any signs of intoxication. (RT at 379–81 and 400–01.)
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On cross-examination, LaPier agreed that Petitioner’s fall, during the line
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test, off the line at step three had nothing to do with the number of steps he was
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supposed to take, that failing to touch heel to toe demonstrated a failure to follow
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instructions, and that holding his arms out showed a failure to follow instructions
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and a problem with balance. (RT at 402–05.) LaPier agreed that a problem with
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balance and a failure to follow instructions could be caused by being under the
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influence of alcohol as well as other causes. (RT at 403–04.) In determining
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whether a person is under the influence of alcohol, LaPier would take note of a
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person putting down his leg after two seconds each of the three times he attempted
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the balance test; of a person estimating 78 or 51 seconds as 30 seconds during the
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Romberg test; and of the smell of alcohol on a person’s breath. (RT at 405–06 and
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416–17.) He would also take note of a person’s refusal to take a breath test and find
it suspicious. (RT at 428.)
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For the Northern District of California
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Donald Criswell, a licensed private investigator, who had formerly worked a
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as a police officer for the San Jose Police Department, testified that the baton found
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in Petitioner’s car could have non-violent uses, such as checking for tire pressure
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and using as a jack handle. (RT at 431–33.)
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Petitioner told Agent Ryan that he had hypoglycemia. (RT at 189.)
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Hypoglycemia can create the overtone odor of an alcoholic beverage, and can create
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physical impairments that mimic DUI. (RT at 190.) Petitioner told Agent Ryan that
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he had not consumed alcohol that evening. (RT at 190.)
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Suppression Hearing
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Petitioner filed a pre-trial suppression motion, seeking to suppress evidence
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obtained from the vehicle stop on the grounds that he was illegally detained and
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arrested. (CT at 40–42.)
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Prosecution Case. At the hearing on the suppression motion, Agent Ryan
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testified that on April 28, 2006, at around 1:00 a.m., he was driving southbound on
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Ramona Street just before the intersection of Ramona Street and Lytton Avenue,
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when he recognized Petitioner’s truck headed in the opposite direction. (2/26/2007
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RT3 at 22.) He made a U-turn to get behind Petitioner’s truck. (2/26/2007 RT at
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22.) Agent Ryan saw Petitioner stop at the flashing red light for Lytton. (2/26/2007
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RT at 7.) Petitioner then made a left turn to go westbound onto Lytton, cutting off
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an eastbound vehicle on Lytton and forcing that vehicle to stop. (2/26/2007 at 7.)
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Upon observing a California vehicle code violation for failing to yield to traffic at a
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stop sign, Agent Ryan made a left turn onto Lytton and initiated a traffic stop at a
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gas station at the corner of Lytton and Alma. (2/26/2007 at 8.)
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William Krone, a forensics video analysis expert, analyzed several rolls of
bank film taken by security cameras at the bank at the corner of Ramona and Lytton.
(2/26/2007 RT at 23–26.) Generally, each camera took a picture every 28 to 30
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For the Northern District of California
United States District Court
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seconds. (2/26/2007 RT at 26.) However, the cameras had a motion sensing device
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which triggered multiple frames in certain situations. (2/26/2007 RT at 27.) Krone
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found nine significant photos from around 1:00 a.m. on April 28, 2006. (2/26/2007
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RT at 28.) None of these photos showed Agent Ryan’s patrol car stopped behind
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Petitioner’s truck. (2/26/2007 RT at 23–26.) Based on Krone’s measurements, if
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Agent Ryan’s car had been stopped behind Petitioner’s truck northbound on Ramona
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at Lytton, the camera would have its image. (2/26/2007 RT at 36.) Based upon
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these photos and after measuring potential speeds of vehicles and the distance
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between cars at safe speeds, Krone concluded that it was impossible that Agent
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Ryan’s car could have been stopped behind Petitioner’s truck when Petitioner was
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stopped northbound on Ramona at Lytton around 1:00 a.m. (2/26/2007 RT at 40
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and 3/6/2007 RT at 34–43.)
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Robert Lindskog, a registered engineer, reviewed the size of the vehicles, the
dimensions of the scene, and the photos which did not show two vehicles stopped
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The Court heard the suppression motion on February 26 and March 6, 2007.
The reporter’s transcript for the February 26, 2007 hearing is located at Docket No.
9, Ex. 2, Vol. 1 and referred to as “2/26/2007 RT.” The reporter’s transcript for the
March 6, 2007 hearing is located at Docket No. 9, Ex. 2, Vol. 2 and referred to as
“3/6/2007 RT.”
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behind one another. (2/26/2007 RT at 56–59.) He testified that at least the rear half
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of the patrol car would have been in one of the photos if Agent Ryan had stopped
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behind Petitioner’s truck. (2/26/2007 RT at 58.)
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Petitioner also presented the testimony of two eyewitnesses who testified that,
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contrary to Agent Ryan’s testimony, Agent Ryan’s police car was not immediately
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behind Petitioner’s truck and did not stop behind Petitioner’s truck.
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Raymond Connolly testified as follows: Connolly was with Petitioner at
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Nola’s the night of April 27, 2006, and he was not drinking alcohol that night.
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(2/26/2007 RT at 61, 68.) At about 12:55 a.m., Petitioner pulled by his car and
beeped his horn at him. (2/26/2007 RT at 67.) Petitioner pulled up to the light at
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For the Northern District of California
United States District Court
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Lytton, waited 10 to 15 seconds, and then made a left turn with no traffic around.
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(2/26/2007 RT at 65.) A minute or two later, Connolly saw a police car follow
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Petitioner’s trick. (2/26/2007 RT at 65–66 and 69–70.)
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Jerry Webb testified as follows: Around 12:55 a.m. on April 28, 2006, he was
15
near the intersection of Ramona and Lytton, smoking a cigarette (2/26/2007 RT at
16
74.) He heard a horn honk and looked towards the sound. (2/26/2007 RT at 76.)
17
He immediately recognized Petitioner’s truck and saw it pull up to the intersection
18
of Ramona and Lytton. (2/26/2007 RT at 76.) Petitioner stopped about fifteen feet
19
from the intersection and remained there for about ten seconds before he made a left
20
on Lytton. (2/26/2007 RT at 77.) About a minute later, a police car came through
21
the intersection in a hurried manner, made the same left turn, and pulled over a block
22
behind Petitioner’s vehicle. (2/26/2007 RT at 77.)
23
On rebuttal, Agent Ryan testified that he drove by the ATM camera several
24
times that night. He reviewed the photos rolls and found that the camera did not
25
capture each time he drove by the camera. (3/6/2007 RT at 21.) He found six
26
photos of a patrol car. (3/6/2007 at 8.) The image at 12:56:35 a.m. shows his car
27
going northbound on Lytton. (3/6/2007 at 10.) He then made a u-turn and turned
28
and parked southbound in front of the ATM camera. (3/6/2007 at 10.) The nose of
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12
1
his car is in the photos from 12:57:06 a.m. to 12:58:44 a.m. (3/6/2007 at 12.) While
2
Ryan was parked, he saw the door of Petitioner’s truck open but could not see who
3
was getting in the truck. (3/6/2007 at 11.)
4
5
The trial court denied the motion to suppress and found that the stop was
lawful. (3/12/07 RT at 2–3.)
6
7
DISCUSSION
A.
8
9
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. §§ 2254 et seq., prohibits a district court from granting a petition challenging
a state conviction that was decided on the merits by a state court, unless that
11
For the Northern District of California
United States District Court
10
adjudication:
12
(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
13
14
(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.
15
16
28 U.S.C. § 2254(d).
17
For purposes of § 2254(d)(1), a state court decision is “contrary to” Supreme
18
Court authority only if “the state court arrives at a conclusion opposite to that
19
reached by [the Supreme] Court on a question of law or if the state court decides a
20
case differently than [the Supreme] Court has on a set of materially indistinguishable
21
facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Similarly, a state court
22
decision is an “unreasonable application of” Supreme Court authority if “the state
23
court identifies the correct governing legal principle from [the Supreme] Court’s
24
decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
25
Id.
26
The only definitive source of clearly established federal law under AEDPA is
27
the holdings—as opposed to the dicta—of the Supreme Court as of the time of the
28
state court’s decision. See Williams, 529 U.S. 362, 412; see also Marshall v.
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13
1
Rodgers, 133 S.Ct. 1446, 1449 (2013) (“The starting point for cases subject to
2
§ 2254(d)(1) is to identify the ‘clearly established Federal law, as determined by the
3
Supreme Court of the United States, that governs the habeas petitioner’s claims.’”).
4
Section 2254(d)(1) imposes a “highly deferential standard for evaluating state-court
5
rulings,” Lindh v. Murphy, 521 U.S. 320, 333 (1997), and prohibits a federal court
6
from “substituting its own judgment for that of the state court,” Woodford v.
7
Visciotti, 123 S.Ct. 357, 360 (2002) (per curiam) (finding habeas relief improper
8
when the state court decision was “merely erroneous”).
9
The state court decision to which Section 2254(d) applies is the “last
reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797,
11
For the Northern District of California
United States District Court
10
803–04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005). In this
12
case, the order issued by the Santa Clara County Superior Court, Appellate Division
13
is the last reasoned decision. In deciding whether no reasonable basis existed for the
14
state court’s decision, the district court “must determine what arguments or theories
15
could have supported the state court’s decision; and then it must ask whether it is
16
possible fairminded jurists could disagree that those arguments or theories are
17
inconsistent with the holding in a prior decision of [the Supreme] Court.” Cullen v.
18
Pinholster, 131 S. Ct. 1388, 1402 (2011) (internal quotations and punctuation
19
omitted); see also Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (“If this
20
standard is difficult to meet—and it is—that is because it was meant to be.”).
21
The Supreme Court has vigorously and repeatedly affirmed that under
22
AEDPA, there is a heightened level of deference a federal habeas court must give to
23
state court decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam);
24
Harrington, 131 S. Ct. at 783–85 (2011); Felkner v. Jackson, 131 S. Ct. 1305 (2011)
25
(per curiam). As the Court explained: “[o]n federal habeas review, AEDPA
26
‘imposes a highly deferential standard for evaluating state-court rulings’ and
27
‘demands that state-court decisions be given the benefit of the doubt.’” Id. at 1307
28
(citation omitted). With these principles in mind regarding the standard and limited
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14
1
scope of review in which this Court may engage in federal habeas proceedings, the
2
Court addresses Petitioner’s claims.
3
B.
4
Claims and Analysis
As grounds for federal habeas relief, Petitioner raises the following claims:
5
(1) Petitioner was denied his right to present a defense by the state court’s exclusion
6
of bank surveillance photos and expert testimony analyzing the photos;
7
(2) instructional error where the trial court failed to instruct that a lawful arrest was
8
an element of the refusal enhancement and failed to define a lawful arrest;
9
(3) instructional error where trial court used the wrong definition of billy; (4)
Miranda violation when the trial court admitted statements that Petitioner made
11
For the Northern District of California
United States District Court
10
while in custody after Petitioner invoked his right to counsel; (5) prosecutorial
12
misconduct; (6) the prohibition on carrying non-concealed weapons for self-defense
13
set forth in Section 12020 of the California Penal Code violates the Second
14
Amendment; and (7) ineffective assistance of counsel for failure to object to the car
15
search.
16
1.
17
Petitioner’s first claim is that the trial court’s exclusion of bank video
18
surveillance photos and expert testimony analyzing these photos violated his right to
19
present a defense. Petitioner further argues that the appellate court’s failure to
20
address this issue was contrary to the Supreme Court’s decision in Crane v.
21
Kentucky, 476 U.S. 683 (1986).
22
Right to Present a Defense
“[T]he Constitution guarantees criminal defendants ‘a meaningful
23
opportunity to present a complete defense.’” Holmes v. South Carolina, 547 U.S.
24
319, 324 (2006) (quoting Crane, 476 U.S. at 690 (1986)). The constitutional right to
25
present a complete defense includes the right to present evidence, including the
26
testimony of witnesses. See Washington v. Texas, 388 U.S. 14, 19 (1967). But the
27
right is only implicated when the evidence the defendant seeks to admit is “relevant
28
and material, and . . . vital to the defense.” Id. at 16. Additionally, a violation of the
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15
rather only when its exclusion is “arbitrary or disproportionate to the purposes [the
3
exclusionary rule applied is] designed to serve.” Holmes, 547 U.S. at 324 (internal
4
citation and quotation marks omitted); Michigan v. Lucas, 500 U.S. 145, 151 (1991).
5
“Only rarely” has the Supreme Court held that the right to present a complete
6
defense was violated by the exclusion of defense evidence under a state rule of
7
evidence. Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (citing Holmes, 547
8
U.S. at 331 (rule did not rationally serve any discernable purpose). A violation of
9
the right to present a defense merits habeas relief only if the error was likely to have
10
had a substantial and injurious effect on the verdict. See Lunbery v. Hornbeam, 605
11
For the Northern District of California
right to present a defense does not occur any time such evidence is excluded, but
2
United States District Court
1
F.3d 754, 762 (9th Cir. 2010) (citing Brecht v. Abrahamson, 507 U.S. 619, 637–38
12
(1993)).
13
In a pre-trial suppression hearing, the parties litigated the lawfulness of the
14
stop of Petitioner’s car. During the suppression hearing, Petitioner presented
15
pictures captured from a bank security camera at the corner of Ramona and Lytton.
16
The pictures were intended to show that Agent Ryan did not have probable cause to
17
stop Petitioner. The trial court denied the motion to suppress and found that the stop
18
was lawful as follows:
19
20
21
22
23
24
25
26
The experts’ testimony was basically that the Defendant’s car and the Police
Officer’s car were too far apart and that is the reason why the two cars are not
visible together in any of the photos, which according to the expert means that
the Officer’s patrol car was not immediately behind the Defendant’s car when
approaching the intersection of Ramona and Lytton.
However, it is this Court’s opinion, based on all the evidence, this does not
discredit the Officer’s testimony. He testified that he personally observed the
illegal left turn as he came down on Ramona toward the intersection at Lytton.
The Officer testified that he observed the illegal turn and he gave a reasonable
explanation why his car may not have been visible in any of the photos with the
Defendant’s pickup.
27
I also find Mr. Connolly’s and Mr. Webb’s testimony was not believable
because of its preciseness. Both gave the exactly same time up to the minute,
two different witnesses at two different locations. That, I did not believe.
28
According to Agent Ryan, he stopped the Defendant’s car from making an
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16
1
unsafe turn in the path of an oncoming car. This testimony was not
contradicted.
2
3
4
Therefore, I find that the car stop was lawful and the Motion to Suppress is
denied.
(3/12/07 RT at 2–3.)
the suppression hearing and to admit the related expert testimony. (CT at 804.) The
7
prosecution opposed this motion, arguing that (1) this evidence did not meet the
8
requirements of section 801 of the California Evidence Code, and that (2) this
9
evidence would unduly consume time and had a high likelihood of misleading the
10
jury, in violation of section 352 of the California Evidence Code. (CT at 824–30.)
11
For the Northern District of California
Prior to trial, Petitioner moved to admit the photos that had been presented at
6
United States District Court
5
The trial court denied Petitioner’s motion to admit the evidence, stating these photos
12
had been used to contest the legality of the traffic stop, which had already been fully
13
litigated. (RT at 35.) In response, Petitioner’s counsel stated that admission of the
14
photos was not intended to re-litigate whether Agent Ryan had probable cause to
15
stop Petitioner, but rather whether Agent Ryan was telling the truth as to what
16
occurred that night. (RT at 35.) The trial court stated that if the credibility of Agent
17
Ryan came up at trial, the trial court would reconsider whether to admit the
18
evidence. (RT at 35.) Later that day, Petitioner argued that the photos were relevant
19
because they supported an argument that Agent Ryan was dishonest about why he
20
had stopped Petitioner, and that Petitioner may have refused the chemical test
21
because he believed that Agent Ryan was being dishonest. (RT at 49–54.)
22
However, Petitioner’s counsel also conceded that the violation and stop were not in
23
the camera’s range. (RT at 52.) After hearing argument on the motion, the trial
24
court denied the motion, stating that the photos showed a “little snippet of time;”
25
that the trial court did not see the relevance of that small time period to Agent
26
Ryan’s credibility; and that the probative value was substantially outweighed by the
27
undue consumption of time. (RT at 56.)
28
To the extent that this evidence was intended to attack Agent Ryan’s
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17
exclusion was neither arbitrary nor disproportionate to the purposes of Section 352
3
of the California Evidence Code. In denying the motion for a new trial, the trial
4
court estimated that admitting the evidence would turn a 4 to 5 day trial into a two
5
week trial. (CT at 1195.) The trial court also noted that the tapes and photographs
6
were not continuous, were pieced together from multiple cameras, and were
7
dependent on mathematical calculations. (CT at 1196.) Given these concerns, the
8
trial court’s exclusion of the evidence was within the scope of Section 352.
9
Moreover, exclusion of this evidence did not deny Petitioner a chance to present his
10
defense that Agent Ryan was untruthful. Petitioner was able to attack Agent Ryan’s
11
For the Northern District of California
credibility — which is what Petitioner stated at the motion in limine hearing4 — the
2
United States District Court
1
credibility in other ways. Colon and Grillo challenged the reliability of Agent
12
Ryan’s reports, testifying that they never said that Petitioner was intoxicated.
13
Petitioner also elicited from Agent Ryan an admission that the declaration that he
14
had submitted in a related federal case had been altered to delete the information
15
about Petitioner’s medical conditions that might have affected his performance on
16
the field sobriety tests. (RT at 195–97.)
17
Assuming arguendo that it was error to exclude this evidence, the exclusion
18
did not have a substantial and injurious effect on the verdict. There was ample
19
evidence outside of Agent Ryan’s testimony that supported a finding that Petitioner
20
was guilty of the charges: Qadri’s testimony regarding Petitioner’s behavior at
21
NOLA; Officer Guy’s testimony regarding Petitioner’s performance on the first set
22
of field sobriety tests and Petitioner’s behavior; the video of Petitioner at the police
23
24
25
26
27
28
4
During the hearing the Court stated: “Okay, now this [evidence] is all part of
the legality of the stop. It has been fully and — fully litigated at great length. I
know you may want to use some of it to attack the credibility of the officer. If that
comes up during the trial, we will revisit it; but at this time, it is part and was part of
your motion to suppress and will not be litigated again during the trial. And so your
motion to admit the bank video surveillance tape is denied.” (RT at 35.) Petitioner
responded: “If I may, with all respect, Your Honor. We’re not litigating —
relitigating whether or not the officer had probable cause. This is the gravamen of
the entirety of the case, whether this officer is telling the truth as to what happened.”
(RT at 35.)
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18
1
station; and Petitioner’s bar tab. Accordingly, to the extent that Petitioner argues
2
that the exclusion of the evidence pursuant to Section 352 violated his right to
3
present a defense that Agent Ryan was not credible, this claim for habeas relief is
4
denied. Holmes, 547 U.S. at 324 (violation of right to present defense occurs only
5
when its exclusion is arbitrary or disproportionate to the purposes of the
6
exclusionary rule applied).
7
Petitioner also contends that the evidence was necessary to support a defense
8
that his arrest was unlawful, and that therefore his refusal to take a chemical test was
9
not consistent with a consciousness of guilt. However, assuming arguendo that it
was error to exclude evidence that challenged the lawfulness of the arrest, the Court
11
For the Northern District of California
United States District Court
10
finds that the exclusion did not have a substantial and injurious effect on the verdict
12
because, as discussed above, there was ample evidence outside of Petitioner’s
13
refusal to take a chemical test that supported a finding that Petitioner was guilty of
14
the charges.
15
Moreover, Petitioner’s argument that evidence bearing upon the lawfulness of
16
the arrest was necessary to his defense is defective in two ways. First, Petitioner
17
presumes that the lawfulness of the arrest was an element of the implied consent law
18
that must be submitted to the jury. However, as discussed below in Section B.2
19
infra, at the time of Petitioner’s arrest, the lawfulness of the arrest was a legal issue
20
to be decided by a judge in a motion to suppress which should be heard prior to trial,
21
and was not an element to be submitted to the jury separate from the elements of
22
driving under the influence of alcohol. Second, whether Petitioner committed a
23
traffic infraction was not at issue. Petitioner argues that evidence that he did not
24
commit a traffic violation was relevant to whether he was under the influence per
25
CALCRIM 2110. However, the jury heard no evidence that Petitioner drove badly,
26
which defense counsel emphasized during closing argument. (RT at 496 and 502.)
27
The safety of Petitioner’s driving was not at issue.
28
Taking into account the heightened level of deference that a federal habeas
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19
was not objectively unreasonable. Habeas relief is warranted only if the
3
constitutional error at issue had a “‘substantial and injurious effect or influence in
4
determining the jury’s verdict.’” Penry v. Johnson, 532 U.S. 782, 795–96 (2001)
5
(quoting Brecht, 507 U.S. at 638). Whether a trial error had a substantial and
6
injurious effect is not to be analyzed in terms of burdens of proof. O’Neal v.
7
McAninch, 513 U.S. 432, 436–37 (1995); Mancuso v. Olivarez, 292 F.3d 939, 950
8
n.4 (9th Cir. 2002) (reviewing court must determine independently whether trial
9
error had substantial and injurious effect, without consideration of burdens of proof).
10
Instead, the proper question in assessing harm in a habeas case is, “‘Do I, the judge,
11
For the Northern District of California
court must given to state court decision, the Court finds that the state court’s ruling
2
United States District Court
1
think that the error substantially influenced the jury’s decision?’” O’Neal, 513 U.S.
12
at 436. If the court is convinced that the error did not influence the jury, or had but
13
very slight effect, the verdict and the judgment should stand. Id. at 437. Here, the
14
evidence which Petitioner sought to introduce would not have affected the jury’s
15
decision. Petitioner alleged that the photos would have established that Agent
16
Ryan’s patrol car was not stopped behind Petitioner’s truck and that Agent Ryan did
17
not see Petitioner make an illegal left turn. However, there was no testimony
18
regarding an illegal left turn or unsafe driving and there was substantial evidence
19
supporting a finding that Petitioner was intoxicated, as discussed above. The jury’s
20
decision would not have been affected by evidence regarding whether Petitioner
21
made an illegal left turn.
22
Nor was the state court’s rejection of this claim contrary to the Supreme
23
Court’s decision in Crane v. Kentucky, 476 U.S. 683 (1986). In Crane, the Supreme
24
Court held that the petitioner had been denied his right to present a complete defense
25
when the trial court excluded competent, reliable evidence bearing on the credibility
26
of a confession that was central to the defendant’s claim of innocence. 476 U.S. at
27
690. In Crane, the prosecution’s case rested almost entirely on the petitioner’s
28
confession and the statement of his uncle. Id. at 685. Also, the trial court failed to
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20
1
“advance[] any reasonable justification for the wholesale exclusion of this body of
2
potentially exculpatory evidence.” Id. at 688. In contrast, here, there were three
3
different witnesses and other evidence that supported a finding that Petitioner was
4
intoxicated, and the trial court excluded the evidence after finding that the probative
5
value was substantially outweighed by the undue consumption of time.
6
In sum, the state court’s rejection of this claim was neither contrary to, or an
7
unreasonable determination of, clearly established federal law. Nor was it an
8
unreasonable determination of the facts in light of the evidence presented in the state
9
court proceeding.
2)
11
For the Northern District of California
United States District Court
10
To obtain federal collateral relief for errors in the jury charge, a petitioner
Instructional Error Claims
12
must show that the ailing instruction by itself so infected the entire trial that the
13
resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72
14
(1991); Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v.
15
DeChristoforo, 416 U.S. 637, 643 (1974) (“‘[I]t must be established not merely that
16
the instruction is undesirable, erroneous or even “universally condemned,” but that it
17
violated some [constitutional right].’”). The instruction may not be judged in
18
artificial isolation, but must be considered in the context of the instructions as a
19
whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the court
20
must evaluate jury instructions in the context of the overall charge to the jury as a
21
component of the entire trial process. United States v. Frady, 456 U.S. 152, 169
22
(1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). The defined
23
category of infractions that violate fundamental fairness is very narrow: “Beyond
24
the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has
25
limited operation.” Estelle, 502 U.S. at 73.
26
A jury instruction that omits an element of an offense is constitutional error
27
subject to “harmless error” analysis. See Neder v. United States, 527 U.S. 1, 8–11
28
(1999) (direct review); Evanchyk v. Stewart, 340 F.3d 933, 940 (9th Cir. 2003)
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21
1
(§ 2254 case); Spicer v. Gregoire, 194 F.3d 1006, 1008 (9th Cir. 1999) (§ 2254
2
case). Harmless error applies whether the error is characterized as a misdescription
3
of an element of an offense in a jury instruction, or as an omission of the element.
4
See California v. Roy, 519 U.S. 2, 5 (1996) (omission of “intent” element from
5
aiding and abetting instruction subject to harmless error analysis where jury could
6
have found intent based on evidence it considered). The omission will be found
7
harmless unless it “‘had substantial and injurious effect or influence in determining
8
the jury’s verdict.’” Roy, 519 U.S. at 4 (quoting Brecht, 507 U.S. at 637); see Roy
9
v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (on remand after California v. Roy).
a)
Lawful Arrest
11
For the Northern District of California
United States District Court
10
Petitioner argues that the state court’s failure to instruct that a lawful arrest
12
was an element of the refusal enhancement and its failure to define a lawful arrest
13
deprived Petitioner of his right to have the jury make a finding on every element of
14
the offense. The state court rejected this argument as follows:
15
18
The alleged instructional error on the enhancement was harmless error.
Because the jury found beyond a reasonable doubt that appellant had driven
under the influence of alcohol, the jury found that appellant’s arrest was
lawful. Requiring a lawful arrest element on the enhancement was merely
duplicating an element that had already been found on the substantive charge
of driving under the influence.
19
Respondent correctly points out that a state determination regarding the elements of
20
an offense is not open to challenge on federal habeas review. Stanton v. Benzler,
21
146 F.3d 726, 728 (9th Cir. 1998); see, e.g., Jackson v. Virgina, 443 U .S. 307, 324
22
n. 16 (1979) (sufficiency of the evidence claim in federal habeas must be analyzed
23
“with explicit reference to the substantive elements of the criminal offense as
24
defined by state law”). This Court is bound by state court rulings on state law. See
25
Estelle, 502 U.S. at 67–68 (“it is not the province of a federal habeas court to
26
reexamine state-court determinations on state-law questions”). Here, in denying
27
Petitioner’s motion for a new trial, the state trial court found that the lawfulness of
28
the arrest is a legal issue to be decided by a judge in a motion to suppress which
16
17
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22
1
should be heard prior to trial, and lawfulness of arrest is not an element to be
2
submitted to the jury separate from the elements of driving under the influence of
3
alcohol. (CT at 1193–94.)
4
Petitioner argues that Respondent’s assertion is factually untrue because
5
lawfulness of the arrest as an the element of the offense had already been established
6
by the statute itself (Cal. Veh. Code § 23162(a)); by the state’s official jury
7
instruction on the refusal enhancement and the accompanying Bench Notes; and by
8
the California Court of Appeal’s decision in Music v. Dep’t of Motor Vehicles, 270
9
Cal. Rptr. 692 (Cal. Ct. App. 1991) which Petitioner argues holds that a lawful
arrest is a necessary predicate for the application of the refusal enhancement. See
11
For the Northern District of California
United States District Court
10
Traverse at 28. At best, Petitioner has established that before a refusal enhancement
12
can be submitted to the jury, the prosecution must first obtain a legal ruling that
13
there was a lawful arrest. Petitioner has not established that California law, at that
14
time, considered lawfulness of the arrest an element of the offense. Moreover, as the
15
state court noted, the jury’s guilty finding on the driving under the influence charge
16
constituted a finding that the arrest was lawful. The state court’s rejection of this
17
claim was neither contrary to, or an unreasonable determination of, clearly
18
established federal law. Nor was it an unreasonable determination of the facts in
19
light of the evidence presented in the state court proceeding.
20
21
b)
Definition of billy
Petitioner argues that the jury instruction defining “billy” constituted
22
instructional error because it (1) violated the rule of lenity by failing to interpret
23
Section 12020 of the California Penal Code in Petitioner’s favor; and
24
(2) retroactively applied a broader definition of Section 12020 to Petitioner.
25
Petitioner also argues that Section 12020 is void for vagueness. Respondent argues
26
that the Appellate Division of the Santa Clara County Superior Court’s rejection of
27
this claim constituted a state court ruling on state law, and is therefore not
28
cognizable in habeas.
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23
1
The Appellate Division of the Santa Clara County Superior Court rejected
2
this claim, stating: “There was no instructional error in the jury instruction for the
3
billy offense. The instruction given properly defined a weapon of that class which
4
the legislature intended to prohibit.” (Docket No. 18, Ex. 7.)
5
Petitioner’s claim is without merit. The “rule of lenity” (i.e., a rule that
6
ambiguous criminal statutes should be construed favorably to defendants) is
7
inapplicable here. The rule of lenity is a rule of statutory construction rather than a
8
constitutional command. See Sabetti v. DiPaolo, 16 F.3d 16, 19 (1st Cir. 1994).
9
“‘[N]othing in the federal constitution requires a state court to apply the rule of
lenity when interpreting a state statute.’ Bowen v. Romanowski, No. Civ.
11
For the Northern District of California
United States District Court
10
05–cv–72754–DT, 2005 WL 1838329, at *2 (E.D.Mich. Aug. 2, 2005) (citing
12
Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir.), cert. denied, 513 U.S. 916 (1994)); cf.
13
Lurie v. Wittner, 228 F.3d 113, 126 (2nd Cir. 2000) (“The rule of lenity is a canon
14
of statutory construction, not in itself federal law.”) (citing United States v. Torres-
15
Echavarria, 129 F.3d 692, 698 n .2 (2nd Cir.1997), cert. denied, 522 U.S. 1153
16
(1998), and United States v. Harris, 959 F.2d 246, 258 (D.C. Cir.), cert. denied, 506
17
U.S. 932, 933 (1992)), cert. denied, 532 U.S. 943 (2001).” Walker v. Warden,
18
Chillicothe Corr. Inst., No. 1:08-CV-580, 2010 WL 419942, at *12 (S.D. Ohio Jan.
19
29, 2010). The case cited by Petitioner does not hold otherwise; in U.S. v. Santos,
20
533 U.S. 507 (2008), the Supreme Court reviewed a federal court’s construction of a
21
federal statute. 553 U.S. at 514.
22
The state’s alleged failure to apply this rule of statutory construction cannot
23
be the basis for federal habeas relief. A person in custody pursuant to the judgment
24
of a state court can obtain a federal writ of habeas corpus only on the ground that he
25
is in custody in violation of the Constitution or laws or treaties of the United States.
26
28 U.S.C. § 2254(a). In other words, a writ of habeas corpus is available under §
27
2254(a) “only on the basis of some transgression of federal law binding on the state
28
courts.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v.
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1
Isaac, 456 U.S. 107, 119 (1982). Petitioner’s claim that the state court incorrectly
2
defined billy by using a broader definition is a claim that the state court erred in
3
applying state law, and is not cognizable on federal habeas. Estelle, 502 U.S. at
4
67–68 (1991) (federal habeas relief unavailable for violations of state law or for
5
alleged error in the interpretation or application of state law); see, e.g., Little v.
6
Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006) (claim that state supreme court
7
misapplied state law or departed from its earlier decisions does not provide a ground
8
for habeas relief); Stanton, 146 F.3d at 728.
of Section 12020 to him is also without merit. The relevant event took place on May
11
For the Northern District of California
Petitioner’s claim that the trial court retroactively applied a broader definition
10
United States District Court
9
5, 2008. As of that date, there was a California Supreme Court case, People v.
12
Grubb, 47 Cal. Rptr. 772 (1965), which held that an altered baseball bat, taped at the
13
smaller end, heavier at the other end and carried around in a car, obviously not for
14
playing baseball, is a “billy.” 47 Cal. Rptr. at 778. Petitioner accordingly had notice
15
that his baton could be considered a billy. The case relied upon by Petitioner,
16
People v. Mulherin, 35 P.2d 174 (Cal. Ct. App. 1934) was issued by a lower court
17
twenty years prior to Grubb and therefore does not supersede a California Supreme
18
Court opinion. Moreover, the fact that the CALCRIM 2500 Bench Notes cite to
19
Mulherin for the definition of a “billy” does not render Mulherin law. See, e.g.,
20
People v. Morales, 25 Cal.4th 34, 48, fn. 7 (2001) (“jury instructions, whether
21
published or not, are not themselves the law, and are not authority to establish legal
22
propositions or precedent. They should not be cited as authority for legal principles
23
in appellate opinions.”).
24
Finally, the Court also finds that Petitioner’s void-for-vagueness argument is
25
without merit. “[T]he void-for-vagueness doctrine requires that a penal statute
26
define the criminal offense with sufficient definiteness that ordinary people can
27
understand what conduct is prohibited and in a manner that does not encourage
28
arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357,
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25
1
(1983) (citing Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972)). In a
2
vagueness challenge, a court must look to the plain language of the statute, as well
3
as to state courts’ interpretations of it. Nunez v. City of San Diego, 114 F.3d 935,
4
941–42 (9th Cir. 1997) (citing Kolender, 461 U.S. at 355 n. 4). A statute will meet
5
the “certainty required by the Constitution if its language conveys sufficiently
6
definite warning as to the proscribed conduct when measured by common
7
understanding and practices.” Panther v. Hames, 991 F.2d 576, 578 (9th Cir. 1993)
8
(citations omitted). The state court denied Petitioner’s claim that the definition of
9
“billy” constituted instructional error, but did not expressly address Petitioner’s
vagueness argument. Accordingly, this Court must “determine what arguments or
11
For the Northern District of California
United States District Court
10
theories supported . . . or could have supported the state court’s decision” and then
12
“must ask whether it is possible fairminded jurists could disagree that those
13
arguments or theories are inconsistent with the holding in a prior decision of [the
14
Supreme] Court.” Harrington, 131 S.Ct. at 786.
15
Unless First Amendment freedoms are implicated, “a vagueness challenge
16
may not rest on arguments that the law is vague in its hypothetical applications, but
17
must show that the law is vague as applied to the facts of the case at hand.” United
18
States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997) (citing Chapman v. United
19
States, 500 U.S. 453, 467 (1991)). Here, Petitioner takes issue with the trial court’s
20
failure to instruct with the definition of “billy” as set forth in People v. Mulherin,
21
which requires that a billy fit within a pocket, 35 P.2d at 176, and the trial court’s
22
application of the definition set forth in People v. Mercer, 49 Cal. Rptr. 2d 728 (Cal.
23
Ct. App. 1995). The Mercer court’s definition of “billy” was taken from the 1986
24
edition of the Webster’s New World Dictionary. Mercer, 49 Cal. Rptr. 2d at 731
25
(“We note that Webster’s New World Dictionary defines a ‘billy’ as ‘a club or
26
heavy stick; truncheon, esp. one carried by a policeman.’ (Webster’s New World
27
Dict. (2d college ed. 1986) p. 141.) A ‘truncheon’ is defined as ‘1. a short, thick
28
cudgel; club 2. any staff or baton of authority 3. . . . a policeman’s stick or billy . . . “
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1
(Id. at p. 1527.) .”). The state court could have reasonably concluded that the trial
2
court had interpreted “billy” to give it its usual and ordinary meaning by applying
3
the definition set forth in Mercer, which relies on a definition found in a mainstream
4
dictionary. The state court could have reasonably concluded that Section 12020
5
was not vague as applied to the facts of the case at hand. Accordingly, the state
6
court’s rejection of Petitioner’s contention that Section 12020’s definition of “billy”
7
was void for vagueness was neither contrary to nor an unreasonable application of
8
clearly established federal law. Federal habeas relief is denied on this claim.
9
Miranda violation
Petitioner argues that the trial court’s admission of his statements regarding
11
For the Northern District of California
United States District Court
10
3)
the baton violated Edwards v. Arizona, 384 U.S. 436 (1996) because they were
12
made after Petitioner invoked his right to counsel.5 The state court rejected this
13
claim, stating: “[Petitioner’s] statements did not violate Miranda.” (Docket No. 9,
14
Ex. 7 at 2.) Respondent argues that Edwards is inapplicable because Petitioner was
15
not dealing with custodial interrogation by the police.
16
Agent Ryan testified that after he arrested Petitioner, he asked if Petitioner
17
was willing to take a breath test. (RT at 134.) Petitioner refused. (RT at 134.)
18
Petitioner informed Agent Ryan that he wished to speak to an attorney before
19
submitting to any chemical test. (RT at 136.) Agent Ryan reminded him that there
20
is no right to speak to an attorney before submitting to chemical testing. (RT at
21
136–38.) Afterwards, Agent Ryan read Petitioner his Miranda rights. (RT at 139.)
22
After reading Petitioner his Miranda rights, Agent Ryan asked Petitioner whether the
23
baton belonged to him. (RT at 141.) Petitioner responded that yes, the baton
24
belonged in the truck. (RT at 141.) He then asked if it was a misdemeanor in
25
26
27
28
5
Petitioner invokes Edwards only when it benefits him. Petitioner relied on
his statement to Agent Ryan that he was hypoglycemic to offer another reason for
the smell of alcohol in his breath. However, his statement that he was hypoglycemic
was offered after he had received his Miranda warning (RT at 189) and would be
considered inadmissible if Edwards applied to his statements in the booking area.
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27
1
California to possess the baton. (RT at 141–42.)
2
In reviewing this claim, the Court must again “determine what arguments or
3
theories supported . . . or could have supported the state court’s decision” and then
4
“must ask whether it is possible fairminded jurists could disagree that those
5
arguments or theories are inconsistent with the holding in a prior decision of [the
6
Supreme] Court.” Harrington, 131 S.Ct. at 786. “A state court’s determination that
7
a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
8
could disagree’ on the correctness of the state court’s decision.” Id. at 786 (citing
9
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also id. at 786–87
(petitioner must show that state court’s decision “was so lacking in justification that
11
For the Northern District of California
United States District Court
10
there was an error well understood and comprehended in existing law beyond any
12
possibility for fairminded disagreement.”).
13
The Court finds that the state court could have reasonably concluded that
14
Petitioner’s request for counsel with respect to the chemical test, and prior to
15
receiving his Miranda warnings, did not require a halt to all questioning pursuant to
16
Edwards v. Arizona. In McNeil v. Wisconsin, 501 U.S. 171 (1991), the Supreme
17
Court distinguished between the Sixth Amendment right to counsel, which is
18
invoked when an individual requests counsel, and the Miranda-Edwards Fifth
19
Amendment right to counsel. The McNeil court found that invoking one’s Sixth
20
Amendment right to counsel did not constitute an invocation of one’s right to
21
counsel under Miranda:
22
23
24
25
26
27
28
The purpose of the Sixth Amendment counsel guarantee — and hence the
purpose of invoking it — is to “protec[t] the unaided layman at critical
confrontations” with his “expert adversary,” the government, after “the
adverse positions of government and defendant have solidified” with respect
to a particular alleged crime. U.S. v. Gouveia, 467 U.S. 180, 189 (1984). The
purpose of the Miranda-Edwards guarantee, on the other hand — and hence
the purpose of invoking it — is to protect a quite different interest: the
suspect’s “desire to deal with the police only through counsel,” Edwards v.
Arizona, 451 U.S. 477, 484 (1981). This is in one respect narrower than the
interest protected by the Sixth Amendment guarantee (because it relates only
to custodial interrogation) and in another respect broader (because it relates to
interrogation regarding any suspected crime and attaches whether or not the
“adversarial relationship” produced by a pending prosecution has yet arisen).
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1
2
3
4
To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke
the Miranda-Edwards interest. . . . [T]he likelihood that a suspect would wish
counsel to be present is not the test for applicability of Edwards. The rule of
that case applies only when the suspect “ha[s] expressed” his wish for the
particular sort of lawyerly assistance that is the subject of Miranda. Edwards,
451 U.S. at 484 (emphasis added). It requires, at a minimum, some statement
that can reasonably be construed to be an expression of a desire for the
assistance of an attorney in dealing with custodial interrogation by the police.
5
McNeil, 501 U.S. at 177–78 (emphasis in original). The McNeil court rejected
6
Petitioner’s proposed bright-line rule that there should be no police-initiated
7
questioning of any person in custody who has requested counsel to assist him in
8
defense or interrogation. Id. at 181. Applying the above reasoning, the McNeil
9
court found that an accused’s invocation of his Sixth Amendment right to counsel
10
For the Northern District of California
United States District Court
during a judicial proceeding did not constitute an invocation of the right to counsel
11
derived by Miranda. Id. at 177–82.
12
Fair-minded jurists could reasonably disagree as to whether the state court
13
properly rejected Petitioner’s Miranda claim. McNeil can reasonably be read as
14
finding that Miranda requires a clear invocation of the right to counsel after the
15
Miranda warning was given. Cf. U.S. v. Ogden, 572 F.2d 501, 502–03 (5th Cir.
16
1978) (finding no error in the admission of defendant’s post-arrest inculpatory
17
statements where he requested a lawyer prior to being given Miranda warnings but
18
after being given Miranda warnings chose to inculpate himself). It is undisputed
19
that Petitioner did not request an attorney after he was advised of his Miranda rights.
20
However, because Petitioner’s request for counsel can also be viewed as “an
21
expression of a desire for the assistance of an attorney in dealing with custodial
22
interrogation by the police,” it can also be argued that McNeil requires that
23
Petitioner’s pre-Miranda request for an attorney be treated as an invocation of the
24
Miranda-Edwards right to counsel. McNeil, 501 U.S. at 178. Because fairminded
25
jurists could disagree on the correctness of the state court’s decision, the state
26
court’s rejection of this claim precludes federal habeas relief. Harrington, 562 U.S.
27
at 101. However, the Court will grant a certificate of appealability on this issue.
28
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1
4)
2
Petitioner argues that the prosecutor committed prosecutorial misconduct
3
when he acted as a witness and advocate with respect to Colon; when he elicited
4
false evidence regarding Colon’s testimony; when he misstated the law regarding
5
consciousness of guilt and regarding whether Miranda and “probable cause” were
6
legal issues; and when he failed to disclose evidence of Qadri’s DUI arrest. The
7
state court rejected this claim, stating: “Witness Qadri’s misdemeanor DUI was
8
irrelevant. There was no showing of prosecutorial misconduct.” (Docket No. 9, Ex.
9
7 at 2.)
A defendant’s due process rights are violated when a prosecutor’s misconduct
11
For the Northern District of California
United States District Court
10
Prosecutorial Misconduct
renders a trial “fundamentally unfair.” Darden v. Wainwright, 477 U.S. 168, 181
12
(1986). Under Darden, the first issue is whether the prosecutor’s remarks were
13
improper; if so, the next question is whether such conduct infected the trial with
14
unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005); see also Deck v.
15
Jenkins, 768 F.3d 1015, 1023 (9th Cir. 2014) (recognizing that Darden is the clearly
16
established federal law regarding a prosecutor’s improper comments for AEDPA
17
review purposes). A prosecutorial misconduct claim is decided “‘on the merits,
18
examining the entire proceedings to determine whether the prosecutor’s remarks so
19
infected the trial with unfairness as to make the resulting conviction a denial of due
20
process.’” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see Trillo v. Biter,
21
769 F.3d 995, 1001 (9th Cir. 2014) (“Our aim is not to punish society for the
22
misdeeds of the prosecutor; rather, our goal is to ensure that the petitioner received a
23
fair trial.”).
24
25
a)
False Argument
Petitioner argues that the prosecutor made a false argument to the jury when
26
he argued in this closing argument that Petitioner had no reason to not give a
27
chemical test except consciousness of guilt. According to Petitioner, his refusal to
28
give a chemical test could also be explained by the unlawfulness of the arrest, since
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30
1
under California caselaw a driver has no obligation to take a chemical test if he is
2
unlawfully detained or arrested. Petitioner also argues that the prosecutor
3
knowingly made a false statement since he was aware that Petitioner believed the
4
arrest to be unlawful. The Court finds this claim to be without merit.
5
The Court agrees with Respondent that Petitioner has taken the sentence out
6
of context. Petitioner challenges the last sentence of the following portion of the
7
prosecutor’s closing argument:
8
9
11
For the Northern District of California
United States District Court
10
Ladies and gentlemen, to find reasonable doubt in this case you got to believe
Shiraz Qadri lied about a complete stranger; Agent Ryan lied about a complete
stranger that night; Officer Guy lied about a complete stranger that night; that
defendant just can’t follow instructions; that he just has horrible balance,
despite being a wrestler which requires great balance. He lies about alcohol for
no reason. He had some good reason not to blow besides guilt, and he was
willing to take the consequences for some reason besides being guilty.
12
(RT at 524.) Petitioner claims that the prosecutor’s argument conveyed to the jury
13
the false and misleading impression that Petitioner had no other reason for refusing
14
the test except consciousness of guilt. However, read in context, it is also read as the
15
prosecution’s summary and characterization of Petitioner’s defense which is that
16
Qadri, Ryan and Guy were unreliable witnesses; that Petitioner’s poor performance
17
on the sobriety tests was attributable to causes other than his intoxication; and that
18
Petitioner had another reason, such as frustration with an unjustified stop, for not
19
submitting to the breath test. In fact, the defense specifically argued that Petitioner
20
may have refused the breath test because he believed it was futile because he was
21
subject to an unjustified stop and then arrested despite his innocence:
22
27
Stopped for no reason. Now, think about this. This is huge, ladies and
gentleman. The judge gave an instruction that the manner of driving the
vehicle was not definitive but something to be determined. Did you hear Agent
Ryan say that Mr. Robertson did anything to break the law? No. Was the
impression you are left the impression Mr. Robertson was left with? Hey,
guys, watch out, there goes the police. See you later. Get in my car with
Tennessee tags, drive, and all of a sudden, “Whoop, whoop, whoop.” What did
I do? I didn’t do anything. Officer, I didn’t do anything. You’ve been
drinking, boy. Can you see why he’s afraid? Can you see why Mr. Robertson
starts right out what is going on here? Nothing about him doing anything
wrong?
28
Then as if matters aren’t bad enough, he’s told that not this (indicating) but this
23
24
25
26
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31
1
2
is a felony for which he can go to jail, lose his law license, and everything else?
Can you imagine why he’s afraid? And he get frustrated. I didn’t have
anything to drink. I’m the designated driver.
3
...
4
Futility. Despite telling the officer he hadn’t anything to drink, despite never
having done anything wrong, despite trying his best on these field sobriety
tests, he gets arrested. He gets taken down to the holding area, booking room.
He tries to explain everything to the officer. . . .
5
6
7
8
9
11
For the Northern District of California
United States District Court
10
12
13
14
15
Here’s the jury instruction. If Mr. Robertson refused to submit to a chemical
test after the officer asked him to do so and explained the nature to Wade, then
Wade’s conduct may show. It is not definitive. It’s a maybe. But balance it.
If his mind is guilty, why is he going to keep talking to the officer. Why is he
going to explain to the officer? Why he is going to redo the test? A guilty
person doesn’t do that.
It’s up to you to decide the meaning and importance of the refusal. Well, Mr.
Robertson has been trying to convince Agent Ryan the entire time, I didn’t
drive badly. I didn’t drink. Go back and ask the people at the bar. There’s two
waitresses over there they will tell you they didn’t see him drinking. No, it’s
all futile for Mr. Robertson.
Even if you find that he did refuse, and he did, I’m not saying he didn’t refuse,
that can’t prove guilty by itself. Okay, Mr. Robertson, you refused. Okay,
fine. Doesn’t mean he’s guilty of driving under the influence, which is the
crime here. So you can say you are right, [prosecutor Shearer], but you didn’t
prove he was driving under the influence.
16
RT at 480–83. After evaluating the prosecutor’s statement in the context of the
17
entire trial, the Court finds that the state court reasonably determined that the
18
prosecution did not misstate the law.
19
In addition, the state court reasonably determined that the prosecutor did not
20
offer a false statement. The fact that Petitioner argued that he was unlawfully
21
arrested at a suppression hearing does not mean that the prosecutor cannot, in good
22
faith, believe that the evidence shows that Petitioner was lawfully arrested and that
23
therefore his refusal could indicate consciousness of guilt.
24
The Court also notes that the trial court specifically instructed the jurors that
25
they were to disregard the attorneys’ comments on the law if the comments
26
conflicted with the trial court’s instructions (RT at 447), and that nothing the
27
attorneys said, including in their closing arguments, constituted evidence (RT at
28
450).
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32
1
After having examined the entire record, the Court finds that the prosecutor’s
2
comment regarding why Petitioner may have refused the breath test did not “‘so
3
infect[] the trial with unfairness as to make the resulting conviction a denial of due
4
process.’” Darden, 477 U.S. at 181 (citing Donnelly, 416 U.S. 637). The state
5
court’s rejection of this claim was not contrary to, or an unreasonable application of,
6
clearly established federal law.
7
b)
8
9
Brady violation
Petitioner argues that the prosecutor withheld exculpatory evidence
impeaching its key witness, Qadri, who gave the lay opinion that Petitioner was
intoxicated. The state court denied this claim, stating: “Witness Qadri’s
11
For the Northern District of California
United States District Court
10
misdemeanor DUI was irrelevant.” (Docket No. 9, Ex. 7 at 2.)
12
After the start of trial, the prosecution disclosed that Qadri had a
13
misdemeanor and was on probation but provided no information regarding where the
14
arrest or conviction took place. (CT at 1004.) The trial court granted the
15
prosecutor’s request to preclude the defense from questioning Qadri about this
16
conviction because it was not a conviction of moral turpitude. (CT at 822.)
17
The police report and court file, obtained after trial, indicate that on October 29,
18
2006, Qadri was arrested for DUI, pled guilty to the charge, and was on probation
19
for that offense at the time of Petitioner’s trial. (CT at 1007–31.) In denying the
20
new trial motion, the trial court noted that it was Petitioner’s choice to wait until the
21
end of trial to obtain Qadri’s police report and court file, and that his information
22
was easily accessible to Petitioner since it was in the same building in which the trial
23
was behind held. (CT at 1197.)
24
Petitioner argues that the police report indicated that Qadri lied when he
25
informed the police at the time of the arrest that he only had two beers since Qadri’s
26
blood alcohol level (“BAC”) was .20; that Qadri’s ability to drive a car with a .20
27
BAC indicates that he is a heavy drinker, if not an alcoholic; that Qadri had likely
28
been drinking when he saw Petitioner; and that he was a poor judge of whether a
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33
1
person was intoxicated since he estimated his alcohol intake as two beers, instead of
2
ten. (Pet. at 51–52.) Accordingly, concludes Petitioner, the details of the
3
conviction would have been “key impeachment material” and constituted
4
exculpatory evidence. (Pet. at 51.)
5
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the
6
suppression by the prosecution of evidence favorable to an accused upon request
7
violates due process where the evidence is material either to guilt or to punishment,
8
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. The
9
Supreme Court has since made clear that the duty to disclose such evidence applies
even when there has been no request by the accused, United States v. Agurs, 427
11
For the Northern District of California
United States District Court
10
U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well
12
as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985).
13
Evidence is material if “there is a reasonable probability that, had the evidence been
14
disclosed to the defense, the result of the proceeding would have been different.”
15
Cone v. Bell, 556 U.S. 449, 469–70 (2009). “A reasonable probability does not
16
mean that the defendant ‘would more likely than not have received a different
17
verdict with the evidence,’ only that the likelihood of a different result is great
18
enough to ‘undermine confidence in the outcome of the trial.’” Smith v. Cain, 132
19
S. Ct. 627, 630 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
20
The Court finds that the state court’s rejection of this claim was neither
21
contrary to, nor an unreasonable application of, clearly established federal law.
22
Petitioner has failed to demonstrate that Qadri’s misdemeanor DUI conviction was
23
relevant or material. Petitioner’s conclusions that the details of the conviction
24
established that Qadri was a liar, a heavy drinker, and a poor judge of sobriety are
25
purely speculative. Whether a “reasonable probability” exists that Petitioner would
26
have received a different verdict may not be based on mere speculation without
27
adequate support. See Wood v. Bartholomew, 516 U.S. 1, 6–8 (1995).
28
//
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34
1
2
c)
Advocate-Witness Rule
Petitioner argues that the prosecutor improperly acted as a witness, thereby
3
violating his due process rights. According to Petitioner, the prosecutor behaved
4
improperly as follows. On the eve of trial, the prosecutor made a taped phone call to
5
Colon. (RT at 37.) The prosecutor states that the purpose of the call was to discuss
6
Petitioner’s behavior the night he was arrested, and the relationship between Grillo
7
and Petitioner. (RT at 37.) Petitioner argues that the prosecutor misleadingly
8
obtained Colon’s assent that Agent Ryan’s police report was fairly accurate by
9
reading Colon a version of the police report that omitted a sentence that Colon had
repeatedly stated was inaccurate. (RT at 60–62.) Petitioner requested that the Court
11
For the Northern District of California
United States District Court
10
recuse prosecutor due to these events, which the Court declined to do. (RT at
12
60–66, 70 and CT at 832–38.) Petitioner argues that in his closing argument, the
13
prosecutor made himself an unsworn witness by vouching to the trial court and to
14
the jury the version of events with regard to Colon’s statement as the prosecutor had
15
witnessed them.
16
20
Prosecution: At the end of this day regarding the DUI the People have shown
that Shiraz Qadri said he was intoxicated; Agent Ryan said he
was intoxicated; Officer Guy said he was intoxicated; even the
defense expert said he had 20 clues of being under the influence
of alcohol consider both sets of FST’s. He even said the
defendant should have just blown if he was innocent. All of
those things, and then you have Tiffany Colon’s prior statement
where she said he was drinking or becoming intoxicated.
21
Defense:
Objection; misstates the evidence. There’s no prior statement
from Ms. Colon as to that.
Court:
Where are you getting that from?
17
18
19
22
23
24
Prosecution: When I read her if that was a correct statement at the time, Your
Honor, and she said yes.
25
Court:
The objection is overruled.
26
(RT 526–27.)
27
After reviewing the record, the Court finds that the state court’s rejection of
28
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35
1
this claim of prosecutorial misconduct was neither contrary to, nor an unreasonable
2
application of, clearly established federal law. Put simply, it did not render the trial
3
fundamentally unfair. The prosecution’s statement that Colon had previously stated
4
that Petitioner was drinking and becoming intoxicated did not have a substantial and
5
injurious effect on the jury’s verdict. As previously noted, the jury was specifically
6
instructed that the attorneys’ statements were not evidence and the jury is presumed
7
to have followed those instructions. See Weeks v. Angelone, 528 U.S. 225, 234
8
(2000). Furthermore, the evidence in this case was strong against Petitioner, as the
9
prosecution detailed above. In addition, the prosecution’s statement is supported by
Colon’s testimony. On cross-examination, Colon agreed that her statement that
11
For the Northern District of California
United States District Court
10
Petitioner, Grey and a third man were becoming intoxicated when she served them
12
drinks the night of April 27, 2006 was “pretty right on” and “an accurate reflection”
13
of her memory. (RT at 249.)
14
Neither Berger v. U.S., 295 U.S. 78 (1935), nor U.S. v. Edwards, 154 F.3d
15
915 (9th Cir. 1998) compel a finding that the prosecutor’s comments violated
16
Petitioner’s due process rights. In Berger, the Supreme Court was confronted with a
17
situation in which the conduct of the prosecuting attorney was not “slight or
18
confined to a single instance, but one where such misconduct was pronounced and
19
persistent, with a probable cumulative effect upon the jury which cannot be
20
disregarded as inconsequential.” Berger, 295 U.S. at 89. The Court concluded that
21
“[i]f the case . . . had been strong, or . . . the evidence of his guilt overwhelming, a
22
different conclusion might be reached.” Id. Finding that the case against the
23
petitioner was weak, the Supreme Court granted habeas relief. Berger is not
24
applicable in this case because the prosecutor’s alleged misconduct was neither
25
pronounced nor persistent, and the case against Petitioner is strong. In Edwards, the
26
Ninth Circuit found that the prosecutor’s continued performance of his role as
27
prosecutor in case constituted a form of improper vouching that affected the
28
fundamental fairness of defendant’s trial where the prosecutor was personally
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1
involved in the discovery of a critical piece of evidence, when that fact is made
2
evident to the jury, and when the reliability of the circumstances surrounding the
3
discovery of the evidence was at issue. Edwards, 154 F.3d at 924. Edwards is
4
distinguishable because, as discussed earlier, Colon’s testimony was consistent with
5
the prosecution’s statement. Accordingly, the Court denies federal habeas relief on
6
this claim.
7
d)
Eliciting false testimony
because Colon had informed the prosecutor that she did not have a conversation with
10
Agent Ryan and that she did not tell Agent Ryan that Petitioner was intoxicated, yet
11
For the Northern District of California
Petitioner argues that the prosecutor knowingly elicited false testimony
9
United States District Court
8
the prosecutor elicited from Agent Ryan testimony that Agent Ryan spoke with
12
Colon and that she said Petitioner was intoxicated. This claim was also denied by
13
the state court.
14
The government’s knowing use of false testimony to convict a defendant
15
violates due process. Napue v. Illinois, 360 U.S. 264, 269 (1949). However, the
16
evidence is inconclusive as to whether Agent Ryan’s testimony was false. It is
17
equally plausible that Colon mis-remembered the relevant events or was herself
18
presenting false testimony. Discrepancies in the testimonies of different witnesses
19
do not prove that the prosecution knowingly elicited false testimony. U.S. v. Zuno-
20
Acre, 44 F.3d 1420, 1423 (9th Cir. 1995). Inconsistencies are not only attributable
21
to lies, but also to errors in perception or recollection. Id. Determining the cause of
22
the discrepancies is a question for the jury. Id. The record does not support a
23
finding that Agent Ryan’s testimony regarding the length of his conversation with
24
Colon and Colon’s statement regarding Petitioner’s level of intoxication was false.
25
The state court’s rejection of this claim was neither contrary to, nor an unreasonable
26
application of, clearly established federal. Nor was it an unreasonable determination
27
of the facts in light of the evidence presented in the state court proceeding.
28
//
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1
2
e)
Misstatements of the law
Petitioner claims that the prosecutor misstated the facts and the law in the
3
following ways: by arguing that Miranda and probable cause were to be decided by
4
the judge and not the jury; by stating that the prosecution learned that Grillo worked
5
for Gray; by stating that the prosecution learned that Grillo was buddies with
6
Petitioner; by stating that the prosecution decided before trial that Grillo would not
7
be a helpful claim; and by claiming that it was a labor law violation for a bar
8
manager to refund a tip to a customer. This claim was rejected by the state court
9
which found no prosecutorial misconduct.
The Court finds that these claims are without merit. The Court agrees with
11
For the Northern District of California
United States District Court
10
Respondent that since the state court had determined that the jury did not need to
12
determine whether Petitioner’s arrest was lawful, the prosecutor did not misstate the
13
law by stating that Miranda and probable cause were issues to be decided by the
14
jury. Nor were the statements regarding Grillo improper since they were reasonable
15
inferences from the evidence. United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir.
16
1995) (prosecutor may draw reasonable inferences from the evidence and is not
17
limited to a mere summary). The state court’s rejection of this claim was neither
18
contrary to, nor an unreasonable application of, clearly established federal. Nor was
19
it an unreasonable determination of the facts in light of the evidence presented in the
20
state court proceeding.
21
5)
22
Petitioner argues that the version of Section 12020 of the California Penal
23
Code that was in effect when he was convicted6 violated the Second Amendment
24
and that therefore his conviction under this statute must be set aside. The state
25
appellate court addressed this claim in one sentence, stating only that “Penal Code
Second Amendment violation
26
27
28
6
Section 12020 of the California Penal Code was repealed in 2012, pursuant
to the nonsubstantive reorganization of statutes set forth in Senate Bill No. 1080,
and recodified at Section 22210 of the California Penal Code which, in relevant part,
prohibits the possession of a billy.
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1
section 12020(a)(1) does not violate the Second Amendment.” (Docket No. 9, Ex. 7
2
at 2.) Petitioner argues that the state appellate court’s finding was contrary to the
3
Supreme Court’s holding in District of Columbia v. Heller, 554 U.S. 570 (2008).
4
Petitioner argues that Heller extended the Second Amendment “to all instruments
5
that constitute bearable arms,” id. at 582, including a billy.
6
The Court agrees with Respondent that the state appellate court’s ruling was
7
neither “contrary to, [nor] an unreasonable application of[] clearly established
8
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
9
§ 2254(d)(1). In a habeas case governed by 28 U.S.C. § 2254(d), “[c]learly
established federal law, as determined by the Supreme Court of the United States”
11
For the Northern District of California
United States District Court
10
refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.”
12
Williams, 529 U.S. at 412; cf. Alvarado v. Hill, 252 F.3d 1066, 1068–69 (9th Cir.
13
2001) (“the question . . . is not whether [state law] violates due process as that
14
concept might be extrapolated from the decisions of the Supreme Court. Rather, it is
15
whether [state law] violates due process under ‘clearly established’ federal law.”).
16
In Heller, the Supreme Court held that the District of Columbia’s total ban on
17
handgun possession in the home and its requirement that handguns be rendered
18
inoperable when stored in a home violated the Second Amendment. Heller, 544
19
U.S. at 635. The Supreme Court’s holding was limited to handguns. Contrary to
20
Petitioner’s assertion, Heller did not, in its holding, specify what constituted
21
“bearable arms.” See, e.g., id. at 623 (acknowledging that Miller v. United States,
22
309 U.S. 174 (1939) holds that Second Amendment right “extends to only certain
23
types of weapons”) and 626 (noting that the right to bear arms under Second
24
Amendment is “not a right to keep and carry any weapon whatsoever in any manner
25
whatsoever and for whatever purpose”). Nor did Heller hold that the Second
26
Amendment protected Petitioner’s right to carry a billy. Petitioner’s reliance on
27
State v. Kessler, 289 Or. 359, 361–62 (Or. 1980), and Peruta v. County of San
28
Diego, 742 F.2d 1144 (9th Cir. 2014) are unpersuasive since neither case constitutes
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1
clearly established Federal law for the purposes of federal habeas review under §
2
2254(d). See, e.g., Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (“circuit
3
precedent does not constitute clearly established Federal law, as determined by the
4
Supreme Court [and] therefore cannot form the basis for habeas relief under
5
AEDPA”) (internal quotation and citation omitted). Accordingly, Petitioner is not
6
entitled to habeas relief on this claim.
7
6)
8
Petitioner argues that trial counsel was ineffective for failing to adequately
9
object to the car search for the reasons set forth in Arizona v. Gant, 556 U.S. 332
Ineffective Assistance of Counsel
(2009). In Gant, the Supreme Court held that the police may search a vehicle
11
For the Northern District of California
United States District Court
10
incident to a recent occupant’s arrest only if the arrestee is within reaching distance
12
of the passenger compartment at the time of the search or it is reasonable to believe
13
the vehicle contains evidence of the offense of arrest. Gant, 556 U.S. at 351.
14
Petitioner argues that defense counsel rendered ineffective assistance of counsel
15
when he failed to adequately move to suppress the fruits of the car search in this
16
case, namely the baton, which had been discovered during a post-arrest inventory
17
search, and to suppress any observations of the baton. Petitioner argues that if
18
defense counsel had moved to suppress the fruits of the inventory search, the
19
suppression motion would have been successful and Count Two would have been
20
dismissed. Petitioner further argues that there could no strategic motion to not move
21
to suppress the fruits of the inventory search. The trial court rejected this claim,
22
stating, “There was no showing that trial counsel was ineffective in not bringing a
23
renewed suppression motion.” (Docket No. 8, Ex. 7 at 2.)
24
A claim of ineffective assistance of counsel is cognizable as a claim of denial
25
of the Sixth Amendment right to counsel, which guarantees not only assistance, but
26
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984).
27
The benchmark for judging any claim of ineffectiveness must be whether counsel’s
28
conduct so undermined the proper functioning of the adversarial process that the
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1
trial cannot be relied upon as having produced a just result. Id. The right to
2
effective assistance counsel applies to the performance of both retained and
3
appointed counsel without distinction. See Cuyler v. Sullivan, 446 U.S. 335,
4
344–45 (1980).
5
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a
6
petitioner must establish two things. First, he must establish that counsel’s
7
performance was deficient, i.e., that it fell below an “objective standard of
8
reasonableness” under prevailing professional norms. Strickland, 466 U.S. at
9
687–88. Second, he must establish that he was prejudiced by counsel’s deficient
performance, i.e., that “there is a reasonable probability that, but for counsel’s
11
For the Northern District of California
United States District Court
10
unprofessional errors, the result of the proceeding would have been different.” Id. at
12
694. A reasonable probability is a probability sufficient to undermine confidence in
13
the outcome. Id.
14
The general rule of Strickland, i.e., to review a defense counsel’s
15
effectiveness with great deference, gives the state courts greater leeway in
16
reasonably applying that rule, which in turn “translates to a narrower range of
17
decisions that are objectively unreasonable under AEDPA.” Cheney v. Washington,
18
614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough, 541 U.S. at 664). When
19
§ 2254(d) applies, “the question is not whether counsel’s actions were reasonable.
20
The question is whether there is any reasonable argument that counsel satisfied
21
Strickland’s deferential standard.” Harrington, 131 S. Ct. at 788.
22
Gant was decided in 2009, after the trial proceedings in the instant case had
23
concluded. Petitioner does not cite any cases prior to 2008 that would have put trial
24
counsel on notice that a motion to suppress the fruits of a post-arrest inventory
25
search would have been successful. The reasonableness of counsel’s decisions must
26
be measured against the prevailing legal norms at the time counsel represented the
27
defendant. See, e.g., Bobby v. Van Hook, 558 U.S. 4, 6–9 (2009) (criticizing the
28
appellate court’s reliance on the 2003 American Bar Association Standards as
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a 1985 trial); Rompilla v. Beard, 545 U.S. 374, 387 (2005) (citing American Bar
3
Association Standards for Criminal Justice in circulation at time of defendant’s
4
trial); Wiggins v. Smith, 539 U.S. 510, 522–23 (2003) (citing American Bar
5
Association professional standards and standard practice in capital defense at
6
pertinent time); see also Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002)
7
(deficient performance where counsel who had settled on alibi defense failed to
8
investigate possible mental defense despite state supreme court decision before trial
9
that in such instances counsel is not excused from investigating the potential mental
10
defense). At the time of Petitioner’s trial, it was clearly established federal law that
11
For the Northern District of California
commands rather than guidelines when evaluating defense counsel’s performance in
2
United States District Court
1
the impoundment and subsequent inventory search of a vehicle was valid under the
12
Fourth Amendment where the inventory search was pursuant to standardized
13
procedures and there was no showing that police officer was acting in bad faith or
14
for purposes of investigation. See Colorado v. Bertine, 479 U.S. 367, 374 (1987)
15
(“reasonable police regulations relating to inventory procedures administered in
16
good faith satisfy the Fourth Amendment”). Petitioner argues that Bertine is
17
inapplicable because Respondent has presented no evidence that Petitioner was not
18
in his automobile at the time of the arrest or that the inventory search was conducted
19
according to standardized procedures. Petitioner is correct that the record is silent as
20
to these two issues. However, because there is no evidence either way regarding
21
these two issues, it is also equally plausible that defense counsel chose not to raise
22
this issue because Petitioner was not present in his automobile at the time of the
23
arrest and that the inventory search was conducted according to standardized
24
procedures. The question on federal habeas review is “whether there is any
25
reasonable argument that counsel satisfied Strickland’s deferential standard.”
26
Harrington, 131 S. Ct. at 788. Here, there is a reasonable argument that defense
27
counsel believed that Bertine governed inventory searches and that a renewed
28
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1
suppression motion would have been futile.7 The state court’s denial of this claim
2
was not contrary to, nor an unreasonable application of, clearly established federal
3
law. Accordingly, this claim for federal habeas relief is denied.
4
5
6
CONCLUSION
After a careful review of the record and pertinent law, the Court concludes
that the Petition for a Writ of Habeas Corpus must be DENIED.
7
A Certificate of Appealability is GRANTED as to whether the trial court’s
8
admission of his statements regarding the baton violated Edwards v. Arizona, 384
9
U.S. 436 (1995). However, a Certificate of Appealability is DENIED as to
Petitioner’s other claims. See Rule 11(a) of the Rules Governing Section 2254
11
For the Northern District of California
United States District Court
10
Cases. With respect to those claims, Petitioner has not made “a substantial showing
12
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has Petitioner
13
demonstrated that “reasonable jurists would find the district court’s assessment of
14
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
15
484 (2000). Petitioner may not appeal the denial of a Certificate of Appealability in
16
this Court but may seek a certificate from the Court of Appeals under Rule 22 of the
17
Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing
18
19
20
21
22
23
24
25
26
27
28
7
If Petitioner had been in the car at the time of the arrest and search, there is a
reasonable argument that defense counsel believed that either Chimel v. California,
395 U.S. 752 (1969), or New York v. Belton, 453 U.S. 454 (1981), were applicable
to Petitioner’s case and that a renewed suppression motion would have been futile.
In Chimel, the Supreme Court held that a police officer who makes a lawful arrest
may conduct a warrantless search of the arrestee’s person and the area “within his
immediate control.” Chimel, 395 U.S. at 763, abrogation recognized by Davis v.
U.S., 131 S. Ct. 2419, 2424 (2011). In Belton, the Supreme Court held that the
Court announced “that when a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile.” Belton, 453 U.S. 459–60
abrogation recognized by Davis v. U.S., 131 S. Ct. 2419, 2424 (2011). In 2011,
after the trial court proceedings in this instant case, the Supreme Court noted that
Arizona v. Gant, had modified the rulings in Chimel and Belton, and “adopted a
new, two-part rule under which an automobile search incident to a recent occupant's
arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle
during the search, or (2) if the police have reason to believe that the vehicle contains
‘evidence relevant to the crime of arrest.’” Davis, 131 S. Ct. at 2425 (citing Gant,
556 U.S. at 343) (declining to retroactively apply Gant to a search that took place
two years before Gant was decided).
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1
2
3
4
5
6
Section 2254 Cases.
The Clerk shall terminate any pending motions, enter judgment in favor of
Respondent, and close the file.
IT IS SO ORDERED.
DATED:
7/10/2015
EDWARD J. DAVILA
United States District Judge
7
8
9
11
For the Northern District of California
United States District Court
10
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13
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15
16
17
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19
20
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