Harrell v. Lopez

• Decision Date: 18 May 2022
• Docket Number: 21-cv-1227 TLN KJN P
• Parties: JOSHUA NEIL HARRELL, Petitioner, v. FRANK LOPEZ, Respondent.
• Court: U.S. District Court — Eastern District of California

JOSHUA NEIL HARRELL, Petitioner,
v.
FRANK LOPEZ, Respondent.

No. 21-cv-1227 TLN KJN P

United States District Court, E.D. California

May 18, 2022

FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his August 2018 conviction for three felony counts of fraudulent possession of the personal identifying information of another after having been previously convicted of the same crime (Cal. Penal Code § 530.5, subd. (c)(2)). The trial court sentenced him to 12 years and eight months in state prison. Petitioner claims that: (1) an unreasonable search and seizure violated his rights under the Fourth and Fourteenth Amendments; (2) his trial counsel was ineffective; and (3) Officer Anderson's false testimony rendered his trial fundamentally unfair. After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

On August 23, 2018, a jury found petitioner guilty of three felony counts of acquiring or

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keeping the personal identifying information of another with a prior conviction for a violation of California Penal Code § 530.3. (ECF No. 15 at 163-66.) In October 2018, the trial court sentenced petitioner to 12 years and eight months in state prison. (Id. at 227-31.)

Petitioner appealed the conviction to the California Court of Appeal, First Appellate District. The Court of Appeal reduced the three felony convictions to misdemeanors and struck his four prison term enhancements, but otherwise affirmed the conviction. (ECF No. 15-4 at Ex. 10.)

Both petitioner and the state filed petitions for review in the California Supreme Court. The court denied petitioner's petition and granted the state's petition, deferring action pending consideration and disposition of People v. Jimenez, S249397. (Id. at Exs. 11 & 12.) On June 17, 2020, the California Supreme Court transferred the case to the state appellate court with directions to vacate its decision and reconsider it in light of People v. Jimenez, 9 Cal. 5th 53 (2020). (Id. at Ex. 13.)

On August 10, 2020, the state appellate court rejected petitioner's contention that his felony convictions must be classified as misdemeanors, affirmed the denial of petitioner's suppression motion, and concluded that the four prior prison term enhancements must be stricken. (Id. at Ex. 16.) The trial court amended the abstract of judgment in accordance with the state appellate court's judgment. (Id. at Ex. 17.)

Petitioner petitioned for review before the California Supreme Court, which the court denied. (Id. at Exs. 18, 19 & 21.) He also filed a petition for writ of certiorari, and the Supreme Court denied the petition. (Id. at Ex. 20.)

Petitioner filed at least one state habeas petition, which the state court denied. (Id. at Ex. 22; see also ECF No. 7 at 7.)

Petitioner filed a § 2241 petition before this court on July 7, 2021. (ECF No. 1.) This court dismissed that petition and granted petitioner leave to file a § 2254 petition. (ECF No. 4.) He filed the instant petition on July 28, 2021. (ECF No. 7.) Respondent filed an answer to show cause. (ECF No. 14.) Petitioner filed a traverse on December 1, 2021. (ECF No. 18.)

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III. Facts^[1]

After independently reviewing the record, this court finds the appellate court's summary accurate and adopts it herein. In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the First Appellate District provided the following factual summary:

In March 2018, Harrell was charged by felony complaint with three counts of violating section 530.5(c)(2). His motion to suppress evidence pursuant to section 1538.5, arguing that he was subjected to an unlawful detention, search, and arrest was heard concurrently with the preliminary hearing on June 18, 2018

At the June 18 hearing, Fairfield Police Officer Kevin Anderson testified that he encountered Harrell shortly before 3:00 a.m. on November 24, 2017. Anderson was patrolling a residential neighborhood when he noticed a gold BMW parked on the street that did not have license plates, which was a violation of the Vehicle Code. He approached the car so he could obtain the VIN number and noticed through the windows that Harrell was asleep in the driver's seat, with “a lot of miscellaneous property spread out throughout the car.” Anderson attempted to wake Harrell by speaking through the window, which was rolled down about five inches, and by knocking on the window with his flashlight. When Harrell finally woke up, Anderson identified himself as police and asked Harrell to roll the window down or open the door so it would be easier to talk. Harrell did not comply with that request or with the officer's request to see identification. He told Anderson that he did not want to talk and did not want to get out of the car. Anderson then asked for Harrell's name and date of birth, which Harrell provided.

Anderson testified that he used the information provided by Harrell to run a record check through Fairfield Police Dispatch and was advised that Harrell was on Post Release Community Supervision (PRCS). Accordingly, Anderson “removed [Harrell] from the car to conduct a PRCS compliance check of the vehicle.” Anderson found notebooks and paperwork on the seats and floorboard of the car. The notebooks contained personal identifying information for approximately 20 people. After completing the car search, Anderson read Harrell his rights and placed him under arrest. Subsequently, Anderson contacted several people who were referenced in the notebooks found in the BMW, and they reported that Harrell did not have permission to have their personal information.

After Anderson completed his testimony, the People submitted documentary evidence regarding Harrell's prior conviction for identity theft, and the magistrate took judicial notice of the case in

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which Harrell had been placed on PRCS. The defense did not present evidence, but argued that the People failed to carry their burden of producing independent evidence establishing that Harrell was on PRCS or subject to a search condition. Defense counsel further argued that the detention was unlawful because Harrell was not doing anything wrong and was not obligated to engage with the officer even if he was on PRCS. Finally, defense counsel argued that the search of Harrell's phone was not justified because the People did not produce evidence regarding the scope of the PRCS search clause.

The magistrate denied Harrell's suppression motion, finding: “The initial contact was supported by reasonable suspicion. The arrest was supported by probable cause. The detention was not unduly prolonged.” The magistrate also found sufficient evidence to support the identity theft charges and held Harrell to answer on the complaint.

In the superior court, Harrell filed a renewed motion to suppress evidence. On August 13, 2018, the court denied Harrell's motion, finding a sufficient factual basis for the magistrate's conclusions. Thereafter, the case proceeded to trial, where the jury found Harrell guilty of three felony counts of acquiring or keeping the personal identifying information of K.H., T.S. and C.W. after having previously suffered a conviction for this same crime. (§ 530.5(c)(2).) The trial court chose the upper term on count one as the base term and ran the other two terms consecutive; found that Harrell suffered a prior strike conviction and four prior prison terms; and sentenced him to an aggregate term of 12 years and 8 months in prison.

(ECF No. 15-4 at Ex. 16.)

IV. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

For purposes of applying § 2254(d)(1), “clearly established Federal law” consists of holdings of the Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S.Ct. 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.Ct. 1446,...