McMonagle v. Meyer

• Decision Date: 27 September 2016
• Docket Number: No. 2:11-cv-2115 GGH P,2:11-cv-2115 GGH P
• Court: U.S. District Court — Eastern District of California
• Parties: BRIAN JOSEPH McMONAGLE, Petitioner, v. DON L. MEYER, Chief Probation Officer, Sacramento County, Respondent.

BRIAN JOSEPH McMONAGLE, Petitioner, v. DON L. MEYER, Chief Probation Officer, Sacramento County, Respondent.

No. 2:11-cv-2115 GGH P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 27, 2016

ORDER

INTRODUCTION

Petitioner was convicted by a jury of misdemeanor driving under the influence of alcohol (Cal. Veh. Code § 23152(a) and driving with a blood alcohol level of .08% or more (Cal. Veh. Code § 23152(b)), and was sentenced to jail time and probation. Petitioner, represented by counsel, now proceeds with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The petition, filed August 10, 2011, raises the following claim: denial of the right to confrontation when the trial court allowed the state to use in evidence a report whose author was not available to testify at petitioner's trial, and that petitioner was prejudiced by the state's use of the report, resulting in a conviction for driving under the influence. See ECF No. 1-1. Petitioner further argues that the state court erred in finding that admission of the report was harmless error since the evidence in the record, other than the report, was insufficient to sustain the conviction. Id. Upon careful consideration of the record and the applicable law, the undersigned denies petitioner's application for habeas corpus relief.

BACKGROUND

On November 21, 2008, a jury found petitioner guilty of violating: (1) section 23152(a) of the California Vehicle Code, willfully and unlawfully driving a vehicle while under the influence of an alcoholic beverage; and (2) section 23152(b) of the California Vehicle Code, willfully and unlawfully driving a vehicle while having a 0.08% or more by weight of alcohol in his blood. See ECF No. 12 filed in conjunction with motion to dismiss; Lodged Doc. No. 1 at 258. The jury also found true the additional allegation that petitioner did willfully and unlawfully drive a motor vehicle with a concentration of alcohol in his blood of 0.15% or more by weight, within the meaning of section 23578 of the California Vehicle Code. Id.

Petitioner admitted a prior conviction as to each count, see id. at 260-61, and was sentenced to summary probation for three years, and to 15 days in jail. Id. at 267-68.

Petitioner appealed his conviction to the Appellate Division of the Superior Court. See ECF No. 1, Application for Writ of Habeas Corpus, at 2. On December 18, 2009, in light of new Supreme Court law governing the introduction of testimony in support of blood alcohol lab results, the Appellate Division reversed the judgment as to petitioner's conviction for driving with a blood level in excess of 0.08%, and affirmed the conviction for driving under the influence of alcohol:

After [petitioner's] trial, the United States Supreme Court found that lab certificates analyzing drugs and prepared for trial are "testimonial" under Crawford v. Washington, (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, and violate criminal defendants' Confrontation Clause rights if admitted over timely objection, and without testimony from the forensic analyst who conducted the tests, unless the analyst was unavailable, and defendant had a prior opportunity for cross-examination. (Melendez-Diaz v. Massachusetts (2009), 557 U.S. —, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314).

The California Supreme Court has granted review, and is currently considering granting review in several Court of Appeal cases addressing whether Melendez-Diaz affects People v. Geir (2007) 41 Cal.4th 555, 61 Cal.Rptr.3d 580, 161 P.3d 104, which authorizes an analyst's supervisor to testify about lab results, in place of the lab analyst who conducted the tests and obtained the results. Here, therecord on appeal establishes that over trial counsel's timely Confrontation Clause objections, the trial court admitted [petitioner's] blood alcohol lab report, and testimony regarding the lab results. However, the analyst who tested [petitioner's] blood did not testify at trial. Instead, the analyst's supervisor, who did not observe the analyst as she tested [petitioner's] blood, testified. The People claimed that the analyst who tested [petitioner's] blood was unavailable because she had moved to another state. However, it was undisputed that [petitioner] had not had the opportunity to cross-examine her. And, because the People offered the lab report and results into evidence, the Confrontation Clause imposed the burden on the People to present its witnesses, not on the defendant to bring those adverse witnesses into court. (Melendez-Diaz, supra, 129 S.Ct. 2540.) As such, the panel finds that the lab report and the results should not have been admitted into evidence.

[Petitioner] did not perform any field sobriety tests. His blood alcohol concentration was therefore significant evidence in established that his blood alcohol exceeded .08%. Because the lab result evidence was admitted over [petitioner's] timely confrontation clause objections, the judgment is reversed as to his conviction for violating vehicle Code section 23152(b), and as to the high blood level alcohol allegation.

However, after considering all the evidence at trial, the panel finds that there was overwhelming evidence that [petitioner] drove while intoxicated. For instance, [petitioner] stopped abruptly and irregularly for a red light, drove abnormally slow, turned abruptly, smelled of alcohol, mumbled, admitted consuming alcohol, had red, watery eyes, was slow and unsteady on his feet, and had difficulty walking. In addition, the criminalist, an expert, testified that such symptoms are consistent with intoxication. Therefore, after careful consideration of the record, the Panel finds that with regard to [petitioner's] conviction for violating Vehicle Code section 23152(a), the error in admitting the blood test results was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) As such, the judgment is affirmed as to [petitioner's] conviction for violating vehicle Code section 23152(a).

ECF No. 32, Lodged Doc. No. 2 filed in conjunction with Answer.

On January 19, 2010, the appellate division denied petitioner's request for certification of the matter to the court of appeal. See ECF No. 1 at 3. On February 11, 2010, the Court of Appeal, Third Appellate Division, denied petitioner's request for a transfer of the matter to the Court of Appeal under California Rule of Court 8.1008. See id.; see also ECF No. 12 filed in conjunction with motion to dismiss, Lodged. Doc. No. 3.

On April 7, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which petition was denied on June 17, 2010. See ECF No. 12 filed inconjunction with motion to dismiss, Lodged Doc. Nos 4, 5. On August 9, 2011, petitioner filed his federal petition through counsel. (ECF No. 1.) On January 30, 2012, respondent's motion to dismiss the petition as untimely was granted and the petition was dismissed. (ECF No. 13.) On September 10, 2014, the Ninth Circuit Court of Appeals reversed and remanded. (ECF No. 21.) However, the case was taken en banc by the Ninth Circuit which issued its decision remanding the case to the district court by decision of October 6, 2015. McMonagle v. Meyer, 802 F.3d 1093 (9^th Cir. 2015). The mandate was not issued until November 9, 2015. (ECF No. 25.) After briefing, the matter was submitted on April 26, 2016.

DISCUSSION¹

AEDPA Standards and De Novo Review

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

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 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.

For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings of the United States 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, — U.S. —, —, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.2011) (citingWilliams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495 (2000)). 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, — U.S. —, —, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, — U.S. —, —, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id.

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.² Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir.2004...