Oliver v. Vasquez

• Decision Date: 04 January 2012
• Docket Number: 1:11-cv-01192-LJO-DLB (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: ALONZO TOBIAS OLIVER, Petitioner, v. P.L. VASQUEZ, Respondent.

ALONZO TOBIAS OLIVER, Petitioner,

v.P.L. VASQUEZ, Respondent.

1:11-cv-01192-LJO-DLB (HC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: January 4, 2012

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND AND STATEMENT OF FACTS1

On February 25, 2008, Fresno Police Officer Vanita Schell-Route was on duty patrolling the southwest portion of the city. At around 2:00 p.m. she was in her patrol car turning from G street onto California Street when she saw [Petitioner] standing on the corner of the intersection, holding his penis and urinating in public. [Petitioner] had his back to G street, but as Schell-Route turned onto California Street she could see him holding his penis with both hands and a stream of urine flowing.

By the time Schell-Route parked her vehicle, [Petitioner] had finished urinating and was walking toward her. She stopped [Petitioner] and explained that he was being detained because she had seen him urinating on a public street. [Petitioner] acknowledged he had been urinating in public, but seemed irritated and annoyed at being detained.

Schell-Route asked to see [Petitioner's] identification. When he did not produce a valid identification, she placed him under arrest. Schell-Route handcuffed [Petitioner] for officer safety purposes because she was by herself. After arresting [Petitioner], Schell-Route conducted a search incident to arrest. She found an off-white substance in [Petitioner's] jacket pocket, which she believed to be rock cocaine. Schell-Route informed [Petitioner] that additionally he was being arrested for possession of rock cocaine. It was subsequently confirmed that the off-white substance was cocaine base in a usable quantity.

On March 6, 2008, [Petitioner] filed a motion to suppress, claiming there was no valid basis for his detention and the rock cocaine was seized as a result of an unreasonable warrantless search. The People opposed the suppression motion, contending that the officer had probable cause to arrest [Petitioner] based upon his violation of Fresno Municipal Code (hereafter FMC) section 9-2512 for urinating in public. At the March 26 hearing on the suppression motion, the trial court denied the motion.

On April 8, 2008, [Petitioner] was charged in count 1 with possession of cocaine base and in count 2 with giving false information to a police officer, a violation of Penal Code section 148.9, subdivision (a). [FN 3] It also was alleged that he had two strike priors for robbery and had served four prior prison terms. The count 2 charge was dismissed on the People's motion and [Petitioner] pled not guilty to the count 1 offense.

FN3. All further statutory references are to the Penal Code unless otherwise specified.

On May 14 and 19, 2008, the trial court denied [Petitioner's] Marsden motions.

On May 27, 2008, defense counsel requested a competency determination. The trial court suspended criminal proceedings and appointed two psychologists to conduct evaluations of [Petitioner]. One found [Petitioner] competent; the other did not. The trial court appointed a third psychologist, who found Oliver competent to stand trial. On September 2, 2008, based upon the evaluations, the trial court found [Petitioner] competent to stand trial.

On October 8, 2008, jury selection for the trial commenced. On October 9, the trial court denied another of [Petitioner's] Marsden motions and also denied his Faretta motion.

At trial, the People presented testimony regarding two prior incidents to establish [Petitioner's] knowledge of cocaine base. In one incident he had a crack pipe in his possession. In the second incident, [Petitioner] had a crack pipe in his possession that had burn markings, residue, and condensation, indicating it recently had been used.

[Petitioner] testified in his own defense and denied urinating in public. He claimed he had been walking in the area when Schell-Route stopped him for no reason. He was homeless and cold and had been wearing a jacket that someone had given him. That jacked had rock cocaine in the pocket, which he told the officer was not his.

The jury convicted [Petitioner] of the count 1 offense. [Petitioner] previously had waived his right to a jury or court trial on the priors and nowsought to withdraw his waiver; the trial court denied the request.

On November 13, 2008, the trial court declined to strike the prior convictions and sentenced [Petitioner] to a term of 29 years to life in prison.

(Ex. A, to Answer.)

Petitioner filed a timely notice of appeal. On May 13, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (Ex. A, to Answer.)

On May 23, 2010, Petitioner filed a petition for rehearing. The Court denied the petition on June 3, 2010, along with a modification of its prior opinion. (Ex. B, to Answer.)

Petitioner filed a petition for review in the California Supreme Court, which was denied on July 21, 2010.

Petitioner did not file any state post-conviction collateral petitions.

Petitioner filed the instant federal petition for writ of habeas corpus on July 11, 2011. Respondent filed a timely answer to the petition on November 10, 2011, and Petitioner filed a traverse on December 6, 2011.

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). The instant petition was filed after the enactment of the AEDPA and is thereforegoverned by its provisions.

II. Standard of Review

Where a petitioner files his federal habeas petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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.

28 U.S.C. § 2254(d). "Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of [the Supreme] Court." Harrington v. Richter, ____ U.S. _____, 131 S.Ct. 770, 785 (2011) (citing 28 U.S.C. § 2254(d)(1) and Williams v. Taylor, 539 U.S. 362, 412 (2000). Habeas relief is also available if the state court's decision "involved an unreasonable application" of clearly established federal law, or "was based on an unreasonable determination of the facts" in light of the record before the state court. Richter, 131 S.Ct. 785 (citing 28 U.S.C. § 2254(d)(1), (d)(2)). "[C]learly established ... as determined by" the Supreme Court "refers to the holdings, as opposed to the dicta, of th[at] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412. Therefore, a "specific" legal rule may not be inferred from Supreme Court precedent, merely because such rule might be logical given that precedent. Rather, the Supreme Court case itself must have "squarely" established that specific legal rule. Richter, 131 S.Ct. at 786; Knowles v. Mirzayance, ____ U.S. _____, 129 S.Ct. 1411, 1419 (2009). Moreover, the Supreme Court itself must have applied the specific legal rule to the "context" in which the Petitioner's claim falls. Premo v. Moore, ____ U.S. _____, 131 S.Ct. 733, 737 (2011). Under § 2254(d)(1), review is limited to the record that was before the state court adjudicated the claim on the merits. Cullen v. Pinholster, ____ U.S. _____, 131 S.Ct. 1388, 1398 (2011). "A state court's determination that a claim lacks merits precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision."

Richter, 131 S.Ct. at 786.

"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. See Lambert v. Blodgett, 393 F.3d 943, 976-77 (2004).

Courts further review the last reasoned state court opinion. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784.

III. Challenge to Warrantless Detention, Seizure and Search

In Ground One, Petitioner contends the warrantless detention, seizure and search was not...