Peeler v. Foss, No. 2:15-cv-02582-JKS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtJAMES K. SINGLETON, JR. Senior United States District Judge
Decision Date15 July 2019
PartiesBRICE ANTHONY PEELER, Petitioner, v. TAMMY FOSS, Acting Warden, Salinas Valley State Prison, Respondent.
Docket NumberNo. 2:15-cv-02582-JKS

TAMMY FOSS, Acting Warden, Salinas Valley State Prison,1 Respondent.

No. 2:15-cv-02582-JKS


July 15, 2019


Brice Peeler, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Peeler is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Salinas Valley State Prison. Respondent has answered, and Peeler has replied.


On March 20, 2014, Peeler was charged by second amended information with two counts of assault on a peace officer with a semiautomatic firearm (Counts 1 and 2), evading a peace officer while driving recklessly (Count 3), and being a felon in possession of firearm (Count 4). The information alleged as to Counts 1 and 2 that Peeler personally used a firearm. The information additionally alleged as enhancements that Peeler had suffered a prior serious felony conviction for criminal threats, had suffered a prior strike conviction, and had served three prior prison terms. Peeler pled not guilty, denied the allegations, and proceeded to a jury trial. On

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direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Peeler and the evidence presented at trial:

Sacramento County Sheriff's Detective Kevin Reali testified he received a call from Nevada County Sheriff's Detective Bingham on September 14, 2012, asking for help in serving a felony warrant on [Peeler]. Bingham told him [Peeler] might be armed with a handgun. Five days later, Bingham called again and asked Reali to check a house in the Antelope area of Sacramento. Reali saw a man leave the house, put something in the trunk of a Volvo, and get in the driver's seat. After a woman entered the Volvo, the Volvo left, and Reali tried to reach Bingham, without success. Reali reached Detective Jeff Martin, who asked him to check on a white panel van at a Walmart, because [Peeler] was thought to use it to hide things. Martin testified he told Reali that multiple informants had recently seen [Peeler] with "a handgun and/or a small assault style rifle" and that he always carried those weapons with him. Reali saw the van, called back-up, and when other officers arrived, Reali returned to the Antelope house.
Reali learned a team comprised of Nevada and Placer County officers had found the Volvo in Orangevale, and went to discuss with those officers how to apprehend [Peeler] safely, given that they understood he might be armed, and there were two females in the Volvo, which was in motion. Reali entered Sergeant Gregory Coauette's unmarked Ford Expedition, "and we were maybe fifth or sixth . . . in the conga line, as you might say, into following the Volvo away. . . ."
The Volvo turned into a parking lot and most of the "conga line" followed, but Reali and Coauette remained on Greenback Lane, so that when the Volvo unexpectedly left the parking lot, they were directly behind [Peeler] in the Ford. Coauette thought the line of unmarked cars behind them was perhaps eight or nine vehicles long. The Volvo's occupants looked back at the cars following them, and accelerated suddenly. The officers activated the Ford's lights and siren and pursued [Peeler], who attempted to elude the officers at high speed, running stop signs. When he stopped the Volvo, [Peeler] fled on foot. Reali saw [Peeler] held a handgun; Coauette ducked because [Peeler] pointed his gun over his shoulder, towards the officers, as he ran in front of their car. By the time Reali was able to get out of the car, [Peeler] had reached a lawn and jumped over a fence. To Reali, [Peeler] seemed to aim more towards Coauette. Coauette saw the gun "pointed straight in the window at me." "That handgun stayed on target [i.e., pointed at Coauette] for quite a while." Reali had feared he and Coauette would be shot. Although Reali planned to shoot [Peeler] due to the risk he presented to the public and to the officers, by the time he got out of the car, [Peeler] had made it to the fence.
A pistol was found in a tomato garden of a residential yard not far from where [Peeler] was captured, after he repeatedly defied orders to stop. The chamber was clear, as shown by moving the slide back, but the magazine was loaded. According to the testimony, "All you had to do was pull back on the slide and it would load the next cartridge [in the magazine]." The pistol, magazine, and cartridges from the magazine, were introduced into evidence and shown to the jury. The gun was not fired, nor was an effort made to chamber a round to see if it would jam.

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A binder was found in the Volvo which contained pages listing different law enforcement radio frequencies.
The parties stipulated [Peeler] was a convicted felon.

People v. Peeler, No. C076528, 2015 WL 1254623, at *1-2 (Cal. Ct. App. Mar. 17, 2015).

At the conclusion of the three-day trial, the jury found Peeler guilty on Counts 1, 3, and 4, and not guilty on Count 2. The jury also found true the firearm enhancement, and the trial court found true the prior conviction and prior prison term enhancements. The trial court subsequently sentenced Peeler to an aggregate determinant imprisonment term of 38 years and 8 months.

Through counsel, Peeler appealed his conviction. On appeal, Peeler: 1) sought review of the materials reviewed in camera during his Pitchess hearing;2 2) contended that no substantial evidence showed that the pistol he used was operable; and 3) argued that trial counsel was ineffective because she conceded liability on one count and failed to promptly move to strike an officer's "gratuitous" testimony. The Court of Appeal unanimously affirmed the judgment against Peeler in a reasoned, unpublished decision issued on March 17, 2015. Peeler, 2015 WL 1254623, at *4. The California Supreme Court summarily denied review on June 25, 2015.

Peeler then filed in the Sacramento County Superior Court a pro se petition for writ of habeas corpus that raised 38 grounds for relief. The superior court denied the petition, finding

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that the claims were largely raised on appeal or should have been raised on appeal, see In re Dixon, 264 P.2d 513, 514 (Cal. 1953) (holding that habeas relief is unavailable if "the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction"), and the remainder of the claims lacked merit.

Peeler then raised those 38 claims in a pro se habeas petition in the Court of Appeal, which Respondent opposed by way of informal response. The Court of Appeal denied the petition without comment on September 15, 2016. The Supreme Court also summarily denied a similar petition on December 14, 2016.

Peeler timely filed a pro se Petition for a Writ of Habeas Corpus to this Court about a week later. Docket No. 1; see 28 U.S.C. § 2244(d)(1)(A). Briefing on the First Amended Petition at Docket No. 22 ("Petition") is now complete, and the case is before the undersigned judge for adjudication.


In his pro se Petition before this Court, Peeler raises the 38 claims he raised to the California state courts on habeas review, namely that: 1) trial counsel rendered ineffective assistance by failing to consult a handwriting expert in an attempt to show that a handwritten radio frequency document did not belong to Peeler; 2) Peeler's right to a fair trial was violated when the trial court informed the jury that he was in custody; 3) the prosecutor engaged in vindictive prosecution by amending the information to add a criminal charge after the preliminary hearing was held; 4) the admission of hearsay testimony by several law enforcement witnesses violated his rights to due process, a fair trial, and to confront the witnesses against him; 5) trial counsel rendered ineffective assistance by failing to object to the admission of

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hearsay evidence that law enforcement officers were aware of the possibility that Peeler possessed one or more firearms; 6) the inclusion of peace officers as a sworn juror and an alternate violated his rights to a fair trial and impartial jury; 7) trial counsel was ineffective for allowing a peace officer to be impaneled as a juror; 8) trial counsel was ineffective for failing to object to the court informing the jury that Peeler was in custody; 9) the admission of a photograph of Peeler lying on the ground in handcuffs violated his right to a fair trial because it depicted tattoos that were inherently prejudicial; 10) trial counsel was ineffective for failing to object to the admission of the photograph; 11) trial counsel was ineffective for failing to object to a statement that wig-wag lights are only available for law enforcement vehicles; 12/13/14) the prosecutor committed misconduct by presenting false testimony; 15) his convictions were obtained as a result of an illegal wiretap, and trial counsel was ineffective for failing to move to suppress evidence that law enforcement tracked his cell phone using GPS without a warrant; 16/17) counsel was ineffective for failing to impeach law enforcement witnesses regarding alleged inconsistencies in their testimony; 18/25) there was insufficient evidence that his firearm was operable to support his assault on a peace officer with a semiautomatic firearm conviction and the true finding on the firearm enhancement; 19) the trial judge was biased against him in violation of his due process rights; 20) the imposition of a prior prison term enhancement was improper under Proposition 47; 21) the trial court violated his right to a fair trial and the presumption of innocence by informing the jury of his prior conviction; 22) trial counsel was ineffective for failing to file a motion to sever the felon in possession of a firearm charge; 23) appellate counsel was ineffective for failing to raise meritorious issues on...

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