Pineda v. Craven

• Decision Date: 27 May 1971
• Docket Number: No. C-70 1096.,C-70 1096.
• Citation: 327 F. Supp. 1062
• Parties: Ernest Vivallava PINEDA, Plaintiff, v. Walter E. CRAVEN, Warden, Defendant.
• Court: U.S. District Court — Northern District of California

327 F. Supp. 1062

Ernest Vivallava PINEDA, Plaintiff, v. Walter E. CRAVEN, Warden, Defendant.

No. C-70 1096.

United States District Court, N. D. California.

May 27, 1971.

COPYRIGHT MATERIAL OMITTED

Sheldon Portman, Public Defender of Santa Clara County, San Jose, Cal., for plaintiff.

Evelle J. Younger, Atty. Gen. of Cal., John T. Murphy, and George R. Nock, Deputy Attys. Gen., San Francisco, Cal., for defendant.

MEMORANDUM AND ORDER

PECKHAM, District Judge.

In this action Ernest Pineda, a California prisoner, seeks federal habeas corpus relief from his 1964 conviction in the California Superior Court for possession of heroin. Such relief was initially sought from the United States District Court, for the Eastern District of California, where the petition was denied without an evidentiary hearing. On appeal from that denial, the Ninth Circuit Court of Appeals reversed and remanded, with directions that petitioner was entitled to an evidentiary hearing on the question of whether petitioner's counsel in the state court had deliberately bypassed or waived available state procedures when he failed to raise a possible Fourth Amendment defense. Pineda v. Craven, 424 F.2d 369 (1970). On remand to the Central District, the judge ordered the case transferred to this judicial district since the witnesses needed for the evidentiary hearing reside in this district.

In this court, counsel for petitioner then filed an amended petition for habeas corpus relief, realleging the Fourth Amendment ground and adding thereto a claim of denial of the Sixth Amendment right to the effective assistance of counsel based on evidence first discovered at that time. Also raised was the question of whether the Ninth Circuit opinion had foreclosed consideration of the validity of a 1951 conviction of petitioner, which was admitted as a prior at the 1964 trial and used to enhance the sentence therein. This court issued an order to show cause, to which a return and a traverse were filed. The court then made its pre-hearing order, in which it determined that the proper issues for the evidentiary hearing would be the Fourth Amendment by-pass question and the Sixth Amendment effective counsel issue. Consideration of the 1951 prior was held to be precluded by the Ninth Circuit opinion. The court also indicated that the State of California would be free to attempt to sustain the search that was made in this case as a legal warrantless search, the Ninth Circuit having declared in Pineda that the search warrant involved here was plainly invalid under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). See Order of November 25, 1970. The evidentiary hearing was held on February 10, 1971. After the transcript became available, counsel filed additional briefs. The case stands submitted as of April 22, 1971.

I. THE BY-PASS ISSUE

Initially, respondent renews the contention that the case of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), "revolutionized" the law on deliberate by-pass of state procedures and established a standard inconsistent with the standard used by the Ninth Circuit in its Pineda decision wherein an evidentiary hearing on the by-pass issue was ordered. This court rejected this contention in its pre-hearing order, and now re-affirms its conclusion in that regard. McMann established the law on the availability of post-conviction relief where the conviction rests on a guilty plea. The Supreme Court characterized a guilty plea in certain circumstanes as "* * * nothing less than a refusal to present his federal claims to the state court in the first instance—a choice by the defendant to take the benefits, if any, of a plea of guilty and then to pursue his coerced-confession claim in collateral proceedings." 397 U.S. at 768, 90 S.Ct. at 1447. The Court concluded that if the plea of guilty—and the "plain by-pass" of a state forum inherent in it—was based on reasonably competent advice of counsel, then collateral attack on the voluntariness of the plea would be precluded. In essence, the Court held that if the guilty plea by-pass of a state forum was an intelligent, rational, deliberate choice through which the defendant hoped to profit, then that defendant should not later be allowed to complain.

In the present case, however, Pineda was convicted after a trial. In this situation, the very act of going to trial negates the deliberate refusal to present federal claims to the state forum that inheres in the intelligent guilty plea. McMann is therefore inapposite;¹ and that decision thus did not erode the mandate of the Ninth Circuit in Pineda that an evidentiary hearing be held to resolve the by-pass issue herein.

Resolution of the by-pass issue in the present case is a simple matter. The Ninth Circuit pointed out that trial counsel in Pineda's state conviction apparently did not know about Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and that if this ignorance was the reason why counsel did not object to evidence seized pursuant to a search warrant infirm under Aguilar, then there would of course have been no deliberate by-pass or waiver. 424 F.2d at 372. The testimony of petitioner's trial attorney, adduced at the evidentiary hearing, has established that he was in fact unaware of the Aguilar decision, and that this was therefore the reason for his failure to object to the introduction of evidence seized pursuant to the invalid search warrant. (RT 11). Accordingly, this court concludes that there was no deliberate by-pass or waiver of this federal claim, and that it is thus cognizable in these proceedings.

II. THE SEARCH-AND-SEIZURE ISSUE

The essential facts surrounding the search and seizure are these: Stanley Shaver, a member of the narcotics detail of the Santa Clara County Sheriff's Office, participated in the arrest of petitioner and the execution of the (invalid) search warrant on August 3, 1964. (RT 48). Sometime in the latter part of July, 1964, detective Shaver received information from a confidential informant that petitioner's brother, Charlie Pineda, was in possession of heroin and had been dealing in it. (RT 51). The informant told Mr. Shaver that he had purchased heroin from Charlie Pineda, and that Charlie Pineda's house on Chestnut Street in Gilroy contained heroin. (RT 52). The informant had proven reliable in the past, having given information which had resulted in arrests and convictions several times. (RT 49-50). The informant had not passed any false information to Shaver at any time. (RT 50). Detective Shaver could not recall the date on which the informant had allegedly purchased heroin from Charlie Pineda, (RT 58), but testified that it was his policy to procure a search warrant within 10 days from the date of receiving such information. (RT 57-58).

On the evening of August 3, 1964, sometime shortly after dark, Shaver and other officers put Charlie Pineda's house under surveillance. (RT 52, 59). They were about one-half block away. While observing the house, a vehicle in which Shaver had previously seen Charlie Pineda pulled into the driveway. Someone alighted from the car and entered the house. (RT 52, 53). Given the darkness and the distance, detective Shaver was unable to recognize the person. This person did not leave the residence prior to the raid which ensued.

When the detectives entered the residence, they did not knock; nor was there a prior announcement of identity and purpose. It was only as the front door was opened that detective Shaver stated that they were police officers; that they had a search warrant; and that no one should move. (RT 54). The reason for the unannounced entry was that in his experience, the narcotics inside the house would be disposed of if a request to enter were first tendered. (RT 54).

The occupants of the house—including Charlie Pineda and his brother Ernest, the petitioner herein—were arrested. Heroin and accompanying paraphernalia were seized as contraband and used to convict petitioner.

A. PROBABLE CAUSE FOR THE ARREST

Petitioner advances several theories on which the search was invalid. Two of these theories can be easily disposed of. The first is that there was no probable cause for the arrest (and thus the contemporaneous search was also invalid) since the officers did not have a reasonable basis to believe that Charlie Pineda was in the house. See Cal.P.C. § 844. This contention is patently incorrect. As a starting point, the Court of Appeals for the District of Columbia has stated in a search and seizure case that: "Concepts of probable cause and reasonableness prima facie justify looking for a man at home after 10 p. m." Dorman v. United States, 435 F.2d 385, D.C. Cir., 1970, on rehearing en banc, at p. 15 of slip opinion. (Appendix A to petitioner's memorandum of points and authorities following evidentiary hearing). In the present case, in addition to the fact that it was nighttime and the house was known to the officers as Charles Pineda's house, there was also the car which pulled into the driveway and the person who went into the house therefrom. And this was the car in which Charlie Pineda had been seen previously by detective Shaver. In these circumstances, the officers who raided the house had an eminently reasonable basis to believe that Charlie Pineda was in his house.

Further, the court is of the view that the police had probable cause to arrest Charlie Pineda. From a reliable informer, they had information that Charlie possessed heroin; that he sold heroin to the informer; and that he kept heroin in his house. The informer had personal knowledge of these facts—having bought heroin from Charlie, and having seen heroin in his house—and directly communicated this information to the officers who participated in the arrest. There was thus abundant probable cause to arrest Charlie Pineda.

It is true that on cross-examination at the evidentiary hearing, detective Shaver...