Pryor v. Spearman

• Decision Date: 17 August 2020
• Docket Number: No. 2:14-cv-01521-DB,2:14-cv-01521-DB
• Court: U.S. District Court — Eastern District of California
• Parties: MICHAEL B. PRYOR, Petitioner, v. M. SPEARMAN, Respondent.

MICHAEL B. PRYOR, Petitioner, v. M. SPEARMAN, Respondent.

No. 2:14-cv-01521-DB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 17, 2020

ORDER

Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction imposed by the Tehama County Superior Court for cultivating, possession of, and transportation of marijuana, and for driving with a suspended or revoked license. This matter proceeds on claims one and five in petitioner's second amended habeas petition. (ECF No. 80.) Petitioner alleges he was denied due process when he was denied the right to file a motion to suppress evidence and the prosecutor threatened a witness rendering her unavailable to testify. (ECF No. 60.) Both parties have consented to the jurisdiction of a magistrate judge in this case. (See ECF Nos. 7, 17, 83.) For the reasons set forth below, this court will deny the petition. See 28 U.S.C. § 636(c)(1).

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BACKGROUND

I. Facts Established at Trial

The California Court of Appeal for the Third Appellate District provided the following summary of some of the evidence presented at trial:¹

In three consolidated cases that were based on multiple searches taking place on three different dates, a jury convicted defendant of two counts of cultivating marijuana (Health & Saf. Code, § 11358) (counts I and IV), three counts of possession of marijuana for sale (Health & Saf. Code, § 11359) (counts II, V and IX), transporting marijuana (Health & Saf. Code, § 11360, subd. (a)) (count VIII), and misdemeanor driving on a revoked license (Veh. Code, § 14601.1, subd. (a)) (count X). Defendant admitted the special allegations that he was released on bail when he committed the offenses in the later two cases (Pen. Code, § 12022.1). In a fourth case, defendant pled no contest to conspiracy (Pen. Code, § 127). He was sentenced to nine years in prison.

Defendant contends his conviction must be reversed because he was not permitted to challenge the legality of one of the searches during trial. He contends that once the trial court learned at trial of evidence suggesting the first search may have been illegal, the court had a duty to investigate the legality of that search. . . .

. . .

Defendant's Motion for a Mistrial

The first witness at trial was Norman Andreini, who testified about his lease arrangement with defendant for the Balis Bell Road property. [RT² at 66-68.] On cross-examination, Andreini testified he had flown over the property in the summer of 2009 because defendant had stopped making lease payments and Andreini was going to evict him. [RT at 70-71.] Andreini entered the property once during the eviction process; "[t]he night before he was raided." [RT at 71.] When asked how he knew defendant was going to be raided, Andreini responded, "Because I was asked by the officers to make sure the plants were still there and if he was." [RT at 71.] Andreini confirmed that the officers asked him to inspect the property and make sure the plants were still there. [RT at 71-72.]

Defense counsel, claiming he was surprised to hear about this advance inspection, argued he was entitled to bring a suppression motion, if necessary. [RT at 72.] The court called a recess and met with counsel in chambers off the record. [RT at 72.] After the recess, the defense had no more questions for Andreini. [RT at 72.] The trial proceeded with other witnesses.

Lodged Doc. 1 at 1-4.

A. Marijuana Plants Found on Petitioner's Properties and Petitioner's Motion for Mistrial

Eric Clay ("Clay"), an investigator with the Tehama County District Attorney's office, was designated as an expert in the possession of marijuana for sale and the cultivation of marijuana. RT at 73-77. He investigated petitioner in 2009 and obtained a search warrant for the July 30, 2009 search of petitioner's residence on Ivy Lane in Red Bluff, petitioner's business (Norcal Powder Coating) on Vista Way in Red Bluff, petitioner's wife's business on Vista Way in Red Bluff, and property that petitioner leased on Balis Bell Road. RT at 77, 82.

While on the Balis Bell Road property, Clay encountered petitioner driving a pickup with a water tank trailer who told him he was out watering his plants. RT at 78-79. Clay conducted a search of the property and found three separate garden sites with a total of 191 marijuana plants growing in metal drum-style barrels. RT at 80. There were also two generators on the property; one was connected to a well for pumping water and the other was being used to power a campsite. RT at 81-82.

Clay opined that the marijuana found at Balis Bell Road was processed for sale. RT 83. He supported his opinion, explaining:

Mainly based on the volume of the plants being grown and what those plants would have yielded product wise, close to 200 plants is definitely going to produce so much marijuana that one person couldn't consume it themselves, so it wouldn't be for personal use.

The second thing is that it's been my experience with other marijuana investigations that someone who spends as much money on a marijuana garden such as this; the leasing of the property, the fuel that it takes to travel out to the property to take care of the plants, the materials and supplies needed for the grow, it could be into the tens of thousands of dollars in expenses that someone's not going to spend that much money for marijuana for themselves when they could go buy a usable amount on the street for under a hundred dollars.

And in addition to that to continue, marijuana loses THC value over a period of time, so you're not going to grow the rest of your life's worth of personal consumption marijuana, because marijuana loses THC value and after -- depending on how it's stored -- it's going to have no THC value, which is what the user wants.

RT at 83-84. Clay estimated the plants found would have produced between one to two poundsof marijuana bud per plant at approximately $3,000 per pound based on his knowledge of the price of marijuana in northern California in 2009. RT at 84-85. An average amount of marijuana used by one person is approximately one-half gram. RT 87.

Clay also based his opinion on statements petitioner made to Andreini that he would come into a large sum of money in the fall, which is the harvest time for outdoor marijuana grown in the area. RT at 87.

Another factor Clay considered was the fact that there were multiple marijuana gardens on a single piece of property. RT at 87. Clay explained that it is also common for large scale marijuana growers to spread their gardens out over a geographic area so that all is not lost if one gets raided. RT at 87-88. Clay also discussed the fact that the barrels the plants were found in were in a camouflage pattern in wooded areas and a tan color in a dirt field with dry grass, suggesting they were being concealed. RT at 88.

During the search of petitioner's residence on Ivy Lane, law enforcement found about $5,700 in $20 bills as well as a small user amount of marijuana, approximately 40 grams. RT at 90. Clay explained, "[a] larger amount of cash . . . than the average person has on hand and the fact that they're all in 20s can be consistent with drug sales." RT at 90.

Investigators found a growing tray at petitioner's business, "which is typically used for cloning marijuana plants, taking clippings off a larger marijuana plant, and starting new marijuana plants or starting from seed in these trays." RT at 90-91. There were also some grow lights, nutrients, and some clone mix, the latter of "which is a chemical used to help promote root growth when you do cut clippings from a marijuana plant to start a new marijuana plant from a cloned marijuana plant." RT at 91.

On cross-examination, Clay testified that it was possible that he spoke to Andreini the day before the execution of the search warrant. RT at 92.

Richard Davidson ("Davidson"), an expert in the possession of marijuana for sale or the cultivation of marijuana, testified for the prosecution as follows. RT at 110. Davidson obtained a search warrant for three locations based on his investigation of petitioner: one location on Emerson Road, another location on Stice Road, and a third location on Ivy Lane (petitioner'sresidence). RT at 111. The search warrant was served on August 30, 2010 and Davidson went to the Emerson Road location in a rural area of Tehama County. RT at 111. They found three locations on the property with a total of 197 marijuana plants. RT at 112. Davidson found potting soil and receipts for potting soil bearing petitioner's name. RT at 115. Davidson was informed 30 budding marijuana plants were found at the Stice Road location and 23 marijuana plants were found growing indoors at the Ivy Lane location. RT at 116. Davidson explained the difference between an indoor marijuana grow versus an outdoor marijuana grow, including advantages of growing indoors such as being able to control the settings and continually keep a crop going. RT at 116-18.

Davidson also served a search warrant on October 25, 2010 at a location on Kimberly Farms Drive in Shasta County. RT at 118. Davidson found marijuana drying on strings in a shop building, an indoor grow room, and marijuana being processed in the residence on the property. RT at 119-22. Davidson counted a total of 99 plants on the property. RT at 120. Davidson also found a scale on the Kimberly Farms property, which he explained is significant because "[o]ften most of the time a subject who is going to be selling marijuana will weigh it out so he knows exactly how much marijuana is in a particular bag for the sales." RT at 126. Similarly, clear plastic bags were found, which are "often used for the storage of marijuana" after it is "weighed out, and then sold in increments." RT at 126.

The Kimberly Farms electricity bill was approximately $12,000, which shows that "somebody is conducting an indoor marijuana cultivation" beca...