Roy v. Haviland, 2: 10 - cv - 245 - TJB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtTIMOTHY J BOMMER
Docket Number2: 10 - cv - 245 - TJB
PartiesJESSE ROY, Petitioner, v. J.W. HAVILAND, Respondent.
Decision Date17 August 2011

JESSE ROY, Petitioner,
J.W. HAVILAND, Respondent.

2: 10 - cv - 245 - TJB


DATED: August 17, 2011


Petitioner, Jesse Roy, is a former state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner served a sentence of seven years in prison after a jury convicted him on one count of possession of a controlled substance (phenobarbital), one count of transportation of that controlled substance, one count of possession of controlled substance paraphernalia, and one count of possession of not more than 28.5 grams of marijuana (Cal. Health & Safety Code §§ 11377(a), 11379(a), 11364, and 11357(b), respectively). Petitioner raises four claims in this federal habeas petition; specifically: (1) his conviction was based on evidence obtained through a warrantless search which was not justified as a search incident to arrest, in violation of his Fourth Amendment rights ("Claim I"); (2) the prosecution suppressed evidence favorable to Petitioner by failing to divulge the identity of a witness and the prosecution intentionally used perjured testimony ("Claim II"); (3) there was

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insufficient evidence for the jury to find Petitioner guilty of transportation of a controlled substance ("Claim III"); and, (4) the jury instructions with regard to transportation of a controlled substance did not include a necessary element of the crime, violating Petitioner's right to a jury verdict and due process ("Claim IV"). Both Petitioner and Respondent consented to the jurisdiction of a United States Magistrate Judge in this case. Docket Nos. 15, 16. For the reasons stated herein, the federal habeas petition is denied.


28 U.S.C. § 2254(a) provides that a "district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." "Section 2254(a)'s 'in custody' requirement is jurisdictional and therefore it is the first question we must consider." Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (internal citations and quotations omitted). The "in custody" requirement "has been interpreted to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is 'under the conviction or sentence under attack at the time his petition is filed.'" Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005) (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam)). The petitioner must be in custody at the time that the petition is filed, see Carafas v. LaVallee, 391 U.S. 234 (1968), but the petitioner's "subsequent release from custody does not itself deprive the federal habeas court of its statutory jurisdiction." Tyars v. Finner, 709 F.2d 1274, 1279 (9th Cir. 1983).

In the present case, Petitioner was a state prisoner at the time he filed his initial habeas petition. See Pet'r's Pet., Docket No. 1. He was also in custody when he filed his amended petition. See Pet'r's Am. Pet., Docket No. 10. Thereafter, on March 16, 2010, Petitioner filed a notice of change of address which indicated he had been released from prison. See Docket No. 11. Because Petitioner was "in custody" at the time he filed his petition, this court retains jurisdiction to reach the merits of his claims.

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At approximately 5:45 p.m. on December 3, 2004, a police officer was dispatched to respond to an anonymous report of three males smoking a controlled substance at an apartment complex playground on Madrone Avenue in West Sacramento.FN1 The officer was familiar with the described complex as he had previously received calls reporting drug activity and drinking in public in the area. The dispatcher described the suspects as three Black males, one heavyset and another thin and bald. One individual wore a green jacket, one wore a black jacket, and the third wore dark clothing. The officer arrived on the scene within approximately three minutes and observed two males who matched the general description given over dispatch. As the officer approached the playground area in his patrol car, the two individuals noticed the car and "immediately began," as the officer testified, "walking at a swift pace slash running" toward the rear of the apartment complex. The officer radioed for more units and exited the car.
FN1. The facts are drawn from trial testimony and evidence, as well as from the hearing on the motion to suppress evidence. Any pertinent differences between the two sources are noted.
The officer ran behind the two individuals and yelled, "West Sacramento Police, stop." Defendant stopped, but the other individual continued to run away. The officer estimated that defendant had moved approximately 75 yards from his initial spot to where he was stopped.FN2 When the officer approached defendant, he observed that defendant's eyes were bloodshot, his speech was slurred, and he appeared unsteady on his feet. The officer also smelled a strong odor of alcohol and marijuana on defendant.
FN2. In the motion to suppress hearing, the officer testified that defendant ran about 60 feet before he was stopped.
Defendant's hands were underneath a large, puffy jacket when the officer approached him. The officer ordered defendant to show his hands, but defendant did not comply and looked around in other directions. The officer again ordered defendant to show his hands and pointed his gun at defendant, but defendant still did not obey. Then the officer ordered defendant to the ground with his hands

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visible, and defendant lay down with his hands out from under his coat. The officer handcuffed defendant and asked if he had had anything to drink. Defendant replied that he had some beer. The officer informed defendant that he had received a call about individuals smoking marijuana at the playground, and defendant matched the caller's description. Defendant then told the officer that he had smoked marijuana and "meth" (methamphetamine). When the officer asked defendant if had any drugs on his person, defendant admitted that he had some marijuana on him. The officer then searched the pockets of defendant's pants and found marijuana, a plastic pill bottle containing 13 pills, and two glass pipes. Eight of the pills found were later determined to be phenobarbital. The remaining five pills were not found to be illegal substances.
Defendant moved to suppress the evidence the officer found on him. Defendant principally argued that the officer did not have reasonable suspicion to initially detain him. The trial court denied defendant's motion to suppress, finding that the officer had reasonable suspicion to detain defendant based on the corroboration of the anonymous tip and defendant "walking away" or "immediately attempt[ing] to flee" from the officer, and that no infringement occurred after the initial detention.
After being found guilty on all counts, defendant moved for a new trial based on newly discovered evidence and prosecutorial violations of Brady, supra, 373 U.S. 83 (failing to disclose material exculpatory evidence). Defendant later withdrew his motion for new trial, and the trial court dismissed one of defendant's two alleged prior strike convictions. Defendant received a seven-year term.

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of,

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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 state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. ...

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