Scott v. Sherman

• Decision Date: 01 May 2019
• Docket Number: No. 2:16-cv-1957 JAM KJN P,2:16-cv-1957 JAM KJN P
• Parties: THOMAS CHARLES SCOTT, Petitioner, v. STEWART SHERMAN, et al., Respondents.
• Court: U.S. District Court — Eastern District of California

THOMAS CHARLES SCOTT, Petitioner, v. STEWART SHERMAN, et al., Respondents.

No. 2:16-cv-1957 JAM KJN P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 1, 2019

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel. He filed an application for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a 2012 judgment of conviction for cultivating marijuana, possession of marijuana for sale, possession of concentrated cannabis, maintaining a place for narcotic trafficking, and possession of matter depicting children engaged in sexual conduct. He was sentenced to 25 years-to-life in state prison. After careful review of the record, this court concludes the petition should be denied.

II. Procedural History

Following his 2012 jury trial, petitioner was convicted of cultivating marijuana (Cal. Health & Saf. Code, § 11358), possession of marijuana for sale (Cal. Health & Saf. Code, § 11359), possession of concentrated cannabis (Cal. Health & Saf. Code, § 11357(a)), maintaining a place for narcotic trafficking (Cal. Health & Saf. Code, § 11366), and possession of matter depicting children engaged in sexual conduct (Cal. Pen. Code, § 311.11(b)). He was sentenced to 25 years-to-life on the first and fifth counts; sentences on the remaining counts were stayed (Cal. Pen. Code, § 654). (LD No. 1.)

Petitioner's appeal to the Third Appellate District of the California Court of Appeal (LD Nos. 2-4) resulted in the following disposition:

The judgment is modified to (1) reduce the criminal assessment imposed pursuant to Government Code section 70373, subdivision (a)(1) from $175 to $150, and (2) award defendant, in lieu of the 384 days originally received, 576 days of presentence custody credits, consisting of 384 actual days and 192 conduct days. As so modified, the judgment is affirmed. Th trial court is directed to (1) amend the abstract of judgment to reflect these modifications, and (2) correct section 1 of the abstract of judgment to reflect that defendant's sentence on count V is to run concurrent to his sentence on count I. ...

(LD No. 5 at 13.) Thereafter, the California Supreme Court denied his Petition for Review. (LD Nos. 6 & 7.)

On June 1, 2015, petitioner filed a petition for writ of habeas corpus in the Tehama County Superior Court. (LD No. 8.) Respondent served its informal response on July 9, 2015. (LD No 9) and petitioner filed a reply brief on August 3, 2015 (LD No. 10). The Tehama County Superior Court denied the petition in an order dated September 16, 2015. (LD No. 11.)

Subsequently, petitioner filed a habeas petition with the Third Appellate District in November 2015. (LD No. 12.) That court summarily denied the petition in an order dated January 22, 2016. (LD No. 13; see also https:\\www.appellatecases.courtinfo.ca.gov [C080644].)

On February 29, 2016, a petition for writ of habeas corpus was filed with the California Supreme Court. (LD No. 14; see also https:\\www.appellatecases.courtinfo.ca.gov [S232743].) The state's highest court summarily denied the petition on May 25, 2016. (LD No. 15.)

On August 18, 2016, petitioner filed the instant petition and related points and authorities. (ECF Nos. 1 & 4.) Respondent filed an answer to the petition on December 20, 2016. (ECF No. 18.) On February 13, 2017, petitioner filed his traverse. (ECF No. 24.)

III. Factual Background

The following facts are taken from the California Court of Appeal for the Third AppellateDistrict's unpublished decision filed October 31, 2014:

A. The Prosecution's Case

On June 17, 2011, Eric Clay, an investigator with the Tehama County District Attorney's Office and an expert in marijuana investigations, was looking at a Web site called "budtrader.com" when he came across a job listing for a kitchen worker for a marijuana edibles business in Red Bluff. The listing included the Web site address . According to that Web site, Budd Buzzard produced and sold marijuana laced beef jerky, honey, and tinctures (a concentrated form of marijuana). The Web site listed defendant as the company's founder and described the business's recent expansion and purchase of a mobile kitchen. Clay performed an online records search for fictitious business filings and found defendant listed as the registered owner of Budd Buzzard Products based at 23410 Hillman Court in Red Bluff.

On June 22, 2011, Clay along with members of the Tehama Interagency Drug Enforcement Task Force (TIDE) executed a search warrant at 23410 Hillman Court in Red Bluff. The search included a residence and a 25-foot trailer located behind the residence.

The trailer contained a fully-enclosed industrial kitchen, complete with stainless steel appliances, a stove, a dehydrator, and a refrigerator. Officers also found two digital scales, several boxes of gallon-size Ziploc freezer bags, approximately 2,000 one-ounce baggies, and a sheet of Budd Buzzard's Jerky sticker labels.

The residence contained three bedrooms, two of which had been converted: one to an office and the other to a "hangout" or "party" room. It appeared that only defendant lived in the main residence. Inside the office officers found: three five-gallon buckets containing a liquid form of marijuana labeled "tincture" and "20-ounces to four gallons," two five-gallon buckets containing what appeared to be honey, a scale, a credit card scanner, invoices, business cards, sticker labels, and United Parcel Service (UPS) pouches. There were between 12 and 20 sales receipts and invoices found, some for "cannabis jerky" and "honey." The invoices were labeled Budd Buzzard Beef Jerky. One invoice, dated May 26, 2011, showed $100 cash was paid for one pound of jerky. A photocopy of a receipt dated June 2, 2011, showed $500 cash was paid for "24 tincture, six honey, and one pound jerky...."

The business cards read, "Budd Buzzard Products Makers of the Original Cannabis Beef Jerky. It is yummy good," and listed defendant's name, a phone number, and the Web site . The back of the cards read, "We're now shipping throughout California and we pay for the shipping with orders totalling [sic] $200 or more. www.buddbuzzard.com. Beef jerky, $100 pound ... [(]32 times .5 bags equal one pound[)] ... Honey/Pot, $15 ... [(]Three-ounce jar[)] ... tincture, $15 each or four for $50 ... [(]One ounce bottles[)]."

The sticker labels had a picture of a marijuana leaf and read, "A Nor ... Cal product, $7 ... [ (]Two for $12[) ]" and "www.buddbuzzard.com."

Another document found in the office showed 100 shipping pouches had been ordered by "Budd Buzzard Products Tom" and received from a UPS shipping supply company.

Inside the kitchen of the main residence, officers found 38 gallon-size freezer bags, each of which contained 32 smaller bags of jerky. Each of the smaller bags was labeled, "Budd Buzzard Products, Jerky," and "half ounce." There were nine small bags of jerky that were not inside of a larger bag. Officers also discovered two amber-colored bottles of liquid with dropper tops and labels that said, "Budd Buzzard, Tincture Number 6"; two one-gallon containers full of a liquid substance, labeled "tincture" and "8 to 1"; various containers holding a sludge-like, green material that smelled like marijuana; a crock pot containing liquid and plant material that looked and smelled like marijuana; two vacuum heat sealers; and a container labeled "honey for jerky."

Inside the "hangout" room officers found 17 mason jars containing about one and one-half pounds of marijuana, a recipe for 100 pounds of marijuana jerky, and a breakdown of the cost to produce 100 pounds of marijuana jerky. Seven of the jars were labeled with the strain of marijuana inside. Officers also found various pipes and bongs.

There were two messages on the answering machine: one from a UPS representative concerning setting up an account to ship items; and another from a woman calling about marijuana jerky.

Outside officers discovered ten live marijuana plants, three of which were in the flowering stage.

Defendant returned home during the search and his car was searched. Officers found over 50 pounds of beef in the trunk. Defendant's wallet contained a credit card with his name and "Budd Buzzard Products," as well as shipping receipts indicating beef jerky had been shipped on June 15, 2011.

During the search, an employee who "work[ed] with the jerky" arrived at the residence. Completed timecards for "Gary" and "Marcos" were found in the office inside the residence. The first date that appears on the timecards is April 28, 2011, and the last date is May 3, 2011.

Law enforcement recovered a total of 38 pounds of beef jerky and over two pounds of usable marijuana from the residence, not including the tinctures and jerky. Forensic analysis of the jerky revealed the presence of Delta 9 tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana. Tincture taken from the residence also tested positive for Delta 9 THC. Testing of the honey was inconclusive. A usable amount of concentrated cannabis was found in the two dropper-top bottles, two gallon-size containers,and other marijuana products in various stages of production.

Clay opined that while some of the marijuana may have been possessed for personal use, "overall, the marijuana, especially in the various forms of jerky, honey, tincture," was possessed for sale and defendant was operating a commercial enterprise. Clay based his opinion on, among other things, the shipping receipts, Web site presence, and shipping materials.

Two computers were seized from the residence. The hard drive of one of the computers contained 33 images of suspected child pornography. Many of the images depicted small children and undeveloped teens in sexual postures manipulating a male's erect penis or engaged in sexual intercourse or oral copulation.

B. The Defense

Dr. Marilyn Hulter, a board-certified anesthesiologist, who worked at the Cannabis Healing Clinic in Redding, testified for the

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