FINDINGS AND RECOMMENDATIONS Petitioner is a state prisoner proceeding pro se with a first amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his May 18, 2005, Sacramento County Superior Court conviction on numerous counts based on his involvement in a large-scale drug trafficking enterprise. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application for habeas corpus relief be denied.
In its partially published memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
PROCEDURE
By indictment and later amendments to the indictment, [co-defendant Jason] Tolliver and Villasenor were charged, along with 13 others. The counts applicable to Tolliver and Villasenor were as follows:
• Count one (Tolliver and Villasenor), conspiracy to transport cocaine between noncontiguous counties (Health & Saf. Code, § 11352, subd. (b); Pen.Code, § 182, subd. (a)(1)), with the following additional allegations: (1) the offense involved more than 40 kilograms of cocaine (Health & Saf. Code, § 11370.4, subd. (a)(5)); (2) Villasenor and Tolliver were substantially involved in the planning, direction, execution or financing of the underlying offense (Health & Saf. Code, § 11370.4, subd. (a)); (3) a principal was armed with a firearm during the commission of the offense (Pen.Code, § 12022, subd. (a)(1)); (4) Villasenor induced others to participate in the offense or occupied a position of leadership in its commission (Cal. Rules of Court, rule 4.421(a)(4));
• Count two (Villasenor), conspiracy to use a minor to transport cocaine (Health & Saf. Code, § 11353, subd. (b); Pen.Code, § 182, subd. (a)(1));
• Count four (Tolliver and Villasenor), conspiracy to transport and sell cocaine (Health & Saf. Code, § 11352, subd. (a); Pen.Code, § 182, subd. (a)(1)), with the additional allegation that a principal was armed during the commission of the offense (Pen.Code, § 12022, subd. (a)(1));
• Count five (Tolliver and Villasenor), conspiracy to transport and sell methamphetamine (Health & Saf. Code, § 11379, subd. (a); Pen.Code, § 182, subd. (a)(1)), with the additional allegation that a principal was armed during the commission of the offense (Pen.Code, § 12022, subd. (a)(1));
• Count six (Tolliver and Villasenor), sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a));
• Count eight (Villasenor), sale of cocaine (Health & Saf. Code, § 11352, subd. (a));
• Count eleven (Villasenor), possession of a false compartment to conceal a controlled substance (Health & Saf. Code, § 11366.8, subd. (a));
• Count twelve (Villasenor), possession of a false compartment to conceal a controlled substance (Health & Saf. Code, § 11366.8, subd. (a));
• Count thirteen (Tolliver), possession of methamphetamine for sale (Health & Saf. Code, § 11378), with an additional allegation that he possessed the methamphetamine in crystalline form (Pen.Code, § 1170.74); and
• Count fourteen (Tolliver), possession of cocaine (Health & Saf. Code, § 11350, subd. (a)).
An amendment to the indictment further alleged that Tolliver was convicted of two prior serious felonies: a 1992 conviction for brandishing a firearm against a person in a motor vehicle and a 1992 conviction for assault with a firearm.
A jury found Tolliver guilty on counts four, five, six, thirteen, and fourteen. It found true the allegation that he possessed methamphetamine in crystalline form, but found not true the arming allegations. The jury was unable to reach a verdict on count one, as to which the trial court declared a mistrial and later dismissed on the prosecution's motion. The jury found that Tolliver had two prior convictions, and the court found that those prior convictions were for serious felonies.
The same jury found Villasenor guilty on all counts alleged against him except count six, on which the jury found Villasenor not guilty. The jury also found true all of the additional allegations relating to Villasenor.
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At Villasenor's sentencing, the trial court imposed the upper term of nine years for count one, plus consecutive 20-year and one-year terms for the weight and arming enhancements, respectively. The court imposed the middle term for each of the remaining counts and either stayed the term pursuant to Penal Code section 654 or made the term concurrent to the term imposed for count one. Villasenor's total determinate term was 30 years.
FACTUAL BACKGROUND
Because of the nature of the defendants' contentions on appeal, it is unnecessary to recount the details of the two-year investigation of the crimes. We therefore provide only a brief summary of the illegal activities in which Tolliver and Villasenor engaged and add details, as needed, in the discussion of their contentions on appeal.
An investigation conducted by a multi-agency task force uncovered a large drug-trafficking operation that, among other illegal activities, sought to transport large quantities of cocaine from Texas to Sacramento. Using numerous investigative techniques, such as informants, searches, visual surveillance, and wiretapping, the investigators were able to identify Tolliver and Villasenor as participants in the illegal activities. Villasenor, along with John Quintero, was at the head of the organization, while Tolliver distributed controlled substances.
In early 2002, the investigation revealed trips between Texas and Sacramento on behalf of the trafficking operation. Jesse Vasquez, who worked under Villasenor in the organization, sent Sandra Cortez, a load car driver from Sacramento, on two trips to Texas and back. After Cortez's trips, Vasquez sent Joseph Duarte, another load car driver, to Texas in a Chrysler Concorde that had a false compartment installed in the trunk. While waiting in Texas for the directive to return to Sacramento, Duarte got cold feet and returned to Sacramento, leaving the Concorde in Texas. Other recruits took over and started the trip back to Sacramento in the Concorde and a maroon Lincoln.
On May 16, 2002, the investigators, who had tracked the Concorde as it traveled, arranged for law enforcement in Texas to stop the Concorde and Lincoln. The resulting search revealed about 49 kilograms of cocaine stashed in the false compartment of the Concorde. On the same day, Villasenor's home was searched, as well as a vehicle in his driveway. A firearm was found in the vehicle. Tolliver's residence was also searched that day, and a significant amount of methamphetamine was found.
People v. Tolliver, et al., 160 Cal.App.4th 1231, 1233-1236 (2008).
After the California Court of Appeal affirmed petitioner's judgment of conviction, he filed a petition for review in the California Supreme Court. Resp't's Lodg. Doc. entitled "California Supreme Court, Petition for Review, April 23, 2008." That petition was summarily denied. Resp't's Lodg. Doc. entitled "California Supreme Court Denial of the Petition for Review; June 18, 2008."
Petitioner subsequently filed a petition for a writ of habeas corpus in the Sacramento County Superior Court. Resp't's Lodg. Doc. entitled "Sacramento County, Petition for Writ of Habeas Corpus, March 23, 2010." The Sacramento County Superior Court denied that petition in a reasoned decision on the merits of petitioner's claims. Resp't's Lodg. Doc. entitled "Sacramento County Order Denying Petition for Writ of Habeas Corpus, April 19, 2010."
Petitioner next filed a petition for writ of habeas corpus in the California Court of Appeal. Resp't's Lodg. Doc. entitled "Third Appellate District Court of Appeal, Petition for Writ of habeas Corpus, May 14, 2010." That petition was summarily denied. Resp't's Lodg. Doc. entitled "Third Appellate District Court of Appeal Order Denying Petition for Writ of Habeas Corpus, June 10, 2010."
Finally, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. Resp't's Lodg. Doc. entitled "California Supreme Court, Petition for Writ of Habeas Corpus, March 29, 2011." That petition was also summarily denied. Resp't's Lodg. Doc. entitled "California Supreme Court Order Denying Petition for Writ of habeas Corpus, October 12, 2011."
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II. Standards of Review Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1,5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 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 the State court proceeding.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38 (2011); ...
